revisional jurisdiction 1. heard sri deepak kumar civil

3 All]. National Insurance Co. Ltd. Vs. Ram Kumar & Ors. 1427

REVISIONAL JURISDICTIONCIVIL SIDE

DATED: LUCKNOW 18.12.2014

BEFORETHE HON'BLE ANIL KUMAR, J.

Civil Revision No. 60 of 2010

National Insurance Co. Ltd. RevisionistVersus

Ram Kumar & Ors. ...Opp. Parties

Counsel for the Revisionist:Sri Deepak Kumar Agarwal

Counsel for the Opp. Parties:---

Motor Vehicle Act, 1988-Section-173(2)-Revision against award by AccidentClaim Tribunal-amount being less than10,000/--revision against that-notmaintainable.

Held: Para-12Accordingly, in view of the said factsonce the statute has provided an appealunder Section 173 of the Motor VehiclesAct against an award passed by the MotorAccidents Claims Tribunal and further insub-section (2) of Section 173 of the MotorVehicles Act provides that no appeal shalllie against any award of a Claims Tribunal,if the amount is less than ten thousandrupees, so the revision filed by therevisionist thereby challenging the awarddated 5.2.2010 passed by Motor AccidentClaims Tribunal/ Additional Distrct Judge,Balrampur is not maintainable ( see alsoShipping Corporation of India Ltd. v.Machado Brothers and others AIR 2004 SC2093)

Case Law discussed:2004 (22) LCD 40; AIR SC 96; (1998) 3 SCC237; (2004) 5 SCC 518; (2003) 5 SCC 590;AIR 2003 SC 511; (2003) 5 SCC 134; (2003) 4SCC 753; AIR 2004 SC 2093.

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard Sri Deepak KumarAgarwal, learned counsel for therevisionist and perused the record.

2. Undisputed facts of the presentcase are that in an accident which tookplace on 27.12.2007 one Sri Ram Kumarsustained grievous injuries due to rash andnegligent driving by the driver of the JeepNo. U.P.-32/ W-7509 insured with theNational Insurance Company Limited/appellant.

3. In order to get compensation, hefiled a Motor Accidents Claim Petitionno. 16 of 2008 ( Ram Kumar Vs. Sri RamGupta and others ), allowed by means ofjudgment and award dated 5.2.2010passed by the Motor Accident ClaimsTribunal/ Additional District Judge Courtno.2, Balrampur thereby awarding a sumof Rs. 3520/- with 6% interest per annumfrom the date of filing of the claimpetition. Aggrieved by the same, presentrevision has been filed by the NationalInsurance Company Limited underSection 115 of Code of Civil Procedure,1908.

4. Sri Deepak Kumar Agarwal,learned counsel for the revisionist whilechallenging the impugned judgmentsubmits that as the award given by MotorAccident Claims Tribunal is less thanRs.10,000/- so in view of the embargo asgiven in sub-section (2) of Section 173 ofthe Motor Vehicles Act , appeal is notmaintainable . In these circumstances theonly remedy which is left to open for therevisionist / Insurance Company tochallenge the award by way of revisionunder Section 115 of Code of CivilProcedure, 1908. In support of hisargument, he has placed reliance on thedecision given by full Bench of this Court

1428 INDIAN LAW REPORTS ALLAHABAD SERIES

in the case of Kamla Yadav Vs. Smt.Shushma Devi and others, 2004 (22) LCD40. the relevant paragraphs is quoted asunder:-

" The procedure and powers of theTribunal are to be found under Section169 quoted earlier. Interest and costsboth can be awarded by the Tribunal.Section 173 provides for an appealagainst the award of claims Tribunal tothe High Court. Section 174 provides forissuance of Certificate by the Tribunal forrecovery of the amount of compensationin the same manner as arrears of landrevenue. The jurisdiction of the CivilCourt is barred under Section 175relating to any claim for Compensationwhich may be adjudicated upon by theClaims Tribunal.

From a perusal of the aboveprovisions, there is no room to doubt thatthe Claims Tribunal is under obligation toact judicially as on receipt of anapplication, the Tribunal has to givenotice to the parties who have to beafforded an opportunity of being heard.The Tribunal then has to hold an inquiryinto the claim before the Tribunal makesan award determining the amount ofcompensation. It is true that a Tribunalmay adopt summary procedure but theprovisions regarding notice to the partiesand hearing them before making theaward cannot be dispensed with. Forcertain purposes, namely, for takingevidence on oath and enforcing theattendance of witnesses and forcompelling the discovery and productionof documents and material objects, theTribunal shall have the powers of theCivil Court . That is to say, it can compelattendance of witness as well as maycompel discovery and production of

documents and material objects. Sofar thestructure and composition of the Tribunalis concerned, we find that one who is orhas been a Judge of a High Court or aDistrict Judge or qualified forappointment as a Judge of High Court oras a District Judge are eligible forappointment under Section 165(3) of theMotor Vehicles Act. The above provisionsobviously provides for appointment of aperson well-versed with the judicialfunctioning as well as sufficientexperience of working in the courts oflaw. The provisions of the Act do notpermit appointment of any other executiveauthority as member of the ClaimsTribunal. The tribunal has to base itsdetermination or award on the evidenceadduced an arguments advanced by theparties. It is not based on subjectiveopinion but objectively based on materialbrought before it during the course of theproceedings after investigation andinquiry . The awards can also be tested onthe basis of the provisions made under thelaw as under different provisions of theMotor Vehicles Act . The amount ofcompensation to be awarded has alsobeen indicated. In pursuance of theprovisions indicated above, AdditionalDistrict Judge have been appointed asMotor Accidents Claims Tribunal indifferent districts of the State. Not alonethat Motor Accidents Claims Tribunalacts judicially but it is under obligation toact as such as it has to go through theprocedure which is normally adopted inthe regular courts of law. A fewdeviations here and there in theprocedure will have no material bearingon the question so long, in substance, it isincumbent upon the Motor AccidentsClaims Tribunal to issue notice to theparties, hold investigation into the claimand provide opportunity of hearing to the

3 All]. National Insurance Co. Ltd. Vs. Ram Kumar & Ors. 1429

parties . During this process, partiesadduce their evidence and it has beenempowered to exercise the powers of theCivil Court in examining the witnesses onoath and to compel their attendance aswell as production of material documentsor objects necessary for determination ofthe claim. Thus an adjudicating bodywhich is composed of or consists ofexperienced judicial functionaries and itis under obligation to act judicially canhardly be said to be a body which is not ajudicial adjudicating body. Appointmentof any member of executive or non-judicial authority is not envisaged, ratherit stands excluded under the provisions ofthe Act. It has rightly not been disputedbefore us that the nature of disputearising in the claim petitions is a disputeof civil nature. It has also not beendisputed that prior to constitution ofMotor Accident Claims Tribunals suchdisputes of claims on account of MotorAccidents were being tried by the CivilCourt. It is , thus, clear that it is trial ofdispute of civil nature by a Tribunalhaving a judicial functionary as itsmember. There is no escape from theconclusion that the Motor AccidentClaims Tribunal has all the trappings of aCivil Court. Additional District Judge isalso undoubtedly a Civil Court. The onlyingredient which has to be seen is that asto whether it is the State's Judicial powerwhich is being exercised by the tribunal ornot. The Motor Accident Claims Tribunalhas been constituted by the State. Itsmembers are appointed by State. It dealswith disputes of civil nature which werebeing earlier dealt with by the regular civilcourts. There is no dispute that the civilcourts discharge the "States' Judicialfunctions" part of jurisdiction of whichstands transferred to the Motor AccidentsClaims Tribunal,composition,character as

well as functioning of which , havealready been indicated above. There can(not) also be any dispute that MotorAccidents Claims Tribunal is a courtsubordinate to the High Court in view ofthe fact that appeal against an award liesto the High Court which fact has beenheld to be conclusive on the point.

In view of the discussions heldabove, we are of the view that the ordersof the District Judge/ Additional DistrictJudge passed as Motor Accidents ClaimsTribunal will be amenable to revisionaljurisdiction of the High Court underSection 115 CPC."

5. Accordingly, it is submitted by SriDeepak Kumar Agarwal, learned counselfor the revisionist that revision may beallowed and the judgment and award dated5.2.2010 passed by the Motor AccidentClaims Tribunal / Additional DistrictJudge Balrampur may be set aside.

6. After hearing learned counsel forthe revisionist and going through therecord, the core question which arises forconsideration in the present case is whetherby way of revision under Section 115C.P.C., the revisionist/ Insurance Companycan challenge the impugned judgmentdated 5.2.2010 passed by the MotorAccident Claims Tribunal/ AdditionalDistrict Judge Court no.2, Balrampur inM.A.C.P. No.16 of 2008 or not?

7. In order to decide the saidcontroversy, it is appropriate to gothrough Section 173 of the MotorVehicles Act, 1988. The said sectionreads as under:-

"173 Appeals- (1) Subject to theprovisions of sub-section(2), any person


aggrieved by an award of a ClaimsTribunal, may , within ninety days fromthe date of the award , prefer an appeal tothe High Court:

Provided that no appeal by theperson who is required to pay any amountin terms of such award shall beentertained by the High Court unless hehas deposited with it twenty-five thousandrupees or fifty per cent of the amount soawarded , whichever is less, in themanner directed by the High Court.Provided further that the High Court mayentertain the appeal after the expiry of thesaid period of ninety days, if it is satisfiedthat the appellant was prevented bysufficient cause from preferring theappeal in time.

(2) No appeal shall lie against anyaward of a Claims Tribunal, if the amountin dispute in the appeal is less than tenthousand rupees."

8. From the perusal of the saidsection , the postilion which emerge outthat the legislature while framing theprovisions of Motor Vehicles Act hasclearly provided that if the award is givenby the Motor Accident Claims Tribunal isless than Rs. 10,000/- , no appeal shall lieagainst the same .

9. Thus keeping in view the said factas well as the it is not the duty of theCourt either to enlarge the scope of thelegislation or the intention of thelegislature when the language of theprovisions is plain and unambiguous. TheCourt cannot rewrite, recast or re-framethe legislation for the very good reasonthat it has no power to legislate. Thepower to legislate has not been conferredon the Courts. The Court cannot addwords to a statute or read words that arenot there. Assuming there is a defect or an

omission in the words used by thelegislature the Court could not got to itsaid to correct or make up the deficiency.

10. The Court decide what the law isand not what it should be. The Courts ofcourse adopt a construction which willcarry out the obvious intention of thelegislature but cannot legislate . But toinvoke judicial activism to set at naughtlegislative judgment is sub serve of theconstitutional harmony and comity ofinstrumentalities. The above said view isreiterated by Hon'ble Supreme Court inthe following cases:-

(i) Union of India and another V.Deoki Nandan Agarwal , AIR SC 96

(ii) All India Radio V. SantoshKumar and another (1998) 3 SCC 237

(iii) Sakshi V. Union of India andothers,(2004) 5 SCC, 518

(iv) Pandian Chemicals Ltd. V. CIT(2003) 5 SCC 590

(v) Bhavnagar University V. PalitanaSugar Mills(P) and others, AIR 2003 SC511.

(vi) J.P.Bansal Vs. State ofRajasthan,(2003) 5 SCC ,134.

11. In Nasiruddin Vs. Sita RamAgarwal, (2003) 4 SCC 753, the Hon'bleSupreme Court has held that the Courtcan iron cut of the creases but cannotchange the texture of the fabric. It cannotenlarge the scope of legislation orintention when the language of provisionsis plain, unambiguous. It cannot add orsubtract words to statue or read somethinginto in which is not there. It cannotrewrite or recast the legislation.

12. Accordingly, in view of the saidfacts once the statute has provided anappeal under Section 173 of the Motor

3 All]. Ram Naresh Singh Vs. Estate of Late Smt. Maiki & Ors. 1431

Vehicles Act against an award passed bythe Motor Accidents Claims Tribunal andfurther in sub-section (2) of Section 173of the Motor Vehicles Act provides thatno appeal shall lie against any award of aClaims Tribunal, if the amount is less thanten thousand rupees, so the revision filedby the revisionist thereby challenging theaward dated 5.2.2010 passed by MotorAccident Claims Tribunal/ AdditionalDistrct Judge, Balrampur is notmaintainable ( see also ShippingCorporation of India Ltd. v. MachadoBrothers and others AIR 2004 SC 2093)

13. So far as the law cited by learnedcounsel for the appellant in support of hisargument of a Full Bench of this Court inthe case of Kamla Yadav ( supra) isconcerned, the same is not applicable inthe facts and circumstances of the case asin the said matter this Court has held that ifany order is passed by Motor AccidentsClaims Tribunal during adjudication of theclaim petition then the same is revisableunder Section 151 of Code of CivilProcedure as the Tribunal falls within thescope and definition of word" Court".

14. For the foregoing reasons, therevision lacks merits and is dismissed .

15. No order as to cost.--------

APPELLATE JURISDICTIONCIVIL SIDE

DATED: LUCKNOW 03.12.2014

BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI, J.

THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

Special Appeal No. 716 of 2014alongwith Special Appeal No. 717 of 2014

Ram Naresh Singh ...Appellant

VersusEstate of Late Smt. Maiki & Ors.

...Respondents

Counsel for the Appellant:Sri A.P. Singh

Counsel for the Respondents:Sri Prashant Singh Gaur

High Court Rules, chapter-VIII, Rules-5-Special Appeal-against the judgment ofSingle Judge-exercising Appellatepower-in testamentary case-in view ofFull Bench decision of Sheet Gupta-special appeal -held-not maintainable.

Held: Para-15We are, therefore, of the clear view thatthe present Special Appeal is barred inview of the Full Bench decision in thecase of Sheet Gupta (supra), and thereport of the Stamp Reporter has to beupheld.

Case Law discussed:AIR 1974 SC 2048; AIR 2008 SC 1012; 2010(28) LCD 1045.

(Delivered by Hon'ble Amreshwar PratapSahi, J.)

1. These two Appeals arise out of acommon judgment rendered by the learnedsingle Judge in First Appeal No.186 of 2013and First Appeal No.187 of 2013 that aroseout of orders passed for grant of letters ofadministration under the provisions ofIndian Succession Act, 1925.

2. The learned District Judge, Lucknow,granted letters of administration in favour ofthe appellant in relation to the estate of LateSmt. Maiki and others. Two sets of personsnamely Chhote Lal on the one hand andMaster and Jangali on the other filedapplications for setting aside and revoking theletters of administration dated 6.1.1997.


3. The learned District Judgeallowed the said applications and revokedthe letters of administration vide orderdated 16.11.2013.

4. The learned single Judge, beforewhom the two first appeals were filedbefore this Court, after having noticed thearguments, particularly in relation to thepowers of revocation under Section 263of the Indian Succession Act, 1925,assessed the rival contentions and came tothe conclusion that the order of thelearned District Judge did not require anyinterference and the appeals were,accordingly, dismissed. It is this judgmentdated 19.9.2014 rendered by the learnedsingle Judge of this Court which is underchallenge in the present Special Appealsunder Chapter VIII Rule 5 of theAllahabad High Court Rules, 1952.

5. The Stamp Reporter vide hisreport dated 28.11.2014 has submitted areport that the Special Appeals against thejudgment arising out of such proceedingsare not maintainable.

6. Sri A.P. Singh, learned Counselfor the appellants, submits that theaforesaid report of the Stamp Reporter iserroneous and he has relied on twodecisions to advance his submissions. Thefirst decision is in the case of Smt. AshaDevi Vs. Dukhi Sao and another, AIR1974 SC 2048. The second decision is inthe case of Gaudia Mission Vs. ShobhaBose and another, AIR 2008 SC 1012. Onthe strength of these decisions, Sri Singhsubmits that the Apex Court has held thata Letters Patent Appeal or a SpecialAppeal against the judgment of a learnedsingle Judge of the High Court would bemaintainable and in the instant case wouldamenable to the jurisdiction of Special

Appeals under Chapter VIII Rule 5 of theAllahabad High Court Rules.

7. He submits that in both the abovenoted decisions, the matter was remittedback to the Division Bench of the HighCourt to decide the case on merits. SriSingh submits by placing reliance on thesaid judgments that a regular appeal ismaintainable in such proceedings keepingin view the provisions of Section 384 ofthe Indian Succession Act, 1925.

8. Opposing the said arguments,learned Counsel for the respondents SriGaur has invited the attention of the Courtto the provisions of Chapter VIII Rule 5and has heavily relied upon on the FullBench decision of this Court in the case ofSheet Gupta Vs. State of U.P. And others,2010 (28) LCD 1045, to contend that aSpecial Appeal against the judgment of alearned single Judge in the exercise ofappellate jurisdiction in respect of adecree or order made by a Court subjectto the superintendence of the Court isclearly barred.

9. Chapter VIII Rule 5 is extractedherein below for ready reference:-

"5. Special appeal.-- An appeal shalllie to the Court from a judgment (notbeing a judgment passed in the exercise ofAppellate Jurisdiction in respect of adecree or order made by a Court subjectto the Superintendence of the Court andnot being an order made in the exercise ofrevisional jurisdiction or in the exercise ofits power of Superintendence or in theexercise of criminal jurisdiction [or in theexercise of jurisdiction conferred byArticle 226 or Article 227 of theConstitution in respect of any judgment,order or award (a) of a tribunal, Court or

3 All]. Ram Naresh Singh Vs. Estate of Late Smt. Maiki & Ors. 1433

statutory arbitrator made or purported tobe made in the exercise or purportedexercise of jurisdiction under any UttarPradesh Act or under any Central Act,with respect to any of the mattersenumerated in the State List or theConcurrent List in the Seventh Scheduleto the Constitution or (b) of theGovernment or any Officer or authority,made or purported to be made in theexercise or purported exercise ofAppellate or Revisional Jurisdiction underany such Act] of one Judge.]"

10. A perusal thereof would clearlyindicate that the exact bar as spelled outtherein as involved herein, was not thesubject matter of consideration in any ofthe decisions of the Apex Court whichhave been relied upon by the learnedCounsel for the appellant. There was noissue framed in relation to themaintainability of a Special Appeal underChapter VIII Rule 5 and both judgmentshave proceeded on a presumption andundisputed position before the Court as if aSpecial Appeal was maintainable againstany judgment of a learned single Judge.

11. Secondly, it is to be noted that aSpecial Appeal is provided against thejudgment of a learned single Judge of thisCourt if a judgment is rendered in theexercise of original jurisdiction by theHigh Court and not in an appellatejurisdiction. An order passed intestamentary proceedings in the originaljurisdiction of the High Court isappealable under Chapter VIII Rule 5 butan order passed in appeal regularlyinstituted before the High Court againstthe order of a District Judge would not befurther appealable in view of the barcontained under Chapter VIII Rule 5 ofthe Court.

12. This position has been clearlyexplained in the Full Bench judgment andparagraph No.14 thereof is extractedhereunder which is clearly binding on us:-

"14. Having given our anxiousconsideration to the various plea raised bythe learned counsel for the parties, wefind that from the perusal of Chapter VIIIRule 5 of the Rules a special appeal shalllie before this Court from the judgmentpassed by one Judge of the Court.However, such special appeal will not liein the following circumstances:

1.The judgment passed by one Judgein the exercise of appellate jurisdiction, inrespect of a decree or order made by aCourt subject to the Superintendence ofthe Court;

2.the order made by one Judge in theexercise of revisional jurisdiction;

3.the order made by one Judge in theexercise of the power of Superintendenceof the High Court;

4.the order made by one Judge in theexercise of criminal jurisdiction;

5.the order made by one Judge in theexercise of jurisdiction conferred byArticle 226 or Article 227 of theConstitution of India in respect of anyjudgment, order or award by

(i) the tribunal,(ii) Court or(iii) statutory arbitrator

made or purported to be made in theexercise or purported exercise ofjurisdiction under any Uttar Pradesh Actor under any Central Act, with respect toany of the matters enumerated in the StateList or the Concurrent List in the SeventhSchedule to the Constitution of India;

6.the order made by one Judge in theexercise of jurisdiction conferred byArticle 226 or 227 of the Constitution of


India in respect of any judgment, order oraward of

(i) the Government or(ii) any officer or(iii) authority,

made or purported to be made in theexercise or purported exercise of appellateor revisional jurisdiction under any suchAct, i.e. under any Uttar Pradesh Act orunder any Central Act, with respect to anyof the matters enumerated in the State Listor the Concurrent List in the SeventhSchedule to the Constitution of India."

13. It is true that the judgments,which have been relied upon by Sri Singhfor the appellants, have not been referredto in the Full Bench judgment in the caseof Sheet Gupta (supra) but in our opinionthe issue of maintainability of a SpecialAppeal was not involved either in the caseof Asha Devi (supra) or Gaudia Mission(supra) which may have any impact onthe Full Bench judgment in the case ofSheet Gupta (supra). Thus, even if thesame have not been noticed in the FullBench decision referred to herein above,it is of no consequence, inasmuch as, asnoted above, the issues in both matterswere different.

14. To clarify it may be stated thatthe judgments of the Apex Court thathave been relied upon by the learnedCounsel for the appellants involved theissue of the scope of appellate powers asto whether the same powers are availablewhen a concurrent jurisdiction is beingexercise keeping in view the provisions ofSection 96 and Section 100 of the CivilProcedure Code. The question was as towhether in a letters patent appeal or aSpecial Appeal, the powers of the Courtare limited only to substantial questions of

law or the powers are co-extensive as thatof the subordinate court that had decidedthe matter. It is in this context that theaforesaid two decisions were renderedand they proceeded on the assumption ofmaintainability, and also contention of theparties that there was no dispute relatingto the maintainability of a Special Appeal.The said decisions, therefore, in ouropinion, do not come to the aid of theappellants for maintaining the presentSpecial Appeal.

15. We are, therefore, of the clearview that the present Special Appeal isbarred in view of the Full Bench decisionin the case of Sheet Gupta (supra), and thereport of the Stamp Reporter has to beupheld.

16. Both the Special Appeals aredismissed as being not maintainable.

--------ORIGINAL JURISDICTION

CIVIL SIDEDATED: ALLAHABAD 12.12.2014

BEFORETHE HON'BLE TARUN AGARWALA, J.

THE HON'BLE DR. SATISH CHANDRA, J.

Civil Misc. Writ Petition No. 745 of 2014Connected with W.P. No. 2222 of 2009

Mawana Sugars Ltd. ...PetitionerVersus

Nagar Palika Parishad, Mawana & Anr. Respondents

Counsel for the Petitioner:Sri S.D. Singh, Sri Rohan Gupta

Counsel for the Respondents:Sri Ajay Rajendra

Constitution of India, Art.-226-read withU.P. Municipalities Act, 1916-Section-

3 All]. Mawana Sugars Ltd. Vs. Nagar Palika Parishad, Mawana & Anr. 1435

143-Alternative remedy-writ petition-against demand notice of house tax andwater tax-on enhanced rate-withoutnotice opportunity to petitioner-heldorder passed in violation of principle ofNatural Justice-alternative remedy nobar-demand notice quashed withdirection to take fresh decision aftercomplying the procedure contained inSection 143.

Held: Para-8 &108. Sri Ajai Rajendra, the learned counselappearing for the Parisahd contends thatagainst the assessment order passedunder Section 143 of the Act, thepetitioner has a remedy of filing anappeal under Section 160 of the said Actand, therefore, the petitioner should berelegated to the alternative remedy.There is no quarrel with this proposition.An appeal can only be filed against anassessment order and in the instantcase, we find, that there is noassessment order in the eyes of lawpassed under Section 143 of the Act.Consequently, we are of the opinion, thatthe petitioner cannot be relegated to theremedy of availing an appeal underSection 160 of the Act in the presentfacts and circumstances of the case.

10. We direct the Nagar Palika Parishad,Mawana to issue a fresh notice fixing adate intimating the petitioner to appearbefore them for disposal of its objection.Upon hearing the petitioners, thecompetent authority will decide theobjections and make an assessmentorder under Section 143 of the Act withinsix weeks thereafter. Based on suchassessment order, the petitioner willtake recourse to its remedy as advised tothem. During this period, the interimorder passed by this Court directing thepetitioner to pay Rs.8 lacs will continueto operate.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri S.D.Singh, the learnedsenior counsel assisted by Sri Rohan

Gupta, the learned counsel for thepetitioner and Sri Ajai Rajendra, thelearned counsel for the Nagar PalikaParishad.

2. The dispute between thepetitioner and the Nagar Palika Parishad,Mawana with regard to imposition ofhouse tax, water tax and assessment of theannual value has been going on for thepast four decades. The petitioner isresisting the jurisdiction of the NagarPalika Parishad, Mawana in imposing thetaxes upon them. The earlier round oflitigation went upto the Supreme Courtwhere they lost the battle and the Parishadbecame empowered to impose taxes.Based on the decision of the SupremeCourt the assessment of house tax, watertax amounting to Rs.5,32,000/- per annumfor the period 1987 to 2005 was charged.This assessment order has beenchallenged by the petitioner in an appealfiled under Section 160 of the U.P.Municipalities Act, 1916 (hereinafterreferred to as the "Act"), which is pendingconsideration before the Civil Court.

3. For the assessment year 2007-2012 the Nagar Palika Parishad, Mawanaissued notices to the petitioner proposingto revise the annual value andaccordingly, enhanced the water tax andhouse tax. The petitioner filed itsobjection under Section 143 of the Act.Without considering its objection ademand notice was issued to thepetitioner. It is alleged that the petitionermade a request for supplying theassessment orders, which they failed toreceive, but, got certain information underthe Right to Information Act. Armed withsuch information, the petitioner filed WritPetition No.2222 of 2009 in which aninterim order was passed directing the


petitioner to pay a sum of Rs.8 lacs perannum towards taxes during the pendencyof the writ petition. Pending this writpetition, fresh notices have been issuedfor the assessment year 2013-18 wherebythe Nagar Palika Parishad proposed toenhance the tax to Rs.25,02,470/- perannum. The petitioner filed its objectionand, without disposing of its objection, ademand notice has been issued directingthe petitioner to pay the said amount. It isalleged that the assessment order has notbeen furnished and consequently, thepresent writ petition No.749 of 2014 hasbeen filed. Both the writ petitions wereclubbed together and are being decided onthe basis of the counter affidavit filed inthe earlier writ petition.

4. We are of the opinion that nocounter affidavit is required in this writpetition No.749 of 2014 since no disputedquestions of fact are involved for disposalof both the writ petitions.

5. From a perusal of the informationsupplied to the petitioner under the Rightto Information Act, the petitionercontends that the information so suppliedis not an assessment order under Section143 of the Act nor does it disposes theobjection. We have perused the said orderand we do not find it to be an assessmentorder disposing of the objection of thepetitioner and accepting the proposal ofthe Committee. The said order is noassessment order in the eyes of law andconsequently, the demand cannot besustained.

6. Section 143 of the Act indicatesthat the Municipality or the Parishad shallgive a public notice and proceed toconsider the valuation and after dueinvestigation, dispose of the objection

relating to valuation and assessment andcause the result thereof to be noted in abook kept by the Parishad/ Municipality.From a perusal of the provision underSection 143 of the Act it is apparentlyclear that where the objection are invitedin writing, it is implicit that theMunicipality or the Parishad, as the casemay be, passes an order in writing dealingwith such objection which would be inconsonance with the principles of naturaljustice as embodied under Article 14 ofthe Constitution of India.

7. The proforma of the assessmentorder indicates that the objection of thepetitioner is required to be recorded andthe decision of the official or theCommittee is required to be indicated,which in the instant case has been leftblank.

8. Sri Ajai Rajendra, the learnedcounsel appearing for the Parisahdcontends that against the assessment orderpassed under Section 143 of the Act, thepetitioner has a remedy of filing an appealunder Section 160 of the said Act and,therefore, the petitioner should berelegated to the alternative remedy. Thereis no quarrel with this proposition. Anappeal can only be filed against anassessment order and in the instant case,we find, that there is no assessment orderin the eyes of law passed under Section143 of the Act. Consequently, we are ofthe opinion, that the petitioner cannot berelegated to the remedy of availing anappeal under Section 160 of the Act in thepresent facts and circumstances of thecase.

9. Since there is no valid assessmentorder in the eyes of law and theinformation given to the petitioner, as

3 All]. Ghaziabad Development Authority Vs. Kashi Ram & Ors. 1437

annexed in Annexure 11 to the writpetition, purporting to be the assessmentorders, we allow the writ petition No.2222of 2009 and quash all these allegedassessment orders.

10. We direct the Nagar PalikaParishad, Mawana to issue a fresh noticefixing a date intimating the petitioner toappear before them for disposal of itsobjection. Upon hearing the petitioners,the competent authority will decide theobjections and make an assessment orderunder Section 143 of the Act within sixweeks thereafter. Based on suchassessment order, the petitioner will takerecourse to its remedy as advised to them.During this period, the interim orderpassed by this Court directing thepetitioner to pay Rs.8 lacs will continue tooperate.

11. For the reasons stated aforesaid,Writ Petition No.745 of 2014, which isbased on identical facts is, accordingly,allowed. The alleged assessment orders,for the period 2014 to 2018, are quashed.The Nagar Palika Parishad, Mawana willproceed in the same fashion as statedaforesaid. For this period, the petitionerwill deposit a tentative amount of Rs.10lacs per annum, which would be subjectto fresh assessment orders.

--------APPELLATE JURISDICTION


BEFORETHE HON'BLE RAJIV SHARMA, J.THE HON'BLE DINESH GUPTA, J.

First Appeal No. 910 of 2000alongwith

W.P. No. 911 of 2000, W.P. No. 912 of2000 and other connected cases

Ghaziabad Development Authority...Appellant

VersusKashi Ram & Ors. ...Respondents

Counsel for the Appellant:Sri Mahendra Pratap, Sri Ajay KumarMisra

Counsel for the Respondents:Sri D.P. Singh, Sri Shiv Sagar Singh, SriJ.N. Sharma, Sri V.B. Singh, Sri Vijai Sinha

Land Acquisition Act-Compensation landsituated near Vasundhara ResidentialScheme-surrounded by Industrial areaadjacent to BHEL, Dover and other wellknown units-Delhi-Lucknow nationalhighway-2 km away from Delhi-SLOignoring certified copy of sale deed reliedexumpler of builder-awarded @ 50 persquare yard-reference court enhancedRs. 90/-held-if the claimants deprivedfrom such rate-would be highlyprejudicial-and violative to constitutionalmandate-entitled to Rs. 297 per squareyard-appeal by GDA dismissed-claimantsappeal allowed.

Held: Para-36In the backdrop of the aforesaid facts, itwould be highly prejudicial to theinterest of the claimants/landloosers tobe deprived of such a rate when they areplaced in similar circumstances. In ourview, such an action would certainly bethe arbitrariness and violative ofconstitutional mandate. Therefore, theclaimants are entitled to Rs.297/- persquare yard in respect of the landacquired by the aforesaid notification.

Case Law discussed:[1995(2) SCC 305]; [AIR 2012 SC 446]; AIR1959 SC 429; [AIR 94 SC 1160]; (2008) 2 SCC568; 2008 (11) SCC 65:2008(4) Supreme 74;2009 (4) SCC 402; 2008 (14) SCC 745; 2009(4) SCC 719; First Appeal No. 34 of 2007;[(2003) 1 SCC 354]; [(2010) 13 SCC 398].

(Delivered by Hon'ble Rajiv Sharma, J.)


1. Heard Mr. Mahendra Pratap,learned Counsel for GhaziabadDevelopment Authority and Mr. D.P.Singh and Mr. Shiv Sagar Singh, learnedCounsel for the claimants.

2. At the outset, it is relevant tomention here that in some of the FirstAppeals, the appellants/claimants left forheavenly abode and as such, substitutionapplications were filed on their behalf forbringing on record their legal heirs. Thereis no objection to these applications.Accordingly, all the substitutionapplications are allowed, after condoningthe delay, if any, in preferring thesubstitution applications.

3. Let them be substituted in placeof claimants during the course of the day.

4. In short, the facts of the case arethat the land of the claimants pertaining tothe village Makanpur, Pargana Loni, TehsilDadri, District Ghaziabad was acquired bythe State of U.P. for planned developmentby the Ghaziabad Development Authority[in short referred to as 'GDA']. Thenotification under Section 4 (1) of the LandAcquisition Act was issued on 12.9.1986,which was published in the Gazettee on28.2.1987, whereas notification underSection 6 (1) of the Act was issued on24.2.1988. The possession of the land inquestion was taken by the StateGovernment on 14.6.1988 and 29.6.1988.The Special Land Acquisition Officer(SLAO) pronounced the award on30.12.1989 and granted compensation atthe rate of Rs.50/- per square yard relyingon the exemplar of plot No.582, area 5Bigha executed on 28.9.1987 by one Smt.Amarjeet Kaur in favour of GDA @Rs.50/- per square yard. The respondentsand other persons whose land was acquired

had filed objections to the saiddetermination of compensation by theSLAO and the matter was referred to theDistrict Judge under Section 18 of the LandAcquisition Act. The IV Additional DistrictJudge, Ghaziabad and VI AdditionalDistrict Judge, Ghaziabad [hereinafterreferred to as the "Reference Court"] passedseparate awards dated 19.4.1999 and31.5.2000, whereby the Reference Courtenhanced the amount of compensation fromRs.50/- per Square Yard to Rs.90/- persquare yard.

5. Feeling aggrieved, the GDA hasfiled the above-captioned first appealsdescription of which is given from Sl.Nos. 1 to 60. In contrast, Appealsmentioned at Sl. Nos.61 to 96 have beenfiled by the tenure holders-claimants forenhancement of compensation andlowering the deductions from 33% madetowards development cost.

6. Since the land of all claimantswas acquired by the same Notification,facts pertaining to the said Notificationapply to all these respondents. The onlydifference is in the area of land which wasowned by these respondents and has beentaken away by the State in acquisition.Therefore, taking general note of theparticulars of acquisition and the nature ofland, would serve the purpose.

7. From perusal of the impugnedaward dated 19.4.1999, it reflects that theReference Court, on the basis ofpleadings, had framed five issues, whichare as under :

"(1) Whether the compensationawarded by S.L.A.O. is inadequate? If soto what amount of compensation are thepetitioners entitled?


(2) Whether the reference is timebarred?

(3) Whether the reference is barredby section 9 of Land Acquisition Act?"

(4) Whether the reference is barredby principles of estopple?

(5) To what amount ofcompensation, if any, are the petitionersentitled?

8. While deciding issue No. 1, theReference Court had recorded specificfindings of fact that the present claimantsseem to be very unfortunate because theland of the same village was acquired for'Avas Vikas Parishad' and NOIDA andthose farmers got higher rates, while theland of present claimants acquired forGDA got less compensation. Some landof village Makanpur was acquired forNOIDA and partly acquired for AvasVikas Parishad and the remaining partwas acquired for GDA. Therefore, theReference Court was of the view that thecompensation awarded by the SLAO wasinadequate and enhanced thecompensation from Rs.50/- to Rs.90/- persquare yard.

9. As the appellants have not pressedthe issue nos.2 and 3, the Reference Courtdecided the said issues in favour of theclaimants.

10. As regard issue No.5, theReference Court, after taking intoconsideration the totality of thecircumstances, came to the conclusionthat the claimants are entitled to getsolatium @ 30% on the market rate and12% per annum additional amounttogether with interest @ 9% per annum onthe enhanced amount of compensation forthe first year from the date of taking the

possession and thereafter 15% per annumtill the date of payment.

11. The main contention of the GDAis that the claimants accepted thecompensation without protest and as such,it was not open for the tenure holders tofile Reference under Section 18 of theAct. In this regard, he submits that onsome applications, the word 'protest' waswritten by one different handwritingwithout signature appended thereto. Sincethere is an interpolation, it has to beconsidered that the claimants haveaccepted the compensation withoutprotest.

12. Further, he submits that certifiedcopies of sale exemplers, relied by theCollector, were produced before theReference Court, but the Court concernedrejected the same for want of examinationof witness. According to him, it iscontrary to law as has been held by theApex Court in P. Rama Reddy v. SpecialLand Acquisition Officer [1995 (2) SCC305]. In this judgment, the Apex Courtheld that in any proceeding under thisAct, a certified copy of a documentregistered under the Registration Act,1908 (16 of 1908), including a copy givenunder Section 57 of that Act, may beaccepted as evidence of the transactionrecorded in such document.

13. While determining thecompensation, the Reference Court reliedon the sale deeds executed by the TripatiBuilders in favour of Subhash Chand andChandra Mohan. As the sale deeds wereexecuted by the builders instead of thefarmers, naturally the value of the land ison higher side and as such the same isliable to be set aside.


14. Next, he contended that in theimpugned order dated 19.4.1999, theReference Court determined thecompensation as Rs.90/- per sq. yard,after deducting 33% from Rs.135/-,whereas in the impugned order dated31.5.2000, the Reference Court fixed thecompensation as Rs.90/- per square yardwithout any deduction. Since there isvariance in determination ofcompensation, this Court's interference isrequired in setting aside the impugnedorder.

15. Lastly, it has been vehementlycontended by the counsel for the GDAthat the Reference Court erred indeducting 33% towards development costoverlooking the fact that the large chunkof land was acquired and sufficient landwas to be left for internal developments,like road, sewerage, overhead water tank,water lines, parks, etc. According to him,deduction of at least 70% should havebeen allowed. To substantiate theaforesaid assertion, reliance has beenplaced upon Chandrashekar (D) by LRsand others v. Land Acquisition Officerand another [AIR 2012 SC 446]. In para15 of the report, it has been observed bythe Apex Court as under:-

"15. The present controversy callsfor our determination on the quantum ofthe deductions to be applied, to the marketvalue assessed on the basis of theexemplar sale transaction, so as toascertain the fair compensation payable tothe land loser. The only factualparameters to be kept in mind are, thefactual inferences drawn in the foregoingparagraph. On the issue in hand, we shallendeavor to draw our conclusions frompast precedent. In the process ofconsideration hereinafter, we have

referred to all the judgments relied uponby the learned counsel for the appellants,as well as, some recent judgments on theissue concerned:

(i) In Brigadier Sahib Singh Kalha &Ors. v. Amritsar Improvement Trust &Ors., (1982) 1 SCC 419, this Courtopined, that where a large area ofundeveloped land is acquired, provisionhas to be made for providing minimumamenities of town-life. Accordingly it washeld, that a deduction of 20 percent of thetotal acquired land should be made forland over which infrastructure has to beraised (space for roads etc.). Apart fromthe aforesaid, it was also held, that thecost of raising infrastructure itself (likeroads, electricity, water, undergrounddrainage, etc.) need also to be taken intoconsideration. To cover the costcomponent, for raising infrastructure, theCourt held, that the deduction to beapplied would range between 20 percentto 33 percent. Commutatively viewed, itwas held, that deductions would rangebetween 40 and 53 percent.

(ii) Noticing the determinationrendered by this Court in Brigadier SahibSingh Kalha's case (supra), this Court inAdministrator General of West Bengal vs.Collector, Varanasi, (1988) 2 SCC 150,upheld deduction of 40 percent (from theacquired land) as had been applied by theHigh Court.

(iii) In Chimanlal Hargovinddas vs.Special Land Acquisition Officer, Poona& Anr., (1988) 3 SCC 751, whilereferring to the factors which ought to betaken into consideration whiledetermining the market value of acquiredland, it was observed, that a smaller plotwas within the reach of many, whereas fora larger block of land there was implicitdisadvantages. As a matter of illustrationit was mentioned, that a large block of


land would first have to be developed bypreparing its lay out plan. Thereafter, itwould require carving out roads, leavingopen spaces, plotting out smaller plots,waiting for purchasers (during which theinvested money would remain blocked).Likewise, it was pointed out, that therewould be other known hazards of anentrepreneur. Based on the aforesaidlikely disadvantages it was held, thatthese factors could be discounted bymaking deductions by way of allowanceat an appropriate rate, ranging from 20percent to 50 percent. These deductions,according to the Court, would account forland required to be set apart fordevelopmental activities. It was alsosought to be clarified, that the applieddeduction would depend on, whether theacquired land was rural or urban, whetherbuilding activity was picking up or wasstagnant, whether the waiting periodduring which the capital would remainlocked would be short or long; and otherlike entrepreneurial hazards.

(iv) In Land Acquisition OfficerRevenue Divisional Officer, Chottor vs.L. Kamalamma (Smt.) Dead by LRs. &Ors., (1998) 2 SCC 385, this Courtarrived at the conclusion, that a deductionof 40 percent as developmental cost fromthe market value determined by theReference Court would be just and properfor ascertaining the compensation payableto the landowner.

(v) In Kasturi and others vs. State ofHaryana, (2003) 1 SCC 354, this courtopined, that in respect of agricultural landor undeveloped land which has potentialvalue for housing or commercialpurposes, normally 1/3rd amount ofcompensation should be deducted,depending upon the location, extent ofexpenditure involved for development,the area required for roads and other civic

amenities etc. It was also opined, thatappropriate deductions could be made formaking plots for residential andcommercial purposes. It was sought to beexplained, that the acquired land may beplain or uneven, the soil of the acquiredland may be soft and hard, the acquiredland may have a hillock or may be lowlying or may have deep ditches.Accordingly, it was pointed out, thatexpenses involved for development wouldvary keeping in mind the facts andcircumstances of each case. In Kasturi'scase (supra) it was held, that normaldeductions on account of developmentwould be 1/3rd of the amount ofcompensation. It was however clarifiedthat in some cases the deduction could bemore than 1/3rd and in other cases evenless than 1/3rd.

(vi) Following the decision renderedby this Court in Brigadier Sahib SinghKalha's case, this Court in LandAcquisition Officer, KammarapallyVillage, Nizamabad District, A.P. vs.Nookala Rajamallu & Ors., (2003) 12SCC 334, applied a deduction of 53percent, to determine the compensationpayable to the landowners.

(vii) In V. Hanumantha Reddy(Dead) by LRs. vs. Land AcquisitionOfficer & Mandal R. Officer, (2003) 12SCC 642, this Court examined thepropriety of compensation determined aspayable to the land loser by the HighCourt. The Reference Court haddetermined the market value of developedland at Rs.78 per sq. yard. The ReferenceCourt then applied a deduction of 1/4th toarrive at Rs.58 per sq. yard as thecompensation payable. The High Courthowever concluded, that compensation atRs.30 per sq. yard would be appropriate(this would mean a deduction ofapproximately 37 percent, as against


market value of developed land at Rs.78per sq. yard). This Court having made areference to Kasturi's case (supra) did notfind any infirmity in the order passed bythe High Court. In other words, deductionof 37 percent was approved by this Court.

(viii) In para 21 of the judgment inViluben Jhalejar Contractor (Dead) byLRs. vs. State of Gujarat, (2005) 4 SCC789, it was held that for development, i.e.,preparation of lay out plans, carving outroads, leaving open spaces, plotting outsmaller plots, waiting for purchasers, andon account of other hazards of anentrepreneur, the deduction could rangebetween 20 percent and 50 percent of thetotal market price of the exemplar land.

(ix) In Atma Singh (Dead) throughLRs & Ors. vs. State of Haryana and Anr.,(2008) 2 SCC 568, this Court aftermaking a reference to a number ofdecisions on the point, and after takinginto consideration the fact that theexemplar sale transaction was of a smallerpiece of land concluded, that deductionsof 20 percent onwards, depending on thefacts and circumstances of each casecould be made.

(x) In Lal Chand vs. Union of India& Anr., (2009) 15 SCC 769, it was heldthat to determine the market value of alarge tract of undeveloped agriculturalland (with potential for development),with reference to sale price of smalldeveloped plot(s), deductions varyingbetween 20 percent to 75 percent of theprice of such developed plot(s) could bemade.

(xi) In Subh Ram & Ors. vs. State ofHaryana & Anr., (2010) 1 SCC 444, thisCourt opined, that in cases where thevaluation of a large area of agricultural orundeveloped land was to be determinedon the basis of the sale price of a small 12developed plot, standard deductions ought

to be 1/3rd towards infrastructure space(areas to be left out for roads etc.) and1/3rd towards infrastructuraldevelopmental costs (costs for raisinginfrastructure), i.e., in all 2/3rd (or 67percent).

(xii) In Andhra Pradesh HousingBoard vs. K. Manohar Reddy & Ors.,(2010) 12 SCC 707, having examined theexisting case law on the point it wasconcluded, that deductions on account ofdevelopment could vary between 20percent to 75 percent. In the peculiar factsof the case a deduction of 1/3rd towardsdevelopment charges was made from theawarded amount to determine thecompensation payable.

(xiii) In Special Land AcquisitionOfficer & Anr. vs. M.K. Rafiq Sahib,(2011) 7 SCC 714, this Court after havingconcluded, that the land which wassubject matter of acquisition was notagricultural land for all practical purposesand no agricultural activities could becarried out on it, concluded that in orderto determine fair compensation, based ona sale transaction of a small piece ofdeveloped land (though the acquired landwas a large chunk), the deduction madeby the High Court at 50 percent, ought tobe increased to 60 percent.

16. According to the GDA, if theaforesaid case laws are applied to theinstant case, deduction of 70% wouldserve the purpose.

17. In contrast, learned Counsel forthe claimants submits that thecompensation is totally based on situationof the land and he has drawn our attentiontowards the replication filed by TrilokChand and others [paras 3 to 6 of thereplication]. Further, he has relied uponthe oral statement of Sri Krishna Tyagi


(PW1), who has stated that if the land wasnot acquired, he could have easily sold theland in the year 1987 at the rate ofRs.500/- per square yard in open market.By no stretch of imagination, thevaluation of the land acquired can be saidto be Rs.135/- per square yard less 33%equivalent to Rs.90/- per square yard, asheld by the Reference Court. Suffice tosay that the valuation of the land shouldhave been fixed by the Reference Courtsomething between Rs.135/- per squareyard to Rs.500/- per square yard in viewof the statement of PW1 Krishna Tyagi.

18. Next, he contended that theReference Court has not considered theExhibit Paper No.37-Ga, the judgment ofthe Reference Court dated 27.5.1993passed in L.A.R. No.495 of 1990 in thecase of Satish Takural v. State, whereinthe Reference Court had determined thevalue of the land after 20% deduction atthe rate of Rs.138/- per. square yard forthe land which was acquired on26.6.1982, whereas in the instant case theland in question was acquired in the year1987 and the Reference Court determinedthe value of the land as Rs.90/- per squareyard. Therefore, the claimants are entitledfor enhancement of compensation.

19. Before concluding hissubmissions, he has relied upon the caseof Mohinder Singh and others versusState of Haryana [(2014) 8 SCC 897],wherein the Apex Court held that thededuction of 40% towards developmentcost as determined by the High Court wasunjustified and the deduction of 1/4th ofmarket value made by the ReferenceCourt was appropriate.

20. Next he has drawn our attentiontowards the findings of Reference Court,

wherein it has been stated that the Hon'bleCourt in the case of Baburam and othersv. State of U.P. reported in A.I.R. 1980Allahabad 324 has observed thatdetermining compensation is not an exactscience. The question of faircompensation is not algebraic problemwhich could be solved by abstractformula. There is an element of guesswork inherent in most cases involvingdetermination of market value of theacquired land.

21. As regard the assertion of theGDA's Counsel that the claimants hadaccepted compensation without protestand as such, the Reference was notmaintainable, we would like to mentionthat while deciding issue No.4, the Courtbelow recorded a finding of fact that if theclaimants have received the amount ofcompensation under protest then it cannotbe said that they are estopped and cannotraise the plea for enhancement ofcompensation. In other words, if some ofthe claimants have received their amountwithout protest, then they cannot beestopped because mere filing of referenceamounts to protest.

22. Before dealing with thecontroversy involved in the present batchof appeals, it would be apt to refer someof the relevant cases of the Apex Courtand this court on the subject, for properadjudication of the matter.

23. In Special Land AcquisitionOfficer, Bangalore v. T. AdhinarayanSetty, AIR 1959 SC 429, it was held thatin awarding compensation under the Act,the Court has to ascertain market-value ofthe land on the date of notification undersection 4 (1) of the Act. It was alsoobserved that there are several methods of


valuation, such as (1) opinion of experts,(2) the price paid within a reasonable timein bona fide transactions of purchase ofthe land acquired or the lands adjacent tothe lands acquired and possessing similaradvantages, and (3) a number of yearspurchase of the actual or immediatelyprospective profits of the land acquired.

24. Hon'ble Supreme Court in thecases of M/s Printer House PrivateLimited Vs .Saiyadan reported in [AIR 94SC 1160], and P. Ram Reddy and othersVs. Land Acquisition Officer, HyderabadUrban Development Authority reported in1995 All India Acquisition andCompensation Cases 184 and Atma Singhv. State of Haryana : (2008) 2 SCC 568has discussed the principles on the basisof which the market value has to bedetermined. It is now settled law that thebuilding potentiality of the acquired landexisting on the date of notification underSub-section (1) of Section 4 of the LandAcquisition Act, is the correct marketvalue of the acquired property, which hasto be judged on consideration of variousfactors and material which are brought onthe record and such building potentialityis not only to be judged merely on thebasis of its existing value but also aftertaking into consideration the futureadvantages.

25. In 2008 (11) SCC 65 : 2008 (4)Supreme 174 [State of Haryana Vs.Gurbax Singh (Dead) by Lrs. & anr. etc.]it has been considered by the SupremeCourt that commercial potentiality of theland is important factor for decidingcompensation.

26. Again in 2009 (4) SCC 402[Mummidi Apparao (Dead) through LRs.Vs. Nagarjuna Fertilizers and Chemicals

Limited and another] the Supreme Courthas given an emphasis over the locationand development all around and its fullpotential value of developing into housingsites and fast taking up the character. In2008 (14) SCC 745 (General Manager,Oil and Natural Gas Corporation LimitedVs. Rameshbhai Jivanbhai Patel andanother) the Supreme Court held thatprimarily, the increase in land pricesdepends on four factors: situation of theland, nature of development insurrounding area, availability of land fordevelopment in the area, and the demandfor land in the area. In rural areas, unlessthere is any prospect of development inthe vicinity, increase in prices would beslow, steady and gradual, without anysudden spurts or jumps. On the otherhand, in urban or semi-urban areas, wherethe development is faster, where thedemand for land is high and where thereis construction activity all around, theescalation in market price is at a muchhigher rate as compared to rural areas. In2009 (4) SCC 719 (Faridabad Gas PowerProject, National Thermal PowerCorporation Limited and others Vs. OmPrakash and others) close vicinity of theplanned development area wasdetermined as one of the factor forfixation of higher compensation. Thus,these judgements are supporting thecontention of the land loosers/tenureholders.

27. Thus, the relevant factors fordetermination of the amount ofcompensation are the nature and qualityof land, whether irrigated or unirrigated,facilities for irrigation, presence of fruitbearing trees, location of the land,closeness to any road or highway,evenness of the land, existence of anybuilding or structure and a host of other


factors bearing on the valuation of theland. The learned Court below whiledetermining the rate of compensation ofthe acquired land in his impugned orderhas considered all these relevant factorsand also took into consideration theevidence adduced by the parties.

28. It may be noted that in bunch ofFirst Appeals led by First Appeal No.564of 1997, Khazan and others Vs. State ofU.P. and others pertaining to adjoiningvillages of Bhangel Begumpur, Nagla andGeha Tilpatabad of Dadri Tehsil relatingto land acquisition was decided by thisCourt granting compensation at the rate ofRs.297/- per square yard, in terms ofdecision of this Court rendered in FirstAppeal No.1056 of 1999, Raghuraj Singhand others vs. State of U.P. and others.

29. Again this Court while dealingwith a First Appeal No. 644 of 2012,Amar Singh and another Vs State of U.P.and others pertaining to adjacent VillageGejha Tilpatabad, followed the severaljudgements, passed by this Courtincluding the judgment rendered in thebunch of First Appeals, led by FirstAppeal No. 564 of 1997, Khazan andothers v. State of U.P. and others and thisCourt enhanced the compensation toRs.297/- per square yard.

30. Similarly, by means of a detailedand well-considered judgment dated19.5.2010 passed in First Appeal No.1056of 1999, a Division Bench held that theclaimants are entitled to compensation @Rs.297/- per square yard alongwith otherstatutory dues. In this case, the acquiredland situates in Tehsil Dadri, DistrictGhaziabad. The enhancement ofcompensation to Rs.297/- per square yardin respect of the land situates in village

Bhangel Begumpur has been followed byanother Division Bench in its judgmentand order dated 11.10.2012 passed in FirstAppeal No. 564 of 1997.

31. The Apex Court in Civil AppealNo.6775 of 2013 Harbhajan Kumar andothers Vs. Collector, Land Acquisitionand another while deciding similar CivilAppeal, extended the benefit of enhancedcompensation made in previous CivilAppeal of similar nature.

32. Recently, a Coordinate Bench ofthis Court, following the aforesaidjudgment, allowed the compensation tothe tune of Rs.297/- per square yard videits judgment and order dated 23.5.2014passed in First Appeal No.336 of 1998.

33. We would like to point out thatin First Appeal No.34 of 2007, GaneshiSingh and others vs. State of U.P. andothers decided on 9.5.2008, a DivisionBench of this Court has held that the landowners of a particular land in asubsequent notification are entitled to atleast the same rate of compensation asawarded to similarly placed land ownersin an earlier notification when the samehas been brought to the notice of theCourt.

34. There is no dispute to the factthat the land in question falls within theterritory of Tahsil Dadri and situates nearDelhi, close to Hindan River on MohanNagar-Delhi Link Road surrounded byindustrial area declared by U.P.government - Bharat Electricals, CEL,Dover and other well known units andDelhi-Lucknow National Highway andjust 2 kms. away from Delhi border. Onone side Vasundhara Residential Schemedeveloped by Avas Evam Vikas Parishad


situates near to the developed KaushambiResidential Colony. On the other side ofthe National Highway, the area known asNOIDA situates with all civic amenitieson the acquired land.

35. As regards the potentiality of theland, the Reference Court has observed asunder:-

"In the present case, at my hand, it isestablished by the evidence and may benoticed by the Court that the land situatedat very important point from where Delhiboarder is about 2 kms. It is adjacent tolink road, which leads from Mohan Nagarto Delhi and other side National HighWay leads from Delhi to Lucknow. Atsome distance there is an Industrial Areahaving all the facilities. There are thesurrounding circumstances on the basis ofwhich it can be guessed that land inquestion has much potential value for theabadi purpose and it can also be noticedthat subsequently the land was being soldat very high rates. The State acquired theland for G.D.A. to facilitate the people,but G.D.A. is not supposed to act in themanner like Property Dealer."

36. In the backdrop of the aforesaidfacts, it would be highly prejudicial to theinterest of the claimants/landloosers to bedeprived of such a rate when they areplaced in similar circumstances. In ourview, such an action would certainly bethe arbitrariness and violative ofconstitutional mandate. Therefore, theclaimants are entitled to Rs.297/- persquare yard in respect of the land acquiredby the aforesaid notification.

37. As regard the deduction, it hasbeen argued by the counsel for GDA that33% deduction is very low and in view of

the decision rendered in Chandrasekhar'scase (supra) it should be atleast 70%. Onthe contrary, claimants have argued thatdeduction @ 33% is highly excessive andwholly unjustified looking to the overallsituation of the land and other evidenceon record.

38. In Chandrashekhar's case((supra)) which has been relied upon bythe counsel for the GDA the Court tookinto consideration the two components fordeduction. The first component relates toarea to be left out for providing basicamenities, like, roads, sewerage, waterlines, adjoining pavements, street light,electric sub-stations etc. Besides theaforesaid, land has also to be kept apartfor parks, gardens and playgrounds.Additional development includesprovision of civic amenities, likeeducational institutions, dispensaries andhospitals, police stations, petrol pumpsetc. The second component is deductiontowards expenditure/expenses which islikely to be incurred in providing andraising the infrastructure and civicamenities referred to above.

39. At this juncture, we would liketo point out that a Division Bench of thisCourt in Ganeshi Singh's case (supra) hasheld that there is no legal provision for thededuction from the amount ofcompensation under the Land AcquisitionAct, 1894. Various Courts normally passsuch order of deduction on the subjectivesatisfaction of each case. Therefore, thereis no hard and fast rule for makingdeductions.

40. It may be noted that learnedCounsel for the GDA has failed to pointout that before the Reference Court it hasbrought on record the indispensable


amenities and civic amenities which theywould provide on the acquired land.Further, when confronted with the questionthat whether they have demanded excessdeduction, as claimed here, before theReference Court, the answer was innegative and they failed to point out anymaterial in this regard. Since no such pleahas been raised at the initial stage, it is notopen for them to raise such a plea beforethis Court at a belated stage.

41. The Apex Court in the case ofKasturi and others vs. State of Haryana[(2003) 1 SCC 354] held that a cut of20% to the development charges whichwas lower than the normal 1/3rd wasunderstandable and could be justified.Subsequently, in Charan Dass v. H. P.Housing and Urban DevelopmentAuthority [(2010) 13 SCC 398], the ApexCourt observed that any deduction madeshould be made on the situation of theland and the need for development andwhere the acquired land is in the midst ofalready developed land with amenities ofroads, drainage, electricity, etc. thendeduction of 40% would not be justified.

42. Recently, in Mohinder Singh'scase (supra), the Apex Court held that thededuction of 40% towards developmentcost as determined by the High Court wasunjustified and the deduction of 1/4th ofmarket value made by the ReferenceCourt was appropriate.

43. It may be added that counselappearing in First Appeal No.700 of 2002has filed an application brining on recordthe notification dated 7.11.1977 issued bythe District Magistrate, Ghaziabadwhereby the Khasra Plot acquired hasbeen brought under municipal limits ofGhaziabad. Therefore, there is no doubt

that the land in question of the claimantsacquired for the Vaishali Scheme ofVillage Makanpur has already beenbrought under the limit of Nagar Palikabefore issuance of notification under theLand Acquisition Act.

44. In view of the location of land inmunicipal limits, nature of soil and otherfactors, referred to above, we find noforce in the submissions made by thecounsel for the GDA for enhancing thededuction to the tune of 75% and held that33% deduction made by the ReferenceCourt is fully justified.

45. In view of the aforesaid detaileddiscussions, the appeals filed by the GDAare hereby dismissed and the appeals filedby the claimants/landloosers forenhancement of the compensation areallowed. The claimants-privaterespondents shall be entitled forcompensation @ Rs.297/- per squareyard, as held by us above and they shallbe paid the enhanced compensationtogether with other statutory dues [likesolatium, interest etc.], as directed by theReference Court, within three monthsfrom the date of receipt of a certified copyof this order.

46. So far defective appeals areconcerned, any defect/s was/weredeficiency of court fees, it is directed thatsame will be recovered/adjusted inaccordance with rules, while preparingfinal decree by the department.

47. All the pending applicationsshall also stand disposed of accordingly.

48. Parties shall bear their owncosts.

--------


APPELLATE JURISDICTIONCIVIL SIDE

DATED: ALLAHABAD 10.11.2014

BEFORETHE HON'BLE DR. DHANANJAYA YESHWANT

CHANDRACHUD, C.J.THE HON'BLE PRADEEP KUMAR SINGH

BAGHEL, J.

Special Appeal No. 961 of 2014

Satya Prakash Chaudhary ...AppellantVersus

State of U.P. & Ors. ...Respondents

Counsel for the Appellants:Sri Jai Krishna Tiwari, Sri Radha KantOjha

Counsel for the Respondents:C.S.C.

Constitution of India, Art.-226-Suspension-on demand of illegal gratification from theattendant of emergency patient-considering gravity of charges-Single Judgedeclined to interfere-held-view taken bySingle Judge not sustainable-gravity ofcharges can not take way the Rule of law-where suspension as major of punishment-principle of Natural Justice can not bedenied-petition allowed-suspension orderquashed.

Held: Para-5In either view of the matter, the order ofsuspension that was challenged before thelearned Single Judge was unsustainable inview of the flaw which has been noticedabove. The learned Single Judge declinedto entertain the petition under Article 226of the Constitution, having due regard tothe gravity of charge against the appellant.On this aspect, we need only observe thatirrespective of the gravity of an allegation,the rule of law has to be observed and anorder of suspension must necessarily abideby the fundamental principles of servicejurisprudence as embodied in theapplicable service rules.

(Delivered by Hon'ble Dr. DhananjayaYeshwant Chandrachud, C.J.)

1. The appellant had moved a writpetition, under Article 226 of theConstitution, challenging an order dated 9September 2014 passed by the fifthrespondent namely, the Principal, B.R.D.Medical College, Gorakhpur. By the orderof the fifth respondent, the appellant wassuspended on the ground that he haddemanded an illegal gratification from theattendant of a patient in the emergencyward. A direction has been issued to theeffect that a reference to the order ofsuspension be made in the service book ofthe appellant and that an adverse entry berecorded in his character roll.

2. The learned Single Judge hasdeclined to interfere with the order ofsuspension, having due regard to thegravity of the charge. However, thesecond respondent-Director General,Medical Health Services as well as thefifth respondent-Principal, B.R.D.Medical College, Gorakhpur weredirected to look into the matter and take adecision on the issue as to who is theauthority competent to suspend theappellant.

3. Two submissions have been urgedon behalf of the appellant. Firstly, theorder dated 9 September 2014 is not anorder of suspension passed incontemplation of a disciplinary enquiry. Ifthis is an order by way of punishment, itought to have been proceeded by a noticeto show cause and a departmentalenquiry. Secondly, the direction to makean entry in the service book and to recordan adverse entry in the character roll, onthe basis of the same order, would beconsequently unsustainable since the

3 All]. Satya Prakash Chaudhary Vs. State of U.P. & Ors. 1449

entire foundation is a misconduct which isstill to be proved.

4. The order which was impugned inthe proceedings before the learned SingleJudge dated 9 September 2014 proceeds tosuspend the appellant. Ex-facie the order isnot in contemplation of a departmentalproceeding. It is well settled that an order ofsuspension of an employee can be of twotypes. The first is where a suspension isordered in contemplation of a departmentalenquiry or proceeding. The second is wherea suspension is contemplated by servicerules as a punishment for misconduct. In thepresent case, the impugned order does notindicate that it is in contemplation of adisciplinary proceeding. If the order wasintended to operate as a punishment formisconduct, compliance of the principles ofnatural justice in accordance with servicerules was necessary.

5. In either view of the matter, theorder of suspension that was challengedbefore the learned Single Judge wasunsustainable in view of the flaw whichhas been noticed above. The learnedSingle Judge declined to entertain thepetition under Article 226 of theConstitution, having due regard to thegravity of charge against the appellant.On this aspect, we need only observe thatirrespective of the gravity of anallegation, the rule of law has to beobserved and an order of suspension mustnecessarily abide by the fundamentalprinciples of service jurisprudence asembodied in the applicable service rules.

6. For these reasons, we have cometo the conclusion that the judgment andorder of the learned Single Judge wouldwarrant interference in appeal. Thespecial appeal is, accordingly, allowed

and the impugned judgment and order ofthe learned Single Judge dated 25September 2014 is set aside. Inconsequence, the writ petition (Writ-ANo.52394 of 2014) filed by the appellantshall stand allowed and the order passedby the fifth respondent dated 9 September2014 shall stand quashed and set aside.

7. However, we expressly make itclear that this judgment will not come inthe way of the competent authority to passa fresh order of suspension, if it isconsidered to be necessary and proper, incontemplation of a disciplinaryproceeding in accordance with law.

8. The special appeal is,accordingly, disposed of. There shall beno order as to costs.





BAGHEL, J.

Special Appeal Defective No. 967 of 2014

State of U.P. & Ors. AppellantsVersus

Con. 840470302 Narendra Pal Singh &Ors. ...Respondents

Counsel for the Appellants:C.S.C., S.C.

Counsel for the Respondents:Sri Udai Chandani, Sri Amrit RajChaurasiya

Constitution of India, Art.-226-claim ofHouse rent allowance by Constable andHead Constables-staying in Barrack-


allowed by Single Judge consideringviolation of Art.14 of Constitution-G. O.dated 08.11.13 not brought on record-identical controversy Division Benchdealing with Special Appeal-remandedthe matter for fresh consideration bylearned Single Judge-till decision taken-direction regarding payment of HRA keptin abeyance-Single Judge rejectedreview without considering the directionof appellate court-said part notsustainable-to this extent appeal standallowed.

Held: Para-10In our view, there is merit in thesubmission which has been urged by thelearned Chief Standing Counsel that theissue which has been raised by the Statemerits close consideration by the learnedSingle Judge. It would not beappropriate for the Court to enquire intothe correctness of the judgment andorder of a coordinate Bench dated 22April 2014, which had allowed the earlierappeal filed by the State to the extentindicated in the judgment. The learnedSingle Judge was bound by thosedirections and ought to have entertainedthe applications filed by the State onmerits. In this view of the matter, weallow the special appeal and set asidethe judgment and order of the learnedSingle Judge dated 15 September 2014passed in Review Application No.243656of 2014.


1. This special appeal arises from ajudgment and order of the learned SingleJudge dated 8 November 2013 and anorder passed in a review petition dated 15September 2014.

2. The appellants are HeadConstables or, as the case may be,Constables in the Provincial ArmedConstabulary1. A writ petition had been

filed before a learned Single Judge by 237Head Constables/Constables, seeking thepayment of House Rent Allowance2 onthe basis of a Government Order dated 14June 1999, on the ground that they hadnot been provided officialaccommodation. That writ petition wasdisposed of by a learned Single Judge byan order dated 8 December 2010. Thelearned Single Judge was of the view thatthe grievance should be examined by thePrincipal Secretary (Home) of the StateGovernment and that in order to avoidfurther litigation, it was desirable for theState to issue a circular either for thepayment of HRA to HeadConstables/Constables, or if it was not tobe so provided, by indicating the reasonsfor the decision. Following the order ofthe learned Single Judge dated 8December 2010, the State Governmentissued a circular on 25 April 2011 to theeffect that the Constables who are housedin barracks would not be paid HRA.Thereafter, a representation wassubmitted to the State Government whichwas rejected in the month of February2012 by the Commandant 44th BattalionPAC, Meerut. That led to the filing of awrit petition before the learned SingleJudge, seeking a quashing of the decisionof the Commandant. Besides, amandamus was sought to the State to payHRA to the writ petitioners together witharrears in accordance with twoGovernment Orders respectively dated 11June 1999 and 8 December 2008. Thesetwo Government Orders apply generallyto the employees of the State. The writpetition was allowed by the learned SingleJudge by a judgment and order dated 8November 2013 in the following terms:-

"In the result, the writ petition isallowed. The impugned order is quashed.

3 All]. State of U.P. & Ors. Vs. Con. 840470302 Narendra Pal Singh & Ors. 1451

The State Government in particular andall the respondents in general are directedto provide appropriate H.R.A. to all thepolice officials including the petitioners,who are made to stay in 'barracks' and arenot allotted appropriate 'residentialaccommodation' commensurating theirstatus, rank and as per their entitlement.No costs."

3. Prior to the aforesaid decision ofthe learned Single Judge, a circular wasissued by the State Government on 19October 2013 under which a provisionwas made for the payment of FamilyAccommodation Allowance3 toemployees of the police department whohad been provided accommodation inbarracks. As a matter of fact, it appearsthat the Sixth Pay Commission4 had, inthe course of its recommendations, dealtwith the issue as to whether HRA shouldbe provided to personnel of CentralReserve Police Force5 who had not beenallotted rent free accommodation. Therecommendation of the SPC provided asfollows:-

"Recommendations -CILQ7.19.42, Presently, Compensation in

lieu of Quarters (CILQ) is allowed to100% personnel in the SubordinateOfficers (Sos) grade in all CPMFs barringCRPF where only 25% of the personnel inthe grade are eligible for whichallowance. CRPF has demanded that thefacility should be extended to all the SOsin their case as well. The Commissionfinds merit in this demand. It isrecommended that the facility of CILQshould be allowed to 100% personnel inthe SOs grade in CRPF as well. Anotherdemand has been made to extend HouseRent Allowance (HRA) to all the CPMFs

personnel who have not been allotted rentfree accommodation or are eligible forCILQ. CILQ is given to a segment offorce personnel as per the authorizedstrength who have not been provided rent-free family accommodation at the dutystation. CILQ includes the element ofHRA and license fee as per prescribedrates. Personnel who are not eligible foreither rent free accommodation or CILQare expected to stay in the non-familybarracks from the functional requirement.While staying in non-family barracks onfunctional considerations is justified, itmay not be appropriate to deny anycompensation for housing the family ofthese personnel. HRA at normal ratescannot be paid to these personnel as theyare staying in barracks provided by theGovernment. However, justification existsfor providing a separate familyaccommodation allowance for housing thefamily members of this category ofemployees. In consonance with therecommendations made for similarlyplaced defence personnel, theCommission recommends that a newFamily Accommodation Allowance at thelowest rate of HRA should be paid to allthe CPMF's personnel who are noteligible for either rent freeaccommodation/HRA or CILQ. The ratesof this allowance will increase by 25%each time the price index increases by50%."

4. In pursuance of therecommendation of the SPC, eventually,the State Government issued its Circulardated 19 October 2013 as noted above.The circular of the State Governmentdated 19 October 2013 was not placedbefore the learned Single Judge when thewrit petition was allowed on 8 November2013. Against the decision of the learned


Single Judge, a special appeal was filedby the State. The special appeal wasallowed by a Division Bench of this Courton 22 April 2014 to the extent asindicated in the judgment. The DivisionBench noted that in the grounds of appeal,the State placed reliance on its decisiondated 19 October 2013 which providedfor a Family Accommodation Allowanceto those Constables and Head Constableswho had been provided accommodationsin barracks. The Division Bench notedthat it was an admitted position that thedecision of the State was neither annexedbefore nor placed for the consideration ofthe learned Single Judge. The judgmentand order of the learned Single Judgeproceeded only on the basis that barrackscould not be treated as residentialaccommodation and the denial of HRAwould be in violation of Articles 14 and16 of the Constitution. Eventually, whileallowing the special appeal to the extentthat it did, the Division Bench in itsjudgment dated 22 April 2014 observed asfollows :-

"7. Since the question raised in thewrit petition is going to affect thousandsof police personnel of the rank ofConstables and Head Constables, whohave been provided accommodation inbarracks, we find it appropriate to remandthe matter to learned Single Judge. It willbe open to the State appellants to file anappropriate application annexingtherewith the Government Order dated19.10.2013 or any other order which maybe relevant for the decision of the issue ofpayment of house rent allowance towhose employees of the policedepartment, who have been providedbarracks.

8. Considering the importance of thematter and complication which may arise

if the house rent allowance is paid underthe judgment dated 8.11.2013, we alsofind it appropriate to direct that untildecision of the writ petition after theremand the operation of the order dated8.11.2013 shall remain stayed. Anaffidavit annexing the Government Orderdated 19.10.2013 or any otherGovernment Orders which may concernthe issue may be filed by the StateGovernment before learned Single Judgewithin one month.9. The Special Appeal is allowed to thatextent as indicated above."

5. Following the judgment of theDivision Bench, the State filed a reviewpetition before the learned Single Judge.The learned Single Judge has declined toentertain the review petition on theground that the State had sought to re-argue the case on merits which was notpermissible in law, having due regard tothe parameters of the jurisdiction inreview. In the view of the learned SingleJudge, no ground for review was madeout and hence the review petition wasdismissed on 15 September 2014.

6. On behalf of the State, it has beensubmitted that the Division Bench in itsjudgment dated 22 April 2014 allowed thespecial appeal in part and had remandedthe proceedings to the learned SingleJudge, having due regard to the fact thatthe issue raised would affect thousands ofpolice personnel of the rank ofConstables and Head Constables in theState. While remanding the proceedings,the Division Bench directed that the orderof the learned Single Judge dated 8November 2013 shall remain stayed.

7. In this background, it has beensubmitted that the learned Single Judge

3 All]. State of U.P. & Ors. Vs. Con. 840470302 Narendra Pal Singh & Ors. 1453

should have taken a clear view rather thana technical view of the matter in decliningto entertain the review petition filed bythe State. The learned Single Judge has,by the original judgment, allowed the writpetition in its entirety, granting the claimfor the payment of HRA together witharrears. The date from which the arrearsare payable has not been specified.

8. On the other hand, the learnedSenior Counsel appearing on behalf of therespondents has supported the view of thelearned Single Judge.

9. Evidently, as the record before theCourt would indicate, a special appealagainst the judgment of the learned SingleJudge dated 8 November 2013 came upbefore the Division Bench. The Court wasof the view in its order dated 22 April2014 that the issue which had been raisedby the State on the basis of the decisiondated 19 October 2013 would affectthousands of police personnel across theState in the rank of Constables and HeadConstables. Unfortunately, the decision ofthe State dated 19 October 2013 had notbeen placed before the learned SingleJudge though it had been formulated andnotified much before the judgment dated8 November 2013. It was in thisbackground that the Division Benchremanded the proceedings back to thelearned Single Judge while allowing thespecial appeal of the State in part anddirected the State to file an affidavittogether with the order dated 19 October2013 and other Government Orders whichmay concern the issue. Until then, thejudgment of the learned Single Judge wasstayed. In this background, we are of theview that it would have been appropriateand proper for the learned Single Judge toentertain the application which was filed

by the State on merits. The original orderof the learned Single Judge allows thepetition in its entirety and in fact directsthe State to provide HRA to all policeofficials, including the writ petitionerswho are made to stay in barracks and whoare not allotted appropriate residentialhouse commensurate with the status, rankand entitlement. While allowing the writpetition, the judgment of the learnedSingle Judge appears to have also grantedrelief on arrears which were claimed inthe writ proceedings.

10. In our view, there is merit in thesubmission which has been urged by thelearned Chief Standing Counsel that theissue which has been raised by the Statemerits close consideration by the learnedSingle Judge. It would not be appropriatefor the Court to enquire into thecorrectness of the judgment and order of acoordinate Bench dated 22 April 2014,which had allowed the earlier appeal filedby the State to the extent indicated in thejudgment. The learned Single Judge wasbound by those directions and ought tohave entertained the applications filed bythe State on merits. In this view of thematter, we allow the special appeal andset aside the judgment and order of thelearned Single Judge dated 15 September2014 passed in Review ApplicationNo.243656 of 2014.

11. We clarify that though we arenot setting aside the judgment dated 8November 2013 in the present specialappeal, that should not be construed as anaffirmation of the merits of the decisionsince by the previous order of theDivision Bench dated 22 April 2014, thelearned Single Judge would be required toconsider the application filed by the Statein regard to the legality of the judgment


and order. Hence, we clarify that thecorrectness of the judgment is left open tobe considered by the Learned SingleJudge. However, in terms of the earlierorder dated 22 April 2014 of the DivisionBench, we continue the operation of thestay of the judgment dated 8 November2013 till the matter is finally disposed ofon merits by the learned Single judge.

12. The special appeal is allowed inthe aforesaid terms. There shall be noorder as to costs.





BAGHEL, J.

Special Appeal Defective No. 995 of 2014

Shyam Narayan & Ors. AppellantsVersus

The Union of India & Ors. ...Respondents

Counsel for the Appellants:Sri Rajeev Misra, Sri Prashant KumarTripathi

Counsel for the Respondents:A.S.G.I., Sri Vaibhav Kaushik, Sri SheshMani Misra

Constitution of India, Art.-226-Servicelaw-termination of contractualemployee-appointment for specificpurpose-in particular project-claimingengagement as per previous terms-held-no right to continue-so for appraisal ofwork or stigmatic concern-not available-learned Single Judge rightly declined tointerfere.

Held: Para-5

In this view of the matter, the appellantsbeing purely temporary employeesappointed under a contract ofengagement, the learned Single Judgecould not have ordered specificperformance which is essentially what thewrit petition sought. The secondsubmission is that the termination isstigmatic because the letter of terminationdated 7 August 2014 states that theperformance of the appellants was notfound to be satisfactory in the trade testand similarly the appraisal was alsounsatisfactory. This appraisal for thepurpose of determining whether acontractual employee should be continuedany further, cannot result in an order beingregarded as a punishment or of a stigmaticnature. Where an employee is engaged fora specified period or for a specified project,the employer is under the terms of thecontract entitled to consider whether thecontinued engagement of the employee isin the interests of the satisfactorycompletion of the project mode. Such apower is implicit in the very nature of theengagement itself. Consequently, wherethe employer proceeds to terminate such acontract on the ground that theperformance is not satisfactory, the ordercannot be regarded as being stigmatic soas to require the initiation of disciplinaryproceedings. There is no termination formisconduct in the present case.


1. The appellants had moved a writpetition seeking three reliefs (i) the settingaside of an order dated 7 August 2014 bywhich their services as contractualemployees were terminated on 7 August2014 by the Director of the IndianInstitute of Information Technology, thefourth respondent; (ii) the payment ofsalary for the months of July 2014 and forthe period of 1 August to 7 August 2014;(iii) a direction that the appellants bepermitted to perform their duties as before

3 All]. Shyam Narayan & Ors. Vs. The Union of India & Ors. 1455

in a project of digitization of the IIIT,Allahabad at the High Court of Judicatureat Allahabad.

2. The learned Single Judge by theimpugned judgment recorded thestatement of the respondents that thepetitioners-appellants had produced a noobjection certificate and consequentlydirected that the balance of their salary forthe previous month together with onemonth's salary be released to them within24 hours. The petition was disposed of.The original petitioners are in appeal.

3. The first grievance which hasbeen raised is that the learned SingleJudge has not dealt with the first and thethird prayers and has disposed of thepetition merely on the basis of the secondprayer. Now, the first and the thirdprayers were interrelated. By the firstprayer, the appellants sought the settingaside of an order of termination of theircontract, while by the third prayer, theysought a direction to enable them tocontinue to perform their duties.

4. The basic issue is as to whether theappellants have a vested right to continue inservice. Admittedly, the contract ofappointment indicates that the appointmentwas purely on a temporary basis and of aproject mode and could be terminated at anytime without assigning any reason. The IIITAllahabad is executing a project ofdigitization at the High Court and theappellants were all project employees whowere appointed purely on a temporary basis.They have no vested right to continue andthe contract is terminable without assigningany reason.

5. In this view of the matter, theappellants being purely temporary

employees appointed under a contract ofengagement, the learned Single Judge couldnot have ordered specific performancewhich is essentially what the writ petitionsought. The second submission is that thetermination is stigmatic because the letter oftermination dated 7 August 2014 states thatthe performance of the appellants was notfound to be satisfactory in the trade test andsimilarly the appraisal was alsounsatisfactory. This appraisal for thepurpose of determining whether acontractual employee should be continuedany further, cannot result in an order beingregarded as a punishment or of a stigmaticnature. Where an employee is engaged for aspecified period or for a specified project,the employer is under the terms of thecontract entitled to consider whether thecontinued engagement of the employee is inthe interests of the satisfactory completionof the project mode. Such a power isimplicit in the very nature of theengagement itself. Consequently, where theemployer proceeds to terminate such acontract on the ground that the performanceis not satisfactory, the order cannot beregarded as being stigmatic so as to requirethe initiation of disciplinary proceedings.There is no termination for misconduct inthe present case.

6. The third submission is that thelearned Single Judge had in the cause listthree other petitions which had beendirected to be listed together with the writpetition of the appellants which wasdismissed. Moreover, it has been pointedout that on 14 October 2014, the learnedSingle Judge had directed, in a companionpetition the petitioners thereto bring onrecord no dues certificate.

7. We see no reason to entertain thesubmission. The petition filed by the


petitioners-appellants was duly heard andhas been finally disposed of by theimpugned judgment and order. In anyevent, for the sake of rendering a final andcomplete adjudication of the issues raised,we have considered all the submissionswhich have been urged on behalf of theappellants and find no substance in them.The special appeal is, accordingly,dismissed. There shall be no order as tocosts.



BEFORETHE HON'BLE ARUN TANDON, J.

THE HON'BLE ARVIND KUMAR MISHRA-I, J.


Dr. Ajay Chaturvedi AppellantVersus

Smt. Shobhana ...Respondent

Counsel for the Appellant:Sri Suyash Pandey, Sri N.L. Pandey

Counsel for the Respondents:Sri Rupak Chaubey

High Court Rules, 1952-Chapter VII-RuleV-Special Appeal-maintainability-whenorder passed by learned Single Judge u/s24 C.P.C.-appealable? held-'No'-power ofsuperintendence-exercised by SingleJudge-special appeal not maintainable.

Held: Para-11In our opinion, the judgment/ordermade on the petition under Section 24 ofthe CPC only a judgment/order of thelearned Single Judge in exercise ofpower of superintendence and nothingbeyond it. In view of the interpretationof Chapter VIII Rule 5 of the Rules asabove no special appeal against thejudgment/order made in exercise of

power of superintendence would bemaintainable. We hold that the presentspecial appeal as filed by the appellant isnot maintainable.

Case Law discussed:AIR 2001 SC page 883; 1963 SCC ONLINEMad. 260 (1965) 78 LW 133 (Mad.).

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard learned counsel for theparties.

2. This special appeal under ChapterVIII Rule 5 of the High Court Rules, 1952(hereinafter referred to "as the Rules") isdirected against the order of the learnedSingle Judge, dated 28.10.2014 whereinlearned Single Judge in exercise ofpowers under Section 24 of the Code ofCivil Procedure, 1908 (hereinafterreferred to "as the CPC") has been pleasedto direct transfer of Original Suit No.956of 2010 filed by Dr. Ajay Chaturvedi, theappellant before this Court, under Section13 of the Hindu Marriage Act from theCourt of 1st Additional District Judge,Bulandshahar to the competent Court atMoradabad.

3. A preliminary objection has beenraised with regard to the maintainabilityof the present special appeal. The issue soraised revolves around the interpretationof the provisions of Chapter VIII Rule 5of the Rules. It would be appropriate toreproduce the Rules which read asfollows:

5. Special Appeal.- An appeal shalllie to the Court from a judgment (notbeing a judgment passed in the exercise ofAppellate Jurisdiction in respect of adecree or order made by a Court subjectto the Superintendence of the Court and

3 All]. Dr. Ajay Chaturvedi Vs. Smt. Shobhana 1457

not being an order made in the exercise ofrevisional jurisdiction or in the exerciseof its powers of Superintendence or in theexercise of criminal jurisdiction [or in theexercise of jurisdiction conferred byArticle 226 or Article 227 of theConstitution in respect of any judgment,order or award (a) of a tribunal, Court orstatutory arbitrator made or purported tobe made in the exercise or purportedexercise of jurisdiction under any UttarPradesh Act or under any Central Act,with respect to any of the mattersenumerated in the State List or theConcurrent List in the Seventh Scheduleto the Constitution or (b) of theGovernment or any Officer or authority,made or purported to be made in theexercise or purported exercise ofAppellate or Revisional Jurisdictionunder any such Act] of one Judge]"

4. From a simple reading of theRules, it is apparent that all the judgmentof the learned Single Judge of this Courtare appealable before a division Bench ofthe Court except for the category of thejudgments which stands excluded fromthe purview of such special appeal. TheRule in fact excludes judgments againstwhich Special Appeal will not bemaintainable. Therefore, what is to beseen is as to whether the judgment/ordermade in exercise of the powers underSection 24 of the CPC stands within thereexcluded from the provisions of theChapter VIII Rule 5 of the Rules or not?

5. A division Bench of this Court inthe case of Vajra Yojna Seed FarmKalyanpur (M/s) and others Vs. PresidingOfficer, Labour Court II and anotherreported in 2003 (1) U.P.L.B.E.C. page490 has laid down that ordinarily,following categories of the

judgments/orders stand excluded from thepurview of the special appeal underChapter VIII Rule 5 of the Rules whichreads as under:

"(i) Judgment of one Judge passed inthe exercise of appellate jurisdiction inrespect of a decree or order made by aCourt subject to the Superintendence ofthe Court.

(ii) Judgment of one Judge in theexercise of revisional jurisdiction.

(iii) Judgment of one Judge made inthe exercise of its power ofsuperintendence.

(iv) Judgment of one Judge made inthe exercise of criminal jurisdiction.

(v) Judgment or order of one Judgemade in the exercise of jurisdictionconferred by Article 226 or Article 227 ofthe Constitution in respect of anyjudgment, order or award of a Tribunal,Court or Statutory Arbitrator made orpurported to be made in the exercise orpurported exercise of jurisdiction underany Uttar Pradesh Act or under anyCentral Act, with respect of any of thematters enumerated in State List orConcurrent List.

(vi) Judgment or order of one Judgemade in exercise or jurisdiction conferredby Article 226 or Article 227 of theConstitution in respect of any judgment,order or award by the Court or anyofficer or authority made or purported tobe made in the exercise or purportedexercise of appellate or revisionaljurisdiction under any Uttar Pradesh Actor under Any Central Act."

6. Another division Bench in thecase of Amit Khanna Vs. Smt. SuchiKhanna reported in 2008 (10) ADJ page426 has held that the order made underSection 24 of the CPC does not qualify as


a judgment and, therefore, no appealunder Chapter VIII Rule 5 of the Rules ismaintainable.

7. Learned counsel for the appellantvehemently submitted that the divisionBench of this Court has not laid downcorrect law in the case of Amit Khann(supra) inasmuch as the order of thelearned Single Judge made on theapplication under Section 24 of the CPCwill qualify as a judgment and, therefore,the special appeal would be maintainable.For the propositions, he has placedreliance upon the judgment of the ApexCourt in the case of Employer In RelationTo Management Of Central MinePlanning and Design Institute Ltd. Vs.Union of India reported in AIR 2001 SCpage 883.

8. The contention so raised on behalfof the appellant may not detain the Courtfor a long inasmuch as the exercise ofpowers by the High Court under Section24 of the CPC is an exercise of power ofsuperintendence. Therefore, thejudgment/order of the learned SingleJudge on an application under Section 24CPC would being an order made inexercise of power of superintendencestands excluded from the purview ofspecial appeal as provided for underChapter VIII Rule 5 of the Rules.

"24. General power of transfer andwithdrawal.- (1) On the application ofany of the parties and after notice to theparties and after hearing such of them asdesired to be heard, or of its own motionwithout such notice, the High Court or theDistrict Court may at any stage-

(a) transfer any suit, appeal or otherproceeding pending before it for trial or

disposal to any Court subordinate to itand competent to try or dispose of thesame, or(b) withdraw any suit, appeal or otherproceeding pending in any Courtsubordinate to it, and-

(i) try or dispose of the same; or(ii) transfer the same for trial or

disposal to any Court subordinate to itand competent to try or dispose of thesame; or

(iii) retransfer the same for trial ordisposal to the Court from which it waswithdrawn.

(2) Where any suit or proceeding hasbeen transferred or withdrawn under sub-section (1), the Court which 1[isthereafter to try or dispose of such suit orproceeding] may, subject to any specialdirections in the case of an order oftransfer, either retry it or proceed fromthe point at which it was transferred orwithdrawn.

2[(3) For the purposes of thissection,-

(a) Courts of Additional andAssistant Judges shall be deemed to besubordinate to the District Court;

(b) "proceeding" includes aproceeding for the execution of a decreeor order.]

(4) the Court trying any suittransferred or withdrawn under thissection from a Court of Small Causesshall, for the purposes of such suit, bedeemed to be a Court of Small Causes.

3[(5) A suit or proceeding may betransferred under this section from aCourt which has no jurisdiction to try it.]"

9. From a simple reading of theSection 24 CPC, it is clear that transfer ofproceedings of suit; appeal etc. can bedirected by the High Court/District Courton an application as also suo moto. This

3 All]. Shri Ram Kushwaha Vs. U.P. State Sugar Corporation Ltd. Merrut & Anr. 1459

power of transfer is not an exercise oforiginal jurisdiction, it is not an exerciseof appellate jurisdiction nor it is anexercise of revisional jurisdiction.

10. The power of transfer of suit andother proceedings is an exercise of powerof superintendence. The legal position inthat has been explained by the MadrasHigh Court in the case of P. KaruppiahAmbalam Vs. Ayya Nadar reported in1963 SCC ONLINE Mad. 260; (1965) 78LW 133 (Mad.) relevant portion of thejudgment is reproduced hereinbelow:

"... Section 24 C.P.C., gives power totwo superior courts, viz., the High Courtor the District Court to withdraw any suit,appeal or other proceedings pending inany court subordinate to it and either tryand dispose of the same, or transfer thesame for trial or disposal to any Court,subordinate to it and competent to try ordispose of the same. In terms S. 24confers a very wide power, and it isintended to enable the two superior courtsmentioned in it, in their general power ofsuperintendent over subordinate courts,or in the interest of justice to redistributeall civil work of whatever nature pendingin subordinate courts for the purpose ofdisposal. It has also to be used where theinterests of justice require, that aparticular case should be transferredfrom one Subordinate Court. The subjectmatter of the transfer referred in S. 24C.P.C., as suit, appeal or otherproceeding, is of the widest kind, andthere is no reason why executionproceedings should be excluded from thescope of other proceeding mentioned inthis section. Considering also the generalpurpose of superintendence, andfurthering the interests of justice forwhich this section is enacted, there is no

reason why execution proceedings shouldbe excluded from its scope."

11. In our opinion, thejudgment/order made on the petitionunder Section 24 of the CPC only ajudgment/order of the learned SingleJudge in exercise of power ofsuperintendence and nothing beyond it. Inview of the interpretation of Chapter VIIIRule 5 of the Rules as above no specialappeal against the judgment/order madein exercise of power of superintendencewould be maintainable. We hold that thepresent special appeal as filed by theappellant is not maintainable.

12. The present special appeal isdismissed.



BEFORETHE HON'BLE TARUN AGARWALA, J.

THE HON'BLE SHRI NARAYAN SHUKLA, J.

First Appeal From Order No. 1060 of 2004

Shri Ram Kushwaha AppellantVersus

U.P. State Sugar Corporation Ltd. Meerut& Anr. Opp. Parties

Counsel for the Appellant:Sri K.S. Kushwaha, Sri Manu Khare, SriP.V. Singh

Counsel for the Opp. Parties:Sri R.K. Srivastava, Sri Pranav Chaudhary,Sri Rakesh Bagga, Sri S. Bagga

Evidence Act-Section-74,77-disabilitycertificate-being public document-notrequired to be proved-on 40%permanent disability-petitioners claimallowed partly-appeal for enhancement


of compensation-appeal allowed withdirection to the claim Tribunal-take freshdecision considering the loss of futureearnings.

Held: Para-4In the light of these decisions, we are ofthe opinion that the Tribunal committeda manifest error in rejecting thedisability certificate on the ground that itwas not proved by a witness.

Case Law discussed:AIR 1983 SC 1633; 1989 25 ALR 695; 2007(67) ALR 580; 2012 (9) ADJ 1 (NOC); 2012 (8)ADJ 534; 2012 (2) SCC 267.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. While travelling in a Tata Sumo,the claimant was injured on account of anaccident that occurred on the basis of rashand negligent driving on the part of thedriver. The claimant filed a claim petition,which was allowed in part and a sum ofRs. 39,454/- was awarded. The appellantbeing aggrieved filed the present appealfor enhancement of compensation.

2. From a perusal of the award, wefind that the claimant had filed a disabilitycertificate issued by the Chief MedicalOfficer which also contained thesignatures of the other members of theBoard, who examined the claimant andfound that he has a permanent disabilityof 40%. This certificate was rejected bythe Tribunal on the ground that the samehas not been proved by production of anywitness, namely, by a doctor.

3. We are of the opinion that acertificate issued by a Chief MedicalOfficer, being a public document, is notrequired to be proved as per the Section74 and 77 of the Evidence Act. Thecontents of a public document is proved

by production of a certified copy underSection 77 of the Evidence Act.

4. In M.M. Rajappa v. Mal HahaUru Bajappa : AIR 1983 SC 1633 and Pt.Parmanand Katara v. Union of India :1989 25 ALR 695, the Supreme Courtheld that if a document is a certified copyof a public document, it need not beproved by calling a witness. A similarview was also given by a Division Benchof this Court in Oriental InsuranceCompany Limited v. Surendra Umrao andanother : 2007 (67) ALR 580. In the lightof these decisions, we are of the opinionthat the Tribunal committed a manifesterror in rejecting the disability certificateon the ground that it was not proved by awitness.

5. Mr. Rakesh Bagga, learnedcounsel for the Insurance Companycontended that the disability certificate byitself will not entitle the claimants toclaim an enhancement compensation untiland unless the claimant proves that thedisability, which he had incurred resultedin a loss of earning. In this regard, thelearned counsel has placed reliance upona decision of this Court in Sunil Kumar v.Smt. Jasvinder Kaur and another : 2012(9) ADJ 1 (NOC) and in Om PrakashGoyal v. Raghvender Vikram Singh andanother : 2012 (8) ADJ 534 as well as adecision of the Supreme Court in MohanSoni v. Ram Avtar Tomar and others :2012 (2) SCC 267.

6. In the light of the aforesaid facts,we allow the appeal, set aside the awardand remit the matter back to the Tribunalconcerned, who will reconsider thedisability certificate as well as the loss ofearning capacity of the appellant, if any.The Tribunal will decide the matter afresh

3 All]. Jalil Ahmad Ansari Vs. State Bank of India & Ors. 1461

within three months from the date ofproduction of a certified copy of thisorder in the light of the observation madeaforesaid.

7. The Registry is directed to remitthe record to the lower court within twoweeks from today.



BEFORETHE HON'BLE VINEET SARAN, J.

THE HON'BLE VIVEK KUMAR BIRLA, J.


Jalil Ahmad Ansari ...AppellantVersus

State Bank of India & Ors. .Respondents

Counsel for the Appellant:Sri Vivek Kumar Singh

Counsel for the Respondents:Sri Satish Chaturvedi

High Court Rules, 1952-Chapter 8 Rule5-Special appeal recovery proceeding-liability of principal debtor as well asguarantor are co-extensive-even oncompromise between parties no fullpayment made-debt Tribunal alreadyfixed liability in the year 2001-appealdismissed.

Held: Para-7The liability of the guarantor is co-extensive with that of the principal debtoras has been clearly held by the SupremeCourt in the case of Industrial InvestmentBank of India Limited (supra). In thepresent case either on the ground ofentering into a compromise or on theground that the recovery should first bemade from the principal debtor and notfrom the guarantor, the recoveryproceedings have been delayed and

postponed for over a decade. The law onthis point is absolutely clear that theliability of the guarantor is co-extensive.As such in equity also if the principaldebtor as well as the guarantor have beenpostponing the recovery for the last morethan a decade firstly by offering to enterinto a compromise and thereafter resilingand then challenging the recovery ontechnical grounds, we are of the firm viewthat by doing so, the very purpose of TheRecovery of Debts Due to Banks andFinancial Institutions Acts, 1993 is beingdefeated. As such, on merits as well as onequity, we do not find any good ground tointerfere with the order passed by the writcourt.

Case Law discussed:AIR 1998 SC 157; (2010) 7 SCC 678; (2004) 6SCC 758; (2009) 9 SCC 478; AIR 1969 SC 297

(Delivered by Hon'ble Vineet Saran, J.)

1. Respondents no. 2,3,4,5 and 6 hadtaken loan from the respondent-StateBank of India for which the appellant wasthe guarantor. The Debt RecoveryTribunal (hereinafter referred to as theTribunal) passed an order in the year 2001for recovery of the defaulted amount fromthe principal debtors as well as theappellant (as guarantor). Executionproceedings were initiated before theRecovery Officer of the Tribunal in theyear 2002. The matter has been pendingsince then. In the year 2009, on the basisof a compromise made by the principaldebtors and the appellant as the guarantor,the auction scheduled to be held waspostponed on the ground that theappellant as well as the principal debtorswould deposit a sum of Rs. 4.5 lacs withthe bank. In response thereto, theappellant is said to have deposited Rs. 2lacs with the bank but the full amount wasnot deposited by the principal debtors orthe appellant. Recovery proceedings


continued and the appellant claimed thatthe amount should first be recovered fromthe principal debtors and if from suchrecovery proceedings the total amountcould not be recovered, then balanceshould be recovered from the appellant,who is the guarantor. The Tribunal as wellas the Debt Recovery Appellate Tribunalrejected such prayer of the appellant. Theappellant then filed Civil Misc. WritPetition No. 45784 of 2009, which hasalso been dismissed by order dated15.7.2014. Challenging the same, thisappeal has been filed.

2. We have heard Sri Vivek KumarSingh, learned counsel for the appellant aswell as Sri Satish Chaturvedi, learnedcounsel for the respondent-Bank and haveperused the record.

3. The submission of the learnedcounsel for the appellant is that norecovery could have been made from theappellant (who was merely a guarantor)unless recovery was made first from theprincipal debtors. He has also submittedthat there should be fairness in the actionof the State authorities and in first notproceeding against the principal debtors,they have discriminated against theappellant, whose liability would havearisen after the recovery from theprincipal debtors could not satisfy thepayment of the loan amount. He hassubmitted that the property of theprincipal debtors had been attached byorder of the Recovery Officer of theTribunal passed in the year 2002 butinstead of auctioning such property of theprincipal debtors they are now proceedingto recover the said amount from theappellant and as such the said action ofthe recovery officer is arbitrary and liableto be set aside.

4. We may first consider thedecisions relied upon by the learnedcounsel for the appellant with regard tothe fairness in the action of the Stateauthorities. Learned counsel has reliedupon the judgment of the Apex Court in thecases of Haji T.M.Hassan Rawther vs.Kerala Financial Corporation (AIR 1988 SC157) and East Coast Railway vs. MahadevAppa Rao (2010) 7 SCC 678. In the case ofHaji T.M.Hassan Rawther (supra), inparagraph 14, the Apex Court has held thatpublic property should generally be sold bypublic auction or by inviting tenders whichis for not only to get the highest price butalso ensures fairness in the activities of theState and public authorities. In the case ofEast Coast Railway (supra) the SupremeCourt has held that non application of mindby the authority making the order or nondisclosure of proper reasons would beclearly suggestive of the order beingarbitrary.

5. There is no dispute about theaforesaid principles of law as laid downby the Apex Court but the same would notbe applicable in the present case as herethe matter relates to recovery and what isto be determined is as to whether theauthorities can proceed against theguarantor only after the recovery cannotbe made from the principal debtors. Suchbeing the main question we have to nowexamine as to whether the liability of theappellant herein was co-extensive withthat of the principal borrowers or not.Learned counsel for the appellant hasrelied on decisions of the Apex Court inthe cases of Ashok Mahajan vs. State ofU.P. (2006) 10 SCC 332 and PawanKumar Jain vx. Pradeshiya Industrial andInvestment Corporation of U.P.Ltd.(2004) 6 SCC 758 and has submitted thataction against the guarantor cannot be

3 All]. The National Insurance Co.Ltd. Vs. Ratibhan Kewat & Ors. 1463

taken until the property of the principaldebtors is first sold of. In the said cases, theApex Court was dealing with recoveryunder the provisions of the U.P. PublicMoneys (Recovery of Dues) Act, 1972. Thesaid Act provides for recovery to be firstmade from the pledged goods and hence itwas held that action against the guarantorcannot be taken until the property of theprincipal debtor is first sold of. The presentis not a case under the aforesaid U.P. Act.The learned Single Judge, relying on thejudgment of the Apex Court in the case ofIndustrial Investment Bank of India Limitedvs. Biswanath Jhunjhunwala (2009) 9 SCC478 has dismissed the writ petition on theground that liability of the borrower as wellas the guarantor is always co-extensive andit is for the Bank to proceed either againstthe borrower or the guarantor. In the saidjudgment the Supreme Court has relied onvarious judgments, including that of theSupreme Court in the case of Bank of BiharLtd. vs. Dr. Damodar Prasad AIR 1969 SC297 wherein it has been held that "the veryobject of the guarantee is defeated if thecreditor is asked to postpone his remediesagainst the surety. In the present case thecreditor is a banking company. A guaranteeis a collateral security usually taken by abanker. The security will become useless ifhis rights against the surety can be so easilycut down."

6. It is not disputed that in thepresent case the order of the Tribunal waspassed in the year 2001, which hadbecome final and in pursuance thereof,recovery proceedings had been initiatedagainst the principal debtors as well as theappellant, who was a guarantor.

7. The liability of the guarantor isco-extensive with that of the principaldebtor as has been clearly held by the

Supreme Court in the case of IndustrialInvestment Bank of India Limited (supra).In the present case either on the ground ofentering into a compromise or on theground that the recovery should first bemade from the principal debtor and notfrom the guarantor, the recoveryproceedings have been delayed andpostponed for over a decade. The law onthis point is absolutely clear that the liabilityof the guarantor is co-extensive. As such inequity also if the principal debtor as well asthe guarantor have been postponing therecovery for the last more than a decadefirstly by offering to enter into acompromise and thereafter resiling and thenchallenging the recovery on technicalgrounds, we are of the firm view that bydoing so, the very purpose of The Recoveryof Debts Due to Banks and FinancialInstitutions Acts, 1993 is being defeated. Assuch, on merits as well as on equity, we donot find any good ground to interfere withthe order passed by the writ court.

8. This appeal is accordinglydismissed.



BEFORETHE HON'BLE PANKAJ MITHAL, J.

First Appeal From Order No. 3162 of 2014

The National Insurance Co. Ltd. ...Appellant

VersusRatibhan Kewat & Ors. ...Respondents

Counsel for the Appellant:Sri P.K. Sinha

Counsel for the Respondents:Sri S.D. Ojha


Constitution of India Art.-141, 142-direction of Apex Court to paycompensation to third party-whethermere direction to complete justicebetween the party-mere direction underArticle 142 or having binding precedentunder Art. 141-held-in view of latestdirection of Apex Court-such directionhas binding effect-mere reference tolarger Bench-have no disturbing effect tothe settled law.

Held: Para-10 & 1110. It is settled law that mere referenceof any question of law to a larger benchwould not have the effect of disturbingthe law which has been settled by thecourt until and unless the reference isanswered to the contrary.

11. The principle where the vehicle iscovered by insurance policy, the insureris liable to compensate the loss in thefirst instance and then may recover theamount from the owner of the vehicle incase of breach of any conditions of thepolicy, as such is binding precedent laiddown under Article 141 of theConstitution of India and is not by wayof special circumstances to do thecomplete justice under Article 142 of theConstitution of India.

Case Law discussed:2014 (142) FLR 638; 2001 (2) TAC 243 (SC);2004 (1) TAC 321; 2013 (1) TAC 414 (SC)

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard Sri P.K. Sinha, learnedcounsel for the appellant insurance companyand Sri S.D. Ojha, learned counsel appearingfor the claimant respondents.

2. This appeal under Section 173 ofthe Motor Vehicles Act, 1988 has beenpreferred against the judgment and orderdated 29.8.2014 passed in Motor AccidentClaims Petition No. 82/70/2013 (RatiBhan Singh and another Vs. Rajiv Lochan

Shukla and others) whereby a sum of Rs.1,72,500/- with 7% interest from the dateof presentation of the claim petition hasbeen awarded.

3. The tribunal by the impugned awardhas directed that the compensation awardedshall be paid and deposited by the appellantinsurance company which may be recoveredby it from the owner of the vehicle as thevehicle was covered by a valid insurancepolicy but was driven in breach of the termsand conditions of the policy.

4. In view of the fact that the liabilityto pay compensation ultimately rests uponthe owner of the vehicle and the appellantinsurance company has been given right torecover it on payment, no loss is likely to besuffered by it. The compensation payableunder the award is actually payable by theowner and not by the appellant insurancecompany. In this sense of the matter,appellant insurance company is not a partyaggrieved by the impugned award so as toentitle it to maintain the appeal.

5. Sri Sinha submits that once thetribunal holds that there was violation of theterms and conditions of the insurance policy,no liability not even to pay the compensationat the initial stage could have been fastenedupon the appellant insurance company. Anydirection of the apex court in this regarddirecting the insurer to pay and recover aredirections under Article 142 of theConstitution of India and have no bindingprecedent as has been recently held by thethree Judges Bench of the Supreme Court inthe Sate of Punjab and others Vs. RafiqMasih (White washer) 2014 (142) FLR 638.

6. The aforesaid decision of theSupreme Court no doubt lays down thatany direction issued by the Apex Court in

3 All]. Chhote Lal alias Chhattoo Ram & Anr. Vs. D.D.C. Varanasi & Ors. 1465

exercise of its power under Article 142 ofthe Constitution of India does notconstitute a binding precedent as they aredirections for the proper administration ofjustice so as to do the complete justicebetween the parties but the question iswhether the directions of the SupremeCourt to pay and recover given to theinsurer are under Article 141 or 142 of theConstitution of India.

7. The Supreme Court in New IndiaAssurance company, Shimla Vs. Kamla 2001(2) TAC 243 (SC) probably for the first timewhile considering the liability of the insurervis-a-vis the owner of the vehicle consideringthe various provisions of the Act held thatwhen there is a valid insurance policy inconnection with a particular vehicle, theburden is upon the insurer to compensate thethird party irrespective of any breach orviolation of the conditions of the policy butmay recover the said amount from the insuredpolicy holder. The court therefore directed theinsurer to first pay and then to recover theamount from the owner of the vehicle. Theaforesaid direction of the Supreme Court wasunder Article 141 of the Constitution of Indiaand not by way of doing complete justicebetween the parties under Article 142 of theConstitution of India.

8. The aforesaid decision has theapproval of the three Judges Bench of theSupreme Court in National InsuranceCompany Limited Vs. Swarn Singh andothers 2004 (1) TAC 321.

9. Recently, the Supreme Court inManager National Insurance CompanyLimited Vs. Saju P. Paul and another2013 (1) TAC 414 (SC) irrespective of thefact that the Division Bench of the SupremeCourt in some matter has referred thequestion regarding liability of the insurance

company to first pay the compensation andthen to recover it from the owner held thatthe principal which has been followed forlong regarding first pay and then recover, cannot be held to be unjustified.

10. It is settled law that merereference of any question of law to alarger bench would not have the effect ofdisturbing the law which has been settledby the court until and unless the referenceis answered to the contrary.

11. The principle where the vehicle iscovered by insurance policy, the insurer isliable to compensate the loss in the firstinstance and then may recover the amountfrom the owner of the vehicle in case ofbreach of any conditions of the policy, assuch is binding precedent laid down underArticle 141 of the Constitution of India and isnot by way of special circumstances to do thecomplete justice under Article 142 of theConstitution of India.

12. Accordingly, the above principle isa binding principle. I am therefore of theview that the appellant insurance company isnot a party aggrieved by the impugned awardso as to maintain the appeal.

13. Accordingly, the appeal isdismissed as not maintainable.



BEFORETHE HON'BLE BALA KRISHNA NARAYAN, J.

Civil Misc. Writ Petition No. 6429 of 1983

Chhote Lal alias Chhattoo Ram & Anr. ...Petitioners

Versus


D.D.C., Varanasi & Ors. ...Respondents

Counsel for the Petitioners:Sri N.C. Rajvanshi, Sri V.C. Shukla

Counsel for the Respondents:Addl. C.S.C., Sri Manoj Kumar Yadav, SriAjay Shankar

U.P. Consolidation of Land Holdings Act-Section-9-A-Jurisdiction of consolidationauthorities-plot in question being recordedas Talab and Bhita-not covered within thedefinition of agricultural land-consolidationauthorities-have no jurisdiction to decideany claim-C.O.-directed the name ofpetitioner be struck down and record withname of Gaon Sabha SOC-set-a-side theorder being without jurisdiction-DDCwrongly interfered with the order of ASOCand restoring the order of consolidationofficer-petition allowed.

Held: Para-16Thus the Division Bench of this Court inTriloki Nath (supra) after examining therelevant provisions of U. P. C. H. Act andthe law on the issue has clearly held thatarea which is put to a different use otherthan agriculture would not be covered bythe definition of the word 'land' andtherefore, the provisions of U. P. C. H.Act would not apply and the land notcovered by the provisions of U. P. C. H.Act cannot be the subject matter of adispute before the Consolidation Courtsand such Courts will have no jurisdictionto decide the question of title betweenthe parties thereto. The Division Benchfurther held that the consolidationCourts will have no power to adjudicateupon any claim for correction of recordof rights pertaining to an area notcoming within the circumscribed limitover which the consolidation courts havebeen given jurisdiction to adjudicateupon.

Case Law discussed:1982 All. L.J. 1113; 1977 AWC 1 FB; 2000 (91)RD 531 (SC); 2001 (92) RD 689; 2009 (107)RD 695; 2009 (108) RD 29.

(Delivered by Hon'ble Bala KrishnaNarayan, J.)

1. Heard Sri N. C. Rajvanshi, SeniorAdvocate assisted by Sri V. C. Shukla,learned counsel for the petitioner, SriManoj Kumar Yadav, learned counsel forthe Gaon Sabha and Sri Ajay Shankar,learned counsel for the respondent no. 5and Sri Sanjay Goswami, learnedAdditional Chief Standing counsel forrespondent nos. 1, 2 and 3.

2. The dispute involved in the presentwrit petition relates to Plot Nos. 101/1 area1.69 acres and plot No. 102, area 1.23 acressituated in village-Barsara, pargana-Katehar, district-Varanasi (hereinafterreferred to as 'the disputed plots').

3. In the basic year khatauni thedisputed plot No. 101/1 was recorded inthe names of the petitioners in Zaman 4(occupant without title) and plot No. 102was recorded as Talab in Zaman 6. Uponcommencement of consolidationoperations in the village where thedisputed plots are situate, the petitionersfiled two objections before theConsolidation Officer under Section-9 (A)(2) of the U. P. Consolidation of HoldingsAct (hereinafter referred to as the 'C. H.Act') in respect of the disputed plots. Withregard to the disputed plot no. 101/1 thepetitioners' claim before the ConsolidationOfficer was that out of the total area of1.69 acres of the aforesaid plot, 10decimal area was being used by them asAbadi. They prayed that after demarcating10 decimal area from plot no. 101/1,petitioners be declared as bhumidhars ofthe remaining area of the aforesaid plot.Vis-a-vis plot no. 102, which wasadmittedly recorded as talab, they allegedthat they were owners thereof on the


strength of a sale-deed dated 18.1.1960executed in their favour by its erstwhilezamindars Vishwanath, Nand Lal andPurushottam. Respondent nos. 5 and 6also filed objections before theConsolidation Officer with the prayer thatthe names of the petitioners recorded inthe basic year khatauni in Zaman 4 beexpunged and disputed plots which werein the nature of bhita and talab, berecorded as property of Gaon Sabha. Allthe objections were considered anddecided by the Consolidation Officer byhis common judgement and order dated21.8.1978 (Annexure 5 to the writpetition). The Consolidation Officer aftertaking into consideration the entireevidence adduced by the parties beforehim held that no bhumidhari rights couldaccrue in favour of the petitioners in thedisputed plot No. 101/1 which was in thenature of bhita and talab and directed forexpunging the entry of occupier of thedisputed plot existing in favour of thepetitioners in the basic year khatauni forrecording the same as property of GaonSabha. The consolidation Officermaintained the basic year entry in respectto plot no. 102. The Consolidation Officerhowever, found that the petitioner werethe owners of the old trees existing on thedisputed plots.

4. Against the order dated 21.8.1978the petitioners filed an appeal underSection 11 (1) of the C. H. Act which wasnumbered as Appeal No. 3084 before theAssistant Settlement Officer ofConsolidation-respondent no. 2 andallowed by him by his order dated28.8.1981 (Annexure 7 to the writpetition). The Assistant SettlementOfficer of Consolidation held that oncethe Consolidation Officer had come to theconclusion that the disputed plots were in

the nature of bhita and talab, he shouldhave refrained from passing any order forcorrection of record of rights pertainingthereto as the area comprised in thedisputed plots did not come within thecircumscribed limit over which theConsolidation courts had jurisdiction toadjudicate. The respondent no. 2 by hisorder, after setting aside the order of theAssistant Settlement Officer ofConsolidation, restored the basic yearentries, with liberty to the parties to gettheir rights in respect of the disputed plotsdeclared by a competent court. The orderdated 28.8.1981 was assailed by therespondent nos. 5 and 6 by filing arevision under Section 48 (1) of the C. H.Act before the respondent no. 1 whichwas numbered as Revision No. 3110 andallowed by him by his order dated6.4.1983 (Annexure 9 to the writpetition). The respondent no. 1 whileallowing the revision No. 3110 set asidethe order of the Assistant SettlementOfficer of Consolidation and restored thatof the Consolidation Officer.

5. The petitioners by means of thiswrit petition have prayed for issuing awrit, order or direction in the nature ofcertiorari quashing the order dated6.4.1983 passed by the Deputy Director ofConsolidation, Varanasi (Annexure 9 tothe writ petition).

6. Sri N. C. Rajvanshi, learnedcounsel appearing for the petitionerssubmitted that the Revision No. 3110preferred by the respondent nos. 5 and 6in their capacity as members of the GaonSabha claiming themselves to be themembers of Ramleela committee of thevillage, which itself was an un-registeredbody, without any authority of LandManagement Committee as contemplated


under Rule 110 A of U. P. Z. A. & L. R.Rules, 1952 and para 128 of Gaon SabhaManual was not maintainable and whollyincompetent. They had no locus standi tochallenge the order of the AssistantSettlement Officer of Consolidation andhence the impugned order passed by therespondent no. 1 allowing the revision ofthe respondent nos. 5 and 6 is totallywithout jurisdiction.

7. He next submitted that theAssistant Settlement Officer ofConsolidation had rightly allowed theappeal preferred by the petitioners againstthe order of the Consolidation Officerrejecting their claim to be recorded asbhumidhars of the disputed plots for thereason that the disputed plots were in thenature of bhita and talab in which nobhumidhari rights could accrue on theground that the Consolidation Officer hadno jurisdiction to make an order forexpunging the entry of occupier of thedisputed plot no. 101/1 existing inpetitioners' favour in the basic yearkhatauni and for correction of record ofrights, relating to land unconnected withagriculture. He next submitted that therespondent no. 2 while allowing thepetitioners' appeal had rightly restored thebasic year entries with liberty to theparties to get their rights in respect ofdisputed plots declared by a competentcourt, the revisional court clearlyexceeded its jurisdiction in interferingwith the order of the Assistant SettlementOfficer of Consolidation and restoringthat of the Consolidation Officer by theimpugned order passed by him in a totallyincompetent revision preferred byrespondent nos. 5 and 6 against the orderof the Assistant Settlement Officer ofConsolidation. In support of his aforesaidcontention, learned counsel for the

petitioners has relied upon a DivisionBench of this Court reported in 1974 RD;Triloki Nath Versus Ram Gopal andothers, 1982 All. L. J. 1113.

8. Per contra, Sri Ajay Shankar,learned counsel appearing for therespondent no. 5 submitted that therespondent nos. 5 and 6 were fullycompetent to file Revision No. 3110against the order of the AssistantSettlement Officer Consolidation in theircapacity as the members of the GaonSabha and the submissions to the contrarymade by learned counsel for thepetitioners are totally misconceived.

9. He further submitted that even ifit is assumed, though without admitting,that the revision preferred before theDeputy Director of Consolidation-respondent no. 1 was not maintainable atthe behest of respondent nos. 5 and 6, thesame was not liable to be dismissed on theaforesaid ground in view of the settledlaw on the issue as propounded by a FullBench of this Court in the case of AmirHussain Versus D. D. C., Moradabad andothers reported in 1977 AWC 1 FB thatthe Consolidation Authorities can validlydirect the name of Gaon Sabha or StateGovernment to be recorded when theyfind that there is no valid title holder andthat under the law the land had vested inthe State Government and then in theGaon Sabha even though Government orGaon Sabha has not filed any objection.Advancing his arguments further, SriAjay Shankar submitted that since thedisputed plots were concurrently found bythe respondent nos. 3, 2 and 1 to be in thenature of bhita and talab and thepetitioners had failed to establish that theywere entitled to be recorded asbhumidhars of the disputed plots, neither


the Consolidation Officer nor the DeputyDirector of Consolidation can be said tohave committed any error in holding thatthe names of the petitioners recorded inZaman 4 in the basic year khatauni, wereliable to be expunged and the disputedplots were liable to be recorded as navinparti and talab in zaman 6 respectively.The impugned order which is based uponrelevant considerations and supported bycogent reasons requires no interference bythis Court.

10. I have very carefully consideredthe submissions made by learned counselfor the parties and perused the materialbrought on record and the law reportscited on behalf of learned counsel for theparties in support of their respectivecontentions.

11. There is no dispute about thefact that in the basic year khatauni boththe plots were recorded in Zaman 6 whichhas been defined in para A-124, sub-para(6) of U. P. Land Records Manual asbarren land (i) covered with water; (ii)sites, roads, railways, buildings and otherlands put to non-agricultural uses; (iii)grave-yards and cremation grounds otherthan those included in land held bytenure-holders or in the abadi area; (iv)otherwise barren including the land whichcannot be brought under cultivationwithout incurring high cost. Barren landalso includes the land held by the Unionof India, State Government, Gaon Sabhaor any other local authority entered underClass (5) or class (6) shall be recorded inthe name of respective departments of theUnion of India or of the StateGovernment, or the Gaon Sabha or localauthority as the case may be, to denote theadministrative control and management.Upon coming into force of U. P. Z. A. &

L. R. Act the land vested in the State andthereafter in the Gaon Sabha.

12. In my opinion, without goinginto the issue whether the respondent nos.5 and 6 had any locus to file a revisionagainst the order of the AssistantSettlement Officer of Consolidation bywhich he had allowed the appeal preferredby the petitioners against the order of theConsolidation Officer, this writ petition isliable to be allowed on the second groundon which the petitioners have challengedthe impugned order passed by therespondent no. 1.

13. There is no dispute that in thebasic year petitioners were recorded asoccupiers of plot No. 101/1 in Zaman 4while plot No. 102 was recorded inZaman 6 as talab.

14. The Division Bench of thisCourt in the case of Triloki Nath (supra)had an occasion of dealing with thequestion of jurisdiction of consolidationauthorities and courts to decide thequestion of title between the partiesrelating to land or a holding used for thepurposes unconnected with agriculturaland to adjudicate upon the claims forcorrection of the record of rights relatingto areas not coming within thecircumscribed limit over which theconsolidation courts have been givenjurisdiction to adjudicate.

15. The Division Bench in paras 9and 13 of aforesaid judgement has held ashereunder:

"9. From the perusal of the aforesaiddefinitions there can be no doubt that theprovisions of Consolidation of HoldingsAct can be made applicable only to that


area which is covered by the definition ofthe word 'land' and with respect to whicha Notification may subsequently be issuedunder Section 5 of the Consolidation ofHoldings Act. The land as defined aboveis narrow in its application and refers tothat area alone which is used foragricultural purposes etc. If any area isused for purposes other than agriculture,horticulture etc. it would not be coveredby the definition of the word 'land' and assuch the provisions of the Consolidationof Holdings Act cannot apply to that area.Section 5 (1) of the Consolidation ofHoldings Act speaks of the consequenceswhich would ensure on publication ofNotification under Section 4 (2) of theAct. Under Sub-section (C) (i) of Section5 (1) of the Consolidation of HoldingsAct, a tenure holder is forbidden fromusing his holding or any part thereof forpurposes not connected with agriculture,horticulture or animal husbandryincluding pisciculture and poultryfarming. If the tenure-holder desires touse it for non-agriculture purposes, he canonly do so with the permission of theSettlement Officer (Consolidation), that isto say that so long as the holding isutilised by a tenure holder for agriculturalpurposes etc. the provisions of theConsolidation of Holdings Act wouldapply, but once the tenure holder decidesotherwise he has got to apply toSettlement Officer (Consolidation) forobtaining permission for the user of hisholding in the manner permitted under theprovisions of this Act. Once theSettlement Officer grants that permission,that area will cease to be holding withinthe definition of that term as laid downabove. As soon as it ceases to be holdingby virtue of its use for the purpose otherthan contemplated under this Act, theSettlement Officer will have no further

jurisdiction to deal with that specifiedarea which would thereafter be emanableto his jurisdiction of the Revenue or theCivil Courts as the case may be. That areain our opinion, would thence forward beexcluded from consolidation operations.Counsel for the applicant in support of hissubmission referred to above relied upona Single Judge decision of this Courtreported in Alauddin alias Makki VersusHamid Khan (1) In that case, the learnedSingle Judge was considering theprovisions of Section 143 of the Z. A. Actwhen a Bhumidhar uses holding for thepurpose not connected with agriculture,horticulture etc. He has to make anapplication to the Assistant Collector whoafter making an enquiry makes adeclaration to that effect. After making ofthe declaration, that area is demarcated.On the making of the declaration asaforesaid, the provisions of Ch. 8 of the Z.A. Act ceases to apply the Bhumidhar andunder sub-section (2) of Section 143devolution of such land of the Bhumidharwhich has been demarcated is governedby the personal law to which he is subject.The learned Single Judge has taken theview that unless the declaration has beengranted by the Assistant Collector, theholding of Bhumidhar would continue toremain his holding even though a part ofit is used for non-agricultural purposes.The result in effect of this decision is thateven though a part of the holding of aBhumidhar is used for non-agriculturalpurposes, its devolution would begoverned by the provisions of the Z. A.Act. It is only when the declaration hasbeen granted, as mentioned above, anddemarcated, that the course of thedevolution is changed and the devolutionof land not used for agricultural purposeis governed by the personal law to whichthe Bhumidhar may be subject. The ruling


relied upon by the acceptable so far asprovisions of Z. A. Act are concerned butit cannot apply to the provisions containedin the Consolidation of Holdings Act. Asmentioned above the Consolidation ofHoldings Act merely permits the use of aholding by tenure holder for purposesunconnected with agriculture etc. subjectto permission being granted by theSettlement Officer. It may also be notedthat the proviso to Section 5 also laysdown that a tenure holder may continue touse his holding or any part thereof for anypurpose for which it was in use prior tothe date prescribed in the Notificationunder the said Act. Thus from a readingof this proviso also it is clear that this Actcontemplates user of the holding or partthereof for purposes not connected withagriculture provided it was under suchcase before the notification issued underConsolidation of Holdings Act or waspermitted such use under the provisions ofthe Act. In our opinion the use of theholding for purposes unconnected withagriculture whether permitted under theAct or whether commenced before theenforcement of this Act, in either case thatarea which is put to a different use otherthan agriculture etc. would not be coveredby the definition of the word 'land' andtherefore, the provisions of this Act wouldnot apply. In our opinion, therefore, landnot covered by the provisions of theConsolidation of Holdings Act cannot bethe subject matter of a dispute before theConsolidation Courts and the said Courtswill have no jurisdiction to decide thequestion of title between the partiesthereto. In the case before use the factsclearly demonstrate that both parties wereclaiming title to the disputed plots on thebasis of different deeds of transfer. Oneparty Ramgopal claimed title on the basisof deeds executed between the years 1951

and 1956 while Triloki Nath claimed titleon the basis of a transfer deeds of 1963after the publication of the Notificationunder Section 4 (2) of the ConsolidationAct with respect to the Area. In thecircumstances such a dispute was notjustifiable by the consolidation courts."

10. .................11. .................12. ................

13. It cannot be doubted that theprovisions of Section 9 to Section 11 ofthe Consolidation of Holdings Act refer tothe correction of records of rights. In ouropinion, the procedure prescribedthereunder can only apply provided thearea which is the subject matter of disputefulfills the requirements of the definitionof the word 'land' as envisaged in the Act.We do not find anything in these sectionswhich would empower the consolidationcourts to correct their records of rightseven with respect to those areas which donot come within the purview of thedefinition of land as contemplated by theConsolidation of Holdings Act. Needlessto repeat that, the object of the Act is re-arrangement of the holdings which interms means the arrangement of land, thatis an area used for purpose of agriculture,horticulture, pisciculture etc. If the areadoes not come within the circumscribedlimit over which the consolidation courtshave been given jurisdiction to adjudicate,in our view they will have no power toadjudicate upon such claims forcorrection of their records. Such acorrection can only be effected byconsolidation courts or by District DeputyDirector of Consolidation as mentioned inSection 5 (a) after the rights of the partieshave been decided by a competent court.In this view of the matter, we are notinclined to agree with the submissionmade by counsel for the appellant that


because a duty is cast upon the DeputyDirector of Consolidation to maintain therecords of rights, he should be presumedto have jurisdiction to decide disputes andquestions of title with respect to thoseareas which are not covered by theprovisions of this Act."

16. Thus the Division Bench of thisCourt in Triloki Nath (supra) afterexamining the relevant provisions of U. P.C. H. Act and the law on the issue hasclearly held that area which is put to adifferent use other than agriculture wouldnot be covered by the definition of theword 'land' and therefore, the provisionsof U. P. C. H. Act would not apply andthe land not covered by the provisions ofU. P. C. H. Act cannot be the subjectmatter of a dispute before theConsolidation Courts and such Courtswill have no jurisdiction to decide thequestion of title between the partiesthereto. The Division Bench further heldthat the consolidation Courts will have nopower to adjudicate upon any claim forcorrection of record of rights pertaining toan area not coming within thecircumscribed limit over which theconsolidation courts have been givenjurisdiction to adjudicate upon.

17. Sri Ajay Shankar, learnedcounsel for the respondent no. 5 relyingupon the Full Bench decision of thisCourt rendered in the case of AmirHussain supra) has tried to submit that theconsolidation authorities can validlydirect the name of gaon sabha or StateGovernment to be recorded when theyfind that there is no valid title holder andthat under the law the land had vested inthe State Government and then in theGaon Sabha even though Government orGaon Sabha has not filed any objection.

18. Learned counsel for the respondentnos. 5 and 6 has tried to impress upon theCourt that since the disputed plots were inthe nature of talab and bhita, theConsolidation Officer had rightly expungedthe entry of occupant recorded in favour ofthe petitioners in the basic year and directedthe disputed land to be recorded as talab andbhita and the Assistant Settlement Officer ofConsolidation had clearly exceeded hisjurisdiction in allowing the appeal of thepetitioners preferred by them against theorder of the Consolidation officer and inrestoring the basic year entries and therevisional court rightly corrected the mistakecommitted by the Assistant SettlementOfficer Consolidation by his order by whichhe had allowed the revision of the respondentnos. 4 and 5 filed by them against theappellate order.

19. The Full Bench decision of thisCourt rendered in the case of Amir Hussain(supra), in my opinion, cannot be said to bean authority on the issue, for the simplereason that the question referred to the FullBench was whether the consolidationauthorities can validity direct the name ofthe gaon sabha or the State Government tobe recorded when they find that there is novalid title holder and under the law the landhad vested in the State Government andthen in the Gaon Sabha even though theGovernment or the Gaon Sabha has notfiled any objection. The other questionreferred to the Full Bench is not relevant forour purposes. The Full Bench was notdealing with the issue regarding thejurisdiction of the consolidation authoritiesto decide a dispute between the partiesrelating to a land which was not being usedfor any non-agricultural purpose.

20. The other decision relied uponby Sri Ajay Shankar reported in 2000 (91)


RD 531 (SC); Ram Murat Versus DDCand others, is also of no help to theanswering respondents for the simplereason that in the case of Ram Murat(supra) the objection filed by Ram Muratunder Section 9A (2) of U. P. C. H. Actclaiming sirdari rights over the land whichwas recorded as talab and pasture land,was allowed by the Consolidation Officer.Although the order of the ConsolidationOfficer had attained finality but when theaforesaid fact was brought to the notice ofthe Deputy Director of Consolidation onthe application of the members of the landmanagement committee, he directed forexpunging the name of Ram Murat andrestored the basic year entries. The orderof the Deputy Director of Consolidationwas confirmed by the High Court. Onappeal, the Apex Court held that theconsolidation authorities have a duty toprotect the interest of gaon sabha. In theaforesaid case the issue of jurisdiction ofconsolidation authorities to decide titledispute in respect of land not covered bythe ambit of the definition of land given inthe U. P. C. H. Act, was not beingexamined by the Apex Court.

21. The third case relied upon bylearned counsel for the respondent no. 4 isHinch Lal Tiwari Versus Kamla Devireported in 2001 (92) RD 689, is also ofhelp no to the answering respondents. Theissue before the Apex court in the case ofHinch Lal Tiwari (supra) was whether thecancellation of allotment of land made forthe purpose of use of building whichformed part of pond by the AdditionalCollector by his order dated 25.2.1999which was set aside in appeal by theDivisional Commissioner but maintainedin part by this Court in writ petitionpreferred by the aggrieved allottees, couldbe sustained. The apex court allowed the

appeal of the State Government holding thatno part of pond could be allotted to anybodyfor construction of house and confirmed theorder of the Divisional Commissioner anddirected the respondents-allottes to vacate theland within six months and a furtherdirection was given to the State governmentto restore the pond and develop and maintainthe same.

22. Learned counsel for therespondent no. 4 also placed relianceupon Dheeraj Versus D. D. C. and othersreported in 2009 (107) RD 695 as well asMohan and another Versus D. M. /Collector and others reported 2009 (108)RD 29.

23. None of the aforesaid decisionshave dealt with the issue involved in thiswrit petition.

24. For the aforesaid reasons and inview the settled law on the issue aspropounded by the Division Bench of thisCourt in the case of Triloki Nath (supra)the impugned order dated 6.4.1983 cannotbe sustained and is liable to be quashed.The respondent no. 1 exercised hisjurisdiction with material irregularity ininterfering with the order passed by theAssistant Settlement Officer ofConsolidation dated 28.8.1981 which isbased upon the sound principles of lawand supported by cogent reasons and inrestoring the absolutely illegal orderpassed by the Consolidation Officer.

25. Accordingly, this writ petitionsucceeds and is allowed. The impugnedorder dated 6.4.1983 passed by theDeputy Director of Consolidation inRevision No. 3110 (Annexure 9 to thewrit petition) is quashed and the orderdated 28.8.1981 passed by the Assistant


Settlement Officer of Consolidation isrestored.



BEFORETHE HON'BLE RAJAN ROY, J.


Rama Shanker Pandey ...PetitionerVersus


Counsel for the Petitioner:Sri Manoj Kumar Upadhyay, Sri AnandMohan Pandey, Sri Prabha Shanker Pandey

Counsel for the Respondents:C.S.C., Sri A.K. Srivastava, Sri RanjanSrivastava, Sri Yashwant Verma, Sri SameerSharma

Constitution of India, Art.-226-Promotion on post of Sadar Munsarim-criteria for promotion-whether as perprovision of Rules 20(3) of subordinateCivil Court Ministerial Establishment Rule1947 or U.P. Government ServantService Criteria for Recruitment orpromotion Rules 1994-applicable-held-as per law developed by Apex Court inOm Prakash Shukla Case-rule framed bygovernment under Art. 309-provision ofU.P. Government Servant Seniority Rules1991-would cover the controversy-objection that in absence of pleading-about such fundamental question-courtcan not shut its eyes-nor omission onpart of petitioner can validate act ofrespondent-selection on basis ofseniority subject to rejection of unfit-not sustainable-petition allowed withconsequential direction.

Held: Para-23,24,27,2823. A Division Bench of this Court in

the case of Omvir Sharma (Supra) wasseized with a similar issue i.e. whether

the criteria for determination of seniorityas laid down in 'Rules 1947' would beapplicable or the criteria laid down in theU.P. Government Servants SeniorityRules, 1991 would apply to the cadre ofservice in the District Courts and afterconsidering the relevant provisions andrelying upon the judgment of theSupreme Court in Om Prakash Shukla'scase AIR 1986 (SC) 1043, it also came tothe conclusion that seniority will have tobe determined as per the Seniority Rulesof 1991 framed under the Rule makingpower of the Governor under Article 309and not 'Rules of 1947, made under theGovernment of India Act, 1935, in viewof the inconsistency, therefore, the viewtaken in this case is supported by thesaid Division Bench judgment also.

24. In this context, I am not able toaccept the submissions of Sri SameerSharma for the reason, firstly, the termsand conditions of service including thecriteria of promotion is to be governed bythe rules made by the competent authorityand not by the consent of the parties nor byalleged acquiescence of any party. Theissue of criteria for promotion goes to theroot of the matter. It was incumbent uponthe selecting authority, as also theappointing authority, to first of all, ascertainthe criteria of promotion and the Rulerelevant in this context, especially, when aDivision Bench of this Court in OmvirSharma case (Supra) had alreadyconsidered a similar issue relating toseniority and vide judgment dated13.07.2010 had already held that it is theSeniority Rules, 1991 issued by theGovernor, which would apply and not the'Rules 1947' made under the Governmentof India Act, 1935. Merely because this pleahas not been raised in the pleadings, theCourt cannot shut its eyes to such afundamental question nor can this omissionon the part of the petitioner, validate anapparently unsustainable act of therespondents.

27. The selection was based oncomparative assessment of merit of thecandidates by holding an interview and

3 All]. Rama Shanker Pandey Vs. State of U.P. & Ors. 1475

not on the basis of 'seniority subject torejection of unfit', therefore, it cannot besustained. The question as to whetherinterview could be held for assessing thefitness of a candidate, on the basis ofcriteria of 'seniority subject to rejectionof unfit' is left open for being consideredby the competent authority in the lightof the provisions of law and the pastpractice which is not contrary to Rulesbut with the rider that there has to beuniformity in the matter. It would beimpermissible to hold interview in onejudgeship but not in others.

28. For the reasons aforesaid, thesubmission that once the petitioner hasappeared in the selection it was not openfor him to challenge the same, is also notacceptable, as, this principle does notapply in the facts of this case. It is therespondents, who have a committed afolly by applying a wrong rule and awrong criteria for selection; the issue, istoo fundamental to be brushed aside onthis submission of Sri Sharma.

Case Law discussed:2010(9) ADJ 658

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Sri M.K. Upadhyayalongwith Sri A.M. Pandey, learnedcounsel for the petitioner and Sri SameerSharma for the respondent and Sri A.K.Srivastava for the Respondent No.5.

2. This matter was heard earlier andjudgment was reserved on 05.12.2014,however, while going through the recordand perusing the judgment of this Court inthe case of Sayed Muttaqui Raza Vs.District Judge, Banda, reported in 1999Law Suit (All) 947 it was revealed thatthere are Rules known as U.P.Government Service Criteria forRecruitment or Promotion Rules, 1994(hereinafter referred as 'Rules, 1994'),

according to which, the criteria forpromotion to the post in question wouldbe 'seniority subject to rejection of unfit'and not 'merit with due regard to seniority'as is provided in Sub Rule 3 of Rule 20 ofthe Subordinate Civil Court MinisterialEstablishment Rules, 1947 (hereinafterreferred as 'Rules, 1947'). Rules of 1947,accordingly, the matter was posted forrehearing today vide order dated08.12.2014 which reads as under:-

"The judgment was reserved in thiscase on 5.12.2014. After going throughthe records, I find that the parties havenot addressed the Court on the issue as towhether U.P. Government ServantsCriterion for Recruitment by PromotionRules, 1994 or Rule 20 (3) of the U.P.Subordinate Civil Courts MinisterialEstablishment Rules, 1947 will apply inthe instant case. This Court in SyyedMuttaqui Raza vs. District Judge, Banda,1999 Law Suit (All), 947 took note of thisissue but did not give any categoricalfinding in this regard.

List this case for rehearing on11.12.2014 at 10A.M. "

3. Today the matter has been heard.

4. The dispute in this writ petitionrelates to promotion of Respondent No.5to the post of Sadar Munsarim in thejudgeship of Allahabad. There are twoposts of Sadar Munsarim. The disputerevolves round promotion on one of thepost.

5. Sri Sameer Sharma, learnedcounsel for the respondent submits firstlythat the petitioners have not taken anyplea regarding applicability of the 'Rules1994' in the pleadings, therefore, it is notopen for this Court to consider the same


in the absence of any pleading. In fact inparagraph 40 the petitioner has himselfpleaded violation of Rule 20 sub Rule 3 ofthe Rule 1947, therefore, even accordingto him Rules 1947 apply. In thealternative, Sri Sameer Sharma submittedthat assuming though not conceding thatthe Rules 1994 were applicable, thepetitioner was not found fit, therefore, thepromotion in question is not liable to beinterfered with and no relief can begranted to him. Moreover, there was oneperson senior to the petitioner, therefore,for this reason also he is not entitled forany relief. He also submitted that once thepetitioner has appeared in the selection forpromotion then it was not open to him tochallenge the process/procedure,including the criteria, adopted therein.

6. Sri A.K. Srivastava, learnedcounsel for the Respondent No.5supported the stand of Sri Sameer Sharmaand took the same plea.

7. On the other hand, learnedcounsel for the petitioner submitted thateven if, the plea regarding applicability ofRule 20(3) of Rules, 1947 had not beentaken, the respondents were under anobligation to determine as to which rulewas applicable and to act accordingly.

8. The terms and condition ofservice relating to the post of SadarMunsarim are governed by the 'Rules,1947', which were notified on 01.08.1947in pursuance to the provisions of Clause(b) of Sub Section (1) and Clause (b) ofSub Section (2) of Section 241 of theGovernment of India Act, 1935, insuppression of all existing Rules andOrders on the subject, by the Governor ofUnited Provinces, for regulatingappointment to the Ministerial

establishment of the Civil Court in theUnited Provinces subordinate to the HighCourt of Judicature at Allahabad and theChief Court of Oudh at Lucknow.

9. Even after framing of theConstitution of India the said Rules havecontinued to govern the terms andconditions of service of the post inquestion, in view of the provisionscontained in Article 313 (Part XIVChapter 1) of the Constitution of India)and Article 372 thereof.

10. The incumbents of the post ofSadar Munsarim as also those holding thefeeder posts in the District Courts in theState of U.P. are Government Servantsand there is no dispute regarding theirstatus as such, thus, the provisionscontained in Article 309 to 313 of theConstitution of India are applicable tothem, as, they are appointed to PublicServices and posts in connection with theaffairs of the State of Uttar Pradesh.

11. The Government of Uttar Pradeshin exercise of the power vested under theproviso to Article 309 of the Constitution ofIndia has framed the 'Rules 1994', whichwere notified in the Gazette on 10.10.1994,these Rules were amended firstly in the year1998 and thereafter on 12.08.2010. Rule 1(3)of the 'Rules, 1994' provides that they shallapply to the recruitment by promotion to apost or service for which no consultationwith the Public Service Commission isrequired on the principle to be followed inmaking promotion under the U.P. PublicService Commission Limitation of FunctionsRegulations, 1954, as amended from time totime.

12. It is not in dispute that the postin question is not one for which


consultation with the Public ServiceCommission is required, therefore,covered by the said Rules. Rule 2 of thesaid Rule of 1994 gives overriding effectto it over anything to the contrarycontained in any other service Rules madeby the Governor under the proviso toArticle 309 of the Constitution or Ordersfor the time being in force. Rule 4 of thesaid Rules, 1994 as amended on12.08.2010 i.e. prior to the selection inquestion held on 07.07.2011, reads asunder:-

"4. Criterion for recruitment bypromotion-Recruitment by promotion tothe post of Head of Department, to a postjust one rank below the Head ofDepartment and to a post in any servicecarrying the pay Band 4 (Rs.37,400-67,000) and Grade Pay Rs.8,700 or aboveshall be made on the basis of merit, and torest of the posts in all services to be filledby promotion, including a post wherepromotion is made from a non-Gazettedpost to a Gazetted post or from oneservice to another service, shall be madeon the basis of seniority subject to therejection of the unfit."

13. It is not in dispute that thepromotion in question was held by therespondents on the basis of criteria of'merit with due regard to seniority' asprescribed in sub Rule 3 of sub Rule 20 ofthe Rules, 1947 and not the criteria of'seniority subject to rejection of unfit' Theproceedings of the Selection Committeereveal that there was a comparativeassessment of merit of the candidates forselecting the 'most meritorious' which isnot done under the criteria of senioritysubject to rejection of unfit. TheRespondent No.5 was selected, in spite ofbeing junior, as he was of 'Outstanding

Merit' and the petitioner, in spite of beingsenior was not found efficient. Thisposition that there was a comparativeassessment of merit as per Rules, 1947has not been disputed even at the bar. It isalso not in dispute that there is oneeligible person senior to the petitionerherein and that the Respondent No.5 wasthe junior most amongst the eligiblepersons.

14. The question which falls forconsideration and which is purely a legalone, is, whether the Rules of 1994 or theRules of 1947 would apply for thepurpose of determining the criteria forpromotion to the post of Sadar Munsarimin the District Courts including thejudgeship of Allahabad.

15. If it is found that Rule 4 of the'Rules of 1994' will apply then, in itslight, it will have to be determined as towhether the criteria for promotion to thepost in question is 'merit or senioritysubject to rejection of unfit'. If it is foundthat it is the latter then the entireproceedings based on the criteriaprescribed under Sub Rule 3 of Rule 20 ofRules 1947 i.e. 'merit with due regard toseniority', will stand vitiated and a freshselection would be required.

16. The 'Rules 1947' were madeunder the Government of India Act, 1935,prior to coming into force of Constitutionof India. However, as per Article 313 ofthe Constitution of India read with Article372 thereof, such Rules continued to beapplicable to any public service or anypost which continues to exist after thecommencement of the constitution as anAll India Service or as Service or postunder the Union or a State, so far asconsistent with the provisions of the


Constitution and until other provision ismade in this behalf under theConstitution.

17. After coming into force of theConstitution of India and in view of theprovisions contained in Article 309thereof the State Government has framed'Rules, 1994' as already referred hereinabove, for regulating the criteria forpromotion to the posts mentioned herein.These Rules have been framed in exerciseof powers under the proviso Article 309.Rules 1994 have overriding effect over allother Rules, or orders, therefore, in theevent of inconsistency the same willoverride the Rules 1947 also, especially inview of the provisions contained inArticle 313 which contain the word, "untilother provision is made in this behalfunder this constitution".

18. A Division Bench of this Courtin the case of Omvir Sharma Vs. State ofU.P. & others, reported in 2010(9) ADJ658 has held that the term 'Service Rules'used in Rule 4(g) of the U.P. GovernmentServant Seniority Rules, 1991 includesthe Service Rules made under theGovernment of India Act, 1935. Based onthe same reasoning the Rules, 1947 arecovered under Rule 2 of the Rules, 1994.Paragraph 14 of the judgment reads asunder:-

"The crucial words in the Rule 2 asquoted above is that rules shall apply toall Government servants in respect ofwhose recruitment and conditions ofservice, rules may be or have been madeby the Governor. The submission pressedby learned Counsel for the appellant isthat since no rules were framed underproviso to Article 309 of the Constitutionof India regarding determination of

seniority earlier and the Rules, 1991supersedes the rules framed underprovision to Article 309, it can have noeffect on the 1947 Rules. The abovesubmission is fallacious as noticed above.The applicability of Rules can be judgedon two scores. Firstly, if the rule underproviso to Article 309 may be framed bythe Governor and secondly the Rule underproviso to Article 309 have been made bythe Governor. Non framing of any earlierrules under Article 309 is not decisive.The competence of Governor to frameRule under proviso to Article 309 issufficient enough to apply the 1991 Rules.It cannot be denied that ministerial staffsof the subordinate courts are within therule making power of the Governor. 1950Rules as noticed above have already beenheld to be applicable to the ministerialstaffs of the subordinate courts by theapex Court in O.P. Shukla case (supra).Thus when the Governor is competent toframe rule under Article 309, the 1991Rules shall be applicable The wordservice rules have been defined under rule4 (g). Service rule under rule 4(g)includes administrative instructionsissued by the Governor regulating therecruitment and conditions of service ofpersons, why statutory Rules framedunder section 241 of the Government ofIndia Act can be held not to be servicerules is not understandable. Rules framedby the Governor prior to the Constitutionof India under section 241 of theGovernment of India Act are also servicerules within the meaning of 1991 Ruleswhich shall be overridden by 1991 Rules.Again the said issue has already beendecided in O.P. Shukla's case (supra)which has held that 1947 Rules shall beimpliedly overruled by 1950 Rules for thesubject which has been covered by 1950Rules."


19. Now, the question forconsideration is as to whether there is anyconflict between sub Rule 3 of Rule 20 ofthe 'Rules, 1947' and Rule 4 of the 'Rules1994'.

20. Not much discussion is requiredon this issue as a conjoint reading of thesaid Rules leaves no doubt that there isapparent difference in the two provisions.As per Rule 4, in the matters of promotionto the post of Head of the Department,one post lower in rank to that of the Headof the Department and the posts in anyservice carrying pay band 4 (37400-67000) and grade pay Rs.8700 or above,shall be made on the basis of' 'merit' andthe rest of the posts in all services to befilled up by promotion, including a postwhere promotion is made from a non-gazetted post to a gazetted post or fromone service to another service shall bemade on the basis of seniority subject torejection of unfit. The post of SadarMunsarim does not carry pay band 4. Thepay scale of Sadar Munsarim is (Rs.9300-34800, grade pay 4600), therefore, inview of the aforesaid Rule 4 of the Rulesof 1994, the post of Sadar Munsarim isnot one to be filled by promotion on thebasis of 'merit', in stead, it is a post whichis to be filled by promotion on the basis of'seniority subject to rejection of unfit'.Thus the criteria for promotion underRule 4 of 'Rules, 1994' is either merit or'seniority subject to rejection of unfit'depending upon the factors mentionedtherein, whereas under Rule 20(3) ofRules, 1947 it is 'merit with due regard toseniority, which is apparently differentand inconsistent with the criteria underthe Rules 1994. Neither 'merit norseniority subject to rejection of unfit canbe equated with 'merit with due regard toseniority'. The Governor in exercise of his

rule making power under Article 309 hasalso made "The U.P. Promotion bySelection (on post outside the preview ofthe Public Service Commission)eligibility list Rules, 1986, which havebeen amended from time to time. TheseRules lay down the criteria for preparingthe eligibility lists for promotion based on'merit' and seniority subject to unfit,separately.

21. In view of the aboveinconsistency in Rule 4 of 'Rules 1994'and Sub Rule 3 of Rule 20 of the 'Rules1947' it is the former which will prevailand not the latter. In view of the words"until other provision is made in thisbehalf under this Constitution", occurringin Article 313 of the Constitution of India,the words "but subject to other provisionsof this Constitution" occurring in Article372 and also in view of the non-obstanteclause contained in Rule 2 of Rules 1994,the criteria of promotion applicable in thiscase is seniority subject to unfit and not'merit with due regard to seniority'.

22. As the promotion in question hasbeen held on the basis of the criteria of'merit with due regard to seniority' asprescribed under Sub Rule 3 of Rule 20and not on the basis of the criteria ofseniority subject to rejection of unfit asprescribed under Rule 4 of the Rules1994, therefore, the very premise onwhich the selection has been held, iscontrary to the mandatory provisioncontained in Rule 4 of the Rules of 1994,accordingly, the same cannot besustained.

23. A Division Bench of this Courtin the case of Omvir Sharma (Supra) wasseized with a similar issue i.e. whether thecriteria for determination of seniority as


laid down in 'Rules 1947' would beapplicable or the criteria laid down in theU.P. Government Servants SeniorityRules, 1991 would apply to the cadre ofservice in the District Courts and afterconsidering the relevant provisions andrelying upon the judgment of the SupremeCourt in Om Prakash Shukla's case AIR1986 (SC) 1043, it also came to theconclusion that seniority will have to bedetermined as per the Seniority Rules of1991 framed under the Rule makingpower of the Governor under Article 309and not 'Rules of 1947, made under theGovernment of India Act, 1935, in viewof the inconsistency, therefore, the viewtaken in this case is supported by the saidDivision Bench judgment also.

24. In this context, I am not able toaccept the submissions of Sri SameerSharma for the reason, firstly, the termsand conditions of service including thecriteria of promotion is to be governed bythe rules made by the competent authorityand not by the consent of the parties norby alleged acquiescence of any party. Theissue of criteria for promotion goes to theroot of the matter. It was incumbent uponthe selecting authority, as also theappointing authority, to first of all,ascertain the criteria of promotion and theRule relevant in this context, especially,when a Division Bench of this Court inOmvir Sharma case (Supra) had alreadyconsidered a similar issue relating toseniority and vide judgment dated13.07.2010 had already held that it is theSeniority Rules, 1991 issued by theGovernor, which would apply and not the'Rules 1947' made under the Governmentof India Act, 1935. Merely because thisplea has not been raised in the pleadings,the Court cannot shut its eyes to such afundamental question nor can this

omission on the part of the petitioner,validate an apparently unsustainable actof the respondents.

25. Moreover, as this Court hadalready put the learned counsels for therespective parties to notice about theaforesaid issue, while posting the matterfor rehearing vide its order dated08.12.2014, and it being purely a questionof law, it cannot be said that any prejudicehas been caused to the respective partieson account of absence of pleading on theissue, therefore, for this reason also, thesubmission of Sri Sharma is notacceptable.

26. So far as the fitness or otherwiseof the petitioner is concerned, the same isto be assessed by the selecting authorityas per the criteria mentioned in therelevant rules, but, the selection inquestion was held on the basis of a wrongcriteria applying an inapplicable rule.

27. The selection was based oncomparative assessment of merit of thecandidates by holding an interview andnot on the basis of 'seniority subject torejection of unfit', therefore, it cannot besustained. The question as to whetherinterview could be held for assessing thefitness of a candidate, on the basis ofcriteria of 'seniority subject to rejection ofunfit' is left open for being considered bythe competent authority in the light of theprovisions of law and the past practicewhich is not contrary to Rules but withthe rider that there has to be uniformity inthe matter. It would be impermissible tohold interview in one judgeship but not inothers.

28. For the reasons aforesaid, thesubmission that once the petitioner has

3 All]. Ram Kishan Vs. State of U.P. & Anr. 1481

appeared in the selection it was not openfor him to challenge the same, is also notacceptable, as, this principle does notapply in the facts of this case. It is therespondents, who have a committed afolly by applying a wrong rule and awrong criteria for selection; the issue, istoo fundamental to be brushed aside onthis submission of Sri Sharma.

29. Sri Sameer Sharma invited theattention of the Court to the 'U.P. StateDistrict Courts Service Rules, 2013,which have come into force w.e.f.04.07.2013, which now regulate the termsand conditions of service of the posts inquestion. As per Rule 4 read withScheduled 'B' thereof the criteria ofpromotion to the post in question is'seniority cum merit'. Vide Rule 29thereof the Rules, 1947 have beenrepealed. In my view this does not makeany difference to the case, as, theselection in question herein was held priorto 04.07.2013. The process of selectionhaving been initiated and completed priorto 04.07.2013, in my view, the vacancywill have to be filled in according to theRues, 1994.

30. The other submissions of thelearned counsel for the parties assumingthe application of Rule 20(3) of Rules,1947, need no consideration.

31. In view of the above discussion,the order of promotion of the RespondentNo.5 dated 05.01.2012, passed by theDistrict Judge, Allahabad cannot besustained and is quashed. The selectionproceedings on the basis of which the saidpromotion order was issued are declared anullity in the eyes of law. However, as thepost in question should not remain vacant,it is provided that the Respondent No.5

shall continue to function as SadarMunsarim on the same terms andconditions on which he has beencontinuing. No recovery of financialbenefits already given shall be made fromhim. His continuance shall be subject tothe fresh selection and promotion to bemade by the respondents, expeditiously, ifpossible, before 15.01.2015. So far asRelief No.2 is concerned, the same cannotbe considered at this stage as it willdepend upon the fresh selection to beheld, as aforesaid. Learned counsel for thepetitioner informs that the other post ofSadar Munsarim is lying vacant since2009, accordingly it is provided that, ifthere is no legal impediment then therespondents may consider filling up thesaid post also accordingly.

32. Subject to above, the writpetition is allowed.



BEFORETHE HON'BLE PRADEEP KUMAR SINGH

BAGHEL, J.


Ram Kishan ...PetitionerVersus

State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:Sri Shamsher Singh


Constitution of India, Art.-226-claim ofBack wages-petitioner running undersuspension w.e.f. 9.5.82 to 27.04.96-onpendency of criminal trail-after acquittalallowed to join-no disciplinary proceeding


initiated-entitled for back wages-inabsence of pleading regarding no gainfulworking -anywhere else-in view ofguidelines of Apex Court in Depali GunduSarwase-40% back wages would beproper-payable within 4 month.

Held: Para-7Indisputably, the petitioner wassuspended on the ground that criminalproceeding is pending against him. TheDepartment has not initiated anydisciplinary proceedings against thepetitioner. The petitioner has beenacquitted and has also been reinstatedby the respondents but he has beendenied salary from the year 1982 to1996 only on the ground of no work nopay. It is a trite law that no work no payshall be applicable in such circumstanceswhere there is fault of an employee. Thepetitioner was a Class IV employee, hewas kept out of job for twelve years onlyon the ground of pendency of criminalproceeding against the petitioner. It isalso trite law that on the same chargesthe Departmental proceedings as well ascriminal proceedings can go onsimultaneously and in case the employeeis acquitted in a criminal case theemployer is not bound to accept thatdecision and make it independent viewin the disciplinary proceeding holdinghim guilty as the law of evidence is notapplicable in the disciplinaryproceedings. But in the present case thedepartment preferred not to initiate anydisciplinary proceedings. Therefore, afteracquittal of the petitioner he is entitledfor full pay for the period when he waskept out of the employment.

Case Law discussed:(1979) 2 SCC 80; (2006) 1 SCC 479; (2006) 9SCC 434; (2009) 5 SCC 705; (2010) 2 SCC 70;JT 2013 (12) SC 322.

(Delivered by Hon'ble Pradeep KumarSingh Baghel, J.)

1. The petitioner has preferred thiswrit petition for quashing of the impugned

order dated 12.7.2000 passed by therespondent no.2 and for payment of hissalary for the period when he was undersuspension i.e. 19.5.1982 to 27.4.1996.

2. The brief facts of the case are thatthe petitioner was a tube well operator inIrrigation Department. He was placedunder suspension on 19.5.1982 on theground of criminal proceeding undersection 161 IPC and 5(2) of Prevention ofCorruption Act, 1988 was pending againstthe petitioner. In the said criminal case hewas acquitted by the IV AdditionalSessions Judge on 19.5.1992. A copy ofthe judgment of the Sessions court is onthe record. A perusal of the order indicatethat petitioner was falsely implicated inthe criminal case and prosecution failed toestablish the charges against thepetitioner.

3. After acquittal on 19.5.1992, thepetitioner made several representationsfor his joining but no action was taken.He preferred Writ petition No. 31430 of1994 for a direction upon the respondentsto pay his arrears of salary and permit himto join his duties. Pending considerationof the said writ petition the secondrespondent vide order dated 26.4.1996permitted the petitioner to join his duty atTube well No.24 NG Sub. Division III,and his suspension order was revoked.After joining the petitioner made a freshrepresentation for payment of his salaryduring the period of his suspension.

4. In Writ Petition No. 31430 of1994 an interim mandamus was issued on15.10.1997 with a direction to either paythe difference of salary to the petitioner orfile counter affidavit within three weeks.The said order was not complied with asneither the difference of salary was made

3 All]. Ram Kishan Vs. State of U.P. & Anr. 1483

nor counter affidavit was filed within thestipulated time. The said writ petition wasfinally disposed of on 2nd August, 1999with a direction to the authorities todecide the petitioner's representation inaccordance with law by a speaking order.In compliance thereof the impugned orderhas been passed wherein it is mentionedthat the petitioner is not entitled for theback wages on the ground of no work nopay.

5. A counter affidavit has been filed.In the counter affidavit the same stand hasbeen reiterated.

6. I have perused the record andheard learned Standing Counsel.

7. Indisputably, the petitioner wassuspended on the ground that criminalproceeding is pending against him. TheDepartment has not initiated anydisciplinary proceedings against thepetitioner. The petitioner has beenacquitted and has also been reinstated bythe respondents but he has been deniedsalary from the year 1982 to 1996 only onthe ground of no work no pay. It is a tritelaw that no work no pay shall beapplicable in such circumstances wherethere is fault of an employee. Thepetitioner was a Class IV employee, hewas kept out of job for twelve years onlyon the ground of pendency of criminalproceeding against the petitioner. It is alsotrite law that on the same charges theDepartmental proceedings as well ascriminal proceedings can go onsimultaneously and in case the employeeis acquitted in a criminal case theemployer is not bound to accept thatdecision and make it independent view inthe disciplinary proceeding holding himguilty as the law of evidence is not

applicable in the disciplinary proceedings.But in the present case the departmentpreferred not to initiate any disciplinaryproceedings. Therefore, after acquittal ofthe petitioner he is entitled for full pay forthe period when he was kept out of theemployment.

8. As mentioned above from theperusal of the judgment of the trial court itis evident that there is finding thatpetitioner was falsely implicated in thecase on account of personal enmitybetween the complainant and thepetitioner.

9. The Supreme Court in the case ofHindustan Tin Works (P) Ltd. v.Employees, (1979) 2 SCC 80, held thatordinarily, an employee whose service hasbeen illegally terminated would beentitled to full back wages except to theextent he was gainfully employed duringthe period he was in employment. TheCourt held that the back wages is anormal Rule. This case was consistentlyfollowed. However, with the passage oftime the Court took a pragmatic view thatemployer may not be compelled to pay tothe workman during the period when hedid not worked. Reference may be madeto the judgment of U.P.State BrasswareCorpn. Ltd. v. Uday Narain Pandey,(2006)1 SCC 479; Haryana StateElectronics Development Corpn. Ltd. v.Mamni, (2006) 9 SCC 434; P.V.K.Distillery Ltd. v. Mahendra Ram, (2009)5 SCC705; Reetu Marbles v. PrabhakantShukla, (2010) 2 SCC 70; and U.P. SRTCv. Mitthu Singh (2006)7 SCC 180.

10. In a recent case of DeepaliGundu Surwase v. Kranti JuniorAdhyapak Mahavidyalaya, JT 2013 (12)SC 322 the Supreme Court after analyzing


a large number of its earlier cases again heldthat in case of removal/termination of servicereinstatement with continuity of service andback wages is a normal rule. In the said casethe appellant was a teacher in a primaryschool. The institution was receiving grant-in-aid by the State Government. She wassuspended. The Education Officer did notpaid her subsistence allowance also.Thereafter she was subjected to thedisciplinary proceedings and her serviceswere terminated. Her termination order wasquashed by the School Tribunal. The order ofthe Tribunal was challenged in the HighCourt in the Writ Petition. The learnedSingle Judge set aside the direction given bythe School Tribunal for payment of backwages. Aggrieved by the said order theteacher preferred Special Leave Petition inthe Supreme Court. The relevant part of thejudgment read as under :-

"The propositions which can beculled out from the aforementionedjudgments are:

i) In cases of wrongful termination ofservice, reinstatement with continuity ofservice and back wages is the normal rule.

ii)The aforesaid rule is subject to therider that while deciding the issue of backwages, the adjudicating authority or theCourt may take into consideration thelength of service of theemployee/workman, the nature ofmisconduct, if any, found proved againstthe employee/workman, the financialcondition of the employer and similarother factors.

iii) Ordinarily, an employee orworkman whose services are terminatedand who is desirous of getting back wagesis required to either plead or at least makea statement before the adjudicatingauthority or the Court of first instance that

he/she was not gainfully employed or wasemployed on lesser wages. If theemployer wants to avoid payment of fullback wages, then it has to plead and alsolead cogent evidence to prove that theemployee/workman was gainfullyemployed and was getting wages equal tothe wages he/she was drawing prior to thetermination of service. This is so becauseit is settled law that the burden of proof ofthe existence of a particular fact lies onthe persons who makes a positiveaverments about its existence. It is alwayseasier to prove a positive fact than toprove a negative fact. Therefore , once theemployee shows that he was notemployed, the onus lies on the employerto specifically plead and prove that theemployee was gainfully employed andwas getting the same or substantiallysimilar emoluments.

iv) The cases in which the LabourCourt/Industrial Tribunal exercises powerunder Section 11-A of the IndustrialDisputes Act, 1947 and finds that eventhough the enquiry held against theemployee/workman is consistent with therules of natural justice and/or certifiedstanding orders, if any, but holds that thepunishment was disproportionate to themisconduct. Found proved, then it willhave the discretion not to award full backwages. However, if the LabourCourt/Industrial Tribunal finds that theemployee or workman is not at all guiltyof any misconduct or that the employerhad foisted a false charge, then there willbe ample justification for award of fullback wages.

v) The cases in which the competentCourt or Tribunal finds that the employer hasacted in gross violation of the statutoryprovisions and/or the principles of naturaljustice or is guilty of victimizing theemployee or workman, then the concerned

3 All]. Smt. Satyabhama Dubey Vs. Regional Deputy Director of Education, Agra & Ors. 1485

Court or Tribunal will be fully justified indirecting payment of full back wages. Insuch cases, the superior Courts should notexercise power under Article 226 or 136 ofthe Constitution and interfere with the awardpassed by the Labour Court, etc., merelybecause there is a possibility of forming adifferent opinion on the entitlement of theemployee/workman to get full back wages orthe employer's obligation to pay the same.The Courts must always be kept in view thatin the cases of wrongful/ illegal terminationof service, the wrongdoer is the employerand sufferer is the employee/workman andthere is no justification to give premium tothe employer of his wrongdoings byrelieving him of the burden to pay to theemployee/workman his dues in the form offull back wages.

vi) In a number of cases, the superiorCourts have interfered with the award ofthe primary adjudicatory authority on thepremise that finalization of litigation hastaken long time ignoring that in majorityof cases the parties are not responsible forsuch delays. Lack of infrastructure andmanpower is the principal cause for delayin the disposal of cases. For this thelitigants cannot be blamed or penalised. Itwould amount to grave injustice to anemployee or workman if he is deniedback wages simply because there is longlapse of time between the termination ofhis service and finality given to the orderof reinstatement. The Courts should bearin mind that in most of these cases, theemployer is in an advantageous positionvis-a-vis the employee or workman. Hecan avail the services of best legal brainfor prolonging the agony of the sufferer,i.e. , the employee or workman , who canill afford the luxury of spending moneyon a lawyer with certain amount of fame.Therefore, in such cases it would beprudent to adopt the course suggested in

Hindustan Tin Works Private Limited v.Employees of Hindustan Tin WorksPrivate Limited (supra).

vii) The observation made inJ.K.Synthetics Ltd. v. K.P.Agrawal(supra) that on reinstatement theemployee/workman cannot claimcontinuity of service as of right iscontrary to the ratio of the judgments ofthree Judge Benches referred to hereinabove and cannot be treated as good law.This part of the judgment is also againstthe very concept of reinstatement of anemployee/workman."

11. In view of the above taking intoconsideration the facts and circumstancesof this case I am of the view that thepetitioner is entitled for 40 percent of theback wages. The petitioner shall be paidthe said amount within four months fromthe date of communication of this order.

12. Let a certified copy of this order beissued to learned Standing Counsel free ofcost for communication and compliance ofthis order. Writ petition is allowed.

13. There shall be no order as to costs.--------

ORIGINAL JURISDICTIONCIVIL SIDE


BEFORETHE HON'BLE RAJAN ROY, J.


Smt. Satyabhama Dubey ...PetitionerVersus

Regional Deputy Director of Education,Agra & Ors. ...Respondents

Counsel for the Petitioner:Sri Ashok Khare, Sri Siddharth Khare, SriMukesh Kumar


Counsel for the Respondents:S.C., Dr. Daya Shankar, Sri K.N. Singh, SriP.K. Jain

U.P. Intermediate Education Act, 1921-chapter II Regulation 3(1)(b)-senioritydetermination-petitioner as wellRespondent-5 appointed as lecturer onsame day approval-Respondent-5 joinedearlier than petitioner-authority concernwithout considering the age factor-wrongly held-respondent-5 senior thanpetitioner-in meantime regular principalretired-management send proposal forofficiating principal to respondent-5approved by DIOS-petitioner retired on30.06.2000-while respondent-5 on30.06.2002-admittedly petitioner beingsenior most lecturer-could not dischargethe duty of officiating principal-henceexcept compensation of Rs. 2 lacs nosalary-payable w.e.f. 01.07.96 to30.06.2002-but fixation of salary shall bemade as officiating principal notionallywith all other retirement benefits-whatso ever amount paid to respondent-5-shall not be recovered.

Held: Para-22As the respondent no.5 has alreadyworked as officiating Principal in theinstitution w.e.f. 1.7.1996 to 30.6.2002,she must have been paid salary againstthe said post, therefore, considering theaforesaid fact and also the fact that thepetitioner actually did not function onthe said post during the aforesaid period,it is not possible to grant salary of thepost of Principal to the petitioner asclaimed by her, however, considering thefact that her statutory right was violatedon account of arbitrary and illegal actionof the official respondent no.1, DeputyDirector of Education, Agra Region, Agra,the petitioner deserves to becompensated for the financial losscaused to her. Considering the facts andcircumstances of the case an amount ofRs.2 lakh payable by the StateGovernment to the petitioner shall beadequate compensation to thepetitioner. The aforesaid amount shall be

paid by the respondent State to thepetitioner within two months. Inaddition to the above, it is provided thatthe salary of the petitioner shall be fixedtreating her as officiating Principal of theinstitution w.e.f. 1.7.1996 notionally andbased thereon, the post retirementbenefits like pension, etc. be revised andre-fixed, if permissible under the rules,within a period of six months from thedate a certified copy of this order isproduced before the concerned officer.The salary, emoluments and postretirement benefits already paid to therespondent no.5 and consequentialbenefits based thereon, shall remainunaffected by this judgement.

Case Law discussed:2007 Law Suit (All) 90:207(3) ADJ 1; [2011(4) ADJ 401]; (1998) UPLBEC 181.

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Shri Siddharth Khare,learned counsel for the petitioner andlearned Standing Counsel for respondentsno.1, 2 and 3. None appears for therespondent no.5.

2. The petitioner and respondent no.5were appointed as lecturer in the respondentinstitution vide order dated 30.11.1972 andthere is no dispute in this regard. It is alsonot in dispute that in pursuance to theaforesaid order of substantive appointment,the petitioner joined on the post in questionon 1.12.1972 whereas respondent no.5joined earlier, i.e., 30.11.1972. In paragraph13 of the writ petition a categorical assertionhas been made that the aforesaidappointment of the petitioner andrespondent no.5 were approved by thecompetent authority by the same order ofthe same date passed sometime inDecember, 1972. This fact has not beencategorically and specifically denied by anyof the respondents.


3. A seniority list of lecturers wasissued by the management in the year 1981-82 wherein the petitioner was shown assenior to the respondent no.5. Thereafter, on11-3-1985, an order was passed by therespondent no.2 declaring the respondentno.5 as senior to the petitioner on the groundthat the respondent no.5 has joined herservice prior to the petitioner, as alreadymentioned in the earlier part of thisjudgement.

4. Being aggrieved, the petitionerfiled a writ petition before this Courtchallenging the aforesaid order dated11.3.1985 which was disposed of on22.1.1996 setting aside the said order onthe ground of violation of principles ofnatural justice with liberty to therespondents to pass a fresh order aftergiving due opportunity of hearing.

5. In pursuance to the aforesaid, theDeputy Director of Education, AgraRegion, Agra, issued a notice to thepetitioner and other concerned on26.4.1996. In response thereto, thepetitioner herein, replied and the otherconcerned persons also filed the reply.

6. In the meantime, while theproceedings were pending before theDeputy Director of Education, AgraRegion, Agra, the regular incumbentworking on the post of Principal retiredon 30.6.1997.

7. On 1.7.1997, an order was passedby the management, appointingrespondent no.5 as officiating Principal ofthe institution which was approved by theofficial respondent.

8. Being aggrieved, the petitionerherein, filed a writ petition before this

Court which was disposed of videjudgment dated 5.8.1996 with a directionto the Deputy Director of Education(Secondary), Agra Region, Agra, todecide the inter se seniority disputebetween the petitioner and respondentno.5 within a stipulated period.

9. In pursuance to the aforesaid, theimpugned order dated 26.11.1996 waspassed, wherein, the respondent no.5 hasbeen held to be senior to the petitioner,consequently, her officiation on the postof Principal of the institution has beenaffirmed.

10. The contention of Shri Khare,learned counsel for the petitioner is thatboth the contesting parties having beensubstantively appointed by an order of thesame date and such appointment havingbeen approved by the competent authorityon the same date by the same order, it istheir age which would be the determiningfactor in the matter of seniority, in viewof the provisions contained in Regulation3(1)(b) of Chapter II of the Regulationsframed under U.P. Intermediate EducationAct, 1921 (for short "Act of 1921"). Thecontention is that the petitioner beingelder in age was senior and his senioritywas wrongly upset by the respondentsresulting in officiating appointment ofrespondent no.5 and deprivation of rightof the petitioner to officiate as AdhocPrincipal and causing financial loss to her.The petitioner has mentioned her date ofbirth in paragraph 9 of the writ petition as10.8.1939, whereas the date of birth ofrespondent no.5 is mentioned as14.1.1942. He contends that this fact hasnot been denied in the counter affidavit.

11. Learned counsel for thepetitioner submitted that keeping in mind


the financial loss caused to the petitioner,she should be treated as officiatingPrincipal w.e.f. 1.7.1996 withconsequential salary of the post etc.

12. Shri Khare has contended that asthe petitioner was willing to work but wasprevented to do so, therefore, the principle'no work, no pay' will not apply and thepetitioner shall be entitled to full salaryfor such period during which she wasprevented from working as officiatingPrincipal.

13. In this regard he has relied uponthe judgements of this Court in BrijendraPrakash Kulshrestha v. Director of Educationand others, 2007 Law Suit (All) 90 : 207 (3)ADJ 1 and in Kishori Lal v. Chairman Boardof Director, Aligarh Gramin Bank Aligarh,[2011 (4) ADJ 401].

14. The contention of learnedStanding Counsel is that as the respondentno.5 has joined on the post of lecturerprior to the petitioner, therefore, she hasrightly been held to be senior to thepetitioner.

15. I have heard learned counsel forthe parties and perused the record.

16. The seniority of teachers in theinstitution in question is to be determinedin accordance with the provisionscontained in Regulation 3 of Chapter II ofthe Regulations framed under the Act of1921. Regulation3 of the Regulations isextracted as hereinbelow:

"3. (1) The Committee of Managementof every institution shall cause a senioritylist of teachers to be prepared inaccordance with the following provisions-

(a) The seniority list shall beprepared separately for each grade ofteachers whether permanent ortemporary, on any substantive post;

(b) Seniority of teachers in a gradeshall be determined on the basis of theirsubstantive appointment in that grade. Iftwo or more teachers were so appointedon the same date, seniority shall bedetermined on the basis of age;

(bb) Where two or more teachersworking inh a grade are promoted to thenext higher grade on the same date, theirseniority inter se shall be determined onthe basis of the length of their service tobe reckoned from the date of theirsubstantive appointment in the grade fromwhich they are promoted:

Provided that if such length ofservice is equal, seniority shall bedetermined on the basis of age.

ij T;s"Brk fu/kkZfjr dh tk;sxhA(2) The seniority list shall be revised

every year and the provisions of Clause(1) shall mutatis mutandis apply to suchrevision."

17. The aforesaid provision clearlystates that the seniority of teachers shallbe determined on the basis of theirsubstantive appointment on the said post.Substantive appointment in this casewould be an appointment which is dulyapproved by the competent authority.Both the petitioner and respondent no.5were appointed vide order dated30.11.1972. The averments made inparagraph 13 of the writ petition to theeffect that their appointments were dulyapproved by the same order passedsometime in December 1972 has not beencategorically and specifically denied byany of the respondents by asserting to thecontrary. A bald denial has been madewhich is no denial in the eye of law. No


material has been produced before theCourt to establish that the respondentno.5's appointment was approved prior tothat of the petitioner. The contents ofparagraph 9 of the writ petition whereintheir respective dates of birth have beenmentioned, have also not been denied bythe respondents and there is nothing onthe record to show to the contrary. Thepetitioner having been born on 10thAugust 1939 is older in age to therespondent no.5 herein, who was born on14.1.1942, therefore, clearly in view ofthe aforesaid provisions, the petitionerwas senior to respondent no.5.

18. On a perusal of the impugnedorder, I find that the concerned authorityhas only considered part of the provisionscontained in Regulation 3 (1)(b) of theRegulations that too cursorily andsuperficially. He has only referred to thefirst line of the provision to the effect thatseniority will be determined on the basisof the date of substantive appointment andthereafter has proceeded to consider thedate of joining of the contesting partiesand has held the respondent no.5 to besenior based thereon, without noticingthat the date of joining is not mentionedas a criteria for determining seniority,instead, in the event two or more personshave been appointed on the same date,then, their age is to be the determiningfactor. He has not at all considered theage of the parties while determining theseniority dispute. Thus, clearly theconsideration of the said authority iswithout adverting to the relevant andcomplete provisions, referred tohereinabove. In this regard, learnedcounsel for the petitioner has relied upona decision of the Lucknow Bench of thisCourt in Jagat Narain Dwivedi vs. DeputyDirector of Education, Ivth Region,

Allahabad and others, reported in (1998)1 UPLBEC 181. In paragraph 4 and 13 ofthe said judgment it has been held thatwhere the order of appointment andapproval are of the same date, then, it isthe age that is the determining factor inthe mater of seniority of the teachers.

19. As no interim order has beenpassed in this case, therefore, therespondent no.5 officiated on the post ofPrincipal of the institution w.e.f. 1.7.1996to the date of her retirement on 30.6.2002.

20. The petitioner herein, retiredfrom service on 30.6.2000 therefore, dueto the aforesaid circumstances she wasprevented from working as officiatingPrincipal inspite of being senior. It is tritethat in absence of regularly selectedcandidate for the post of Principal the seniormost teacher shall officiate as AdhocPrincipal. In this regard a provision iscontained in Section 16E (ii) read with theProviso to Regulation 2 of Chapter II of theRegulations made under the Act of 1921and in Section 18 of the U.P. SecondaryEducation Service Selection Board Act of1982. It is nobody's case that the petitionerwas otherwise ineligible for such officiationand did not have the requisite qualification.Had the seniority been rightly determined,she would have officiated as Principal of theinstitution w.e.f. 1.7.1996 till 30.6.2000.There is no dispute that an officiatingPrincipal is also entitled to the salary of thepost in question and consequential benefitsresulting therefrom.

21. In view of the above, theimpugned order cannot be sustained andthe same is, accordingly, quashed.

22. As the respondent no.5 hasalready worked as officiating Principal in


the institution w.e.f. 1.7.1996 to30.6.2002, she must have been paid salaryagainst the said post, therefore,considering the aforesaid fact and also thefact that the petitioner actually did notfunction on the said post during theaforesaid period, it is not possible to grantsalary of the post of Principal to thepetitioner as claimed by her, however,considering the fact that her statutoryright was violated on account of arbitraryand illegal action of the officialrespondent no.1, Deputy Director ofEducation, Agra Region, Agra, thepetitioner deserves to be compensated forthe financial loss caused to her.Considering the facts and circumstancesof the case an amount of Rs.2 lakhpayable by the State Government to thepetitioner shall be adequate compensationto the petitioner. The aforesaid amountshall be paid by the respondent State tothe petitioner within two months. Inaddition to the above, it is provided thatthe salary of the petitioner shall be fixedtreating her as officiating Principal of theinstitution w.e.f. 1.7.1996 notionally andbased thereon, the post retirement benefitslike pension, etc. be revised and re-fixed,if permissible under the rules, within aperiod of six months from the date acertified copy of this order is producedbefore the concerned officer. The salary,emoluments and post retirement benefitsalready paid to the respondent no.5 andconsequential benefits based thereon,shall remain unaffected by thisjudgement.

23. In view of the aforesaid, the writpetition is allowed.



BEFORETHE HON'BLE SUNEET KUMAR, J.


Ashok Kumar Singh & Anr. PetitionersVersus

Union of India & Ors. ...Respondents

Counsel for the Petitioner:Sri Siddharth Khare

Counsel for the Respondents:A.S.G.I., Sri Sanjeev Singh, Sri P.K.Singhal, S.C.

Regional Rural Bank (appointment &promotion) of officer and employeesRules 2010-Part III Rule 10 (i)(d)-Recruitment without advertisement intwo national daily news papers havingvide circular in locality-merely on basisof application from such candidateregistered in employment exchange-held-being violative of Art. 14 and 16 ofconstitution of India-illegal-petitionallowed-with direction to fill up thevacancy-after following mandatoryprovision of Rule 10 from open market-advertising two widely circulated newpaper one in vernacular and other inregional language-on official website.

Held: Para-26For the reasons stated hereinabove, thevires of rule 10 and paragraph no. 1(d)of part III of Regional Rural Banks(Appointment and Promotion of Officersand Employees) Rules 2010 is declaredintravires of the Constitution of India.The mode of calling applications asprescribed under rule 10 wouldmandatorily include inviting candidatesfrom the open market by advertising intwo widely circulated newspapers (onein vernacular language) over which theRegional Rural Bank have to fill up thevacancies including posting theadvertisement on the official website.

Case Law discussed:

3 All]. Ashok Kumar Singh & Anr. Vs. Union of India & Ors. 1491

(2011) 3 SCC 436; AIR 1998 SC 331; [(1996)6 SCC 216]; (2003) 10 SCC 276; 2014 (2)SCALE 262; AIR 1997 SC 1446; (2006) 2 SCC482; (2006) 4 SCC 1; (2006) 10 SCC 261; AIR1962 SC 602 (604); (1994) 3 UPLBEC 1551.

(Delivered by Hon'ble Suneet Kumar, J.)

1. Prathama Bank Moradabad is aregional rural bank governed by theprovisions of Regional Rural Bank Act1976 (hereinafter referred to as the'bank'). The petitioners belong to OtherBackward Class (O.B.C.) category, arehigh school pass, the petitioners are notenrolled in the Employment Exchange.The respondent-bank to fill up Group 'C'post invited names of candidatesregistered with the employmentexchanges. Ministry of Finance(Department of Financial Services) videnotification dated 13.07.2010 providedthat post of Group 'C' shall be filled in thebank after making reference to theEmployment Exchange, Sainik Board orother agencies catering to the welfare ofscheduled castes, scheduled tribes,physically challenged persons or othercategory of persons as recognized by theCentral Government or the StateGovernment having jurisdiction over theRegional Rural Bank filling the posts.

2. Petitioners have approached theCourt seeking the following reliefs:

"(i) a writ, order or direction of asuitable nature declaring Rule 10 andparagraph no. 1(d) of part III of RegionalRural Banks (Appointment and Promotionof Officers and Employees) Rules 2010 asultravires the Constitution of India as faras it relates to the appointment in therespondent bank.

(ii) a writ, order or direction in thenature of mandamus commanding the

respondents to advertise the Group 'C'posts in the daily news papers and onlythen proceed to fill up the vacancies.

(iii) a writ, order or direction of asuitable nature commanding therespondents to relax the upper age limitfrom 28 to 30 years of General Category."

3. The contention of learned counselfor the petitioners is, by inviting namesonly from the Employment Exchange andnot from the open market byadvertisement is violative of Articles 14and 16 of the Constitution of India, thusrule 10 is ultravires of Article 16 as itdeprives other similarly situated personsfrom applying for the post, thus, theaction of the bank in not advertising thepost is violative of the principles of theequality in employment as enshrinedunder Article 16.

4. In support of his submission,learned counsel for the petitioners hasrelied upon State of Orissa and anotherVersus Mamata Mohanty1.

5. Sri Sanjeev Singh, learnedcounsel for the respondent-bank, submitsthat the bank is bound by the provisionsof Regional Rural Banks (Appointmentand Promotion of Officers andEmployees) Rule, 2010 notified byMinistry of Finance (Department ofFinancial Services) on 13.07.2010, underSection 29 of the Regional Rural BankAct 1976 read with Section 17 thereof.Rule 10 clearly provides Group 'C' postshall be filled up by the bank after makingreference to the Employment Exchange,thus the bank has not committed anyillegality or irregularity in filling up thepost from the candidates exclusivelysponsored by the Employment Exchangeand other Boards, further, there is no


provision for inviting applications fromopen market by advertising the vacancy.

6. Rival submissions fall forconsideration.

7. In Mamata Mohanty (supra) oneof the question before the Hon'bleSupreme Court was, as to whether, aperson can be appointed withoutfollowing procedure known in law, as thevacancy of the post was never advertisednor was the name of the eligiblecandidates requisitioned from theEmployment Exchange. The Courtreferring to earlier judgments was of theview that even if the names of candidatesare requisitioned from the EmploymentExchange, in addition thereto, it ismandatory on the part of the employer toinvite applications from all the eligiblecandidates from the open market byadvertising the vacancies in newspaperhaving wide circulation. Para no. 35, 36and 37 are as follows:

"35. At one time this Court had beenof the view that calling the names fromEmployment Exchange would curb tocertain extent the menace of nepotism andcorruption in public employment. But,later on, came to the conclusion that someappropriate method consistent with therequirements of Article 16 should befollowed. In other words there must be anotice published in the appropriatemanner calling for applications and allthose who apply in response theretoshould be considered fairly. Even if thenames of candidates are requisitionedfrom Employment Exchange, in additionthereto it is mandatory on the part of theemployer to invite applications from alleligible candidates from the open marketby advertising the vacancies in

newspapers having wide circulation or byannouncement in Radio and Television asmerely calling the names from theEmployment Exchange does not meet therequirement of the said Article of theConstitution. (Vide: Delhi DevelopmentHorticulture Employees' Union v. DelhiAdministration, Delhi & Ors., AIR 1992SC 789; State of Haryana & Ors. v. PiaraSingh & Ors., AIR 1992 SC 2130; ExciseSuperintendent Malkapatnam, KrishnaDistrict, A.P. v. K.B.N. Visweshwara Rao& Ors., (1996) 6 SCC 216; Arun Tewari& Ors. v. Zila Mansavi Shikshak Sangh &Ors., AIR 1998 SC 331; Binod KumarGupta & Ors. v. Ram Ashray Mahoto &Ors., AIR 2005 SC 2103; NationalFertilizers Ltd. & Ors. v. Somvir Singh,AIR 2006 SC 2319; Telecom DistrictManager & Ors. v. Keshab Deb, (2008) 8SCC 402; State of Bihar v. UpendraNarayan Singh & Ors., (2009) 5 SCC 65;and State of Madhya Pradesh & Anr. v.Mohd. Ibrahim, (2009) 15 SCC 214).

36. Therefore, it is a settled legalproposition that no person can beappointed even on a temporary or ad hocbasis without inviting applications fromall eligible candidates. If any appointmentis made by merely inviting names fromthe Employment Exchange or putting anote on the Notice Board etc. that will notmeet the requirement of Articles 14 and16 of the Constitution. Such a courseviolates the mandates of Articles 14 and16 of the Constitution of India as itdeprives the candidates who are eligiblefor the post, from being considered. Aperson employed in violation of theseprovisions is not entitled to any reliefincluding salary. For a valid and legalappointment mandatory compliance of thesaid Constitutional requirement is to befulfilled. The equality clause enshrined inArticle 16 requires that every such


appointment be made by an openadvertisement as to enable all eligiblepersons to compete on merit.

37. It is a settled legal propositionthat if an order is bad in its inception, itdoes not get sanctified at a later stage. Asubsequent action/development cannotvalidate an action which was not lawful atits inception, for the reason that theillegality strikes at the root of the order. Itwould be beyond the competence of anyauthority to validate such an order. Itwould be ironic to permit a person to relyupon a law, in violation of which he hasobtained the benefits. If an order at theinitial stage is bad in law, then all furtherproceedings consequent thereto will benon est and have to be necessarily setaside. A right in law exists only and onlywhen it has a lawful origin. (vide: UpenChandra Gogoi v. State of Assam andothers, AIR 1998 SC 1289; MangalPrasad Tamoli v. Narvadeshwar Mishra,AIR 2005 SC1964; and Ritesh Tiwari &Anr. v. State of U.P. & Ors., AIR 2010SC 3823)."

8. Learned counsel for therespondent-bank has relied upon ArunTewari and others Versus Zila MansaviShikshak Sangh and others2, wherein, theCourt had approved the provision of therule for inviting applications only fromthe Employment Exchange. Paragraphsno. 19 and 20 are as follows:

"19. The next contention relates toinviting applications from EmploymentExchanges instead of by advertisement.This procedure has been resorted tolooking to the requirement of a time-bound scheme. The original applicantscontended that if the posts had beenadvertised, many others like them couldhave applied. The original applicants who

so complain, however, do not possess therequisite qualifications for the post. As faras we can see from the record, nobodywho had the requisite qualifications, hascomplained that he was prevented fromapplying because advertisement was notissued. What is more important, in thespecial circumstances requiring a speedierprocess of selection and appointment,applications were invited throughemployment exchanges for 1993 only. Inthis context, the special procedureadopted is not unfair. The State has reliedupon the case of Union of India & Ors.Vs. N. Hargopal & Ors. (1987 [3] SCC308), where Government instructionenjoining that the filed of choice should,in the first instance, be restricted tocandidates sponsored the first instance, berestricted to candidates sponsored by theEmployment Exchanges, was upheld asnot offending Article 14 and 16 of theConstitution. In the case of DelhiDevelopment Horticulture Employees'Union Vs. Delhi Administration, Delhi &Ors. (1992 [4] SCC 99, at page 111). thisCourt approved of recruitment throughemployment Exchanges as a method ofpreventing malpractices. But in thesubsequent and more recent case ofExcise Superintended Malkapatnam,Krishna District A.P. V. K.B.N.Visweshwara Rao & Ors.3 this Court hasdistinguished Union of India V. Hargopal(supra) on the basis of special facts of thatcase. It was observed that the bettercourse for the State would be to inviteapplications from employment exchangesas well as to advertise and also give widepublicity through TV, Radio etc. TheCourt had to consider whether personswho had applied directly and not throughemployment exchange should beconsidered. The Court upheld their claimfor consideration.


20. There are different methods ofinviting applications. The method adopted inthe exigencies of the situation in the presentcase not be labelled as unfair, particularlywhen, at the relevant time, the two earlierdecisions of this Court were in vogue."

9. The issue as to whether foremployment in public services, whetherthe department can restrict the candidatessponsored through the employmentexchange for selection, was alsoconsidered by the Hon'ble Supreme Courtin Excise Superintendent, Malkapatnam,Krishna District, A.P. v.K.B.N.Visweshwara Rao and others4.The said decision was rendered by theHon'ble Supreme Court of India bearingin mind the Employment Exchanges(Compulsory Notification of Vacancies)Act, 1959, particularly, Section 4(1) ofthe said Act. In the said decision, theHon'ble Supreme Court (Three JudgeBench), in Paragraph 6, held thus:-

"6. ..... Better view appears to be thatit should be mandatory for therequisitioning authority/establishment tointimate the employment exchange, andemployment exchange should sponsor thenames of the candidates to therequisitioning departments for selectionstrictly according to seniority andreservation, as per requisition. In addition,the appropriate department or undertakingor establishment should call for the namesby publication in the newspapers havingwider circulation and also display on theiroffice notice boards or announce on radio,television and employment newsbulletins; and then consider the cases ofall the candidates who have applied. Ifthis procedure is adopted, fair play wouldbe subserved. The equality of opportunity

in the matter of employment would beavailable to all eligible candidates."

10. Again the said issue came up forconsideration before the Hon'ble SupremeCourt in the decision reported in SureshKumar and others v. State of Haryana andothers5 in respect of recruitment of 1600Police Constables in the State of Haryana.In the said case, selection of candidatesmade were not disturbed till the newprocess was over as directed by theHon'ble Supreme Court and it was heldthat no advertisement to the newspapernor employment exchange was intimatedfor filling up of the vacancies and furtherselection was ordered to be conducted byissuing re-advertisement calling forapplication to fill up those vacancies.

11. It is also relevant, at thisjuncture, to note that the Three JudgeBench of the Hon'ble Supreme Court, inthe decision reported in Renu and othersv. District & Sessions Judge, Tis Hazariand another6, reiterated the above saidproposition of law and gave a direction toall the High Courts to comply with thepurport of Articles 14 and 16 of theConstitution of India while filling up ofany vacant post either in the High Courtor in the Subordinate Courts throughoutIndia. In the said decision, the Hon'bleSupreme Court held that post shall befilled up by issuing the advertisement inatleast two newspapers and one of whichmust be in vernacular language havingwide circulation in the respective State,apart from calling for a list from the localemployment exchange and any vacancyfilled up without advertising asprescribed, shall be void ab-initio andwould remain unenforceable andinexecutable except the appointment on


compassionate grounds, as per the Rulesapplicable

12. Applying the law on the facts ofthe case at hand, the Ministry of Financenotified the 2010 Rules on 13.07.2010under the 1976 Act. Rule 10 provides forrecruitment for the post of Group 'C'which is as follows:

10. Recruitment to the posts ofGroup 'C'.-

The posts of Group 'C' employeeshall be filled in by the Regional RuralBank after making a reference to theEmployment Exchange, Sainik Board orother agencies catering to the welfare ofScheduled castes, scheduled tribes,physically challenged persons or othercategory of persons as are recognized bythe Central Government or the StateGovernment having jurisdiction over theRegional Rural Bank filling the posts.

13. Part III of the Rule provides themode of appointment to Group 'C' post by100% direct recruitment and theminimum qualification is 10th standardpass or equivalent. The selection is on thebasis of interview, the age prescribed is18 years to 28 years providing relaxationin case of candidates belonging S.C., S.T.and Other Backward Class (O.B.C.)category.

14. The contention of learnedcounsel for the petitioners is that theywere not aware that the respondent-bankis filling up the vacancies of Group 'C'post as there was no advertisement, thusdepriving the petitioners their valuableright as conferred under Article 16 of theConstitution, respondent-bank has taken aplea that they have strictly complied withrule 10 of the Rules of 2010 by inviting

the names of eligible persons who wereregistered with the EmploymentExchange, further, the bank is going to fillup 99 posts in the near future afterinviting names only from theEmployment Exchange.

15. The contention of learnedcounsel for the respondent-bank cannot beaccepted as the bank has to comply withthe constitutional mandate enshrinedunder Article 14 and 16 of theConstitution which is mandatory in publicemployment, failing which suchappointments would be bad in law.

16. The submission on behalf of therespondents that Rule/Order/Notificationshave been complied with is preposterousfor the simple reason that suchRule/Order/Notification being violative ofconstitutional mandate is to be ignored interms of the judgment of the SupremeCourt rendered in Ram Ganesh Tripathiand others Versus State of U.P. andothers7.

17. A bare perusal of rule 10, it isevident that the rule requires that the postshall be filled by the bank after makingreference to the Employment Exchange,Sainik Board or other agencies, but therule nowhere states that the applicationsof candidates cannot be entertained fromthe open market, equal opportunity inemployment as enshrined under Article16 which mandates wide publicity.

18. In order to uphold the vires ofrule 10, apart from making reference toEmployment Exchange, Sainik Board orother agencies, bank will also have toadvertise the vacancies in two leadingwidely circulated newspapers (one invernacular language)/electronic media


inviting applications from open marketfalling within the jurisdiction over theRural Regional Bank to fill the post.

19. The main object of Art. 16 of theConstitution is to create a constitutionalright to equality of opportunity andemployment in public offices. Theappointment to any post under the Statecan only be made after making a properadvertisement inviting applications fromeligible candidates and holding ofselection by a body of experts or aspecially constituted committee whosemembers are fair and impartial through awritten examination or interview or someother rational criteria for judging theinterse merit of candidates who applied inresponse to the advertisement made8. Anappointment made in violation of Articles14 and 16 of the Constitution of Indiawould be void. It would be a nullity.9

20. The right guaranteed by Art.16(1) includes-

(a) The right to make an applicationfor any post under the Government.10(b) Art. 16(1) further guarantees a right tobe considered on the merits for the postfor which an application has been made;but not the right to be appointed11,

21. Public employment is a facet ofright to equality envisaged under Art. 16of the Constitution.

22. This guarantee is violated wherethe Government imposes an arbitrary banupon the appointment or re-appointment of aparticular individual, in the sense that eventhough he applies for a post, his applicationwill not be considered on the merits, and assuch has no relation to his suitability for theappointment to that post.12

23. The Employment Exchanges(Compulsory Notification of Vacancies)Act, 1959, provides for compulsorynotification of vacancies to employmentexchanges. Sub-clause (1) of Section 4 isas follows:

"After the commencement of this Actin any State or area thereof, the employerin every establishment in public sector inthat State or area shall, before filling upany vacancy in any employment in thatestablishment notify that vacancy to suchEmployment Exchange as may beprescribed."

24. Section 7 provides for penalties,if any employer fails to notify to theEmployment Exchange prescribed for thepurpose any vacancy in contravention ofsub-section (1) or sub-section (2) ofsection 4, he shall be punishable for thefirst offence with fine which may extendto five hundred rupees.

25. Full Bench judgment of thisCourt in Radha Raizada and others versusCommittee of Management and others13,held that the publication for any vacancyon the notice board is no advertisement inthe eyes of law. For appointment againstsubstantive vacancy, advertisement ofvacancy in two newspaper is mandatoryand in absence of such advertisement theappointment would be per se illegal.

26. For the reasons statedhereinabove, the vires of rule 10 andparagraph no. 1(d) of part III of RegionalRural Banks (Appointment and Promotionof Officers and Employees) Rules 2010 isdeclared intravires of the Constitution ofIndia. The mode of calling applications asprescribed under rule 10 wouldmandatorily include inviting candidates

3 All]. Jai Prakash Maurya Vs. State of U.P. & Anr. 1497

from the open market by advertising intwo widely circulated newspapers (one invernacular language) over which theRegional Rural Bank have to fill up thevacancies including posting theadvertisement on the official website.

27. In future vacancy, all RegionalRural Banks shall invite applications forposts as mentioned herein above.

28. Copy of the order shall be sent toMinistry of Finance (Department ofFinancial Services) New Delhi by theRegistry for information /circulation andcompliance.

29. Subject to the above, the writpetition is allowed.


CRIMINAL SIDEDATED: ALLAHABAD 13.11.2014

BEFORETHE HON'BLE SUDHIR AGARWAL, J.

Criminal Misc. Application No. 45679 of2014

(U/s 482 CR.P.C.)

Jai Prakash Maurya ...ApplicantVersus

State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:Sri Ashok Kumar Tripathi

Counsel for the Opp. Parties:A.G.A.

Cr.P.C.-Section-482-Seeking direction forconsideration of bail application on sameday-reliance placed upon full Bench aswell as the judgment of Apex Court-helddirection issued by Apex Court bindingupon all Courts, under Article 145 of

Constitution-no further direction by HighCourt required-otherwise would be greattravesty of justice-without givingprivileges to the trail court to considerthe bail on merit-in absence of specificpleadings about violation of Art. 21-nosuch direction required-applicationrejected.

Held: Para-25The applicant has yet to surrender. Hehas yet to move an application beforeconcerned court. Therefore, to issue adirection for something which is yet tosee light of the day, is nothing butrequiring this Court to pass an order inanticipation of certain facts which arenot pleaded or placed before this Courtby means of pleading in applicationconcerned. In other words the applicantis seeking relief on imaginary basis.Unless a case is made out for violation offundamental right under Article 21 of theConstitution by specifically pleading allrelevant facts, in my view, no suchdirection would be justified to issue as itamounts to issuing futile direction bythis Court and that too on superfluousand imaginary basis. The aforesaiddecisions, therefore, as cited at the barin support of submission by learnedcounsel for the applicant, do not helphim in any manner.

Case Law discussed:Cr.L.J. 1981=1994 (4) SCC 260; 2009(4) SCC437; 2005(1) AWC 416; 1997 (1) SCC 416; JT1998 (2) SC 658; 2011 (1) SCC 694.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This application under Section482 Cr.P.C. is filed with a prayer to setaside Non Bailable Warrant dated27.9.2014 issued against applicant inComplaint Case No. 964 of 2014 nowComplaint Case No. 3257 of 2012. It hasbeen further prayed that a direction beissued to court concerned to consider theirbail application of applicant on the sameday in Case Crime No. 230 of 2003 under


Sections 323, 504 and 494 IPC, PoliceStation Badagaon, district Varanasi inview of the law laid down in JoginderKumar Vs. State of U.P. 1994 Cri.L.J.1981=1994(4) SCC 260, Lal KamlendraPratap Singh Vs. State of U.P. 2009 (4)SCC 437 and Smt. Amarawati andanother Vs. State of U.P., 2005(1) AWC416.

2. From the order sheet, it is evidentthat consistently the applicant hasremained absent, most of the time, and inthese circumstances, the court below wasfully justified in issuing now bailablewarrant. I do not find any illegalitytherein and therefore there is nojustification to interfere.

3. Now taking the submission thatthe bail application of the applicantshould be considered on the same date Ipropose to examine on this aspect of thematter with deeper scrutiny. It is not thecase of applicant that he has alreadysurrendered or that though he hasattempted to surrender but there is anyillegal, unauthorised obstruction createdby respondents in such endeavour ofapplicant. It is also not the case that anyauthority of this Court or Apex Courtthough cited before court concerned but ithas refused to consider the same orignored. No allegations have been madethat the court concerned is acting contraryto law or the Presiding Officer has anykind of bias etc. so as to pass an orderwithout looking into the matter inaccordance with law.

4. The law laid down by Apex Courtby virtue of Article 145 of theConstitution of India, is binding on allcourts and authorities across the nationand everybody is supposed to act in the

aid and enforcement of such law laiddown by Supreme Court. There is nopresumption that courts below shall notfollow the law laid down by SupremeCourt. There is also no presumption that adecision of Supreme Court laying downcertain law, if cited, in support ofarguments by a party, before a court, theywould not be looked into and appreciatedby such court. To follow the law laiddown by Supreme Court, no sanction orapproval or direction of this Court isrequired. To ask for such direction, whenthere is no factual foundation in theapplication, is nothing but doubting thecapability, approach and efficiency ofsubordinate courts, which is not in thelarger interest of institution as such.Moreover, in absence of any factualfoundation, it is well established that nofutile or uncalled for directions are to beissued by this Court. Its hand are alreadyfull of work and rather extremely loadedtherewith, hence entertaining cases justfor futile direction, which ex faciedeserved to be dismissed, would benothing but encouraging avoidableunnecessary burden upon this Court.

5. Even otherwise a direction tofollow a decision of Apex Court withoutappreciating, whether it applies on thefacts and circumstances of the case andwould be cited by parties concerned, islike anticipating something, which is notexisting in presenti and on the facts of thecase, may not be applicable.

6. I may illustrate on this aspect bylooking into the aforesaid decisions indetail, which the applicants intended to beconsidered by courts below, under adirection of this Court, though I am notsure whether it would actually be cited bycounsel of accused applicants when they


would be presenting their case beforecourt below.

7. In Joginder Kumar (supra), ahabeas corpus writ petition under Article32 of the Constitution was filed beforeSupreme Court alleging about unlawfuldetention of petitioner (a practisinglawyer) by police authorities and seekinghis release. The Senior Superintendent ofPolice, Ghaziabad appeared before Courtand admitted to have detained petitionerfor five days, not in detention but fortaking his help in inquiry/investigation ofan offence of abduction. Since thepetitioner was already released by police,the Court found that relief in habeascorpus now cannot be granted. Yet itenquired as to how and in whatcircumstances, without informing thecourt concerned, an individual could bedetained by police for five days. TheCourt found it a case of massive violationof human rights, besides the statutorylegal provisions relating to arrest etc. TheCourt held that law of arrest is one ofbalancing individual rights, liberties andprivileges, on the one hand; and,individual duties, obligations andresponsibilities on the other hand. TheCourt said that an arrest cannot be mademerely for the reason that a police officeris empowered under law to do so. Theexistence of power is one thing andjustification for exercise thereof isanother. Genuine, justified andsatisfactory reasons must exist before apolice officer should go to arrest a personso as to curtail his fundamental right oflife and liberty. A person is not liable toarrest merely on suspicion of complicityof offence. Except in heinous offences, anarrest must be avoided unless there existsreason therefor. That was not a casewhere after inquiry or investigation by

police, a charge sheet was filed andthereupon an incumbent was to surrenderhimself to the Court, and the power ofCourt either to release him on bail if sorequested, or to sent him in judicialcustody was under consideration.

8. This decision then was consideredin D.K. Basu Versus State of West Bengal1997 (1) SCC 416 which was a publicinterest litigation entertained by SupremeCourt taking cognizance of a letterreceived from Executive Chairman, LegalAid Services, West Bengal complainingabout certain custodial deaths.

9. Apparently the aforesaid decisionalso strictly has no application to thenature of dispute involved in thisapplication as also the stage at whichquestion, as to whether the applicantsshould be detained in jail or not, has to beconsidered. Here it is not the case ofexercise of power by police but thejudicial discretion of Court and theretonothing should be anticipated unless anappropriate order is passed by courtconcerned.

10. The decision in Joginder Kumar(supra) in similar circumstances has beenreferred and followed subsequently alsoin K.K. Jerath Vs. Union Territory,Chandigarh and others, JT 1998(2) SC658 which was a case of anticipatory bailunder Section 438 Cr.P.C. apprehendingarrest during a C.B.I. inquiry. It wasattempted to argue that there ispresumption of innocence in favour ofeach individual until charge against him isestablished and, therefore, it would not beconsistent with philosophy of Constitutionthat such a person should be subjected tointerrogation by application ofpsychological or ambient pressures much


less physical torture. It was stressed thatApex Court has a duty to protect a citizenagainst such inroads of these fundamentalrights. The Apex Court while dismissingpetition observed that in considering apetition for grant of bail, necessarily, ifpublic interest requires detention ofcitizen in custody for purposes ofinvestigation, it would be allowedotherwise there could be hurdles ininvestigation even resulting in tamperingof evidence. In other words the ApexCourt did not find any attraction in thearguments for the reason that a bailapplication has to be considered in thelight of already established principlethrough various judicial precedents andnot on mere asking.

11. There are several subsequentcases also wherein the Apex Court hasdistinguished the cases where there wasno allegation of misuse of power of arrestby police authorities and an incumbentwas arrested having been found primafacie guilty of commission of acognizable offence.

12. In respect to circumstanceswhere a bail application has to beconsidered by courts, the relevantconsiderations have been laid down incatena of authorities which are wellestablished and need not to be addedhereat. They have to be followed.

13. In Lal Kamlendra Pratap Singh(supra) the matter came to be consideredbefore the Court for quashing of a firstinformation report. Here alsoapprehending arrest due to mereregistration of a first information report,the matter was brought before this Courtseeking quashing of first informationreport. The High Court dismissed the

application and thereagainst the matterwas taken to Apex Court. A complaintwas made that during investigation orinquiry, applicants apprehend their arrestby police authorities in an arbitrarymanner. It is in this context the Courtreminded police authorities to follow thedictum and direction laid down inJoginder Kumar (supra). When the matterwas pending before Supreme Court, thepolice completed investigation andsubmitted a charge sheet. The Court thendeclined to interfere since the chargesheet was submitted and permittedpetitioner to approach the court concernedby filing a bail application. The Courtapproved and reminded a seven Judgesdecision of this Court in Smt. Amarawatiand another (supra) wherein anobservation was made that the absence ofpower of anticipatory bail in State of U.P.would not debar the concernedCourt/Magistrate to grant an interim bailif there is any likelihood of delay indisposal of bail application finally.

14. I find that in an earlier case ofSom Mittal Vs. Government ofKarnataka, JT 2008(2) SC 41, which wasa matter relating to anticipatory bail, oneof the two Judges constituting Bench(Hon'ble M. Katju, J.) has referred to andapproved seven Judges decision of thisCourt in Smt. Amarawati and another(supra) and observed that non availabilityof any provision relating to anticipatorybail in State of U.P. is causingextraordinary burden on the High Courtand a recommendation was made forreviving such a provision.

15. However, in none of the casesabove, it has been said by Supreme Courtor this Court, at any point of time, thatonce a charge sheet is submitted, still an


accused is entitled to be released on bail,on just asking, and the courtsbelow/concerned Magistrate should notapply its mind to the relevant facts andcircumstances which would justifywhether the concerned person should begranted bail or should be detained injudicial custody. The decision in Smt.Amarawati and another (supra) saysotherwise. That being so, expecting thisCourt to simply stay arrest while directing orpermitting the person concerned to approachthe court below by filing a bail applicationand without applying its mind to the relevantfacts and circumstances in which bail can begranted, would clearly amount to travesty ofjustice. It would be an order not inaccordance with law and without consideringthe relevant facts and circumstances. Such anorder would clearly travel in the realm ofnon-application of mind. I am afraid, thisCourt cannot pass such an order particularlywhen it is declining to entertain anapplication under Section 482 Cr.P.C. beingsatisfied that a prima facie case ofcommission of cognizable offence has beenfound against accused resulting in filing of acharge sheet and now the matter must beexamined by concerned Magistrate/courtregarding bail etc. after considering therelevant facts and circumstances.

16. I may refer here one moreaspect. The manner in which theapplicant-accused pray that his arrestshould be stayed, at the best can be placedat par with anticipatory or interim bail. Infact while granting an order of stay ofarrest the court surpasses even thoseconsiderations which it is bound to takeinto account, when pass an order grantinganticipatory bail.

17. Now it is well settled that evenan order of anticipatory bail cannot be

passed on mere asking but has to satisfyconsideration of various relevant aspectsin this regard. Some of these aspects havebeen considered recently by Apex Courtin Siddharam Satlingappa Mhetre v. Stateof Maharashtra and others, 2011(1) SCC694 and in paras 122 to 138 the relevantfacts and circumstances which must beconsidered by the Court before passing anorder of anticipatory bail have beennoticed in detail. Though theseobservations are not exhaustive but theaforesaid decision clearly lays down a lawthat even in passing an order onanticipatory bail, a bald, unreasoned andnon-speaking order staying arrest orgranting bail should not be passed as thatwould amount to a material illegality andirregularity and failure to exercisejurisdiction validly if relevantcircumstances before passing such ordersare not taken into account, weighed andassessed, and thereafter a decision istaken whether such an order would bejustified or not.

18. It is true, that, several orders ofthis Court, show that directions asrequested by accused applicants to beissued to the court below, have beenissued and in some of the cases arrest hasalso been stayed but unfortunately I donot find that before such directions therelevant law has been considered,discussed and be cited. The ultimatedirection or action of Court do notconstitute a binding precedent. What isbinding precedent is the ratio, i.e., the lawlaid down by Court. A law is laid downwhen an issue is raised, argued anddecided. In none of the orders of thisCourt, I find that any issue, whether thesedirections, as sought for, should be or canbe issued or are justified to be issued,considered and decided. The orders,


therefore, do not constitute a precedent soas to have a binding effect under the lawof precedent.

19. Lastly it is said that atleast thecourt below be directed to consider thebail application of accused applicants onthe same day when it is presented. It ispointed out that in many of the cases theconcerned courts/Magistrates either grantinterim bail or sent accused in jail bydeferring any order on the bail applicationdue to paucity of time and that is how thefundamental right of life and liberty ofaccused is jeopardised for no fault ontheir part.

20. What is said, if correct, isadmittedly something serious and puts ablot on the system of administration ofjustice. If a person who otherwise doesnot deserve bail for one or the otherreasons is allowed interim bail, only forthe reason that concernedMagistrate/court finds no time to applymind on his application, it would not onlybe travesty of justice but would be highlydangerous for the society at large.Similarly, if a person is sent to jail,curtailing his liberty, only for the reasonthat concerned Magistrate/court could notfind time to apply mind on his bailapplication, again this would be a case ofgrave injustice, besides violation offundamental rights of a citizen. Both thesituations cannot be appreciated. In thecircumstances, I would like to hold that ifa bail application is moved in time, withdue notice to other side, if so required inlaw, the Magistrate/court concerned mustconsider the relevant facts andcircumstances before passing any ordereither way and in case the number ofapplications are such so as not to make itpossible to be attended within the court

timing, the District Judge concerned shalllook into and distribute the work in suchmanner so that applications are attendedby competent courts without any unduedelay and no person is sent to jail orreleased, by way of interim bail, withoutapplication of mind by concernedcourt/Magistrate. If necessary the Courtmay attend such applications irrespectiveof the fact that court timing is over.Upholding Constitutional rights andpeople's freedom vis-a-vis the safety,protection and interest of society is ofprime importance and it cannot becompromised in the name of court timingsor something for which the parties are notresponsible and accountable. If necessary,on this aspect the matter may also beexamined on administrative side by thisCourt after having relevant informationwith detail facts and detas from concerneddistrict judgeship(s).

21. Learned counsel for theapplicant then placed before this Court ajudgment dated 03.07.2014 passed inApplication under Section 482 No. 21679of 2014, Munawwar and nine others Vs.State of U.P. and another and claimed thattherein this Court has passed an order fortaking up the bail application on the sameday and the same should be followed bythis Court also on the principle of parity.He also placed another order dated25.09.2014 passed in Application underSection 482 No. 42289 of 2014, RamKesh Rao Vs. State of U.P. to press hissubmission.

22. The order in Ram Kesh Rao(supra), reads as under:

"Heard learned counsel for theapplicant and learned A.G.A. for theState.

3 All]. Sheelu & Ors. Vs. The State of U.P. & Anr. 1503

The applicant, through the presentapplication under section 482 Cr.P.C. hasinvoked the inherent jurisdiction of this Courtwith a prayer that his bail application incomplaint case No. 490 of 2014 under Section406 IPC police station Dharamsinghwadistrict Sant Kabir Nagar be ordered to beconsidered expeditiously, if possible on thesame day by the court below.

In view of the order passed inApplication U/S 482 No. 21679 of 2014 dated03.7.2014, no further direction is required tobe passed in the present application.Accordingly, present application is disposedof."

23. It is thus evident that nothing hasbeen said in Ram Kesh Rao (supra) whichmay constitute any binding precedent on thisCourt. This order has been passed in the lightof this Court's order dated 03.07.2014 passedin Munawwar (supra). I have carefully gonethrough the aforesaid judgment wherein thisCourt has taken the view that personal libertyof the subject is of utmost importance and,therefore, whenever a matter is brought to thisCourt to show that there is any violation offundamental rights under Article 21 of theConstitution, this Court will protect the personfrom such violation being the guardian offundamental rights.

24. The proposition in general isunexceptional. It is the actual application ofproposition of law in individual case,whether it applies or not. In order to applyaforesaid dictum there has to be a factualfoundation laid down in a case demonstratingthat fundamental right of life and libertyunder Article 21 of the applicants are beinginfringed by the police or anyone else. Forthat purpose specific pleadings are needed. Inthe present case there is no such pleading thatapplicants have illegally been arrested or thattheir fundamental rights under Article 21

have been violated due to their illegal arrestand yet their bail application has not beenheard by the court below expeditiously or inthe manner as already directed by this Courtin various authorities, some of which havealready been referred hereinabove.

25. The applicant has yet to surrender.He has yet to move an application beforeconcerned court. Therefore, to issue adirection for something which is yet to seelight of the day, is nothing but requiring thisCourt to pass an order in anticipation ofcertain facts which are not pleaded or placedbefore this Court by means of pleading inapplication concerned. In other words theapplicant is seeking relief on imaginary basis.Unless a case is made out for violation offundamental right under Article 21 of theConstitution by specifically pleading allrelevant facts, in my view, no such directionwould be justified to issue as it amounts toissuing futile direction by this Court and thattoo on superfluous and imaginary basis. Theaforesaid decisions, therefore, as cited at thebar in support of submission by learnedcounsel for the applicant, do not help him inany manner.

26. In the result, I do not find myselfsatisfied to accede the request made inthis application. The application isaccordingly dismissed.


CRIMINAL SIDEDATED: ALLAHABAD 20.11.2014

BEFORETHE HON'BLE AKHTAR HUSAIN KHAN, J.

Criminal Misc. Application No. 47107 of2014

(u/s 482 CR.P.C)Sheelu @ Jitendra Mishra & Ors.

Applicants


VersusThe State of U.P. & Anr. Opp. Parties

Counsel for the Applicants:Sri Manu Khare

Counsel for the Opp. Parties:A.G.A.

Cr.P.C.-Section 482-Prayer to quashproceeding-offence under section 323/504IPC read with 3(i) X of SC/ST (Prevention ofatrocities) Act 1989-on ground u/s 14 ofSC/ST Act the special judge competent totake cognizance and the Magistrate has noauthority-held-in view of Section 193Cr.P.C. as well as law developed by ApexCourt-Session Judge ceased with everyjurisdiction of exercising originaljurisdiction-except the Magistrate-cognizance taken by Magistrate -justified-need no interference-application rejected.

Held: Para-12 & 1312. In view of discussion made above it isapparent that Special Court designated fortrial of offences under Section 14 ofS.C./S.T. Act (Prevention of Atrocities) Act,1989 is a Court of Session and has nojurisdiction to take cognizance as a Court oforiginal jurisdiction. Therefore Magistrate isonly competent to take cognizance foroffences punishable S.C./S.T. (Prevention ofAtrocities) Act, 1989 and to commit casesunder said Act to the Court of Special Judgein accordance with provisions of Cr.P.C.

13. In view of discussion made above itis clear that Magistrate has committedno illegality or irregularity in takingcognizance on charge sheet submittedby police.

Case Law discussed:AIR 2004 Cr.L.J. S.C. 1890; 2004 (57) ALR 290;2009 (3) ADJ 322 (SC); 2009 (3) ADJ 322 (SC)

(Delivered by Hon'ble Akhtar HusainKhan, J.)

1. Heard learned counsel for theapplicants and perused application movedunder Section 482 Cr.P.C.

2. By filing this application undersection 482 Cr.P.C. applicants haveprayed to quash proceedings initiated onthe basis of F.I.R. dated 3.3.2014 bearingCase Crime No.15 of 2014, under sections323, 504 I.P.C. & section 3(1) X ofS.C./S.T. Act, 1989, Police Station Chilla,District Banda and charge sheet dated27.4.2014 bearing No. 22 of 2014, undersections 323, 504 I.P.C.& section 3(1) Xof S.C./S.T. Act, 1989, Police StationChilla, District Banda bearing CaseNo.539/IX/2014 pending before learnedIInd Additional Chief Judicial Magistrate,Banda.

3. Learned counsel for applicantscontended that incident narrated in F.I.R. istotally false and F.I.R. has been lodged withmalafide intention. Police has submittedcharge sheet without sufficient evidence onfalse allegation. Learned counsel forapplicants further contended that in view ofSection 14 of S.C./S.T. Act (Prevention ofAtrocities) Act, 1989 offence punishableunder said Act shall be tried by SpecialCourt. Therefore cognizance taken byA.C.J.M. is without jurisdiction.

4. In view of above contentionlearned counsel for applicants has prayedfor quashing of proceedings of aforesaidcriminal case.

5. I have considered the submissionmade by learned counsel for applicants.

6. Accused applicants are named inF.I.R. and police has submitted chargesheet against accused applicants after

3 All]. Sheelu & Ors. Vs. The State of U.P. & Anr. 1505

investigation whereupon Magistrate hastaken cognizance.

Section 14 of S.C./S.T. Act(Prevention of Atrocities) Act, 1989provides that the State Government shall,with the occurrence of the Chief Justice ofthe High Court, by notification in theOfficial Gazette, specify for each districta Court of Session to be a Special Courtto try the offences under this Act.

7. Reading of Section 14 of said Actshows that State Government shall designatea court of Session with the concurrence ofthe Chief Justice of the High Court asSpecial Court to try offences under this Act.Thus it is apparent that the Special Courtdesignated for trial of cases relating to thisAct shall be a court of Session.

8. Section 193 of Cr.P.C. is relevantwhich is quoted below:

"Cognizance of offences by Courts ofSession - Except as otherwise expresslyprovided by this Code or by any other lawfor the time being in force, no Court ofSession shall take cognizance of anyoffence as a Court of original jurisdictionunless the case has been committed to itby a Magistrate under this Code."

9. In view of above provisionsSection 193 of Cr.P.C. it is apparent thatno Court of Session Judge shall takecognizance of any offence as a Court oforiginal jurisdiction unless the case hasbeen committed by Magistrate.

10. Either in Section 14 of S.C./S.T.Act (Prevention of Atrocities) Act, 1989or any where in the said Act. There is noprovision to show that a Special Court iscompetent to take cognizance for offencesunder the Act.

11. In the case Moly Vs. State ofKerala A.I.R. 2004 Cr.L.J. S.C. 1890,Honourable Apex Court has held that theSpecial Judge appointed under theSchedule Caste and Schedule Tribes(Prevention of Atrocities) Act 1989 hasno jurisdiction to entertain a complaintunder Section 3(1) (X) of the Act to takethe cognizance directly and to issueprocess without the case being committedto it by competent magistrate.

12. In view of discussion made aboveit is apparent that Special Court designatedfor trial of offences under Section 14 ofS.C./S.T. Act (Prevention of Atrocities) Act,1989 is a Court of Session and has nojurisdiction to take cognizance as a Court oforiginal jurisdiction. Therefore Magistrate isonly competent to take cognizance foroffences punishable S.C./S.T. (Preventionof Atrocities) Act, 1989 and to commitcases under said Act to the Court of SpecialJudge in accordance with provisions ofCr.P.C.

13. In view of discussion madeabove it is clear that Magistrate hascommitted no illegality or irregularity intaking cognizance on charge sheetsubmitted by police.

14. In view of discussion madeabove I am of the view that there isneither any illegality nor irregularityeither in investigation made by police orin cognizance taken by Magistrate.

15. In view of above, I am of theview that no interference is required undersection 482 Cr.P.C.

16. At this stage, learned counsel forapplicants prayed that a direction shouldbe made for expeditious disposal of bail


application in view of principles laiddown by Seven Judges Bench of thisCourt in the case of Amrawati andanother Vs. State of U.P. reported in 2004(57) ALR 290 as well as by Hon'ble ApexCourt in the case of Lal Kamlendra PratapSingh Vs. State of U.P. reported in 2009(3) ADJ 322 (SC).

17. A direction for expeditiousdisposal of bail application in view ofprinciples laid down by this Court as wellas by Apex Court in aforesaidpronouncements appears just.

18. In view of above, presentapplication is disposed off with abovedirection and it is directed that if theapplicants appear before Magistrate/Sessioncourt within one month from today andmove bail application, Magistrate/Sessioncourt shall dispose of their bail applicationexpeditiously in view of principles laid downby this Court in the case of Amrawati andanother Vs. State of U.P. reported in 2004(57) ALR 290 as well as by Hon'ble ApexCourt in the case of Lal Kamlendra PratapSingh Vs. State of U.P. reported in 2009 (3)ADJ 322 (SC).

19. With above direction applicationis finally disposed off.



BEFORETHE HON'BLE MAHESH CHANDRA TRIPATHI, J.


State of U.P. .PetitionerVersus

Shri Raj Kumar & Anr. ...Respondents

Counsel for the Petitioner:

S.C., Sri C.K. Rai

Counsel for the Respondents:Sri Himanshu Upadhyay, Sri M.P.S.Chauhan, S.C.

Industrial Dispute Act 1945-Section 6-H-read with U.P. Industrial Rule 1957-Rule33-claim of regular salary-once claim ofregularization rejected no question ofpayment of salary on regular basis-so foraward given by Labour Court is concern-Respondent 1 already reinstated inservice and as per order of Writ Court50% amount deposited-shall bereturned to workman.

Held: Para-16The said writ petition was disposed ofvide order dated 26.04.2011 withdirection to the Executive Engineer todecide the claim of the workman forregularization and finally the ExecutiveEngineer vide order dated 25.05.2011,has rejected the claim of the workmanfor regularization on the ground thatdemand of regularization could not beaccepted as the same is in violation ofArticle 14 and 16 of the Constitution ofIndia. Once the claim for regularizationof workman on the post of tube welloperator has been denied by thepetitioner and the same has attainedfinality, therefore, the benefit of regularsalary on the said post cannot beaccepted, and the same would be inviolation of the principle laid down in thedecision of the Apex Court in Case ofSecretary, State of Karnataka Vs. UmaDevi ( Supra). Therefore, at this stage,this Court has only to look into thematter as to whether the award dated20.08.2007 had been complied by thedepartment and further the presentimpugned order passed under Section 6-H (1) can be sustained or not? It isadmitted situation that the award hasattained finality up to Hon'ble ApexCourt and it has also been brought onrecord that in pursuance to the awarddated 20.08.2007 the workman hasjoined the department. Therefore, while

3 All]. State of U.P. Vs. Shri Raj Kumar & Anr. 1507

deciding the application under Section 6-H (1), the respondent No. 1 travelledbeyond the mandate of the awardpassed by the Labour Court and thearrears could only be fixed as per theaward and in the garb of award noregular salary could be released,otherwise indirectly his regularization onthe said post would take place, whichwas not under the purview of Section 6-H (1) proceeding and the same had beendenied by the petitioner.

Case Law discussed:AIR 1992 SC 789; AIR 1992 SC 2130; AIR1996 SC 2638; AIR 1996 SC 3420; AIR 2006SC 3499; (2006) 2 SCC 716; JT 2013 (9) SC139; (2006) 4 SCC page 1.

(Delivered by Hon'ble Mahesh ChandraTipathi, J.)

1. Heard Sri Ravi Shanker Prasad,learned Additional Chief StandingCounsel for the petitioner and Sri M.P.S.Chauhan, learned counsel for therespondent No. 1.

2. By means of the present writpetition, the petitioner (State of U.P.through Executive Engineer, AligarhKhand, Ganga Canal, District Aligarh)has challenged the impugned order dated19.04.2012 passed by the RegionalDeputy Labour Commissioner, Aligarh-respondent No. 2, by which the claim ofrespondent No. 1 under Section 6-H of theIndustrial Disputes Act (herein afterreferred as "Act") had been allowed.

3. This Court, while entertaining thepresent writ petition on 30.09.2013, hadpassed the following order in favour ofthe petitioner:-

"Learned Standing Counselsubmitted that the application movedunder section 6H(1) of U.P. Industrial

Dispute Act was not maintainable. Therespondent workman was daily wager,hence the wages could not be calculatedconsidering the salary of the regularemployee, hence award is illegal andarbitrary.

Learned Standing Counsel furthersubmitted that in pursuance of theimpugned award, the amount has alreadybeen deposited. However, the same hasnot been released as yet.

Issue notice to the opposite partyno.1 returnable at an early date.

In the meantime till the next date oflisting 50% of the amount, if alreadydeposited, shall be released in favour ofthe respondent workman and remaining50% shall be kept in Fixed Deposit."

4. Brief facts giving rise to thepresent writ petition are, that therespondent No. 1 claimed that he wasengaged on daily wage basis on the postof Sinchpal in the petitioner-departmenton 01.08.1998, and continued upto31.8.1999 and his services were dispensedwith on oral termination since 01.09.1999.The respondent no.1 challenged histermination before Labour Court and thecase was registered as Adjudication CaseNo.268 of 2005 (Old Adjudication CaseNo. 165 of 2000). The Labour Court videaward dated 20.08.2007 directed thepetitioner to reinstate the workmanalongwith compensation of Rs. 5,000/-. Itis also apparent from the record, that thesaid award has been assailed in the WritPetition No.31060 of 2008, which wasdismissed by this Court vide judgmentand order dated 09.07.2008. Against thesaid dismissal order, the State haspreferred Special Leave to Appeal No.2281 of 2009 (Civil) which was alsodismissed by the Hon'ble Apex Court on7.7.2010. Thereafter, the respondent No. 1


was immediately reinstated in thedepartment. Thereafter, theworkman/respondent No. 1 had filedapplication under Section 6-H (1) of theIndustrial Disputes Act, 1945 ( hereinafter referred as Act, 1947) before theDeputy Labour Commissioner, Aligarh,claiming that in pursuance to thejudgment and award passed by the LabourCourt, he is entitled to get salary to thetune of Rs. 26,688/- from 28.11.2007 to29.02.2008.

5. Again an application had beenfiled claiming salary of Rs. 63,566/-.Against the said application detailedobjection/written statement had been filedby the petitioner. Thereafter, vide orderdated 04.02.2009, the respondent No. 2directed for payment of Rs. 63,586/- tothe respondent No. 1.

6. It appears from the record that thesaid amount was paid to the respondentno.1. After receiving the said amountagain he had filed an application on01.07.2009 under Section 6-H (1) readwith Rule 33 of the U.P. Industrial Rules,1957 claiming further salary of Rs.1,44,237/- for subsequent period. Again adetailed objection has been filed by thepetitioner and refuted that the respondentNo. 1 was never appointed on the post ofSinchpal and he was not entitled forsalary of the said post and furether theLabour Court had never directed thepetitioner to reinstate him on the post ofSinchpal. While rejecting the claim of thepetitioner, the respondent No. 2 vide orderdated 15.09.2010 had directed forrecovery of Rs. 1,44,237/- which was sentto the District Magistrate, Aligarh forrealization. Again respondent No. 1 hadmoved another application on 10.02.2011for recovery of Rs. 2,42,045/- from the

petitioner under Section 6-H (1) of theAct, 1947. Again the respondent No. 2directed vide order dated 19.04.2012 forrecovery of Rs. 2,42,045/- from thepetitioner.

7. It also transpires from the recordthat meanwhile, the respondent No.1(workman) had filed Writ Petition No.24040 of 2011 for a mandamuscommanding the petitioner to regularizehis services on the post of Sinchpal andfor disbursement of the arrears of salaryin pursuance to the award of the LabourCourt dated 20.08.2007. The said writpetition has been disposed of by thisCourt vide order dated 26.04.2011 withdirections that the appropriate applicationfor regularization of the petitioner may bedecided by the department.

8. In compliance of the order passedby this Court, the claim of the workman hadbeen decided by the Executive Engineervide order dated 25.05.2011 (annexure-14)with observation that in compliance of theaward dated 20.08.2008, the respondent hasalready been reinstated and payments werealso made but his services could not beregularized in pursuance to the directiondated 16.03.2007 issued by this Court inWrit Petition No. 45482 of 2004 withfurther observation that the services of thepersons, who had come in the departmentby the back door entry, could not beregularized, as the same is in violation to theArticle 14 and 16 of the Constitution ofIndia. It also appears from the record thatthe order passed by the Executive Engineerdated 25.05.2011 has attained finality andthe same has not been challenged by theworkman.

9. Sri R.S.Prasad, learned AdditionalChief Standing Counsel submits that the


order impugned dated 19.04.2012 iswholly illegal and arbitrary and thecalculation has been made in violation tothe order passed by the Labour Courtdated 20.08.2007. He further submits thatwhile passing the award, the LabourCourt had clearly held that since theworkman was working on daily wagebasis and during the relevant period, hehad not worked as such, he was notentitled for any back wages. He furthersubmits that for his regularization on thepost of Sinchpal, the respondent no.1-workman had earlier filed Writ PetitionNo. 24040 of 2011 which was simplydisposed of with a direction to theExecutive Engineer of the departmentconcerned to consider his application, andvide order dated 25.05.2011, theExecutive Engineer had rejected the claimof the workman for regularization andwhile rejecting his claim, the ExecutiveEngineer of the department had observedthat the workman was engaged by backdoor entry and his regularization in thedepartment would be in violation ofArticle 14 and 16 of the Constitution ofIndia. As Article 14 is an integral part ofour system, each and every State action isto be tested on the touchstone of equality.Any appointment made in violation ofmandate of Articles 14 and 16 of theConstitution is not only irregular but alsoillegal and can not be sustained in view ofthe judgments rendered by Hon'ble ApexCourt in Delhi Development HorticultureEmployees' Union Vs. DelhiAdministration, Delhi & Ors., AIR 1992SC 789; State of Haryana & Ors. Vs.Piara Singh & Ors. etc., AIR 1992 SC2130; Prabhat Kumar Sharma & Ors. Vs.State of U.P. & Ors., AIR 1996 SC 2638;J.A.S. Inter College, Khurja, U.P. & Ors.Vs. State of U.P. & Ors., AIR 1996 SC3420 ; M.P. Housing Board & Anr. Vs.

Manoj Shrivastava, AIR 2006 SC 3499;M.P. State Agro Idustries DevelopmentCorporation Ltd. & Anr. Vs. S.C. Pandey,(2006)2 SCC 716; and State of MadhyaPradesh & Ors. Vs. Ku. Sandhya Tomar& Anr. JT 2013 (9) SC 139.

10. He further submits that once hisclaim for regularization has been turneddown by the department and the same hasnot been assailed, then it has attainedfinality. Therefore, the respondent No. 1is not entitled for salary on the post ofSinchpal in regular capacity. He furthermakes submission that the respondentno.1 himself has made a statement beforethe Labour Court that he was engaged onthe post of Sinchpal since 01.08.1998, ondaily wage basis and his services weredispensed w.e.f. 01.09.1999, the workmancontinued to work as daily wager, whichis also reflected from the operativeportion of the award. The PresidingOfficer has also made categoricalaverment that the respondent had workedas daily wager in the department.

11. He submits that while passingthe impugned order, the respondent No. 2has erred in directing for calculation ofthe arrears on the basis of salary, whichitself is in violation of the award whichwas passed keeping in mind that theworkman was working on daily wagebasis and he could only be reinstated insame capacity in the department andcalculations were liable to be made asdaily wager, otherwise it would be inteeth of Constitution Bench judgment ofthe Apex Court in Secretary, State ofKarnataka vs. Uma Devi, reported in(2006) 4 SCC, page 1).

12. He further makes submissionthat if the claim set out by the workman is


allowed in this way, then it will be inviolation of the judgment of Hon'bleSupreme Court inUma Devi ( Supra) andplaced his reliance to paragraph 54 of theConstitution Bench decision of the ApexCourt in the case of Secretary, State ofKarnataka v. Uma Devi, reported in(2006) 4 SCC, page 1, which reads asfollows:

"54. It is also clarified that thosedecisions which run counter to theprinciple settled in this decision, or inwhich directions running counter to whatwe have held herein, will stand denudedof their status as precedents."

In view of the aforesaid observationof the Constitution Bench of the ApexCourt, any decisions or directions givenby the Courts, which are contrary to theprinciples laid down by the Apex Court inthe case of Secretary, State of Karnatakav. Uma Devi (supra) will stand denudedon their status as precedent.

In view of the above, at this stage, itwould be appropriate to refer, theprinciples laid down by the Apex Court inthe case of Secretary, State of Karnatakav. Uma Devi (supra). Relevantparagraphs of the judgment of the ApexCourt are being reproduced below:

"43. Thus, it is clear that adherenceto the rule of equality in publicemployment is a basic feature of ourConstitution and since the rule of law isthe core of our Constitution, a Courtwould certainly be disabled from passingan order upholding a violation of Article14 or in ordering the overlooking of theneed to comply with the requirements ofArticle 14 read with Article 16 of theConstitution. Therefore, consistent withthe scheme for public employment, thisCourt while laying down the law, hasnecessarily to hold that unless the

appointment is in terms of the relevantrules and after a proper competitionamong qualified persons, the same wouldnot confer any right on the appointee. If itis a contractual appointment, theappointment comes to an end at the end ofthe contract, if it were an engagement orappointment on daily wages or casualbasis, the same would come to an endwhen it is discontinued. Similarly, atemporary employee could not claim to bemade permanent on the expiry of his termof appointment. It has also to be clarifiedthat merely because a temporaryemployee or a casual wage worker iscontinued for a time beyond the term ofhis appointment, he would not be entitledto be absorbed in regular service or madepermanent, merely on the strength of suchcontinuance, if the original appointmentwas not made by following a due processof selection as envisaged by the relevantrules. It is not open to the court to preventregular recruitment at the instance oftemporary employees whose period ofemployment has come to an end or of adhoc employees who by the very nature oftheir appointment, do not acquire anyright. High Courts acting under Article226 of the Constitution of India, shouldnot ordinarily issue directions forabsorption, regularization, or permanentcontinuance unless the recruitment itselfwas made regularly and in terms of theconstitutional scheme. Merely because, anemployee had continued under cover ofan order of Court, which we havedescribed as 'litigious employment' in theearlier part of the judgment, he would notbe entitled to any right to be absorbed ormade permanent in the service. In fact, insuch cases, the High Court may not bejustified in issuing interim directions,since, after all, if ultimately the employeeapproaching it is found entitled to relief,


it may be possible for it to mould therelief in such a manner that ultimately noprejudice will be caused to him, whereasan interim direction to continue hisemployment would hold up the regularprocedure for selection or impose on theState the burden of paying an employeewho is really not required. The courtsmust be careful in ensuring that they donot interfere unduly with the economicarrangement of its affairs by the State orits instrumentalities or lend themselvesthe instruments to facilitate the bypassingof the constitutional and statutorymandates.45. While directing that appointments,temporary or casual, be regularized ormade permanent, courts are swayed bythe fact that the concerned person hasworked for some time and in some casesfor a considerable length of time. It is notas if the person who accepts anengagement either temporary or casual innature, is not aware of the nature of hisemployment. He accepts the employmentwith eyes open. It may be true that he isnot in a position to bargain -- not at armslength -- since he might have beensearching for some employment so as toeke out his livelihood and acceptswhatever he gets. But on that groundalone, it would not be appropriate tojettison the constitutional scheme ofappointment and to take the view that aperson who has temporarily or casuallygot employed should be directed to becontinued permanently. By doing so, itwill be creating another mode of publicappointment which is not permissible. Ifthe court were to void a contractualemployment of this nature on the groundthat the parties were not having equalbargaining power, that too would notenable the court to grant any relief to thatemployee. A total embargo on such casual

or temporary employment is not possible,given the exigencies of administration andif imposed, would only mean that somepeople who at least get employmenttemporarily, contractually or casually,would not be getting even thatemployment when securing of suchemployment brings at least some succorto them. After all, innumerable citizens ofour vast country are in search ofemployment and one is not compelled toaccept a casual or temporary employmentif one is not inclined to go in for such anemployment. It is in that context that onehas to proceed on the basis that theemployment was accepted fully knowingthe nature of it and the consequencesflowing from it. In other words, evenwhile accepting the employment, theperson concerned knows the nature of hisemployment. It is not an appointment to apost in the real sense of the term. Theclaim acquired by him in the post inwhich he is temporarily employed or theinterest in that post cannot be consideredto be of such a magnitude as to enable thegiving up of the procedure established,for making regular appointments toavailable posts in the services of the State.The argument that since one has beenworking for some time in the post, it willnot be just to discontinue him, eventhough he was aware of the nature of theemployment when he first took it up, is notone that would enable the jettisoning ofthe procedure established by law forpublic employment and would have to failwhen tested on the touchstone ofconstitutionality and equality ofopportunity enshrined in Article 14 of theConstitution of India.

47. When a person enters atemporary employment or getsengagement as a contractual or casualworker and the engagement is not based


on a proper selection as recognized by therelevant rules or procedure, he is awareof the consequences of the appointmentbeing temporary, casual or contractual innature. Such a person cannot invoke thetheory of legitimate expectation for beingconfirmed in the post when anappointment to the post could be madeonly by following a proper procedure forselection and in concerned cases, inconsultation with the Public ServiceCommission. Therefore, the theory oflegitimate expectation cannot besuccessfully advanced by temporary,contractual or casual employees. Itcannot also be held that the State has heldout any promise while engaging thesepersons either to continue them wherethey are or to make them permanent. TheState cannot constitutionally make such apromise. It is also obvious that the theorycannot be invoked to seek a positive reliefof being made permanent in the post.

48. It was then contended that therights of the employees thus appointed,under Articles 14 and 16 of theConstitution, are violated. It is stated thatthe State has treated the employeesunfairly by employing them on less thanminimum wages and extracting work fromthem for a pretty long period incomparison with those directly recruitedwho are getting more wages or salariesfor doing similar work. The employeesbefore us were engaged on daily wages inthe concerned department on a wage thatwas made known to them. There is nocase that the wage agreed upon was notbeing paid. Those who are working ondaily wages formed a class by themselves,they cannot claim that they arediscriminated as against those who havebeen regularly recruited on the basis ofthe relevant rules. No right can befounded on an employment on daily

wages to claim that such employee shouldbe treated on a par with a regularlyrecruited candidate, and made permanentin employment, even assuming that theprinciple could be invoked for claimingequal wages for equal work. There is nofundamental right in those who have beenemployed on daily wages or temporarilyor on contractual basis, to claim that theyhave a right to be absorbed in service. Ashas been held by this Court, they cannotbe said to be holders of a post, since, aregular appointment could be made onlyby making appointments consistent withthe requirements of Articles 14 and 16 ofthe Constitution. The right to be treatedequally with the other employeesemployed on daily wages, cannot beextended to a claim for equal treatmentwith those who were regularly employed.That would be treating unequals asequals. It cannot also be relied on toclaim a right to be absorbed in serviceeven though they have never been selectedin terms of the relevant recruitment rules.The arguments based on Articles 14 and16 of the Constitution are thereforeoverruled.

49. It is contended that the Stateaction in not regularizing the employeeswas not fair within the framework of therule of law. The rule of law compels theState to make appointments as envisagedby the Constitution and in the manner wehave indicated earlier. In most of thesecases, no doubt, the employees hadworked for some length of time but thishas also been brought about by thependency of proceedings in Tribunals andcourts initiated at the instance of theemployees. Moreover, accepting anargument of this nature would mean thatthe State would be permitted to perpetuatean illegality in the matter of publicemployment and that would be a negation


of the constitutional scheme adopted byus, the people of India. It is therefore notpossible to accept the argument that theremust be a direction to make permanent allthe persons employed on daily wages.When the court is approached for reliefby way of a writ, the court has necessarilyto ask itself whether the person before ithad any legal right to be enforced.Considered in the light of the very clearconstitutional scheme, it cannot be saidthat the employees have been able toestablish a legal right to be madepermanent even though they have neverbeen appointed in terms of the relevantrules or in adherence of Articles 14 and16 of the Constitution.

52. Normally, what is sought for bysuch temporary employees when theyapproach the court, is the issue of a writof mandamus directing the employer, theState or its instrumentalities, to absorbthem in permanent service or to allowthem to continue. In this context, thequestion arises whether a mandamuscould be issued in favour of such persons.At this juncture, it will be proper to referto the decision of the Constitution Benchof this Court in Dr. Rai ShivendraBahadur Vs. The Governing Body of theNalanda College [(1962) Supp. 2 SCR144]. That case arose out of a refusal topromote the writ petitioner therein as thePrincipal of a college. This Court heldthat in order that a mandamus may issueto compel the authorities to do something,it must be shown that the statute imposesa legal duty on the authority and theaggrieved party had a legal right underthe statute or rule to enforce it. Thisclassical position continues and amandamus could not be issued in favourof the employees directing the governmentto make them permanent since theemployees cannot show that they have an

enforceable legal right to be permanentlyabsorbed or that the State has a legal dutyto make them permanent."

13. Learned counsel for therespondent No. 1 submits that the presentwrit petition cannot be sustained as thepetitioner had preferred an appeal whichwas also rejected by the Hon'ble ApexCourt, therefore, the award itself hasattained finality and the workman isentitled for regular payment.

14. I have heard the rivalsubmissions of the learned counsel for theparties and also perused the record.

15. It is apparent from the recordthat while passing the award dated20.08.2007, learned Labour Court hascategorically observed that the workmanwas working in the department in capacityof daily wager and in this background hasdirected for reinstatement alongwith Rs.5,000/- cost. It is also admitted situationthat in pursuance to the award, the amounthas also been paid to the workman andtime to time application under Section 6-H (1) had also been allowed and recoveryhas been made. It has also been averred inthe writ petition that the workman hadalso filed writ petition No. 24040 of 2011for a direction to the respondents toregularize the services of the workman onthe post of Sinchpal (Tubewell Operator)and for a further direction to therespondents to disburse the arrears ofsalary of Rs. 1,44,237/- due for the periodfrom 1.8.2008 to 31.07.2009 in pursuanceto the award dated 20.08.2007.

16. The said writ petition wasdisposed of vide order dated 26.04.2011with direction to the Executive Engineerto decide the claim of the workman for


regularization and finally the ExecutiveEngineer vide order dated 25.05.2011, hasrejected the claim of the workman forregularization on the ground that demandof regularization could not be accepted asthe same is in violation of Article 14 and16 of the Constitution of India. Once theclaim for regularization of workman onthe post of tube well operator has beendenied by the petitioner and the same hasattained finality, therefore, the benefit ofregular salary on the said post cannot beaccepted, and the same would be inviolation of the principle laid down in thedecision of the Apex Court in Case ofSecretary, State of Karnataka Vs. UmaDevi ( Supra). Therefore, at this stage,this Court has only to look into the matteras to whether the award dated 20.08.2007had been complied by the department andfurther the present impugned order passedunder Section 6-H (1) can be sustained ornot? It is admitted situation that the awardhas attained finality up to Hon'ble ApexCourt and it has also been brought onrecord that in pursuance to the awarddated 20.08.2007 the workman has joinedthe department. Therefore, while decidingthe application under Section 6-H (1), therespondent No. 1 travelled beyond themandate of the award passed by theLabour Court and the arrears could onlybe fixed as per the award and in the garbof award no regular salary could bereleased, otherwise indirectly hisregularization on the said post would takeplace, which was not under the purview ofSection 6-H (1) proceeding and the samehad been denied by the petitioner.

17. Therefore, I am of theconsidered opinion that the impugnedorder cannot be sustained and therespondent no.1 is entitled to be paid inpursuance to the award dated 20.08.2007,

and status of the respondent no.1 wouldremain as daily wager specially in thebackground that for regularization of hisclaim, the petitioner had already rejectedthe claim way back on 25.05.2011 and thesame has not been assailed by theworkman, therefore, it had attainedfinality.

18. Therefore, in view of above, theorder impugned is set aside. However, inthe interest of justice, this Court, whilegranting interim order, had observed thattill the next date of listing, 50% of theamount, if already deposited, shall bereleased in favour of the respondent-workman and remaining 50% shall bekept in Fixed Deposit. If 50% of theamount has already been released infavour of the workman, the same wouldbe adjusted against the admitted amountand the remaining 50%, which wasdirected to be kept in fixed deposit, maybe returned back to the petitioner.

19. In the result, the writ petition isallowed.



BEFORETHE HON'BLE SURYA PRAKASH

KESARWANI, J.


Smt. Kamala Devi & Anr. ...PetitionersVersus


Counsel for the Petitioners:Sri I.K. Mishra


3 All]. Smt. Kamala Devi & Anr. Vs. State of U.P. & Ors. 1515

Constitution of India, Art.-226-Petitionersseeking protection from harassment bylocal police-in matrimonial life-falsestatements regarding registration ofmarriage with fake documents of marriagecertificate-held-not entitled for anyprotection-petitioner not approach beforewrit court with clean hand and cleanhearted but committed fraud to Court also-petition dismissed with cost of Rs. One lacwith direction to lodge FIR against them-petition dismissed.

Held: Para-20 & 2220. In the present set of facts thepetitioners have not approached thisCourt with clean hands, clean mind andclean heart. They have made falseaverments in the writ petition. They havefiled fake papers along with the writpetition and have also produced beforethis Court the fake Marriage Certificate.Such matters should be dealt withoutany leniency.

22. The action shall also be taken underthe criminal law. it shall be open for therespondent no. 5 to lodge F.I.R. and ifany F.I.R. is lodged then respondent no.2and 4 shall take all steps for quick andqualitative investigation in the matter inaccordance with law.

Case Law discussed:JT 2000 (3) SC 151; 2004(6) SCC 325;2003(8) SCC 319; AIR 1994 SC 853; 2012(8)SCC 748; JT 2005(11) SC 439; (1889) 14 AC337; [(1994) 1 SCC 1]; JT 2005 (6) SC 391; JT2009 (9) 365; JT 2009 (5) SC 278; JT 2008 (8)SC 57.

(Delivered by Hon'ble Surya PrakashKesarwani, J.)

1. Heard Sri I.K. Mishra, learnedcounsel for the petitioners and Sri SiddharthSingh Shreenet, learned Standing Counselfor the State Respondent.

2. In compliance to the order dated16th October, 2014, a counter affidavit of

Sri Praveen Kumar Yadav, Registrar,Hindu Marriage/ Sub-Registrar-IInd, SadarBareilly has been filed today before thisCourt. The original of the alleged HinduMarriage Certificate of the petitioners dated10th July, 2014 which was kept under sealedcover by the Registrar General under ordersof this Court, dated 16th October, 2014 hasbeen placed before this Court. The sealedcover was opened in presence of learnedcounsel for the parties and the Sub Registrar,Hindu Marriage. The alleged originalmarriage certificate dated 10th July, 2014which was produced by the petitioner no.2before this Court on 16th October, 2014 anda copy of which has been filed as AnenxureNo.2 to the writ petition, has been showntoday to the Sub-Registrar Hindu Marriage.This alleged certificate is printed in multicolour on glazed paper. Registrar HinduMarriage states that this marriage certificateshowing it to be issued by Registrar HinduMarriage-IInd, District Bareilly, dated 10thJuly, 2014 is absolutely fake. He states thatthe method of issuing marriage certificateand its proforma has already been explainedin the counter affidavit. The aforesaidHindu Marriage certificate was produced bythe petitioner no. 2 on 16th October, 2014before this Court which was kept in sealedcover by Registrar General of this Court asaforementioned. It has now now beenhanded over by this Court to the aforesaidRegistrar, Sri Praveen Kumar Yadav inpresence of learned counsel for the parties.He shall keep it safely to take appropriateaction in accordance with law includinglodging of F.I.R. against the petitioners andthe persons who managed or prepared suchforged certificate in the name ofGovernment Officers.

3. This writ petition has been filedpraying for writ, order or direction in thenature of mandamus commanding the


respondent authorities not to harass /disturb the petitioners in their peacefullife as husband and wife. After goingthrough the counter affidavit of theRegistrar, Hindu Marriages, learnedcounsel for the petitioners states that thepetitioners want to withdraw the writpetition. He states that the petitioners donot want to file any rejoinder affidavit.

4. Prayer is rejected for reason thatfake papers have been filed alongwith thewrit petition and false averments havebeen made.

5. The petitioners have played fraudon the Court. A trend is being seen in thisjurisdiction of security to married coupledthat number of writ petitions are beingfiled annexing fake birth certificate, fakevoter ID card and fake marriagecertificate.

6. Under the circumstances, after itcame to light that the writ petition hasbeen filed making false averments andannexing fake papers, prayer of learnedcounsel for the petitioner to withdraw thewrit petition cannot be allowed.

7. Sri Siddharth Singh Shreenet,learned Standing Counsel submits thatthis writ petition has been filed by thepetitioners making false averment. Theyhave annexed fake papers along with thewrit petition. A forgery has beencommitted by the petitioners. He submitsthat the respondent no. 1, 2, 4 and 5 bedirected to take an action in the matter sothat the person who are engaged inpreparing fake marriage certificates maybe punished in accordance with law andthe practice of filing fake papersalongwith the writ petition may also bechecked. He submits that infact the

jurisdiction of this Court has been abusedby the petitioners. They deserve for heavycost to be imposed by this Court.

8. I have heared learned counsel forthe parties.

9. In paragraph no. 6 and 7 of thewrit petition, the petitioners have stated asunder :-

6. That the petitioners solemnizedtheir marriage on 9.7.2014 at Arya SamajMandir Savitri Nagar Kargauna, Bareillywas received in this office andaccordingly the said application has beenregistered on 10.7.2014 at volume no. 11pages 331 at serial no. 653 of theconcerned register maintained in thisoffice. A photo copy of the marriagecertificate registered dated 10.7.2014 isbeing filed herewith and marked asAnnexure No. 2 to this writ petition.

7. That the petitioners marriage hasbeen registered and certified that onapplication under the Uttar PradeshHindu Marriage Rules 1973 in the officeof Registrar Hindu Marriage IInd SadarDistrict Bareilly Uttar Pradesh India.

10. The respondent no. 5 has statedin paragraph no. 6, 7, 8 and 9 of thecounter affidavit as under : -

6. That, after receiving the said letterit was inquired from the marriage registerfor the current year and it was found thatthere was no any such alleged certificatedated 10.7.2014 issued by the deponent infavour of Smt. Kamla Devi and BrijrajSingh. It is further submitted on 10.7.2014there was only one certificate issued inthe name of Dr. Hitendra Kumar Singhand Smt. Sushma Devi, which isregistered at Volume No. 51, pages 703 to


726 at serial No. 396. For kind perusal ofthis Hon'ble Court photo stat copy ofrelevant extract of marriage registershowing the registration at Volume No.51, pages 703 to 726 at Serial no. 396and photo stat copy of marriagecertificate dated 10.7.2014, issued by thedeponent to one Dr. Hitendra KumarSingh and Smt. Sushma Devi is being filedherewith and marked as Annexure No. 1collectively to the affidavit.

7. That it is further relevant tomention here that alleged certificateshows volume No. 11, page 333 at serailno. 653, which is not existing. In thisregard it is submitted for the current yeari.e. 2014 volume No. 53 is running andvolume No. 11 is much before issued inearlier year 2007. It is further submittedthat on 13.11.2014 the office of deponentissued a marriage certificate in favour ofMr. Pranav Palav and Smt. SonamTandan at Volume No. 53, pages 674-699at serial no. 483. For kind perusal of thisHon'ble Court a photo stat copy of lastcertificate issued from the office ofdeponent till 13th November, 2014 isbeing filed herewith and marked asAnnexure no. 2 to this affidavit.

8. That, it is further submitted that inview of the aforesaid facts andcircumstances it is clear that theaforesaid certificate dated 10.7.2014 is aforged and fabricated one.

9. That, it is further most respectfullysubmitted that the certificates issued bythe office of Registrar-IInd, HinduMarriage, Bareilly is totally computerizedand system generated which is evidentfrom the certificate annexed herewith inpreceding paragraphs of this affidavit.

11. The facts stated in the counteraffidavit are not denied or even proposedto be denied by the petitioners by filing

rejoinder affidavit. This Court has nodoubts in mind that false averments havebeen made in the writ petition and fakeHindu Marriage Certificate, dated 10thJuly, 2014 has been filed as Anenxure No.2 to the writ petition. The alleged originalof the said marriage certificate was alsoproduced by the petitioner before thisCourt as aforementioned. Petitionersdeserve no sympathy because of willfuland conscious conduct of making falseaverments as well as producing fakemarriage certificate.

12. A writ petition which is based onfalsehood must be dismissed at thethreshold. It is settled law that a personwho approaches the Court under Article226 of the Constitution of India mustapproach with clean hands, clean mindand clean heart.

13. In the case of United IndiaInsurance Company Ltd. V. B.RajendraSingh and others, JT 2000(3)SC.151,considering the fact of fraud, Hon'bleSupreme Court held in paragraph 3 asunder :

"Fraud and justice never dwelltogether". (Frans et jus nunquamcohabitant) is a pristine maxim which hasnever lost its temper overall thesecenturies. Lord Denning observed in alanguage without equivocation that "nojudegment of a Court, no order of aMinister can be allowed to stand if it hasbeen obtained by fraud, for fraud unravelseverything"(Lazarus Estate Ltd. V.Beasley 1956(1)QB 702).

14. In the case of Vice Chairman,Kendriya Vidyalaya Sangathan andAnother Vs. Girdhari Lal Yadav, 2004 (6)SCC 325, Hon'ble Supreme Court


considered the applicability of principlesof natural justice in cases involving fraudand held in paragraphs 12 and 13 as under:

"12. Furthermore, the respondentherein has been found guilty of an act offraud. In opinion, no further opportunityof hearing is necessary to be afforded tohim. It is not necessary to dwell into thematter any further as recently in the caseof Ram chandra Singh v. Savitri devi thisCourt has noticed : (SCC p. 327 paras 15-19)

"15. Commission of fraud on courtand suppression of material facts are thecore issues involved in these matters.Fraud as is well-known vitiates everysolemn act. Fraud and justice neverdwells together.

16. Fraud is a conduct either by letteror words, which induces the other person,or authority to take a definitedeterminative stand as a response to theconduct of former either by word or letter.

17. It is also well settled thatmisrepresentation itself amounts to fraud.Indeed, innocent misrepresentation mayalso give reason to claim relief againstfraud.

18.A fraudulent misrepresentation iscalled deceit and consists in leading aman into damage by willfully orrecklessly causing him to believe and acton falsehood. It is a fraud in law if a partymakes representations which he knows tobe false, and injury ensues therefromalthough the motive from which therepresentations proceeded may not havebeen bad."

19. In an action of deceit the plaintiffmust prove actual fraud. Fraud is provedwhen it is shown that a falserepresentation has been made knowingly,or without belief in its truth, or recklessly,without caring whether it be true or false.

A false statement, made throughcarelessness and without reasonableground for believing it to be true, may beevidence of fraud but does not necessarilyamount to fraud. Such a statement, ifmade in the honest belief that it is true, isnot fraudulent and does not render theperson make it liable to an action ofdeceit.

13. In view of our findingsaforementioned that the respondent wasguilty of an act of fraud, in our opinion,the Central Administrative tribunal as alsothe High court committed a manifest errorin setting aside the order of the appointingauthority as also the Appellate Authority."

15. In the case of Ram ChandraSingh Vs. Savitri Devi and others,2003(8) SCC 319, Hon'ble Supreme Courtheld in paragraphs 15, 16, 17, 18, 25 and37 as under :



17. It is also well settled thatmisrepresentation itself amounts to fraud.Indeed, innocent misrepresentation mayalso give reason to claim relief againstfraud.

18.A fraudulent misrepresentation iscalled deceit and consists in leading aman into damage by willfully orrecklessly causing him to believe and acton falsehood. It is a fraud in law if a partymakes representations which he knows to


be false, and injury ensues therefromalthough the motive from which therepresentations proceeded may not havebeen bad.

25. Although in a given case adeception may not amount to fraud, fraudis anathema to all equitable principles andany affair tainted with fraud cannot beperpetuated or saved by the application ofany equitable doctrine including res-judicata.

37. It will bear repetition to state thatany order obtained by practicing fraud oncourt is also non-est in the eyes of law."

16. In the case of S.P.ChengalVaraya Naidu (dead) by L.Rs Vs.Jagannath (dead) by L.Rs and others, AIR1994 SC 853, the Hon'ble Supreme Courtheld in para 7 as under :

"7. The High Court, in our view, fellinto patent error. The short questionbefore the High Court was whether in thefacts and circumstances of this case,Jagannath obtained the preliminary decreeby playing fraud on the court. The HighCourt, however, went haywire and madeobservations which are wholly perverse.We do not agree with the High Court that"there is no legal duty cast upon theplaintiff to come to court with a true caseand prove it by true evidence". Theprinciple of "finality of litigation" cannotbe pressed to the extent of such anabsurdity that it becomes an engine offraud in the hands of dishonest litigants.The courts of law are meant for impartingjustice between the parties. One whocomes to the court, must come with cleanhands. We are constrained to say thatmore often than not, process of the courtis being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and otherunscrupulous persons from all walks of

life find the court-process a convenientlever to retain the illegal-gainsindefinitely. We have no hesitation to saythat a person, who's case is based onfalsehood, has no right to approach thecourt. He can be summarily thrown out atany stage of the litigation."

17. In the case of Jainendra SinghVs. State of U.P., 2012 (8) SCC 748,Hon'ble Supreme Court considered thefact of appointment obtained by fraud andheld in para 29.1 to 29.10 as under :

"29.1 Fraudulently obtained orders ofappointment could be legitimately treatedas voidable at the option of the employeror could be recalled by the employer andin such cases merely because therespondent employee has continued inservice for a number of years, on the basisof such fraudulently obtainedemployment, cannot get any equity in hisfavour or any estoppel against theemployer.

29.2 Verification of the character andantecedents is one of the importantcriteria to test whether the selectedcandidate is suitable to the post under theState and on account of his antecedentsthe appointing authority if find notdesirable to appoint a person to adisciplined force can it be said to beunwarranted.

29.3 When appointment wasprocured by a person on the basis offorged documents, it would amount tomisrepresentation and fraud on theemployer and, therefore, it would createno equity in his favour or any estoppelagainst the employer while resorting totermination without holding any inquiry.

29.4 A candidate having suppressedmaterial information and/or giving falseinformation cannot claim right to continue


in service and the employer, havingregard to the nature of employment aswell as other aspects, has the discretion toterminate his services. 3

29.5 Purpose of calling forinformation regarding involvement in anycriminal case or detention or conviction isfor the purpose of verification of thecharacter/antecedents at the time ofrecruitment and suppression of suchmaterial information will have clearbearing on the character and antecedentsof the candidate in relation to hiscontinuity in service.

29.6 The person who suppressed thematerial information and/or gives falseinformation cannot claim any right forappointment or continuity in service.

29.7 The standard expected of aperson intended to serve in uniformedservice is quite distinct from otherservices and, therefore, any deliberatestatement or omission regarding a vitalinformation can be seriously viewed andthe ultimate decision of the appointingauthority cannot be faulted.

29.8 An employee on probation canbe discharged from service or may berefused employment on the ground ofsuppression of material information ormaking false statement relating to hisinvolvement in the criminal case,conviction or detention, even if ultimatelyhe was acquitted of the said case,inasmuch as such a situation would makea person undesirable or unsuitable for thepost.

29.9 An employee in the uniformedservice pre-supposes a higher level ofintegrity as such a person is expected touphold the law and on the contrary such aservice born in deceit and subterfugecannot be tolerated.

29.10The authorities entrusted withthe responsibility of appointing

Constables, are under duty to verify theantecedents of a candidate to find outwhether he is suitable for the post of aConstable and so long as the candidatehas not been acquitted in the criminalcase, he cannot be held to be suitable forappointment to the post of Constable."

(Emphasis supplied by me)

18. In the case of Ram ChandraSingh Vs. Savitri Devi and others, JT2005 (11) SC 439, Hon'ble SupremeCourt has elaborately considered themeaning of the word fraud and its effectsand held in para 15 to 34 as under :



17. It is also well settled thatmisrepresentation itself amounts to fraud.Indeed, innocent misrepresentation may alsogive reason to claim relief against fraud.

18. A fraudulent misrepresentation iscalled deceit and consists in leading aman into damage by willfully orrecklessly causing him to believe and acton falsehood. It is a fraud in law if a partymakes representations which he knows tobe false, and injury ensues therefromalthough the motive from which therepresentations proceeded may not havebeen bad.

19. In Derry v. Peek, (1889) 14 AC337, if was held:

In an 'action of deceit the plaintiffmust prove actual fraud. Fraud is proved


when it is shown that a falserepresentation has been made knowingly,or without belief in its truth, or recklessly,without caring whether it be true or false.

A false statement, made throughcarelessness and without reasonableground for believing it to be true, may beevidence of fraud but does not necessarilyamount to fraud. Such a statement, ifmade in the honest belief that it is true, isnot fraudulent and does not render theperson make it liable to an action ofdeceit.

20. In Kerr on Fraud and Mistake atpage 23, it is stated:

"The true and only sound principle tobe derived from the cases represented bySlim v. Croucher is this that arepresentation is fraudulent not only whenthe person making it knows it to be false,but also when, as Jessel, M.R., pointedout, he ought to have known, or must betaken to have known, that it was false.This is a sound and intelligible principle,and is, moreover, not inconsistent withDerry v. Peek, A false statement which aperson ought to have known was false,and which he must therefore be taken tohave known was false, cannot be said tobe honestly believed in. "A considerationof the grounds of belief", said LordHerschell, "is no doubt an important aid inascertaining whether the belief was reallyentertained. A man's mere assertion thathe believed the statement he made to betrue is not accepted as conclusive proofthat he did so."

21. In Bigelow on FraudulentConveyances at page 1, it is stated :

"If on the facts the average manwould have intended wrong, that isenough."

22. It was further opined:"This conception of fraud (and since

it is not the writer's, he may speak of it

without diffidence), steadily kept in view,will render the administration of the lawless difficult, or rather will make itsadministration more effective. Further,not to enlarge upon the last matter, it willdo away with much of he prevalentconfusion in regard to 'moral' fraud, aconfusion which, in addition to otherthings, often causes lawyers to take refugebehind such convenient and indeed usefulbut often obscure language as 'fraud uponthe law'. What is fraud upon the law?Fraud can be committed only against abeing capable of rights, and 'fraud, uponthe law' darkens counsel. What is reallyaimed at in most cases by this obscurecontrast between moral fraud and fraudupon the law, is a contrast between fraudin the individual's intention to commit thewrong and fraud as seen in the obvioustendency of the act in question."

23. Recently this Court by an orderdated 3^rd September, 2003 in Ram PreetiYadav v. U.P. Board of High School &Intermediate Education and Ors. reportedin JT 2003 (Supp. 1) SC 25 held:

"Fraud is a conduct either by letter orwords, which induces the other person, orauthority to take a definite determinativestand as a response to the conduct offormer either by words or letter. Althoughnegligence is not fraud but it can beevidence on fraud. (See Derry v. Peek(1889) 14 AC 337).In Lazarus Estate v.Berly [(1956) 1 All ER 341] the Court ofAppeal stated the law thus:

"I cannot accede to this argument fora moment "no Court in this land willallow a person to keep an advantagewhich he has obtained by fraud. Nojudgment of a Court, no order of aMinister, can be allowed to stand if it hasbeen obtained by fraud. Fraud unravelseverything". The Court is careful not tofind fraud unless it is distinctly pleaded


and proved; but once it is proved itvitiates judgments, contracts and alltransactions whatsoever."

In S.P. Chengalyaraya Naidu v.Jagannath [(1994) 1 SCC 1] this Courtstated that fraud avoids all judicial acts,ecclesiastical or temporal."24. An act of fraud on court is alwaysviewed seriously. A collusion orconspiracy with a view to deprive therights of the others in relation to aproperty would, render the transactionvoid ab initio. Fraud and deception aresynonymous. 25. In Arlidge & Parry onFraud, it is stated at page 21:

"Indeed, the word sometimes appearsto be virtually synonymous with"deception", as in the offence (nowrepealed.) of obtaining credit by fraud. Itis true that in this context "fraud" includedcertain kinds of conduct which did notamount to false pretences, since thedefinition referred to an obtaining ofcredit "under false pretences, or by meansof any other fraud". In Jones, for example,a man who ordered a meal withoutpointing out that he had no money washeld to be guilty of obtaining credit byfraud but not of obtaining the meal byfalse pretences: his conduct, thoughfraudulent, did not amount to a falsepretence. Similarly it has been suggestedthat a charge of conspiracy to defraudmay be used where a "false front" hasbeen presented to the public (e.g. abusiness appears to be reputable andcreditworthy when in fact it is neither) butthere has been nothing so concrete as afalse pretence. However, the concept ofdeception (as defined in the Theft Act1968) is broader than that of a falsepretence in that (inter alia) it includes amisrepresentation as to the defendant'sintentions; both Jones and the "false

front" could now be treated as cases ofobtaining property by deception."

26. Although in a given case adeception may not amount to fraud, fraudis anathema to all equitable principles andany affair tainted with fraud cannot beperpetuated or saved by the application ofany equitable doctrine including res-judicata.

27. In Smt. Shrisht Dhawan v. ShawBrothers , it has been held that:

"Fraud and collusion vitiate even themost solemn proceedings in any civilizedsystem of jurisprudence. It is a conceptdescriptive of human conduct,"

28. In S.P. Chengalvaraya Naidu v.Jagannath [(1994) 1 SCC 1] this Court inno uncertain terms observed:

"...The principle of "finality oflitigation" cannot be passed to the extentof such an absurdity that it becomes anengine of fraud in the hands of dishonestlitigants. The Courts of law are meant forimparting justice between the parties. Onewho comes to the Court, must come withclean hands. We are constrained to saythat more often than not process of theCourt is being abused. Property-grabbers,tax-evaders, bank-loan dodgers and otherunscrupulous persons from all walks oflife find the court-process a convenientlever to retain the illegal gainsindefinitely. We have no hesitation to saythat a person whose case is based onfalsehood, has no right to approach theCourt. He can be summarily thrown out atany stage of the litigation... A fraud is anact of deliberate deception with the designof securing something by taking unfairadvantage of another. It is a deception inorder to gain by another's loss. It is acheating intended to get an advantage... Alitigant, who approaches the Court, isbound to produce all the documentsexecuted by him, which are relevant to the


litigation. If he withholds a vitaldocument in order to gain advantage onthe other side then he would be guilty ofplaying fraud on the Court as well as onthe opposite party."

29. In Indian Bank v. Satyam Fibres(India) Pvt. Ltd. , this Court after referringto Lazarus Estates (supra) and other casesobserved that 'since fraud affects thesolemnity, regularity and orderliness ofthe proceedings of the Court it alsoamounts to an abuse of the process of theCourt, that the Courts have inherentpower to set aside an order obtained, bypractising fraud upon the Court, and thatwhere the Court is misled by a party orthe Court itself commits a mistake whichprejudices a party, the Court has theinherent power to recall its order".

30. It was further held:"The judiciary in India also possesses

inherent power, specially under Section151 CPC, to recall its judgment or order ifit is obtained by fraud" on Court, In thecase of fraud on a party to the suit orproceedings, the Court may direct theaffected party to file a separate suit forsetting aside the decree obtained by fraud.Inherent powers are powers, which areresident in all Courts, especially ofsuperior jurisdiction. These powers springnot from legislation but from the natureand the constitution of the tribunals orCourts themselves so as to enable them tomaintain their dignity, secure obedienceto its process and rules, protect its officersfrom indignity and wrong and to punishunseemly behavior. This power isnecessary for the orderly administrationof the Court's business."

31. In Chittaranjan Das v. DurgaporeProject Limited and Ors. , It has beenheld:

"Suppression of a material documentwhich affects the condition of service of

the petitioner, would amount to fraud insuch matters. Even the principles ofnatural justice are not required to becomplied within such a situation.

It is now well known that a fraudvitiates all solemn acts. Thus, even if thedate of birth of the petitioner had beenrecorded in the service returns on thebasis of the certificate produced by thepetitioner, the same is not sacrosanct northe respondent company would be boundthereby."

32. Keeping in view theaforementioned principles, the questionsraised in these appeals are required to beconsidered. The High Court observed thatthe application of intervention filed by theappellant purported to be under OrderXXVI, Rules 13 and 14(2) and Order XX,Rule 18 was not maintainable as they donot confer any power to court for settingaside a preliminary decree on the groundthat it was obtained by practising fraud.But once the principles aforementionedare to be given effect to, indisputably thecourt must be held to have inherentjurisdiction in relation thereto.

33. In Manohar Lal Chopra v. RajBahadur Rao Raja Seth Hiralal , the law isstated in the following terms:

"The Code of Civil Procedure isundoubtedly not exhaustive: it does notlay down rules for guidance in respect ofall situations nor does it seek to providerules for decision of all conceivable caseswhich may arise. The civil courts areauthorized" to pass such orders as may benecessary for the ends of justice, or toprevent abuse of the process of court, butwhere an express provision is made tomeet a particular situation the Code must


be observed, and departure therefrom isnot permissible."

34.In Sharda v. Dharmpal , a three-Judge Bench, of which both of us areparties, held that directing a person toundergo a medical test by a matrimonialcourt is implicit stating:"

(Emphasis supplied by me)

19. Similar principles with regard tofraud have been laid down by Hon'bleSupreme Court in the case of JT 2005(6)SC 391, para 7 to 15, JT 2007(4) SC 186,para 19 to 39, JT 2009(9) SC 365, para 22and 23, JT 2008 (3) SC 452, para 12.3 to15, JT 2009(5) SC 278, para 13 to 18 and28 and JT 2008(8) SC 57.

20. In the present set of facts thepetitioners have not approached this Courtwith clean hands, clean mind and cleanheart. They have made false averments inthe writ petition. They have filed fakepapers along with the writ petition andhave also produced before this Court thefake Marriage Certificate. Such mattersshould be dealt without any leniency.

21. The respondent no. 1, 2, 4 and 5are directed to take appropriate action inaccordance with law against thepetitioners and others who prepared fakemarriage certificate.

22. The action shall also be takenunder the criminal law. it shall be openfor the respondent no. 5 to lodge F.I.R.and if any F.I.R. is lodged thenrespondent no.2 and 4 shall take all stepsfor quick and qualitative investigation inthe matter in accordance with law.

23. Under the circumstances, thiswrit petition is dismissed with cost ofRs.1,00,000/- on the petitioner no. 2

which shall be deposited by the petitionerno. 2 within a month with High CourtLegal Cell Authority, Allahabad.



BEFORETHE HON'BLE SUNEET KUMAR, J.


Rajesh Kumar ...PetitionerVersus


Counsel for the Petitioner:Sri Ashok Khare, Sri Siddharth Khare

Counsel for the Respondents:A.S.G.I., S.C., Sri Satish Kishore Kakkar

Constitution of India,Art.-226-Terminationof probationer temporary employee-without held disciplinary proceeding-inutter violation of principle of NaturalJustice-not sustainable quashed.

Held: Para-28Considering the facts of the case, in thelight of the legal principles, discussedherein above, I am of the view that theimpugned order of termination isnothing but punitive and stigmatic,therefore, cannot be sustained.

Case Law discussed:AIR 1958 SC 36; (1999) 3 SCC 60; 1987 (1)SCC 146; (1984) 3 SCC 384; 2010 SC 3493;[(1980) 2 SCC 593]; 1998 (2) SCC 192; ADJ2013 8 617; 2002 (1) SCC 743.

(Delivered by Hon'ble Suneet Kumar, J.)

1. The respondent State Bank ofIndia issued an advertisement in August,2009 inviting applications for the post ofAssistant Clerk, the petitioner beingeligible applied for the post; appeared in

3 All]. Rajesh Kumar Vs. Union of India & Ors. 1525

the written examination on 8.11.2009, onqualifying, petitioner appeared in theinterview on 26.4.2010, was declaredselected. The respondent bank issuedappointment letter on 3.12.2010, pursuantthereof, petitioner joined on 20.12.2010 asAssistant Clerk at Branch Dohrighat,District Mau of State Bank of India.Petitioner was sent on training, onsuccessful completion of trainingpetitioner was posted at Gorakhpur byorder dated 13.6.2011. The probationperiod of the petitioner was enhanced bythree months for unsatisfactory work. Byorder dated 27.8.2011, passed by theRegional Manager, State Bank of India,Gorakhpur, respondent no. 5, the serviceof the petitioner was terminated for thereason that some person impersonatinghimself, appeared on behalf of thepetitioner in the written examination.

2. The petitioner is assailing orderdated 27.8.2011 passed by respondent no.5.

3. Submission of learned counsel forthe petitioner is that the petitioner was notgiven any opportunity or show causebefore passing the impugned order, theorder is stigmatic and punitive, thepetitioner denied that someone elseimpersonated the petitioner in the writtenexamination held on 8.11.2009, further,the photographs fixed by the petitioner forthe written examination, was thephotographs used by the respondents inall the stages of selection.

4. Per Contra Sri S.K. Kakkar,learned counsel appearing for the bankwould submit that the facts are not indispute, however, the petitioner'sappointment was subject to theverification of final records, an

undertaking, dated 21.12.2010, was takenthat in the event, the documents are foundincorrect, the service of the petitionerwould stand automatically terminated. Onreceipt of letter from the Zonal Office, re-verification was done, the bank asked thepetitioner to submit two photographs andalso provide specimen signature. TheGorakhpur Office of the Bank conducted theverification of the photographs and thesignatures, it was found that there was someanomaly, thus, on apprehension ofimpersonation, the Branch Manager videletter dated 29th April, 2011 requested theControlling Authority/Administrative Office,Gorakhpur to get the matter investigated bythe appropriate authority. It appears,thereafter, the matter was referred to the handwriting expert for verification of thumbimpression/signature of the petitioner on thecall letter. The handwriting expert opinedthat the thumb impression on the call letterdoes not match the specimen thumbimpression of the incumbent i.e. thepetitioner. Thus, in view of fraud andmisrepresentation, the petitioner's serviceswas terminated forthwith, being onprobationer. It is admitted that no show causenotice was given to the petitioner, enclosingthe report of the handwriting expert, nor anyexplanation was called from the petitioner.

5. Heard learned counsel for theparties and perused the record.

6. The only question fordetermination is, as to whether, theimpugned order terminating the service ofthe probationer petitioner is stigmatic andpunitive.

Probationer

7. Mere form of the order usingexpressions "terminate", 'discharge' etc, is


not conclusive and despite the use of suchinnocuous expressions, the Court canexamine the matter to find out the truenature of the order terminating the serviceof the petitioner. This has been theconsistent view of the Supreme Court inseveral Constitution Bench decisionsrendered in Parshottam Lal Dhingra vs.Union of India AIR 1958 SC 36, State ofBihar vs. Gopi Kishore Prashad AIR 1960SC 689, Jagdish Mitter vs. Union of Indiaand others 1964 SC 449, Shemsher Singhvs. State of Punjab and others 1974(2)SCC 831.

8. Supreme Court in Dipti PrakashBanerjee vs. Saytendra Nath BoseNational Centre for Basic Sciences,Calcutta and others1 observed asfollows:-

"25. In the matter of `stigma', thisCourt has held that the effect which anorder of termination may have on aperson's future prospects of employmentis a matter of relevant consideration. Inthe seven Judge case in Samsher Singh vs.State of Punjab [1974 (2) SCC 831],Ray,CJ observed that if a simple order oftermination was passed, that wouldenable the officer to "make good in otherwalks of life without a stigma. "It was alsostated in Bishan Lal Gupta vs. State ofHaryana [1978 (1) SCC 202] that if theorder contained a stigma, the terminationwould be bad for "the individualconcerned must suffer a substantial lossof reputation which may affect his futureprospects".

9. In Kamal Kishore Lakshman vs.Pan American World Airways2, SupremeCourt explained the meaning of 'stigma'and what amounts to 'stigma' asfollows(p150):

"According to Webster's New WorldDictionary, it (stigma) is something thatdetracts from the character or reputationof a person, a mark, sign etc., indicatingthat something is not considered normalor standard. The Legal Thesuras byBurton gives the meaning of the word tobe blemish, defect, disgrace, disrepute,imputation, mark of disgrace or shame.The Webster's Third New InternationalDictionary gives the meaning as a markor label indicating a deviation from anorm. According to yet another dictionary`stigma' is a matter for moral reproach."

10. A three Judge Bench decision inIndra Pal Gupta vs. Managing Committee,Model Inter College3 is a clear authorityfor the proposition that the material whichamounts to stigma need not be containedin the order of termination of theprobationer but might be contained in anydocument referred to in the terminationorder or in its Annexures. Obviously sucha document could be asked for or calledfor by any future employer of theprobationer. In such a case, the order oftermination would stand vitiated on theground that no regular inquiry wasconducted.

11. Supreme Court in Union of Indiaand others vs. Mahaveer C. Singhvi AIR4observed as follows:-

"15. The High Court also referred tothe Special Bench decision of this Court isShamsher Singh v. State of Punjab andAnr. MANU/SC/0073/1974: AIR SC 2192:MANU/SC/0073/1974:1974(2) SCC 831which was a decision rendered by aBench of seven judges, holding that thedecisive factor in the context of thedischarge of a probationer from service isthe substance of the order and not the


form in determining whether the order ofdischarge is stigmatic or not or whetherthe same formed the motive for foundationof the order.

31.............Not only is it clear fromthe materials on record, but even in theirpleadings the petitioners have themselvesadmitted that the order of 13th June,2002, had been issued on account of theRespondent's misconduct and thatmisconduct was the very basis of the saidorder. That being so, having regard to theconsistent view taken by this Court that ifan order of discharge of a probationer ispassed as a punitive measure, withoutgiving him an opportunity of defendinghimself, the same would be invalid andliable to be quashed, and the same findingwould be also apply to the Respondent'scase. As has also been held in some of thecases cited before us, if a findings againsta probationer is arrived at behind hisback on the basis of the enquiryconducted into the allegations madeagainst him/her and if the same formedthe foundation of the order of discharge,the same would be bad and liable to beset aside. On the other hand, if no enquirywas held or contemplated and theallegations were merely a motive for thepassing of an order of discharge of aprobationer without giving him a hearing,the same would be valid. However, thelatter view is not attracted/to the facts ofthis case.................This case, in our view,is not covered by the decision of thisCourt in Dipti Prakash Banerjee's case(supra)".

12. In what circumstances, an orderof termination of a probationer can besaid to be punitive depends upon whethercertain allegations which are the cause ofthe termination or the motive of thefoundation of the order.

13. In Gujarat Steel Tubes Ltd. vs.Gujarat Steel Tubes Mazdoor Sabha5Supreme Court explained 'foundation' asfollows:-

"A termination effected because themaster is satisfied of the misconduct andof the consequent desirability ofterminating the service of the delinquentservant, it is a dismissal, even if he hadthe right in law to terminate with aninnocent order under the standing orderor otherwise. Whether, in such a case thegrounds are recorded in a differentproceeding from the formal order doesnot detract from its nature. Nor the factthat, after being satisfied of the guilt, themaster abandons the enquiry andproceeds to terminate. Given an allegedmisconduct and a live nexus between itand the termination of service theconclusion is dismissal. even if fullbenefits as on simple termination, aregiven and non-injurious terminology isused.

On the contrary, even if there issuspicion of misconduct the master maysay that he does not wish to bother aboutit and may not go into his guilt but mayfeel like not keeping a man he is nothappy with. He may not like to investigatenor take the risk of continuing a dubiousservant. Then it is not dismissal buttermination simpliciter, if no injuriousrecord of reasons or punitive pecuniarycut-back on his full terminal benefits isfound. For, in fact, misconduct is not thenthe moving factor in the discharge."

14. The distinction between"foundation" and "motive" was explainedin Dipti Prakash Banerjee (supra):

"If findings were arrived at in anenquiry as to misconduct, behind the back


of the officer or without a regulardepartmental enquiry, the simple order oftermination is to be treated as "founded"on the allegations and will be bad. But ifthe enquiry was not held, no findings werearrived at and the employer was notinclined to conduct an enquiry but, at thesame time he did not want to continue theemployee against whom there werecomplaints, it would only be a case ofmotive and the order would not be bad.Similar is the position if the employer didnot want to enquire into the truth of theallegations because of delay in regulardepartmental proceedings or he wasdoubtful about securing adequateevidence. In such a circumstance, theallegations would be a motive and not thefoundation and the simple order oftermination would be valid.

Expert Opinion

15. Expert opinion is only anopinion and has been considered to be ofa very weak nature. The decision of thebank is based on the expert opinion aloneto establish the guilt of impersonation.

16. In Gulzar Ali Vs. Sate ofHimachal Pradesh6 the Supreme Courtobserved that the observation of the HighCourt that there is a natural tendency onthe part of an expert witness to supportthe view of the party who called him,could not be downgraded. Many so-calledexperts have been shown to beremunerated witnesses makingthemselves available on hire to pledgetheir oath in favour of the party payingthem.

17. This Court considering largenumber of judgments in Tika Ram vs.Daulat Ram7 held as follows:-

"9. Evidence of an expert is only anopinion. Expert evidence is only a piece ofevidence and external evidence. It has tobe considered along with other pieces ofevidence. Which would be the mainevidence and which is the corroborativeone depends upon the facts of each case.An expert's opinion is admissible tofurnish the Court a scientific opinionwhich is likely to be outside theexperience and knowledge of a Judge.This kind of testimony, however, has beenconsidered to be of very weak nature andexpert is usually required to speak, not tofacts, but to opinions. It is quite oftensurprising to see with what facility, and towhat extent, their views would be made tocorrespond with the wishes and interestsof the parties who call them. They do not,indeed, wilfully misrepresent what theythink, but their judgment becomes sowarped by regarding the subject in onepoint of view, that, when conscientiouslydeposed, they are incapable of expressinga candid opinion."

18. The Court has made theobservation in trial, treating handwritingexpert evidence as being opinionevidence. In service jurisprudenceallegation has to be proved onpreponderance and not beyond reasonabledoubt. But the delinquent employee has tobe confronted with the evidence as it isrebuttable.

19. Applying the law on the facts ofthe case, a perusal of the report dated5.7.2011 submitted by one R. Krishna(B.Sc., L.L.B., M.A. (Criminology &Forensic Science) Consulting ForensicExpert formerly Assistant Professor ofCriminology & Forensic Science (SagarUniversity) rendered the followingopinion which is extracted below:-


On a very careful examination of thesignatures, thumb impressions andphotographs of the above referred person,I am of the following opinion:-

(a) The signatures made on CallLetter at the time of examination does notmatch with the other standard signaturesof Sri Rajesh Kumar. The reasons of myopinion are in Annexure No. 1.

(b) The thumb impression on the CallLetter, which is expected to be of RightThumb do not match with the specimenthumb of Right Thumb of Sri RajeshKumar. The reasons of my opinion aregiven in Annexure No. 2.

(c) The photographs on the CallLetter of the person who appeared in theexamination does not match with thephotographs of the person who is joiningthe Bank. The reasons of my opinion aregiven in Annexure No. 3.

Opinion: On very carefulexamination of the above referredsignatures and writing written as 'RajeshKumar' as in A-2, I am of the opinion,that the signature D-1 is not made by thesame person, who has made thesignatures and writing S-1 to S-3 and A-1to A-3.

Reference of Photographs:(A)= Standard photograph of Sri.

Rajesh Kumar Submitted at the time ofjoining of the Bank.

(B)= Photograph of the Call Letterof the person who appeared in theexamination.

Opinion: On very carefulexamination of the two above referredphotographs marked (A) and (B), I am ofthe opinion, the photograph (A) differswith that of (B) and both the photographsare not of the same person.

The reasons of my opinion arefollows:

1. ...................2.The length of face of

photograph(A) is more than that of (B).3.The width of the face of

photograph (A) should have been morethan that of the face of photograph (B) inthe same proportion, but it is not. Thewidth of the face of photograph(A) islesser than of the face of the photograph(B) as marked by the red line of thephotographic enlargement.

4...................5...................6...................

20. It is contended on behalf of therespondents that the principles of naturaljustice would not apply in the facts of thepresent case, as the petitioner hasobtained appointment on the basis offraud and misrepresentation and in anycase, the petitioner was on probationhence, the petitioner's service could beterminated without assigning any reason.

21. The contention is not accepted forthe simple reason that the bank instead ofsimply terminating the services on theground of unsuitability or poor performanceduring the probation, conducted an enquiryregarding the conduct of the petitioner forimpersonation, fraud and misrepresentation,and after a full fledged enquiry conductedbehind his back, evidence was collected byinviting expert opinion to prove the guilt.The motive is not termination simpliciter, thefoundation being as to whether the petitionerimpersonated in the written examination ornot and the bank has acted upon the opinionof an expert taken behind the back of thepetitioner without confronting the petitioner,the findings of the handwriting expert.

22. The contention of learnedcounsel for the respondent that the fact of


impersonation is not rebuttable, even aftergiving opportunity, the petitioner shall notbe able to rebut the findings of the expertopinion, cannot be accepted for the simplereason that the expert opinion can alwaysbe questioned by the petitioner. It is not acase where the petitioner had obtainedappointment by filling forged verificationdocuments or caste certificate, but is acase of impersonation i.e. act of fraud andmisrepresentation which is being soughtto be proved on evidences to justify theaction and suspicion of the Bank. Fraudand misrepresentation is a question offact, which has to be pleaded and provedafter opportunity to the aggrieved party.

23. A perusal of the impugned orderdated 13.9.2011, addressed to thepetitioner, the subject is 'cancellation ofappointment'. After giving background ofthe examination conducted, the petitionerappearing in the examination theimpugned order records as follows:

Cancellation of Appointment.

"1. With reference to above, weadvise that the written test for thecaptioned recruitment exercise wasconducted on 8th, 15th and 22ndNovember, 2009 and you were required toappear in the written test at Bal VidyaMandir, Station Road, Charbag, Lucknowon 8th November, 2009 at 9:15 A.M.However, you did not appear in thewritten test at the scheduled date, timeand venue but some body else appeared inthe above said test impersonating to beyourself.

2. .........................3. ........................4. Therefore you suppressed this

material fact that you did not appear inthe written test held on 8th November,2009 at 9:15 A.M. On Roll No.

2601001887 allotted to you at Bal VidyaMandir, Station Road, Charbagh,Lucknow and allowed some one else toappear in the written test in your place, assuch your so called selection in Bank isvoid ab-initio. Accordingly, there is noservice contract between you and theBank and any engagement thereto inpursuance to the referred appointmentletter is invalid and void ab-initio.However, for the record sake you areinformed by this letter that your selectionon the referred ground is calcelled inexpress terms by virtue of this letter whichplease note. Accordingly, your name hasbeen struck off from the employee'sroll/list of the Bank.

5. Please acknowledge receipt of thisletter."

24. The discharge order is not ordersimpliciter, it in clear terms states that thefoundation for termination is that thepetitioner "did not appear in the writtentest and somebody elseappeared......impersonating to be yourself"is stigmatic and punitive and reflects uponthe character/reputation of a person, it isblemish, imputation, label indicatingdeviation from a norm.

25. In the case of State of PunjabVs. Balbir Singh8. The order of dischargemention the words "unlikely to prove anefficient police officer." Further beforepassing the aforesaid order of discharge itappears that Shri Balbir Singh, who wasfound to have consumed liquor andmisbehaved with a lady constable wasmedically examined and thereafterdischarge order was passed. The appeal,which was filed before the DeputyInspector General of Police, was rejectedand while rejecting the appeal, he referredto the aforesaid facts and stated that the


discharge order was correct. Shri BalbirSingh challenged the order of dischargeon the basis of the averments containedtherein as well as in the order of theDeputy Inspector General of Police. TheHon'ble Apex Court upholding theaforesaid order of discharge held asunder;-

"In the present case, order oftermination cannot be held to be punitivein nature. The misconduct on behalf of therespondent was not the inducing factorfor the termination of the respondent. Thepreliminary enquiry was not done with theobject of finding out any misconduct onthe part of the respondent, it was doneonly with a view to determine thesuitability of the respondent within themeaning of Punjab Police Rule 12.21. Thetermination was not founded on themisconduct but the misbehaviour with alady constable and consumption of liquorin office were considered to determine thesuitability of the respondent for the job, inthe light of the standards of disciplineexpected from police personnel."

26. The term 'stigma' has to beunderstood in its plain meaning assomething that is detraction from thecharacter or reputation of a person. It isblemish, imputation, a mark or labelindicating a deviation from a norm Theassessment of work and performance andrecording of satisfaction of the authorityconcerned that he is not satisfied with thework and performance regarding fitnessof the employee concerned would notmake the order stigmatic since it is not ablemish on the character and reputation ofthe person concerned but it reflects on thecapacity and efficiency of the incumbentwith respect to the work for which he/shewas employed.

27. It has been held in variousjudgments rendered by the Supreme Courtthat reasons assigned in the terminationorder, at times may not be punitive orstigmatic, the following words/phrasesmentioned in the order have been held tobe not punitive.

i.)"want of application'ii.)"lack of potential"iii.)"found not dependable"iv.)"under suspension"v.)"work is unsatisfactory"vi.)"unlikely to prove an efficient

officer"(Refer: Dipti Prakash Banerjee vs.

Saytendra Nath Bose National Centre forBasic Sciences, Calcutta and others(1999) 3 SCC 60, Paras Nath Pandey vs.Director, North Central Zone, CulturalCentre, Nyay Marg, Allahabad (2009) 1UPlBEC 274)

28. Considering the facts of the case,in the light of the legal principles,discussed herein above, I am of the viewthat the impugned order of termination isnothing but punitive and stigmatic,therefore, cannot be sustained.

29. In the result, the writ petition isallowed. The impugned order dated27.8.2011 passed by Regional Manager,State Bank of India is quashed. Thepetitioner shall be entitled forreinstatement with all consequentialbenefits but with respect to arrears ofsalary, he will be paid 50% of thebackwages for the period he remained outof employment pursuant to impugnedorder of termination. It goes withoutsaying that this judgment shall not preventto the respondents from proceedingsafresh against the petitioner and pass afresh order in accordance with law.


30. No order as to costs.--------



BEFORETHE HON'BLE ASHWANI KUMAR MISHRA, J.


Self Finance Colleges WelfareAssociation, Bijnor & Anr. ...Petitioners

VersusState of U.P. & Ors. ...Respondents

Counsel for the Petitioners:Sri V.K. Singh, Sri D.K. Singh, SriBhuvnesh Kumar Singh

Counsel for the Respondents:C.S.C., Sri Vivek Saran, Sri Vivek Varma

Constitution of India, Art.-226-WritPetition-filed by Association of selffinanced institution affiliated to MJPRuhilkhand University-challenges decisionof executive council-charging developmentfee-in absence of any statutory provision-discrimination in charging developmentfee from un-aided institution -withoutrational basis-held-petition by registeredassociation-maintainable.

Held: Para-3 & 53. The petitioner, being a registeredsociety, is a juristic person. It has filed thepresent writ petition on behalf of itsmembers, which are Self FinancedColleges, affiliated to the respondentuniversity. The representatives of the 12institutions, details of which have beengiven in para nos. 4 & 5 of thesupplementary affidavit, are the membersof the committee of management of thepetitioner institution. Sri G.K. Singh,learned Senior Advocate, has also made astatement that member institutions of thepetitioner undertake to be bound by theoutcome of the present writ proceedings.In view of the above, I am of the opinion

that the petitioner association is entitledto maintain the present writ petition onbehalf of its member self financedcolleges.

5. In such view of the matter, I am ofthe opinion that the petitioner is entitledto maintain the present writ petition inrespect of the grievance raised, and theobjections raised with regard to itsmaintainability is consequently rejected.

Case Law discussed:1996 (7) SCC 29

(Delivered by Hon'ble Ashwani KumarMishra, J.)

1. Petitioner is an association of SelfFinanced Colleges, affiliated to M.J.P.Ruhilkhand University, Bareilly and has gotitself registered as a society under theSocieties Registration Act, 1860. Clause-12of its bye-laws permits the society to institutelegal proceedings on its behalf. It has filedthe present writ petition challenging thedecision taken by the Executive Council inits meeting dated 2.11.2011 and 27.2.2013,as intimated in the communication/order ofthe Registrar dated 15.7.2013, insofar as ademand of development fee @ Rs. 500/- perstudent has been levied from the SelfFinanced institutions.

2. At the very outset, Sri Vivek Verma,learned counsel appearing for the University,has raised a preliminary objection withregard to the maintainability of the writpetition on the ground that petitioner has nolocus to maintain the writ petition as it is nota person aggrieved and no student, whoalone could have complained, has actuallyraised an issue and the writ petition,therefore, is liable to be dismissed.

3. The petitioner, being a registeredsociety, is a juristic person. It has filed the

3 All]. Self Finance Colleges welfare Association, Bijnor & Anr. Vs. State of U.P. & Ors. 1533

present writ petition on behalf of itsmembers, which are Self FinancedColleges, affiliated to the respondentuniversity. The representatives of the 12institutions, details of which have beengiven in para nos. 4 & 5 of thesupplementary affidavit, are the membersof the committee of management of thepetitioner institution. Sri G.K. Singh,learned Senior Advocate, has also made astatement that member institutions of thepetitioner undertake to be bound by theoutcome of the present writ proceedings.In view of the above, I am of the opinionthat the petitioner association is entitled tomaintain the present writ petition onbehalf of its member self financedcolleges.

4. The demand of development feeis restricted only to the self financedcolleges and no such demand iscontemplated from the students of theaided colleges. It is submitted by thelearned counsel for the petitioner thatdecision of the respondent university tolevy development charges from the selffinanced colleges only is arbitrary, as itdiscriminates against the students of selffinanced colleges. There is nothing onrecord to indicate as to why developmentfee is being charged only from thestudents of self financed colleges. Theargument of Sri Vivek Verma that feestructure for aided and non aidedinstitutions, is different, is not convincing.The university will have to justify as towhy such demand is restricted to studentsof self financed colleges only. No reply orreason, in this regard, has been brought onrecord. The status of the institution has nobearing on the demand for payment ofdevelopment charges. In the absence ofany rational basis for the classification,this Court finds substance in the argument

that the members of the petitioner arediscriminated, as its students are beingsaddled with extra liability.

5. In such view of the matter, I amof the opinion that the petitioner isentitled to maintain the present writpetition in respect of the grievance raised,and the objections raised with regard to itsmaintainability is consequently rejected.

6. The demand of development feefrom the students of self financed collegeshas been challenged on the ground thatsuch a demand is not backed by law. Theaforesaid submission is substantiated bySri G.K. Singh, learned Senior Counsel,by relying upon section 51(2)(j) of theU.P. State Universities Act, 1973 (hereinafter referred to as 'Act'). It is contendedthat the fee, which may be charged by anaffiliated college, has to be provided inthe ordinance of the university. Section51(2)(j) of the Act is reproduced:-

"51. Ordinances- --------------(2) Without prejudice to the generality ofthe provisions of sub-section (1), theOrdinance shall provide for the followingmatters, namely-

(j) the fees which may be charged bythe University or by an affiliated orassociated college for any purpose;"

7. Section 52 of the Act provides forthe manner in which ordinance wouldhave to be framed. Specific provisionsrelating to income or expenditure of theuniversity for being incorporated in theordinance also requires an approval fromthe State Government. Section 52(3),proviso (c), which is applicable, isreproduced:-

"52. Ordinance how made. --------


(3) Save as otherwise provided inthis section, the Executive Council may,from time to time, make new or additionalOrdinances or may amend or repeal theOrdinances referred to in sub-sections (1)and (2):

Provided that no ordinance shall bemade -

(c) effecting the number,qualifications and emoluments of teachersof the university or the income orexpenditure of the university, unless adraft of the same has been approved bythe State Government."

8. On the strength of the aforesaidprovision, it is contended that unlessordinances are framed, in accordance withlaw, making specific provision forcharging of development fee, the decisionto charge the amount itself is in excess ofjurisdiction. Reliance has been placedupon the decision of this Court inCommittee of Management Public DegreeCollege and others Vs. State of U.P. andothers: 2012 (5) ESC 3015. Para 8 of thejudgment has been relied upon, which isreproduced:-

"Having heard learned counsel forthe parties and having perused therecords and the stand of the University,this Court does not find any justificationfor having a different structure ofexamination fee for the students of theself-financed institutions at a a higherrate. To my mind there is no rationalnexus with the object sought to beachieved namely the examination feeswhich is in relation to examinations thatare common for the self-financeinstitutions and aided institutions. In theabsence of any rational basis for thediscrimination, the equality clause ascontained under Article 14 of the

Constitution of India appears to havebeen infringed by the University byimposing different fee for the samecourses and for the same examination.The status of the institution has nobearing on the nature of the examinationsthat are common for aided and self-financed institutions. No other materialadverse to the petitioners has been placedto draw an inference otherwise. To thecontrary the decision of the FinanceCommittee for the Session 2012-13vindicates the stand on discriminationraised by the petitioners."

9. Sri Vivek Varma, learned counselappearing for the university, on the otherhand, has attempted to justify thedecision, by referring to Section21(1)(viii) of the Act. Section 21 providesfor the power and duties of ExecutiveCouncil. Section 21(1)(viii) of the Act isreproduced:-

"To fix the fees, emoluments andtravelling and other allowances of theexaminers."

10. He contends that levy of thedevelopment fee by the ExecutiveCouncil can be traced to the aforesaidprovision. He also places reliance uponthe judgment delivered by this Court inWrit Petition No. 67119 of 2011, which isreproduced below:-

"Heard learned counsel for thepetitioner, learned Standing counsel aswell as Sri Sanjay Kumar Singh, Advocatefor the respondents University.

Petitioner is an association of SelfFinance Education Institutions which isaffiliated to Dr.Bhim Rao AmbedkarUniversity, Agra.

3 All]. Self Finance Colleges welfare Association, Bijnor & Anr. Vs. State of U.P. & Ors. 1535

State Government on 24th March,2011 has resolved to increase the amountin question which an incumbent wasentitled to get in lieu of examination dulyand in In view of service rendered in theexamination. Pursuant thereto, universityconcerned in the meeting of the FinanceCommittee has resolved on 17.5.2011 byproceeding to enhance the fees of studentsfrom Rs. 1000/- to Rs. 1500/- per annumand said resolution of Finance Committeehas been accepted by the ExecutiveCouncil of the University concerned on9.06.2011. At this stage petitioner hasrushed to this Court contending thereinthat increase which has been so made isunjustifiable and uncalled for.

Once the State Government in itswisdom has taken decision to revise theremuneration of the incumbents, who areattached with the examination work and inthis regard definite directives have beenissued that remuneration be increased andfurther amount incurred for the same is tobe generated by the University concerned.University concerned in order to generatethe funds meeting out such expenses hassubsequently resolved by an ExpertCommittee that is Finance Committee formaking increase of Rs. 500/- per student. Asfar as petitioner is concerned, increase ofRs. 1000/- per annum to Rs. 1500/- perannum has been effected and the saidresolution has been accepted by theExecutive council. Once when enhancementin question is only from Rs. 1000/- to 1500/-and the decision in question has been takenin regard to meeting out Financial liabilityas directed by the State Government, thenthis Court can not come to the rescue of thepetitioner by proceeding to interfere withthe said policy decision.

A said policy decision neitherinfringes any Constitutional right nor

infringes any statutory right conferredupon the petitioner.

Writ petition is accordinglydismissed."

11. Reliance has also been placedupon the judgment of the Apex Courtreported in Municipal Council, Waraseoniand another Vs. Satish Chandra Jain andanother: 1996 (7) SCC 29.

12. I have considered the respectivesubmissions advanced and have alsoperused the materials placed forconsideration of this Court as well as thejudgements relied upon.

13. A perusal of the scheme of theAct clearly goes to show that charging offee by the university or affiliated andassociated colleges has to be provided inthe ordinance. Unless the demand ofdevelopment fee is backed by framing ofappropriate ordinance permitting suchlevy of development fee, the universitywould not be entitled to charge suchamount. This provision would otherwiserestrict the possibility of levying differentfee by different institutions arbitrarily.The respondent university, therefore, canlevy development fee only if it is soprovided by an ordinance. In the instantcase, no such ordinance has been broughtto the notice of the Court, which permitslevy of development fee, and therefore,the charging of amount as developmentfee is without jurisdiction.

14. The argument of Sri Vivek Vermathat source of power for levy of developmentfee can be traced from section 21(1)(viii) alsocannot be accepted. Section 21 deals with thepowers of the Executive Council. Section21(1)(viii) deals with fixation of fee,emoluments and travelling and other


allowances of the examiners only. The powerto levy development fee from students of theself financed colleges cannot be traced tosection 21(1)(viii) of the Act. So far as thejudgement of Hon'ble Single Judge in writpetition no.67119 of 2011 is concerned, itmay be noticed that the specific issuerequiring adjudication by this Court was notthe question under consideration therein.Moreover, the provisions, which have beennoticed above, were not pressed, andtherefore, the judgement delivered in thatmatter cannot come to the rescue of therespondent university. The judgement ofHon'ble Supreme Court in MunicipalCouncil (supra) also has no applicability tothe facts of the present case inasmuch as thejudgement of the Apex Court dealt with thefixation of fee by the municipality and thequestion was as to whether the levy was a feeor tax. The judgements relied upon by SriVivek Verma, therefore, have noapplicability to the facts of the present case.

15. Considering the aforesaid facts andcircumstances of the case, this Court findsthat the demand of the university to levydevelopment fee since is not backed by theappropriate statutory provision, therefore, itcannot be sustained. The law is otherwisesettled that if the statute requires a thing to bedone in a particular manner, it has to be donein that matter alone and no other procedurefor the purpose can be resorted. Once the Actprovides the procedure for determination offee, the university was bound to havecharged fee only in such manner and itsdecision to levy the development fee withoutcomplying with the provisions of the Actcannot be sustained. Consequently, writpetition succeeds and is allowed.

16. The decision of the ExecutiveCouncil held in its meeting dated2.11.2011 and 27.2.2013 as

communicated vide order of the Registrardated 15.7.2013, insofar as it raises ademand for payment of Rs. 500/- asdevelopment fee from the students of selffinanced institutions, is quashed. ThisCourt had passed an interim order,whereby the amount collected asdevelopment fee was directed to be keptin a separate deposit by the university.Since the writ petition has been allowed,it is provided that the amount in thisregard, kept with the university shall bereturned to the colleges, with a furtherdirection to the colleges to return suchamount to the students concerned.

17. No order, however, is passed asto costs.



BEFORETHE HON'BLE DILIP GUPTA, J.

THE HON'BLE MANOJ MISRA, J.


Arun Kumar Dubey & Anr. .PetitionersVersus

High Court of Judicature at Allahabad &Anr. ...Respondents

Counsel for the Petitioners:Sri Jitendra Kumar, Sri Prasoon Tomar

Counsel for the Respondents:Sri Manish Goyal, Sri Ravi Kant

Constitution of India, Art.-233(2)-Higherjudicial services-petitioner declaredsuccessful in preliminary examination-aggrieved by corrigendam issued on26.06.2014 by which 7 years experienceshall be read in view of law laid down inSanjay Agrawal case-meaning therebythe date on which advertisement made-

3 All]. Arun Kumar Dubey & Anr. Vs. High Court of Judicature at Allahabad & Anr. 1537

petitioner must have possess 7 yearsexperience as an Advocate-which as perterms clause 2 of advertisement 7 yearswas to be counted as on next January ofthe year-held-corrigendam issued byHigh Court-being strict in accordancewith decision of Supreme Court in TejPrakash Pathak & C. Channabasavaih-nointerference required.

Held: Para-The list which has been published by theHigh Court seeks to give effect to thecorrigendum by including the names ofsuch candidates who satisfy the essentialrequirement after excluding thosecandidates who may have been declaredeligible earlier but are actually not eligible.Mere declaration in the earlier list that theywere successful in the preliminaryexamination does not create in them a rightto appear at the main examination even ifthey are not eligible. The decisions of theSupreme Court in Tej Prakash Pathak(supra) and C. Channabasavaih (supra),therefore, do not help the petitioners.

Case Law discussed:(2013) 4 SCC 540; AIR 1965 SC 1293; (2007)3 UPLBEC 2558; (2013) 5 SCC 277.

(Delivered by Hon'ble Dilip Gupta, J.)

1. The petitioners, who had respondedto the advertisement issued by the High Courtfor making appointment by direct recruitmentto the Uttar Pradesh Higher Judicial Servicesand had appeared at the preliminaryexamination held in 2014, have filed thispetition for quashing the corrigendum dated26 June 2014 published by the High Court aswell as the list of candidates previouslydeclared successful as now ineligible due toshort practice on the date of application interms of the corrigendum.

2. The minimum essentialqualifications as prescribed in theadvertisement are as follows

"2.MINIMUM ESSENTIALQUALIFICATIONS A candidate must bean Advocate of not less than seven yearsstanding as on 01st day of January, 2015.The applicants must fulfil the essentialrequirements of the post and otherconditions stipulated in the Uttar PradeshHigher Judicial Service Rules, 1975.

Note:Prosecuting Officers/AssistantProsecuting Officers are treated to be anAdvocate and eligible as per theJudgement of Hon'ble Supreme Court inCivil Appeal No.561 of 2013-DeepakAgarwal Vs. Keshav Kaushik & Others."

3. The petitioners submitted theirapplications which were required to befilled online from 19 May 2014 to 18 June2014. As the petitioners stated that theywere Advocates who would have not lessthan seven years standing as on 1 January2015, they were issued admit-cards andthey appeared at the preliminaryexamination held on 20 July 2014. Theirnames were included in the list ofsuccessful candidates declared on 24 July2014.

4. A corrigendum dated 26 June2014 had, however, been issued by theHigh Court which is as follows :

"In the paragraph no.2 (MinimumEssential Qualifications) of the"Instructions" in place of words "....of notless than 7 years standing as on01.01.2015..." the words "....of not lessthan 7 years standing as on the date ofapplication ......" shall be read in view ofthe law declared in High Court ofJudicature, Allahabad & Etc. Vs. SanjayAgarwal & Anr. Etc. and DeepakAgarwal Vs. Keshav Kaushik & Ors. bythe Hon'ble Supreme Court."


5. In view of the aforesaidcorrigendum, a list of candidates who hadpreviously been declared successful butfound to be ineligible due to short-practice as on the date of application wasdeclared on 21 October 2014. The namesof the two petitioners are included in thelist as they are not Advocates of not lessthan seven years standing as on the dateof application.

6. Learned counsel for the petitionershas submitted that it was not open to the HighCourt to make any change in the eligibilitycriteria after the last date of submission of theapplication as that would be violative ofArticles 14 and 16 of the Constitution. Insupport of his contention, learned counsel forthe petitioners has placed reliance upon thejudgment rendered by the Supreme Court inTej Prakash Pathak & Ors. Vs. RajasthanHigh Court & Ors.1 and C. Channabasavaih& Ors. Vs. State of Mysore & Ors.2. It is alsohis contention that once the petitioners hadappeared at the preliminary examination andhad been declared successful on 24 July 2014,it was not open to the High Court tosubsequently declare the petitioners ineligiblein view of the revised eligibility criteriacontained in the corrigendum dated 26 June2014. In this connection, learned counsel forthe petitioners submitted that though theimpugned corrigendum has been issued inview of the law declared by the High Court inSanjay Agarwal etc. etc. Vs. State of U.P. &Anr.3 and the decision of the Supreme Courtin Deepak Agarwal Vs. Keshav Kaushik &Ors.4, but the Supreme Court in DeepakAgarwal (supra) has not held that thecandidate must be an Advocate of not lessthan seven years standing as on the date ofapplication. It is his contention that theadvertisement issued by the High Court wasin accordance with the provisions of Rule5(c) of the U.P. Higher Judicial Service

Rules, 19755 which provide that therecruitment to the service shall be made bydirect recruitment from amongst theAdvocates of not less than seven yearsstanding on the first day of January nextfollowing the year in which the noticeinviting the application is published.

7. Sri Ravi Kant, learned SeniorCounsel appearing for the High Courtassisted by Sri Manish Goyal has, however,submitted that the Division Bench of thisCourt in Sanjay Agarwal (supra) hasdeclared Rule 5(c) of the Rules to the extentit provides "on the first day of January nextfollowing the year in which the noticeinviting application is published" as ultravires Article 233(2) of the Constitutionand, accordingly, struck down this portionof the Rule. He has further pointed out thatinitially an interim order was granted bythe Supreme Court in Special LeavePetition No.17212 of 2007 filed by theHigh Court to assail the order passed inSanjay Agarwal (supra), but it wasultimately disposed of by the SupremeCourt on 21 February 2014 in terms of thejudgment rendered by the Supreme Courtin Deepak Agarwal (supra). It is hissubmission that the corrigendum wasissued by the High Court on 26 June 2014to give effect to the judgment of the HighCourt in Sanjay Agarwal (supra) and thejudgment of the Supreme Court in DeepakAgarwal (supra).

8. We have considered thesubmissions advanced by learned counselfor the parties.

9. Recruitment to the Uttar PradeshHigher Judicial Service is made inaccordance with the Rules. Rule 5(c) ofthe Rules, which had been challenged inSanjay Agarwal (supra), reads as follows:


"5. Sources of recruitment.--Therecruitment to the service shall be made -

(a) ............(b) .............(c) by direct recruitment from

amongst the Advocates of not less thanseven years standing on the first day ofJanuary next following the year in whichthe notice inviting applications ispublished."

10. It was contended before theDivision Bench in Sanjay Agarwal(supra) that the aforesaid provisionpermits even such Advocates who haveless than seven years of standing at thebar as on the date of submission ofapplication to be considered forappointment because the cut-off date forthe purpose of determining the standing atthe bar has been fixed as the first day ofJanuary of the next following year inwhich the notice inviting application ispublished. In this connection it waspointed out that though the notice inquestion had been published on 31 March2007, but the cut-off date was notified as1 January 2008 which would mean that anAdvocate of less than seven yearsstanding at the bar as on 31 March 2007would also be eligible to appear in theselection. The Division Bench held thatRule 5(c) of the Rules, to the extent itprovides "on the first day of January nextfollowing the year in which the noticeinviting application is published", is ultravires Article 233(2) of the Constitutionand, therefore, struck down that portion.The observations of the Court are asfollows :

"(51) A perusal of the aforesaidmakes it clear that for the purpose ofdischarging its function of makingrecommendation for appointment of

District Judges from Bar an advertisementshall be published by the Court in variousleading news papers of the State. Theapplications shall be received by theRegistrar of the High Court as well as theDistrict Judges within whose jurisdictionthe candidates has been practicing. All theapplications shall be accompanied by thecertificate of age, academic qualifications,character standing as legal practitionerand other documents. The District Judgeswhile forwarding the applications to theCourt would also submit their owncomments with respect to each candidate'scharacter and fitness for appointment tothe service. All these applicationsthereafter shall be processed by theselection committee constituted underRule 16 who shall also conductexamination including interview.Thereafter the selection committee shallprepare a list and submit the record of allthe candidates to the Chief Justicealongwith its own recommendation withrespect to the names of the candidates inorder of merit who in its opinion aresuitable for appointment in the service.Rule 18 sub-rule 3 term the entireexercise undertaken by the selectioncommittee as "preliminary selection".Under Rule 18(4) the Court thereaftershall examine the recommendations of theselection committee and prepare a list ofselected candidates in order of meritwhich shall be forwarded to the Governor.Therefore, all the steps commencing fromRule 17(1) to Rule 18(4) are integrallyconnected with the process ofrecommendation of the Court and itcannot be said that the 'recommendation'means only the final list sent to theGovernor and earlier thereto it issomething unconnected and distinct fromrecommendation. Here the process ofrecommendation therefore commences on


31.3.2007 which may have completedthereafter. Presently as per directions ofthe Apex Court outer limit is 2.1.2008. Ifthat be so, for the purpose of eligibility ofan advocate for recommendation andappointment as District Judge, the lengthof his standing as an advocate has to beseen at least on the date when the processof recommendation commences andcannot depend on a date when the formalletter is ultimately issued. Since Rule 5(a)as it initially enacted 1975 Rules hasalready undergone amendment andpresently it is Rule 5(c) which is on thestatute book therefore there is no occasionto consider the validity of Rule 5(a) of1975 Rules. So far as Rule 5(c) of 1975Rules as it stands vide 6th Amendmentdated 9.1.2007, we have no hesitation tohold it inconsistent and contrary to Article233(2) of the Constitution of India andtherefore is ultra vires to the extent it says''on the first day of January next followingthe year in which the notice invitingapplication is published", the said rule isliable to be struck down.

(52) Consequently clause 2 of theinstructions of the advertisement in so faras it provides the cut off date as 1.1.2008is also declared illegal and accordinglyquashed.

..................(76) Thus only those petitioners who

were enrolled as Advocates and havepracticed as such for 7 years are eligibleto appear in Higher Judicial ServiceExamination of U.P. and cannot bedisqualified only on the ground thatpresently they have been appointed asAPP/APOs. However, those who werenever enrolled as an Advocate under 1961Act will not be entitled to be consideredunder Article 233 of the Constitution ofIndia. Issue no. 5 is decided accordingly.

RESULT1. ......2. Rule 5(c) of U.P. Higher Judicial

Service Rules, 1975 to the extent it reads" on the first day of January nextfollowing the year in which noticeinviting application is published", is heldillegal and ultra vires of Article 233 (2) ofthe Constitution of India and to that extentit is struck down.

3. Clause (2) of the instructions ofthe advertisement dated 31.3.2007 in sofar as it provides the cut-off date as1.1.2008 for determining experience of anadvocate is declared illegal and to thatextent it is quashed.

4. ......5. ......6. ......"11. As noticed above, the High

Court had filed a Special Leave Petitionin the Supreme Court to assail the orderpassed in Sanjay Agarwal (supra).Initially an interim order was granted bythe Supreme Court but the Special LeavePetition was ultimately disposed of on 21February 2014 in terms of the judgmentof the Supreme Court rendered in DeepakAgarwal (supra). The order passed by theSupreme Court is as follows :

"Heard learned counsel for theparties and also perused the applicationfor appropriate directions.

The Special Leave PetitionNos.17201-17212 of 2007 are taken onrecord and disposed of in terms of thejudgment of this Court in DeepakAgarwal v. Keshav Kaushik & Ors.(2013) 5 SCC 277."

12. In Deepak Agarwal (supra)issues had arisen before the SupremeCourt in regard to Haryana SuperiorJudicial Service Rules, 2007. Rule 11


which prescribes the qualifications fordirect recruits is as follows:

"Rule 11. The qualifications fordirect recruits shall be as follows :

(a) must be a citizen of India;(b) must have been duly enrolled as

an Advocate and has practiced for aperiod not less than seven years;

(c) must have attained the age ofthirty five years and have not attained theage of forty years on the 1st day ofJanuary of the year in which theapplications for recruitment are invited."

13. It would be seen that theaforesaid Rule prescribes that in order tobe eligible, a person must have beenenrolled as an Advocate and practiced fora period not less than seven years.

14. Article 233(2) of theConstitution deals with appointment ofDistrict Judges and is as follows :

"A person not already in the serviceof the Union or of the State shall only beeligible to be appointed a district judge ifhe has been for not less than seven yearsan advocate or a pleader and isrecommended by the High Court forappointment."

15. The expression "if he has beenfor not less than seven years an Advocate"was interpreted by the Supreme Court inDeepak Agarwal (supra) to mean "sevenyears as an Advocate immediatelypreceding the application" and, therefore,the Supreme Court observed that one ofthe essential requirements articulated bythe expression in Article 233(2) is thatsuch person must with the requisite periodbe continuing as an Advocate on the dateof application.

16. Rule 5(c) after deletion of theportion found to be ultra vires by a

Division Bench of this Court in SanjayAgarwal (supra) would read as follows :

"5(c) By direct recruitment fromamongst the Advocates of not less thanseven years standing."

17. Thus, in view of the decision ofthe Supreme Court in Deepak Agarwal(supra), no exception can be taken to thecorrigendum issued by the High Court forbringing the advertisement in accordancewith the decision rendered by the HighCourt in Sanjay Agarwal (supra) and thedecision of the Supreme Court in DeepakAgarwal (supra) by prescribing that thecandidate should have not less than sevenyears standing as on the date of application.

18. The contention of learned counselfor the petitioners that the eligibility criteriacannot be changed after the expiry of last dateof submission of the application form cannotbe accepted. The advertisement hadprescribed essential qualifications in terms ofRule 5(c) of the Rules. The Division Bench ofthis Court in Sanjay Agarwal (supra), asnoticed above, had declared that portion of thesaid rule which prescribes "not less than sevenyears standing on the first day of January nextfollowing the year in which the notice invitingapplication is published" to be ultra viresArticle 233(2) of the Constitution. The SpecialLeave Petition filed by the High Court wasdisposed of by the Supreme Court in terms ofthe judgment rendered by the Supreme Courtin Deepak Agarwal (supra). The SupremeCourt, while interpreting Article 233(2) of theConstitution, has observed that the essentialrequirement is that such person must withrequisite period be continuing as an Advocateon the date of the application.

19. The petitioners, therefore, cannotinsist that the High Court should continue


with the recruitment on the basis of aqualification prescribed in the advertisementwhich had been struck down by the HighCourt in Sanjay Agarwal (supra). Thecorrigendum seeks to ensure that theessential qualification for recruitment is interms of the judgment of the Supreme Courtin Deepak Agarwal (supra).

20. This apart, the issuance of thecorrigendum after the last date of submissionof the applications would not be contrary toArticles 14 and 16 of the Constitution asthere can possibly be no candidate who cancontend that he would have applied if thisessential qualification was mentioned in theinitial advertisement but has been preventedfrom submitting the application since the lastdate has expired. On the other hand, thecorrigendum, which seeks to ensure that theadvertisement is in accordance with the lawdeclared by the High Court and the SupremeCourt, only reduces the number of candidateswho had applied.

21. The list which has beenpublished by the High Court seeks to giveeffect to the corrigendum by including thenames of such candidates who satisfy theessential requirement after excludingthose candidates who may have beendeclared eligible earlier but are actuallynot eligible. Mere declaration in theearlier list that they were successful in thepreliminary examination does not createin them a right to appear at the mainexamination even if they are not eligible.The decisions of the Supreme Court inTej Prakash Pathak (supra) and C.Channabasavaih (supra), therefore, do nothelp the petitioners.

22. There is, therefore, no merit inthis petition. It is, accordingly, dismissed.

--------





BAGHEL, J.


Ravi Kumar ...PetitionerVersus


Counsel for the Petitioner:Sri Devesh Kumar Verma, Sri SureshChandra Verma

Counsel for the Respondents:A.S.G.I., Sri Vikash Budhwar

Constitution of India, Art.-226-Legalityof Brochure clause-10-definition of'family' -challenged as discriminatory-Selection of dealership for Regular andRural out let-affording clause ofdefinition of family included parent,unmarried brother and sister whileapplicant bachelor-but excludes theparties if married-suchdiscrimination/disqualification withoutany rational basis-held-distribution oflarges of state to suberve the commongood of as many as possible-economicand social justice sought to achievedhaving reasonable nexus between objectand prescribed of eligibility criteria-petition dismissed.

Held: Para-7In view of the decision of the SupremeCourt, noted above, such a qualificationcannot be said to be arbitrary. Hence, wedo not see any merit in the matter. Thewrit petition is, accordingly, dismissed.There shall be no order as to costs.

Case Law discussed:(1995) 1 SCC 85

3 All]. Ravi Kumar Vs. Union of India & Ors. 1543


1. By these proceedings thepetitioner has sought to question thelegality of the definition of the expression"family unit" in clause-10 of the Brochureissued by state owned oil companies forthe selection of dealers for Regular &Rural Retail Outlets. Clause-10 of thebrochure provides for a disqualificationand, insofar it is material, provides asfollows:

"10. DISQUALIFICATIONA. Individual Applicants : The

persons while meeting the abovementioned eligibility criteria if do notsatisfy any of the following requirementswill be considered as ineligible forapplying for the dealership:-(i) Fulfill Multiple dealership norms :Multiple Dealership/ Distributorship normsmeans that the applicant or any othermember of 'family unit' should not hold adealership/ distributorship or Letter of Intent(LOI) for a dealership/distributorship of anyOil Company i.e. only one Retail Outlet /SKO-LDO dealership / LPG distributorshipor an LOI of an Oil Company will beallowed to a 'Family Unit'.

'Family Unit' in case of marriedapplicant, shall consist of individualconcerned, his/ her Spouse and unmarriedson(s)/daughter(s). In case of unmarriedperson/ applicant, 'Family Unit' shall consistof individual concerned, his/her parents andhis/her unmarried brother(s) and unmarriedsister(s). In case of divorcee, 'Family Unit'shall consist of individual concerned,unmarried son(s)/unmarried daughter(s)whose custody is given to him/her. In case ofwidow/widower, 'Family Unit' shallconsist of individual concerned,unmarried son(s)/unmarried daughter(s)."

2. Under the above condition, amultiple dealership norm has been put intoplace, under which any other member of thefamily unit should not hold a dealership,distributorship or a Letter of Intent for theallotment of a dealership or a distributorshipof an oil company. In other words only oneretail outlet dealership or distributorship ofan oil company would be allotted to a familyunit. In the case of an applicant who ismarried, the family unit has been defined toconsist of the individual, his or her spouseand unmarried sons and daughters. In thecase of an unmarried person, the family unitis defined to include parents and unmarriedbrothers and sisters.

3. According to the submission ofthe petitioner, this is a discriminatoryprovision and violates Article 14 of theConstitution since parents of anunmarried applicant have been broughtwithin the purview of the expression'family unit', whereas, in the case of amarried individual, the parents areexcluded.

4. The object and purpose of thedisqualification is to ensure that there shouldnot be a concentration of retail outlets,dealerships and distributorships of an OilCompany in one family. These dealerships or,as the case may be, retail outlets anddistributorships, are allotted by state owned oilcompanies. Consistent with the DirectivePrinciples of the State Policy, an effort ismade to ensure dispersal of ownership so thata fair and equal opportunity is granted to allmembers of society to apply for the allotmentof such dealerships, distributorships and retailoutlets. There can be no gainsaying the factthat these allotments by the state owned oilcompanies are highly sought after, providingas they do an important source of income tothe allottee. Hence the norm that there should


be a dispersal of ownership cannot be faultedsince it is based on a criterion which isrational. How a family should be defined forthe purposes of the allotment of a retail outlet,distributorship or dealership, is a matter ofpolicy so long as the criterion which isadopted, is based on logic and reason. Thedefinition of the expression "family unit", inthe present case, postulates that where anapplicant is married, his or her family shouldbe read to consist of the spouse and unmarriedchildren. Where, however, a person is notmarried, the parents and siblings are includedas members of the family.

5. The petitioner has a grievance inregard to the inclusion of parents withinthe definition of a family in the case of anunmarried applicant. The issue before theCourt is whether this assessment by thestate owned oil companies for defining adisqualification or, as the case may be,eligibility is arbitrary and perverse. Weare unable to hold that it is so. The natureof the definition has a rational nexus withthe object sought to be achieved, which isthe dispersal of ownership of suchdistributorships, dealerships and retailoutlets.

6. A similar issue was considered in ajudgement of the Supreme Court in MahinderKumar Gupta Vs Union of India1. In that case,the definition of the expression "close relatives"was defined in a broader sense for candidateswho were not physically handicapped asopposed to those who belonged to thephysically handicapped category. A personfrom amongst specified near relatives wasmade ineligible to apply for another dealershipto any nationalized oil company. In the case ofa candidate, who was not physicallyhandicapped, the category included the spouse,parents, brother, sister, children, son-in-law/daughter-in-law and parents-in-law. While

dealing with the challenge to the definition onthe ground that it was arbitrary and repellingthe contention of illegality, the Supreme Courtobserved as follows:

"5. The preamble to the Constitutionenvisages the securing of economic and socialjustice to all its citizens; accorded equality ofstatus and of opportunity assuring the dignityof the individual. Article 39(b) postulates thatthe ownership and control of the materialresources of the community are to be sodistributed as to best subserve the commongood. Clause (c) prevents concentration ofwealth and means of production to thecommon detriment. Since the grant ofdealership or distributorship of the petroleumproducts belongs to the Government largesse,the Government in its policy of granting thelargesse have prescribed the eligibility criteria.One of the eligibility criteria is that one amongthe near relations or partners or associates inother words among a named group of personsalone should have dealership and there shouldnot be any concentration by them in thedistribution of its petroleum products throughthe dealership. The guidelines further intend toprevent frustration of the State policy byprocess of legal ingenuity or subterfuge. Oneof the criteria is relationship. The relationshipcriteria has been prescribed to see that thepersons who already had one dealershipshould not apply so that the above objectivesof the Constitution are achieved. In Part III,clause (b) of the relationship category, aperson from among specified near relativeshas been made ineligible to apply for anotherdealership to any of the nationalised oilcompanies. The petitioners/ appellants dehorsthe guidelines have no independent right tohave business or avocation in the distribution orproduction or ownership of one of thepetroleum products. Production anddistribution of the petroleum products are theexclusive monopoly of the State under Article

3 All]. Smt. Seema & Anr. Vs. State of U.P. & Ors. 1545

19(6) of the Constitution. As a part of its policyof the distribution of its largesse governmenthave prescribed the eligibility criteria tothe persons to obtain dealership fordistribution of petroleum products. Thedistribution of the largesse of the State isfor the common good and to subserve thecommon good of as many persons aspossible. The Government of Indiaintended to group together certain nearrelations as a unit and one among that unitalone was made eligible to apply for andclaim for grant of dealership. Further,economic and social justice as envisagedin the preamble of the Construction issought to be achieved. Therefore, there isa reasonable nexus between the object andthe prescription of the eligibility criteriaenvisages in the guidelines. All those whosatisfy the eligibility criteria alone areentitled to apply for the consideration ofthe grant of dealership. It is true that incase of physically handicapped persons,only three classes of persons were madeineligible. Physically handicappedpersons have been treated as a class bythemselves. Under these circumstances,any other person other than PH cannotclaim parity with PH persons. As far aspartnership is concerned, if one of thepersons either have a dealership orrelations who were found to be eligibleunder the relationship criteria, and had thedealership, than clause 10 of the saidguidelines gets attracted and suchpartnership also did not become eligibleto apply for dealership/ distributorship.The object of clause 10 appears to be thatfor those partners who either one amongthemselves or any of the relations of oneof the partners had a dealership, the otherpartner or the specified relations also notbe eligible to apply for grant of dealershipindividually or as a member of thepartnership. Therefore the guidelines are

based on public policy to give effect tothe constitutional creed of Part IV of theIndian Constitution."

7. In view of the decision of theSupreme Court, noted above, such aqualification cannot be said to bearbitrary. Hence, we do not see any meritin the matter. The writ petition is,accordingly, dismissed. There shall be noorder as to costs.



BEFORETHE HON'BLE SURYA PRAKASH

KESARWANI, J.


Smt. Seema & Anr. ...PetitionersVersus


Counsel for the Petitioner:Sri Dinesh Kumar, Sri A.R. Nadiwal


Constitution of India, Art.-226-Protection ofmatrimonial life-girl belongs to Hindureligion-while boy a Muslim religion-inabsence of conversion of religion-suchmarriage alleged to be solemn in Maszid-asper Qurran-no marriage-apart form thatboth are residing at Bombay-parent of girlalso at Mumbai-no territorial jurisdiction-petition dismissed.

Held: Para-13 & 1413. Since for a valid Muslim marriage boththe spouses have to be Muslim as perverses of Holy Quran as noted in thejudgment in the case of Dilawar HabibSiddiqui (supra) and since undisputedalythe petitioner no. 1 is a Hindu girl and has


not embraced Islam and as such it cannotbe said that there was any valid marriage.14. Besides above both the petitionershave stated that they and their parentsreside in Mumbai and petitioner no. 2 isworking in Mumbai and as such even nocause of action has arisen within theterritorial limits of this Court.

Case Law discussed:2010 (69) ACC 997

(Delivered by Hon'ble Surya PrakashKesarwani, J.)

1. Heard Sri Dinesh Kumar, learnedcounsel for the petitioners and Sri DineshKumar Dubey, learned Standing Counselfor the State- Respondents.

2. This writ petition has been filedpraying for a writ, order or direction in thenature of mandamus commanding therespondent authorities to protect thematrimonial life and liberty of the petitioners.

3. Learned counsel for the petitionerssubmits that the petitioners have marriedwith each other but the respondent no. 4 isinterfering and as such mandamus may beissued to the respondents to protect thematrimonial life and liberty of thepetitioners. Both the petitioners are presentin the Court and have been identified bytheir learned counsel.

4. Learned Standing counsel submitsthat there is no religion conversion bypetitioner no. 1 who is a Hindu girl andtherefore there cannot be a marriage ofpetitioner no. 2 ( a muslim) as per the HolyQuran.

5. I have carefully considered thesubmission of learned counsel for theparties.

6. During the course of hearing, thepetitioner no. 1 offered for recording herstatement on oath. Both the petitionershave given their statement on oath beforethis Court which have recorded in openCourt and in presence of learned counselfor the parties. Learned counsel for thepetitioners has also identified thepetitioners and also put his signaturebelow the signatures of the petitioners ontheir statement on oath recorded today.

7. The aforesaid statement on oathof the petitioners recorded today (28.11.2014) are reproduced below :-

(i) Statement on oath of Seema(petitioner no.1) :-

;kph la0 1 lhek us le{k U;k;ky; l'kiFkc;ku fd;k fd vkt fnukWd 28&11&14 dksfuEufyf[kr c;ku ns jgh gwWA

esjk uke lhek gSA esjs firk th dk uke f'koukjk;.k gSA og eqEcbZ esa jgrs gSa vkSj ogha O;kikjdjrs gSA

eSa d{kk 12 rd i<+h gwW A eSa lqyrku ds lkFkfnukWd 16&11&2014 dks bykgkckn vkbZA mUgksausesjk fudkg 23&11&14 dks gkbZdksVZ ds lkeuselftn esa djk fn;kA eSaus viuk /keZ ifjorZu ughfd;k gSA fQj dgk eSaus viuk /keZ ifjorZu djfy;k gSA esjs ikl /keZ ifjorZu dk dksbZ izek.k ughagSA fQj dgk eSa /keZ ifjorZu djuk pkgrh gwWA

(ii) Statement on oath of Sultan(petitioner no.2)

;kph la0 2 lqYrku us le{k U;k;ky; l'kiFkc;ku fd;k fd vkt fnukWd 28&11&14 dksfuEufyf[kr c;ku ns jgk gwWA

esjk uke lqYrku gSA esjs firk dk uke blkdvUlkjh gSA og eqEcbZ esa jgrs gSaA eSa eqEcbZ esadkjisUVj dk dk;Z djrk gwWA eSa ;gkWa ij pkj&ikWpfnu igys lhek dks eqEcbZ ls bykgkckn lkFk ysdjvk;k gwWA eSaus buls fudkg bykgkckn esa dj fy;kAeSas bLyke /keZ ekurk gwWA eSaus viuk /keZ ifjorZu ughafd;k gSA eSus gkbZdksVZ ds lkeus buls fudkg djfy;kA eSus budk /keZ ifjorZu ugha djk;k gSA esjhtUefrfFk 24&4&93 gSA eSa d{kk 8 rd i<+k gwWA**

3 All]. Smt. Seema & Anr. Vs. State of U.P. & Ors. 1547

8. In the statement as reproduced above,both the petitioners have admitted that theirparents are residing in Mumbai. In paragraphno. 8 of the writ petition, it is stated that thepetitioners are neighbor at Thane,Maharashtra. A photostat copy of an allegedAdhar Card of the petitioner no. 1 has beenfiled in which her address is mentioned as216/3 , Pushpa Nagar P.P. Marg, NearSmashan Bhumi, Dongari, Virar ( West),Thane Virar, Maharashtra-401305. Inphotostate copy of an alleged voter ID Cardaddress of petitioner no. 1 is mentioned as 216Rajachatra Pati Shiva Ji Marg, Virar ismentioned. A photostat copy of an allegedpassport of petitioner no. 2 has been filed inwhich his address is shown as P.O.Madhwalia, Mahrajganj ( Uttar Pradesh). Ithas not been explained in the writ petition thatif the petitioners and their parents are residentof Mumbai then in what circumstances, thewrit petition has been filed before this Courtimpleading the Senior Superintendent ofPolice, Mahrajganj, SHO PS Kothibhar,District Mahrajganj as respondnets and therelief in the nature of mandamus has beenprayed against them.

9. In the alleged Nikahnama the dateand place of Nikah is recorded as under :

^^rkjh[k fudkg & 23-11-2014 oDr 4 ctsfnu brokj ojeqdke gkbZdksVZZ] bykgkckn**

10. Petitioner no.1 is a Hindu girl andas per her own statement as reproducedabove, she has neither renounced Hindureligion nor has embraced Islam prior to thealleged Nikah. She has also not changed heroriginal Hindu name. Petitioner no. 2 hasstated that he brought the petitioner no. 1from Mumbai to Allahabad and performedNikah in front of High Court. He also statedthat the petitioner no. 1 has not changed herreligion.

11. From the facts as noted above, it isclear that the petitioner no. 1 was broughtfrom Mumbai to Allahabad by the petitionerno.2. She is a Hindu by religion and hasneither renounced her religion nor embracedIslam. She has written her original Hinduname not only in the writ petition but alsostated the same in her statement. She has puther signature as "SEEMA" in the writpetition and also on the statement on oathbefore this Court. No evidence of religionconversion of petitioner no. 1 has been filedalong with the writ petition.

12. In the case of Dilbar Habib SiddiquiVs. State of U.P. and another, 2010 (69)ACC 997, a Division Bench of this Courtheld as under : -

"The primary question which is to beadjudicated by us is as to whether theimpugned FIR can be quashed or not onthe peculiar facts of the writ petition? Aperusal of the contents of the impugned FIRindicates that Khushboo Jaiswal is alleged tohave been abducted by the petitioner threemonths prior to the lodging of it. By hisdexterous manuvours and deceit petitionerhad succeeded in not getting the FIRregistered against him for all this period. It isinformant's allegation that petitioner hadabducted her daughter. Writ Petition furtherreveals that Khushboo never converted herselfinto Islam. There is no document regardingher such conversion. In our above conclusionwe are fortified by the fact that in the affidavitand application filed by Khusboo herselfsubsequent to her alleged contract marriageshe has described herself as Khushboo and notby any Islamic name. As Khushboo she couldnot have contracted marriage according toMuslim customs. In those referred documentsshe has addressed herself as KhushbooJaiswal daughter of Rajesh Jaiswal. Thus whatis conspicuously clear unerringly without anyambiguity is that Khushboo Jaiswal never


converted and embraced Islam and thereforeher marital tie with the petitioner Dilbar HabibSiddiqui is a void marriage since the same iscontrary to Islamic dicta and tenets of HolyQuran. It is recollected here that Nikah i.e.marriage in pre- Islamic Arabia, meantdifferent forms of sex relationships between aman and a woman. Prophet Mohammedbrought about a complete change in theposition of woman in society through HolyQuran, which is the primary and basic sourceof Islamic Law. In this respect we can do nobetter than to refer the verses of Holy Quran.Sura 2 Ayat 221 of The Holy Quran as ismentioned in the text book of MohammedanLaw by I.Mulla, Ist Edition, 2nd reprint, atpage 162,provides as follows:-

"Do not marry unbelieving womenuntil they believe...... Nor marry your girlsto unbelievers until they believe" .

Here a believing women is referredto such a women who has embraced Islamand has faith in Prophet Mohammed.Marriage in Muslim law is not only a ritualbut is also "a devotional act" as Dr.M.U.S.Jang referred it in his book 'Desertion on theDevelopment of Muslim Law in British India'(page 1.2.). I. Mulla in his above text book atpage 166 has written thus:-

"Koranic injunctions recognise in Islam,marriage as the basis of society. Though it is acontract, it is also a sacred covenant.Temporary marriages are forbidden. Marriageas an institution leads to the uplift of man andis a means for the continuance of humanrace."

Thus what is well recognised in MuslimLaw is that marriage is a sacred act. Foressentials of a valid muslim marriage, AL-HAJMAULANA FAZLUL KARIM in histranslation and commentary of Mishkat-ul-Masabih , AL- HADIS (BOOK II),

CHAPTER XXVII, SECTION 2,has writtenthus:-

" In tradition, we find that the followingqualifications of a bride should be sought. Thebride should be (1) a Muslim (2) chaste (3)virgin,(4) beautiful, (5) accomplished, (6)having sweet tongue, and good manners, (7)possessing property , (8) having childrenbearing capacity and affectionate nature and(9) equal respectibility."

Thus for a valid muslim marriage boththe spouses have to be muslim. In the presentwrit petition this condition is not satisfied asthe writ petition lacks credible andaccountable material in this respect on whichreliance can be placed. "

13. Since for a valid Muslim marriageboth the spouses have to be Muslim as perverses of Holy Quran as noted in thejudgment in the case of Dilawar HabibSiddiqui (supra) and since undisputedaly thepetitioner no. 1 is a Hindu girl and has notembraced Islam and as such it cannot besaid that there was any valid marriage.

14. Besides above both thepetitioners have stated that they and theirparents reside in Mumbai and petitionerno. 2 is working in Mumbai and as sucheven no cause of action has arisen withinthe territorial limits of this Court.

15. In view of the above discussionthis Court finds no good reason to grantany relief in this writ petition.

16. In result writ petition fails and ishereby dismissed.

--------

revisional jurisdiction 1. heard sri deepak kumar civil

Documents