Nov - High Court of Judicature at Allahabad

3 All] Smt. Katori Devi V. Nawab Singh and others 973 

APPELLATE JURISDICTION 

CIVIL SIDE 

DATED: ALLAHABAD 26.10.2009 

BEFORE 

THE HON’BLE ARUN TANDON, J. 

Second Appeal No. 802 of 2008 

Smt. Katori Devi …Defendant/Appellant 

Versus 

Nawab Singh and others …Respondent 

Counsel for the Appellant: 

Sri Jai Shanker Prasad Singh 

Counsel for the Opposite Parties: 

Sri Madhav Jain 

Code of Civil Procedure-Order XXXI Rule- 

3, 4 and 4-A-Appointment of legal 

Guardian-during pendency of suit 

mother of appellant died-Substitution of 

appellant being grandson through his 

sister- filed through the sister of minordismissed- 

even on record appeal stage 

same objection raised-held-hyper 

technical-finding recorded to the effect 

the sister had right to appear through 

minor- finding became final- if no 

challenge of the appointment of natural 

guardian-court not oblige to appoint 

legal guardian. 

Held: Para 14 & 18 

In the facts of the present case the Court 

records that the real sister had right to 

act as the guardian of the minor brother 

in view of Order XXXII Rule 4A of the 

Code of Civil Procedure and therefore it 

is in this background that appropriate 

orders were not passed on the 

application being paper no. 98A, as the 

real sister responded after substitution 

to represent the interest of minor 

brother, Shanker. It is legally to be 

presumed that she was authorised by 

the Court to act as such. In the opinion 

of the Court, objection now raised by codefendant 

is hyper technical in nature 

and the courts below are legally justified 

in rejecting the same. 

It is settled law that all Courts of law are 

established for furtherance of interest of 

substantial justice and not to obstruct 

the same on technicalities. Reference-- 

Jai Jai Ram Manohar Lal vs. National 

Building Material Supply; AIR 1969 SC 

1267, wherein it has been held that if 

substantial justice and technicalities are 

pitted against each other, the cause of 

substantial justice should not be 

defeated on technicalities. No procedure 

in a Court of law should be allowed to 

defeat the cause of substantial justice on 

some technicalities. Reference- 

Ghanshyam Dass & Ors. vs. Dominion of 

India & Ors; (1984) 3 SCC 46. 

Case law discussed: 

AIR 1968 SC 954, W.P. No.45549 of 1993, 

decided on 20 th December, 1993, AIR 1992 

Punjab and Haryana 95. 1972 AIR(All) 513, 

AIR 1969 SC 1267, (1984)3 SCC 46. 

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

1. Heard learned counsel for the 

appellant. 

2. This is defendant's second appeal. 

3. One Lochan Singh executed an 

agreement to sell in favour of respondentplaintiff 

Nawab Singh on 1st July, 1995. 

Before the sale-deed could be executed in 

terms of agreement to sell, Lochan Singh 

expired. For specific performance of the 

contract, Nawab Singh filed original Suit 

No. 141 of 1996, impleading the mother 

of Lochan Singh, namely, Ramshree, as 

the defendant being the legal heir of 

Lochan Singh. In between, said Ramshree 

is stated to have executed a sale-deed in 

respect of same property in favour of 

Katori Devi and Sushila Devi. During the 

pendency of the suit, said Ramshree also 

expired and in her place, an application

974 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 

for substitution of grand-son of Ramshree 

namely, Shanker, who was minor at the 

relevant time, and was orphan, as his 

mother and father pre-deceased the grand 

mother, was filed through his sister, 

namely, Babali. On the substitution 

application, notices were issued. It 

appears that natural guardian, Babali did 

not respond to the notice and therefore, an 

application was made by the plaintiff for 

appointment of an advocate as Guardian 

to Shanker under order of the Court with 

reference to the provisions of Order 

XXXII Rule 3 of the Code of Civil 

Procedure. Before formal orders could be 

passed on the application, Babali 

responded and appeared to protect the 

interest of her minor brother. She 

appeared before the trial court and filed 

her written submissions. She also 

contested the proceedings in the suit filed 

by Navab Singh. The suit was ultimately 

decreed under judgment and decree dated 

31st January, 2007. Not being satisfied, 

Shankar through his sister Babali as well 

as subsequent purchasers, namely, Katori 

Devi and Sushila Devi filed Civil Appeal 

No. 13 of 2007. The appeal filed has also 

been dismissed by the first appellate court 

vide judgement and order dated 31st May, 

2008. Hence the present second appeal. 

4. This present second appeal has 

been filed by subsequent purchaser of the 

property in question, namely, Katori Devi 

only. Shanker through his guardian, 

Babali has been impleaded as proforma 

respondent no.2. 

5. On behalf of the appellant, 

judgment and orders of the courts below 

are being challenged on the ground that 

despite application having been made 

under Order XXXII Rule 4 (4) of the 

Code of Civil Procedure, no orders on the 

applications were passed by the court 

concerned appointing a guardian for the 

minor defendant, Shanker and Smt. 

Babali therefore, had no right to represent 

the interest of Shanker. The decree was 

passed against the minor in absence of 

any guardian having been appointed 

under Order XXXII Rule 3 of the Code of 

Civil Procedure and therefore be declared 

as null and void. 

6. I have considered the submissions 

made by the learned counsel for the 

appellant and have examined the records 

of the present second appeal. 

7. The trial court framed issue no.9 

for deciding as to whether the suit as filed 

by the plaintiff is hit by Order XXXII 

Rule 3 of the Code of Civil Procedure or 

not. 

8. This Court finds that suit was 

instituted against Smt. Ramshree. After 

her death, Shanker, who was minor was 

substituted through her real sister. Notices 

were issued to the substituted legal heir 

through Babali. However, Smt. Babali did 

not respondent. Plaintiff therefore, made 

an application under Order XXXII Rule 4 

(4) read with Section 151 of the Code of 

Civil Procedure for a guardian being 

appointed for Shanker. Before orders 

could be passed on the said application, 

Smt. Babali appeared as the Guardian of 

Shanker and filed her written statement, 

she also contested the proceedings. At no 

point of time, any objection was raised by 

the appellant qua substitution of Shanker, 

who was minor through her real sister in 

whose custody, he was residing. The suit 

was decreed by the trial court vide 

judgment and decree dated 31st January, 

2007. Against the said decree, civil appeal 

no. 13 of 2007 was filed by Shanker


through her sister along with Smt. Katori 

Devi and Smt. Sushila Devi and the 

plaintiff was impleaded as respondent in 

the appeal. The first appellate court 

considered the objection with regard to 

the orders under Order XXXII Rule 4 (4) 

having not been passed on the application 

made by the plaintiff being paper no. 98- 

A and held that present appeal itself has 

been filed by Shanker through her natural 

guardian as the sister and at no point of 

time, any objection was raised, even when 

substitution was directed and amendments 

were made in the plaint itself before the 

trial court. The Court, therefore, held that 

in these circumstances, it cannot be said 

that sister was not looking after the 

interest of her minor brother or that she 

had any adverse interest in the property 

vis-a-vis minor brother Shanker. The first 

appellate court therefore, held that 

objection in that regard by the appellant 

was too technical in nature and cannot be 

used as a tool to defeat the lawful decree 

of the court below. 

9. Before this Court the same plea 

has been raised qua orders being not 

passed on application being paper no. 98- 

A made under Order XXXII Rule 3 & 4 

of the Code of Civil Procedure and 

therefore, the judgement and decree of the 

courts below be declared null and void. 

10. This Court may record that 

Shanker has not chosen to file any appeal 

against the judgement and decree of the 

first appellate court and he has permitted 

the order become final. 

11. For appreciating the controversy, 

it would be worthwhile to reproduce 

Order XXXII Rule 3, 4 and 4A as 

substituted in the State of Uttar Pradesh, 

which reads as follows: 

"ORDER XXXII 

SUITS BY OR AGAINST MINORS 

AND PERSONS OF UNSOUND MIND 

3. Guardian for the suit to be 

appointed by Court for minor 

defendant.--(1) Where the defendant is a 

minor the Court, on being satisfied of the 

fact of his minority, shall appoint a proper 

person to be guardian for the suit for such 

minor. 

(2) An order for the appointment of 

a guardian for the suit may be obtained 

upon application in the name and on 

behalf of the minor or by the plaintiff. 

(3) Such application shall be 

supported by an affidavit verifying the 

fact that the proposed guardian has no 

interest in the matters in controversy in 

the suit adverse to that of the minor and 

that he is fit person to be so appointed. 

(4) No order shall be made on any 

application under this rule except upon 

notice to any guardian of the minor 

appointed or declared by an authority 

competent in that behalf, or, where there 

is no such guardian, [upon notice to the 

father or where there is no father, to the 

mother, or where there is no father or 

mother, to other natural guardian] of the 

minor, or, where there is [no father, 

mother or other natural guardian], to the 

person in whose care the minor is, and 

after hearing any objection which may be 

urged on behalf of any person served with 

notice under this sub-rule. 

[(4A) The Court may, in any 

case, if it thinks fit, issue notice under 

sub-rule (4) to the minor also.] 

[(5.) A person appointed under 

sub-rule (1) to be guardian for the suit for 

a minor shall, unless his appointment is 

terminated by retirement or removal or 

death, continue as such throughout all


proceedings arising out of the suit 

including proceedings in any Appellate or 

Revisional Court and any proceedings in 

the execution of a decree.]" 

4. Who may act as next friend or 

be appointed guardian for the suit. --(1) 

Any person who is of sound mind and has 

attained majority may act as next friend of 

a minor or as his guardian for the suit: 

HIGH COURT AMENDMENTS 

Allahabad.--(a) In Order XXXII, for 

rule 4, substitute the following rule, 

namely:--- 

"4.(1) Where a minor has a guardian 

appointed or declared by competent 

authority no person other than such 

guardian shall act as next friend, except 

by leave of the Court. 

(2) Subject to the provisions of subrule 

(1) any person who is of sound mind 

and has attained majority may act as next 

friend of a minor, unless the interest of 

such person is adverse to that of the 

minor, or he is a defendant, or the Court 

for other reasons to be recorded considers 

him unfit to act. 

(3) Every next friend shall, except as 

otherwise provided by clause (5) of this 

rule, be entitled to be reimbursed from the 

estate of the minor any expenses incurred 

by him while acting for the minor. 

(4) The Court may, in its discretion, 

for reasons to be recorded, award costs of 

the suit, or compensation under Section 

35A or section 95 against the next friend 

personally as if he were a plaintiff. 

(5) Costs or compensation awarded 

under clause (4) shall not be recoverable 

by the guardian from the estate of the 

minor, unless the decree expressly directs 

that they shall be so recoverable." 

4A. (1) Where a minor has a 

guardian appointed by competent 

authority no person other than such 

guardian shall be appointed his guardian 

for the suit unless the Court considers, for 

reasons to be recorded, that it is for the 

minor's welfare that another person be 

appointed. 

(2) Where there is no such guardian 

or where the Court considers that such 

guardian should not be appointed it shall 

appoint as guardian for the suit the 

natural guardian of the minor, if 

qualified, or where there is no such 

guardian the person in whose care the 

minor is, or any other suitable person 

who has notified the Court of his 

willingness to act or failing any such 

person, an officer of the Court. 

Explanation.---An officer of the 

Court shall for the purposes of this subrule 

include a legal practitioner on the roll 

of the Court." 

12. From conjoint reading of Order 

XXXII Rule 3, 4 and 4A as applicable in 

the State of Uttar Pradesh, it would be 

apparently clear that if there is no 

guardian appointed by a competent 

authority and the Court considers that 

such guardian should not be appointed, or 

the Court feels that such appointed 

guardian should not act as the guardian 

for the minor in the suit, the natural 

guardian of the minor, if qualified or 

where there is no guardian, person in 

whose care the minor is, or nay other 

suitable person, who has notified the 

Court of his willingness to act or failing 

any such person, an officer of the Court 

can be appointed as the Guardian. What 

follows from the aforesaid is that the 

Court is under legal obligation to appoint 

the person declared to be the guardian of 

the minor by a competent authority at the 

first instance and if no such appointed 

guardian is available or when the Court


finds that such appointed guardian should 

not act, it has to appoint the natural 

guardian of the minor, if qualified, and 

where there is no such guardian the 

person in whose care the minor is as the 

guardian. 

13. In the facts of the present case, it 

is apparently clear that the minor Shanker 

was in the care of his real sister as the 

father and mother had predeceased the 

grand parents. Further the minor was 

impleaded through is real sister and no 

objections were filed to such impleadment 

at any point of time by the respondentdefendants. 

Suit was contested all along 

and having lost before the trial court. 

Civil appeal was also preferred through 

the same guardian, namely, his real sister. 

The civil appeal has also been dismissed. 

The Subsequent purchaser, who has 

preferred the second appeal objects to the 

acting of the real sister as the guardian. 

14. In the facts of the present case 

the Court records that the real sister had 

right to act as the guardian of the minor 

brother in view of Order XXXII Rule 4A 

of the Code of Civil Procedure and 

therefore it is in this background that 

appropriate orders were not passed on the 

application being paper no. 98A, as the 

real sister responded after substitution to 

represent the interest of minor brother, 

Shanker. It is legally to be presumed that 

she was authorised by the Court to act as 

such. In the opinion of the Court, 

objection now raised by co-defendant is 

hyper technical in nature and the courts 

below are legally justified in rejecting the 

same. 

15. On a simple reading of the 

aforesaid provision, this Court may record 

that it is only an enabling provision, 

which permits the representation of the 

minor in a suit, in case it is found that 

natural guardian is not representing the 

interest of minor to the best of his interest 

or they have interest themselves in the 

dispute in question. Such enabling 

provisions cannot be read so as to suggest 

that if interest of minor is already 

represented by a natural guardian, even 

then an application under Order XXXII 

Rule 3 of the Code of Civil Procedure is 

required to be filed and any orders on 

such application are mandatory. If the 

interest of minor is protected by a natural 

guardian and there is no challenge either 

by the minor or by the plaintiff to such 

representation of the minor by the natural 

guardian, the provisions of Order XXXII 

Rule 3 of the Code of Civil Procedure will 

have no application. 

Learned counsel for the appellant 

contends that there has to be an order by 

the Court, permitting the natural guardian 

to represent the interest of the minor. 

16. I am of the considered opinion 

that such orders are procedural in natural 

and cannot be permitted to be used to 

defeat the judgment and decree of the 

Court at the behest of a third person, who 

is neither the minor nor his guardian of 

the minor, more so when there is nothing 

on record to establish that the natural 

guardian was not acting in the best 

interest of the minor or that she had some 

interest in the suit proceedings. 

Learned counsel for the appellant has 

placed reliance upon the following 

various judgements in support of the case: 

(1) Ram Chandra Arya vs. Man Singh & 

Anr. Reported in AIR 1968 SC 954,


(2) Sri Arjun Singh vs. IInd Addl. Civil 

Judge, Aligarh & Ors. passed in Civil 

Misc. Writ Petition No. 45549 of 1993, 

decided on 20th December, 1993, 

(3) Gurpreeet Singh vs. Chatterbhuj 

Goel, reported in AIR 1992 Punjab and 

Haryana 95, 

(4) Bachcha vs. Lakhpali Devi & Ors., 

reported in 1972 AIR (All) 513. 

17. The judgements relied upon by 

the learned counsel for the appellant are 

clearly distinguishable in the facts of the 

present case, wherein the intent and scope 

of Order XXXII Rule 4A of the Code of 

Civil Procedure was neither under 

consideration nor has been examined. 

18. It is settled law that all Courts of 

law are established for furtherance of 

interest of substantial justice and not to 

obstruct the same on technicalities. 

Reference-- Jai Jai Ram Manohar Lal vs. 

National Building Material Supply; AIR 

1969 SC 1267, wherein it has been held 

that if substantial justice and technicalities 

are pitted against each other, the cause of 

substantial justice should not be defeated 

on technicalities. No procedure in a Court 

of law should be allowed to defeat the 

cause of substantial justice on some 

technicalities. Reference-Ghanshyam 

Dass & Ors. vs. Dominion of India & Ors; 

(1984) 3 SCC 46. 

19. This Court may record that the 

findings recorded by the courts below in 

respect of right of Babali to represent 

Shanker under the impugned judgment 

has become final between the plaintiff and 

defendant-Shanker, as he has not chosen 

to file any second appeal. 

20. No other point was pressed. No 

substantial questions of law arises. The 

second appeal is dismissed. 

--------- 

REVISIONAL JURISDICTION 

CRIMINAL SIDE 


BEFORE 

THE HON’BLE RAJESH CHANDRA, J. 

Criminal Revision No. 2971 of 2009 

Kailash Babu Gupta …Revisionist 

Versus 

Sate of U.P. and another…Opposite Party 

Counsel for the Revisionist: 

Sri Satish Trivedi 

Sri Ram Kishor Gupta 


A.G.A. 

Code of Criminal Procedure-Section 397- 

Criminal Revision offened under Section 

302,307,504 IPC-after committe of case 

before session judge-Discharge 

application or ground-during 

investigation nowhere named the 

revisionist merely on suspicion no charge 

can be framed-held-court not bound with 

conclusion of investigation officer-even 

on suspicion-charges can be framed-No 

illegality committed by Trail Court-No 

interference called for 

Held: Para 13 

It is true that the investigating officer 

has concluded that the involvement of 

the revisionist Kailash Gupta has not 

been found in the murder of Gaurav but 

the court is not bound by the conclusions 

arrived at by the investigating officer. 

There is sufficient material in the case 

diary showing that the accused Kailash 

Gupta is also prima facie involved in the 

murder of Gaurav and the infliction of 

injuries to Mangal Tiwari.

3 All] Kailash Babu Gupta V. State of U.P. and another 979 


(2008) 10 SCC 681, C.B.I. (2007) 2 SCC (Cri) 

514. 

(Delivered by Hon'ble Rajesh Chandra, J.) 

1. This revision has been filed for 

setting aside the order dated 7.7.2009 

passed by Sessions Judge Jalaun rejecting 

the prayer of the revisionist for his 

discharge in S.T. No. 200/2008. 

2. In brief the facts of the case are 

that the first informant Dinesh Kumar 

Tiwari lodged a report at P.S. Kandaura, 

District Jalaun on 16.8.2008 at 5.40 p.m. 

alleging therein that on 16.8.2008 at about 

12.30 p.m. accused Kapil Gupta and 

Kailash Gupta abused Mangal Tiwari and 

Gaurav. When Mangal Tiwari objected to 

this, accused Kailash Gupta exorted Kapil 

to kill Mangal and Gaurav. Kapil 

thereafter, opened fire upon Mangal 

Tiwari and Gaurav causing injuries to 

both of them. Subsequently, Gaurav was 

declared dead. 

3. After registration of case at crime 

no. 140 of 2008 for the offences under 

Section 302, 307, 504 I.P.C., investigation 

ensued and culminated in the filing of the 

charge sheet against Kapil Gupta and 

Kailash Gupta. 

4. The Magistrate committed the 

case to the court of of Sessions where the 

case was registered as S.T. No. 200 of 

2008. 

5. The Revisionist Kailash Gupta 

moved an application in the court of 

Sessions Judge alleging therein that from 

the evidence collected during the 

investigation and the conclusions 

recorded by the investigating officer, it is 

confirmed that the revisionist Kailash 

Gupta was not present at the spot and as 

such there is no evidence against him for 

framing charges. He requested for his 

discharge from the case. 

6. The learned Sessions Judge after 

hearing the prosecution as well as 

revisionist Kailash Gupta rejected the 

application vide order dated 7.7.2009 and 

it is against this order that the present 

revision has been filed. 

7. I have heard the learned counsel 

for the revisionist as well as learned AGA 

and perused the papers filed with the 

revision. 

8. The learned counsel for the 

revisionist argued that during 

investigation the statements of the eye 

witnesses namely Ramesh Shiv Hare, 

Pappu @ Abdul Kalam, Vijay Gupta, 

Vikram Singh, and Anil Gupta were 

recorded in which they all stated that the 

revisionist Kailash was not present at the 

spot at the time of alleged incident. The 

contention of the revisionist is that the 

learned Sessions Judge without 

appreciating the evidence collected during 

the investigation has passed the impugned 

order in arbitrary manner and that the 

order is illegal. In fact there was no 

evidence against the revisionist to frame 

the charge hence the impugned order 

passed by the Sessions Judge is liable to 

be set-aside. 

9. I have considered over the 

argument and I feel that it does not 

contain any water. It is an established 

principal of law that the charge may be 

framed against accused even where there 

is a strong suspicion that the accused has 

committed the offence. In this connection


the judgement of Hon'ble Supreme Court 

in Sanghi Brothers (Indore) Private 

Ltd. Vs. Sanjay Chaudhari and others 

(2008) 10 SCC 681 may be referred in 

which it was held that 

10. "even if there is a strong 

suspicion about the commission of offence 

and the involvement of the accused, it is 

sufficient for the court to frame a charge. 

At that stage, there is no necessity of 

formulating the opinion about the 

prospect of conviction". 

11. Similarly Hon'ble Supreme 

Court in Soma Chakravarty Vs. State 

through C.B.I. (2007) 2 SCC (Cri) 514 

held as under : 

"it may be mentioned that the settled 

legal position, is that if on the basis of 

material on record the court could form 

an opinion that the accused might have 

committed offence it can frame the 

charge, though for conviction the 

conclusion is required to be proved 

beyond reasonable doubt that the accused 

has committed the offence. At the time of 

framing of the charges the probative 

value of the material on record cannot be 

gone into, and the material brought on 

record by the prosecution has to be 

accepted as true at that stage. Before 

framing a charge the court must apply its 

judicial mind on the material placed on 

record and must be satisfied that the 

commitment of offence by the accused was 

possible. Whether, in fact, the accused 

committed the offence, can only be 

decided in the trial". 

committed the offence, a charge can be 

framed against him. 

13. In the present case there is 

sufficient evidence to show the 

involvement of the accused in the 

commission of the Crime. There is 

evidence of Dinesh Kumar Tiwari as well 

as Mangal Tiwari that it was the accused 

applicant Kailash Gupta who had exorted 

for opening fire and thereafter, Kapil 

Gupta had opened fire causing injuries to 

Gaurav and Mangal. Subsequently, 

Gaurav succumbed to the injuries. It is 

true that the investigating officer has 

concluded that the involvement of the 

revisionist Kailash Gupta has not been 

found in the murder of Gaurav but the 

court is not bound by the conclusions 

arrived at by the investigating officer. 

There is sufficient material in the case 

diary showing that the accused Kailash 

Gupta is also prima facie involved in the 

murder of Gaurav and the infliction of 

injuries to Mangal Tiwari. 

14. The learned Sessions Judge has 

not committed any illegality in rejecting 

the discharge application of the accused 

Kailash Gupta and I do not find any 

reason to interfere with the order of the 

Sessions Judge passed on 7.7.2009. 

15. The revision is therefore, 

dismissed. 

--------- 

12. In view of the above rulings it is 

clear that if there is sufficient material on 

record that the accused might have

3 All] Anil Kumar Vashisth V. State of U.P. and others 981 


CRIMINAL SIDE 


BEFORE 

THE HON’BLE VIJAY KUMAR VERMA, J. 

Criminal Misc. Application No. 19770 of 

2009 

Anil Kumar Vashisth …Applicant 

Versus 

State of U.P. & others …Opposite Parties 

Counsel for the Applicant: 

Sri R.K. Kaushik 


A.G.A. 

Code of Criminal Procedure-482- 

Procedure after receiving final report on 

protest application an order accepting 

final report ignoring protest applicationeven 

without giving any notice to 

informant-illegal-procedure contained in 

Chapter XV should be followed treating 

complaint to the protest applicationorder 

passed by Courts below set-asidematter 

remanded for fresh consideration. 

Held: Para 14 

Consequently, both the applications 

under Section 482 Cr.P.C. are allowed. 

Setting aside the impugned orders, the 

courts below are directed to pass orders 

on the protest petitions filed by the 

applicants against final reports in both 

the cases, treating the same as 

complaint and following the procedure 

laid down under section 200 and 202 

Cr.P.C. 


2003 (46) ACC182. 

(Delivered by Hon’ble Vijay Kumar Verma, J.) 

1. “Whether the final report can be 

accepted without passing any order on the 

protest petition filed by the complainant 

in the case where prima facie offences are 

disclosed from the averments made in the 

FIR,: is the main legal question that falls 

for consideration in both these 

applications under section 482 of the 

Code of Criminal Procedure (in short, ‘the 

Cr.P.C.’). 

2. By means of Criminal Misc. 

Application No. 19770 of 2009, order 

dated 21.03.2009 passed by the Special 

Judge, (D.A.A.), Jhansi in Criminal Misc. 

Case No. 690 of 2007 (Anil Kumar 

Vashisth Vs. Shiv Prakash and others) 

under section 395 IPC, P.S. Irach, District 

Jhansi is sought to be quashed, whereas in 

Criminal Misc. Application No. 19771 of 

2009, prayer to quash the order dated 

20.05.2009 passed by the judicial 

Magistrate, Garotha in Criminal Misc. 

Case No. 52 of 2008 (Km. Bhanwati Vs. 

Badri and others) under section 

379,352,504, 506 IPC P.S. Garotha, 

District Jhansi has been made. 

3. Although different orders have 

been challenged by means of these 

applications under section 482 Cr.P.C., 

but since the common legal question is 

involved in both these applications, hence 

for the sake of convenience, they are 

being decided by this common order. 

4. Shorn of unnecessary details, the 

facts emerging from the record leading to 

the filling of these applications, in brief, 

are that an FIR was lodged on 17.10.2007 

by Anil Kumar Vashisth (applicant in 

Application No. 19770 of 2009) at P.S. 

Irach (Jhansi), where a case under section 

395, 397 IPC at case crime No. 320 of 

2007 was registered against Sri Prakash, 

Ashok Kumar, Sri Ram, Ram Kumar, 

Lakhan Lal, Mahadev (opposite parties


No. 2 to 7) and 30 unknown persons. 

After investigation, final report was 

submitted on next day i.e. 18.10.2007. 

Against that final report, the applicant 

Anil Kumar Vashisth filed protest petition 

in the Court of Special Judge, (D.A.A.), 

Jhansi in Criminal Misc. Case No.690 of 

2007. After hearing parties counsel, the 

learned Special Judge, (D.A.A.) Jhansi 

accepted the final report vide impugned 

order dated 21.03.2009, but did not pass 

any order on the protest petition. This 

order has been challenged in Application 

No.19770 of 2009. On the basis of the 

application under section 156 (3) Cr.P.C. 

moved by Km. Bhanwati (applicant in 

Application No. 19771 of 2009), an FIR 

was registered in pursuance of the order 

passed on that application on 20.07.2008 

at P.S. Garotha, where a case under 

section 379, 352, 504, 506 IPC was 

registered at case crime No. 378 of 2008 

against Badri, Phool Singh, Ajay, Indra 

Kumar and Hari (opposite parties No. 2 to 

6). After investigation of this case also, 

final report was submitted by the 

investigating officer, against which the 

applicant Km. Bhanwati filed protest 

petition on 14.12.2008 in Criminal Misc. 

Case No. 52 of 2008 in the Court of 

Judicial Magistrate, Garotha, who vide 

impugned order dated 20.05.2009 

accepted the final report, without passing 

any order on the protest petition. This 

order has been challenged in Criminal 

Misc. Application No.19971 of 2009. 

5. I have heard arguments of Sri 

R.K. Kaushik, Advocate appearing for the 

applicants and AGA for the State. Since 

the accused/opposite parties had no right 

to participate in the proceedings, which 

have arisen due to submission of final 

report and filing protest petition by the 

complainants (applicants), hence notices 

have not been issued to the 

accused/opposite parties in both the cases. 

6. The first and foremost submission 

made by the learned counsel for the 

applicants was that at the time of disposal 

of the final reports, the learn ed courts 

below were bound to treat the protest 

petitions of the complainants as complaint 

and after adopting the procedure laid 

down in Chapter XV Cr.P.C., order under 

Section 203 or 204, as the case may be, 

ought to have been passed and since this 

procedure was not followed by the Courts 

below while deciding the final reports and 

protest petitions, hence, the impugned 

orders being wholly illegal should be setaside 

and the cases be sent back to the 

Courts below for passing fresh order on 

the protest petitions filed by the 

complainants against the final reports 

treating the same as complaints and 

following the procedure under Section 

200 and 202 Cr.P.C. 

7. The learned A.G.A. on the other 

hand submitted that the Magistrate is not 

bound in each and every case to treat the 

protest petition as complaint, and hence, 

there is no scope to make any interference 

by this Court in the impugned orders, as 

the said orders do not suffer from any 

legal infirmity. 

8. Having taken the submissions 

made by the parties’ counsel into 

consideration and after carefully going 

through the averments made in the first 

information reports in both the cases, I am 

of the opinion that in present cases, the 

protest petitions filed by the applicants 

against final reports, ought to have been 

treated as complaint and after following 

the procedure laid down under Chapter 

XV Cr.P.C., order under section 203 or

3 All] Anil Kumar Vashisth V. State of U.P. and others 983 

204 Cr.P.C., as the case may be, should 

have been passed. 

9. There is no provision in the Code 

of Criminal Procedure to file the protest 

petition the final report. However, the 

Hon’ble Apex Court in the case of 

Bhagwant Singh Vs. Commissioner of 

Police (supra) hold that when on 

consideration of the report made by the 

Officer Incharge of the Police Station 

under Sub-Section (2)(i) of Section 173 

Cr.P.C., the Magistrate is not inclined to 

take cognizance of the offence and issue 

process, the informant must be given an 

opportunity of being heard, so that he can 

make his submission to persuade the 

Magistrate to take the cognizance of the 

offence and issue process. Siminlar view 

has been expressed by the Hon’ble Apex 

Court in the case of Gangadhar 

Janardan Mhatre Vs. State of 

Maharashtra (supra). It is further held in 

Gangadhar Janardan Mhatre case 

(supra) that in a case where the 

Magistrate, to whom a report is forwarded 

under sub-section (2) (i) of Section 173 

Cr.P.C., decides not to take cognizance of 

the offence and to drop the proceeding or 

takes the view that there is no sufficient 

ground for proceeding against some of the 

persons mentioned in the first information 

report, the Magistrate must give notice to 

the informant and provide him an 

opportunity to be heard at the time of 

consideration of the report. There is 

nothing in both the rulings that in each 

and every case the Magistrate is bound to 

adopt the procedure of complaint case on 

the protest petition. Only the opportunity 

of hearing is to be granted to the 

informant at the time of consideration of 

the final report. If from the allegations 

made in the first information report any 

criminal offence is not primal facie 

disclosed, then the Magistrate is not 

bound to treat the protest petition as 

complaint and in such case after 

dismissing the protest petition, the final 

report may be accepted. However, if in 

any case, from the averments made in the 

First Information Report, prima facie 

criminal offence is disclosed, but the 

material in the case diary submitted with 

the final report is not sufficient to take 

cognizance and to issue process against 

the accused, then in such case, as held by 

this Court in the cases of Anil Kumar 

Chauhan Vs. State of U.P. and Mohd. 

Yusuf Vs. State of U.P. (supra), the 

accused can not be summoned to face the 

trial merely on the basis of the protest 

petition and other material including 

affidavits filed in support thereof without 

following the procedure laid down under 

section 200 and 202 Cr.P.C. 

10. The Division Bench of this 

Court in the case of Pakhandu Vs. State 

of U.P.(supra) after making reference of 

certain decisions of Hon’ble Apex Court 

has held as under in para 14 of the report 

at page 2546:- 

“14. From the aforesaid decisions, it 

is thus clear that where the Magistrate 

receives final report, the following four 

courses are open to him and he may adopt 

any one of them as the facts and 

circumstances of the case may require: 

(i) he may agreeing with the 

conclusions arrived at by the police, 

accept the report and drop the 

proceedings. But before so doing, he shall 

give an opportunity of hearing to the 

complainant; or 

(ii) he may take cognizance under 

Section 190 (1)(b) and issue process 

straightway to the accused without being 

bound by the conclusions of the


investigating agency, where he is satisfied 

that upon the facts discovered or 

unearthed by the police, there is sufficient 

ground to proceed; or 

(iii) he may order further investigation, if 

he is satisfied that the investigation was 

made in a perfunctory manner; or 

(iv) he may, without issuing process or 

dropping the proceedings decide to take 

cognizance under Section 190 (1)(a), 

upon the original complaint or protest 

petition treating the same as complaint, 

Cr.P.C. and thereafter decide whether 

complaint should be dismissed or process 

should be issued. 

11. From the afore-cited 

observations of the Division Bench also, 

it is clear that the Magistrate is not bound 

to treat the protest petition as complaint in 

each and every case and if the Magistrate 

agreeing with the conclusions arrived at 

by the police decides to accept the final 

report and to drop the proceedings, then 

opportunity of hearing has to be given to 

the complainant before passing order on 

the final report. According to the 

Pakhandu case (supra), the fourth course 

open to the Magistrate is that without 

issuing process or dropping the 

proceedings, he may decide to take 

cognizance under Section 190 (1)(a) 

Cr.P.C., upon the original complaint or 

protest petition treating the same as 

complaint and proceed to act under 

Section 200 and 202 Cr.P.C. and 

thereafter to deicde whether the complaint 

may be dismissed or process should be 

issued. The procedure of fourth course of 

Pakhandu case (supra) should be 

followed in the cases where prima facie 

offences are disclosed from the averments 

made in the First Information Reports; but 

in the cases, where the first information 

report does not disclose any criminal 

offence and final report is submitted by 

the investigating officer, then there is no 

justification in such cases to compel the 

Magistrate to treat the protest petition 

against final report as complaint and to 

follow the procedure laid down in Chapter 

XV Cr.P.C. 

12. In view of the observations made 

herein-above, let us now see whether in 

instant cases, the learned Courts below 

were justified in accepting the final report 

without passing any order on the protest 

petitions. Annexure 12 in Criminal Misc. 

Application No. 19770 of 2009 is the 

copy of the FIR of case crime No. 

320/2007 of P.S. Erach (Jhansi). On the 

basis of the averments made in the FIR, 

prima facie offences are disclosed. In the 

like manner, from the averments made in 

the First Information Report (Annexure-1 

of Criminal Misc. Application No.19771 

of 2009) of case crime no. 378 of 2008 of 

P.S. Garotha (Jhansi), prima facie 

offences are disclosed. Therefore, if the 

materials in the case diary submitted with 

the final reports by the investigating 

officer in both these cases were not 

sufficient to take cognizance against the 

accused persons, then having regard to the 

allegations made in the first information 

reports, the protest petitions of the 

applicants ought to have been treated as 

complaint and after following the 

procedure laid down in Chapter XV 

Cr.P.C., the courts below ought to have 

decided whether the complaint may be 

dismissed or process against the accused 

should be issued. In case the process is 

issued against the accused, then the final 

report has to be rejected. 

13. The Hon’ble Apex Court in the 

case of Mahesh Chand Vs. B. Janardhan 

Reddy and another 2003 (46) ACC182

3 All] Smt. Sadhana Singh V. State of U.P. and others 985 

has held that even after accepting the final 

report, cognizance of the offence can be 

taken on the complaint/protest petition 

filed by the complainant on the same or 

similar allegations. Therefore, having 

regard to the law laid down by the 

Hon’ble Apex Court in the case of 

Mahesh Chand Vs. B. Janardhan Reddy 

(supra) and the observations made by the 

Division Bench of this Court in the case 

of Pakhando Vs. State (supra) if would 

be in the interest of justice to send the 

cases back to the court below for passing 

order on the protest petitions treating the 

same as complaint and following the 

procedure laid down in Chapter XV 

Cr.P.C. 

14. Consequently, both the 

applications under Section 482 Cr.P.C. 

are allowed. Setting aside the impugned 

orders, the courts below are directed to 

pass orders on the protest petitions filed 

by the applicants against final reports in 

both the cases, treating the same as 

complaint and following the procedure 

laid down under section 200 and 202 

Cr.P.C. 

15. This order shall form part of the 

record of Criminal Misc. Application No. 

19770 of 2009 and copy thereof will be 

kept on the record of Criminal Misc. 

Application No.19771 of 2009. 

--------- 

ORIGINAL JURISDICTION 

CIVIL SIDE 


BEFORE 

THE HON’BLE ARUN TANDON, J. 

Civil Misc. Writ Petition No.42640 of 2009 

Smt. Sadhana Singh …Petitioner 

Versus 

State of U.P. and others …Respondents 

Counsel for the Petitioner: 

Sri Shatrughan Singh 

Counsel for the Respondent: 

C.S.C. 

Constitution of India-Article 14- 

discrimination-exclusion from eligibility 

of B.Ed. degree holders from the State of 

J. & K for Special B.T.C. Training Course 

2007-held-not discriminatory. 

Held: Para 21 

In these set of circumstances if the State 

with reference to the letter of the NCTE 

has decided to entertain the applications 

of the candidates who have obtained a 

B.Ed. Degree from the institutions 

recognized by NCTE or who under the 

Full Bench judgment of the High Court 

may become entitle to such 

consideration alone. Such decision 

cannot be termed as arbitrary in view of 

the specific norms of teachers education 

provided under the NCTE Act which are 

not applicable to the institutions in 

Jammu & Kashmir. The candidate with a 

Degree of B.Ed. from institutions in 

Jammu & Kashmir form a different class 

and if such class of candidates have been 

excluded from consideration for 

admission to BTC Special Training 

Course, 2007 by the State Government 

purposely, it cannot be said to be 

violative of Article 14 of the Constitution 

of India. Such action of the district 

authorities to exclude the candidates like


the petitioner from the zone of 

consideration is in conformity with the 

terms and conditions laid down in the 

Government Order issued under the 

permission granted by the NCTE. 


(2006) 9 SCC, 1. 

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

1. This bunch of writ petitions has 

been filed for a writ of mandamus 

commanding the Director, State Council 

for Educational Research and Training, 

U.P. Nishatganj, Lucknow as well as 

Principal of District Institute of Education 

and Training of various districts of State 

of Uttar Pradesh to not to reject the 

application made by the petitioners for 

admission to Special BTC Training 

Course, 2007 only on the ground that they 

had obtained a Degree of B.Ed. from an 

institution/University situate in the State 

of Jammu & Kashmir. 

2. Facts giving rise to the present 

writ petition in short are as follows: 

On 14.11.2008 the State Government 

after obtaining permission from National 

Council for Teachers Education (NCTE) 

decided to admit students to Special BTC 

Training Course of the year 2007. 

Accordingly an advertisement has been 

published. Besides other one of the 

essential conditions provided for being 

considered for admission to aforesaid 

Special BTC Course is that the candidate 

must have a Degree of B.Ed. From a 

Degree College established by the State 

Government/Central Government/a 

recognized affiliated Degree College, 

duly approved by the NCTE for the B.Ed. 

Course. Since the issue raised in the 

present writ petitions is confined to the 

aforesaid condition only, all other 

conditions mentioned in the Government 

Order are not being referred to. 

3. The petitioners before this Court 

claim that they have obtained a Degree of 

B.Ed. from an educational 

institute/University situate in the State of 

Jammu & Kashmir. According to the 

petitioners as per Section 1 (2) of the 

NCTE Act, 1993, the area of operation of 

the aforesaid Act is the entire country of 

India except the State of Jammu & 

Kashmir. It is contended that the 

eligibility clause under the Government 

Order which requires a candidate to be 

possessed of a Degree of B.Ed. from 

institute/University duly approved by 

NCTE (for grant of such 

Degree/Certificate) cannot be applied qua 

the candidates like the petitioners who 

have obtained the B.Ed. Degree from an 

institution within the State of Jammu & 

Kashmir. Therefore, it is prayed that the 

applications made by the petitioner be 

directed to be entertained by the State 

respondents as petitioners have a Degree 

of B.Ed. from a University duly 

established. 

4. On behalf of the writ petitioners a 

large number of interim orders which 

have been granted in similar matters have 

been referred to. 

5. The contention raised on behalf of 

the writ petitioners is opposed by the 

Standing Counsel and it is submitted that 

the State Government has the competence 

to lay down the norms and conditions for 

admission to Special BTC Training 

Course 2007 inasmuch as the purpose of 

such Special BTC Training Course is to 

train the candidates for appointment as 

Assistant Teacher in Parishadiya 

Vidyalayas, appointment whereof is


regulated by the U.P. Basic Education 

Teachers Service Rules, 1981. He 

submits that the State Government in its 

wisdom had decided to permit admission 

to Special BTC Course to only those 

candidates who have a Degree of B.Ed. 

from duly established Degree Colleges 

which have been approved for B.Ed. 

Course by the NCTE. It is clarified that 

NCTE Act, 1993 has been promulgated 

by the Parliament for regulating the 

standards of teachers training for 

appointment from the stage of Nursery 

schools to the stage of Secondary 

Education throughout the country. If the 

State Government insists that a candidate 

for admission to BTC Special Course 

must have obtained his B.Ed. Degree 

from NCTE Recognized College, it 

cannot be said that such condition is 

arbitrary. It is clarified that the State is 

presumed to know that the NCTE Act is 

not applicable to the State of Jammu & 

Kashmir and, therefore, it has 

conscientiously decided to exclude the 

candidates like the petitioners who have a 

Degree from institutions which cannot be 

granted recognition by NCTE. 

6. I have heard learned counsel for 

the parties and have gone through the 

records of the present writ petition. 

7. The State legislature by means of 

U.P. Basic Education Act, 1972 has 

constituted U.P. Basic Shiksha Parishad 

which in turn has established Parishadiya 

Vidyalayas throughout the State of U.P. 

for imparting education from classes 

Nursery to Class VIII. The institutions 

have been categorized as Nursery 

Schools, Junior Basic Schools and Senior 

Basic Schools (herein after referred to as 

as Basic Schools). For appointment of 

teachers in these Basic Schools a set of 

statutory Rules have been framed namely 

U.P. Basic Education (Teachers) Service 

Rules, 1981 (herein after referred to as 

Rules of 1981) in exercise of power under 

Section 9 of the U.P. Basic Education 

Act, 1972. Rule 8 of the Rules of 1981 

lays down the essential qualification for 

appointment of Assistant Master and 

Assistant Mistress of Basic Schools. 

According to it a candidate has to be 

possessed of Bachelor's Degree from a 

University established by law in India 

together with Teachers Training 

qualification namely a Basic Teacher's 

Certificate, HTC etc. or any other training 

qualification recognized by the 

Government as equivalent thereto. 

8. Thousands of post of Assistant 

Teacher in Basic Schools are vacant due 

to non-availability of candidates having 

Basic Teacher's Training Certificate 

(BTC), HTC etc. 

9. The Basic Training Course is 

offered by District Institute of Education 

and Training (herein after referred to as 

the DIET) established by the State in 

different districts. However, the intake of 

the students for imparting training in 

respective DIET's is limited. The number 

of candidates who have regular Basic 

Teachers Training is too meager to cope 

with the requirement of Assistant 

Teachers in Basic School. To meet the 

requirements of Assistant Teacher in 

basic schools, the State formulated a 

scheme for imparting Special Basic 

Training to the candidates, who are 

already B.Ed., knows as Special Basic 

Training Course. The case in hand relates 

to Special Basic Training Course 2007. 

10. The Parliament has enacted the 

National Council for Teacher Education


Act, 1993 (herein after referred to as the 

Act of 1993) with a view to achieve 

planned and coordinated development for 

teacher's education for the regulation and 

proper maintenance of norms and 

standards in the teacher's education and 

for matter connected therewith. Prior to 

enforcement of the Act of 1993, the 

National Council for Teacher Education 

was in existence since 1973 to guide the 

system of teacher education as an 

advisory body till it was declared as an 

statutory body with the functions and 

object entrusted to it under the Act of 

1993. The National Council for Teacher 

Education Act, 1993 has been enforced 

w.e.f. 1st July, 1995 by virtue of 

notification issued by the Central 

Government under Section 1 (3) of the 

1993 Act. The Act of 1993 has been 

enacted by Parliament in exercise of 

power under Entry 66 of the Union List of 

Seventh Schedule of the Constitution of 

India. 

11. A Constitution Bench of the 

Apex Court in the case of State of 

Maharashtra vs. Sant Dhyaneshwar 

Shiksha Shastra Mahavidyalaya and 

others reported in (2006) 9 SCC, 1 had 

the occasion to consider the provisions of 

National Council for Teacher Education 

Act, 1993 in context of power of the State 

regarding recognition of educational 

institution to start B.Ed. course. The Apex 

Court in paragraph 62 and 63 has held as 

follows : 

“62. From the above decisions, in our 

judgment, the law appears to be very well 

settled. So far as coordination and 

determination of standards in institutions 

for higher education or research, scientific 

and technical institutions are concerned, 

the subject is exclusively covered by 

Entry 66 of List I of Schedule VII to the 

Constitution and the State has no power to 

encroach upon the legislative power of 

Parliament. It is only when the subject is 

covered by Entry 25 of List III of 

Schedule VII to the Constitution that there 

is a concurrent power of Parliament as 

well as the State Legislatures and 

appropriate Act can be made by the State 

Legislature subject to limitations and 

restrictions under the Constitution. 

63. In the instant case, admittedly, 

Parliament has enacted the 1993 Act, 

which is in force. The preamble of the Act 

provides for establishments National 

Council for Teacher Education (NCTE) 

with a view to achieving planned and 

coordinated development of the teacher 

education system throughout the country, 

the regulation and proper maintenance of 

norms and standards in the teacher 

education system and for matters 

connected therewith. With a view to 

achieving that object, the National 

Council for Teacher Education has been 

established at four places by the Central 

Government. It is thus clear that the field 

is fully and completely occupied by an 

Act of Parliament and covered by Entry 

66 of List I of Schedule VII. It is, 

therefore, not open to the State 

Legislature to encroach upon the said 

field. Parliament alone could have 

exercised the power by making 

appropriate law. In the circumstances, it is 

not open to the State Government to 

refuse permission relying on a State Act 

or no policy consideration. 

12. The permission to run the 

Special Basic Training Course 2007 has 

been granted by the Regional Committee 

under Section 15 of the Act of 1993. It is 

useful to quote the relevant portion of


order of the Regional Committee granting 

permission to run Special Basic Training 

Course vide its order dated 27th June, 

2007, which reads as follows : 

“Whereas, NRC in its 118th (1st 

sitting) meeting held on 16th - 18th June, 

2007 after thorough discussion and 

observation related documents, noted the 

following:- 

As per proposal submitted by the 

Government, it has been informed that 

admission will be granted in this special 

programme of six months duration only to 

those candidates who are already B.Ed. 

The NRC appreciated the proposal of 

U.P. Government decided to grant 

approval to conduct the special BTC 

programme bridge course as proposed by 

the state. It will be only one approval. 

Teachers are to be trained only in DIETs 

recognizes NRC-NCTE. The committee 

also observed that as this programme will 

be conducted only in recognised DIETs, 

so there is not for any inspection. 

Now, therefore, in exercise of the 

powers vested Section 15(3)(b) of the 

NCTE Act, the Regional Commissioner 

hereby grants one time approval for 

training 60,000 candidates primary 

teachers who are already B.Ed. subject to 

the fulfil of the following : 

a. The teachers are to be trained only in 

the list of recognised by NRC-NCTE. 

b. The SCERT to submit the date of 

commence of the course along with the 

list of the recognized where the proposal 

training is to be conducted. 

c. The quarterly progress report of the 

programme to be submitted to NRC- 

NCTE. 

d. The curriculum as finalized in the 

meeting between NCTE and the State 

Government of U.P. followed for the 

programme. 

13. From the above quoted order of 

the NCTE, it is clear that NCTE granted 

permission to run the Special Basic 

Training Course for the candidates, who 

are already B.Ed. 

14. The Full Bench of this Court in 

the case of Bhupendra Nath Tripathi and 

others vs. State of U.P. and others 

(Special Appeal No. 858 of 2008) had 

examined the following three issues: 

(I) Whether after the enforcement of 

1993 Act the candidates who obtained 

B.Ed. degree from an institution or a 

University during the period when the 

application of the Institution or University 

for grant of recognition was pending are 

eligible for Special B.T.C. Course-2007 

as held by Division Bench judgement in 

Ekta Shukla's case 

Whether the candidates who have 

obtained degree from an institution or 

University recognised by NCTE are only 

eligible for Special B.T.C. Course 2007 as 

held by Division Bench judgement in 

Sanjai Kumar and Sunita Upadhyay's 

case 

Or 

(II) Whether recognition, as referred to in 

the proviso to Section 14(1) of the 

N.C.T.E. Act 1993 Act can be treated to 

be deemed recognition under the 1993 

Act of an institution or a University for 

the period application were pending


(III) Whether the exclusion of those 

candidates from field of eligibility for 

Special B.T.C. Course 2007 who have 

obtained B.Ed. degree prior to 

enforcement of 1993 Act or after the 

enforcement of 1993 Act during the 

period when the application of the 

Institution or the University was pending 

consideration, is arbitrary and 

unreasonable violative of Articles 14 and 

16 of the Constitution of India 

15. The Full Bench after referring to 

the words who are already B.Ed. has held 

that the permission does not require that 

such B.Ed. Degree should have been 

obtained from a NCTE recognized 

institution alone and no such limited 

interpretation or scope is contemplated in 

the letter of the NCTE granting the 

permission. 

16. The aforesaid observation of the 

Full Bench in the case of Bhupendra Nath 

Tiwari have to be read with reference to 

the questions which were examined as 

quoted above inasmuch as the Full Bench 

even after making the aforesaid 

observations in its answer to question no. 

1 has held as follows : 

17.. “The candidates, who have 

B.Ed. degree obtained from an institution 

or University during the period when the 

application of the institution or the 

University for grant of recognition under 

Section 14 of National Council for 

Teacher Education Act, 1993 was 

pending, are eligible for Special Basic 

Training Course 2007 as laid down by the 

Division Bench in Ekta Shukla’s case 

(supra). 

18. Similarly while answering 

question no. 2 it has been held as follows: 

“The proviso to Section 14(1) 

recognizes continuance of the course, 

which was being run immediately before 

the appointed day provided application is 

submitted within the continuance of such 

course is deemed recognition of such 

course and degree awarded therein by 

express provisions of proviso to Section 

14(1) of National Council for Teacher 

Education Act, 1993.” 

Lastly while answering question no. 3 it 

has been held as follows: 

“The exclusion of the candidates 

from the field of eligibility for Special 

Basic Training Course 2007, who have 

obtained B.Ed. degree prior to 

enforcement of National Council for 

Teacher Education Act, 1993 or after the 

enforcement of National Council for 

Teacher Education Act, 1993 during the 

period when the application of the 

institution or the University was pending 

consideration is arbitrary, unreasonable 

and violative of Articles 14 and 16 of the 

Constitution of India. The above two 

categories of candidates are also eligible 

to participate in Special Basic Training 

Course 2007.” 

It will thus be seen that the Full 

Bench of this Court has not held that any 

candidate who has obtained a Degree of 

B.Ed. subsequent to the enforcement of 

NCTE Act of 1993 from an institution 

whose application for approval was not 

pending consideration before the NCTE 

or was rejected to be qualified for the 

purposes of admission to BTC Course, 

2007. The Full Bench has recognized the 

B.Ed. Degree granted prior to 

enforcement of Act of 1993 or such B.Ed. 

Degrees granted by only those institutions 

which had made their applications for


recognition to the NCTE after coming 

into the force of NCTE Act but their 

recognition applications had not been 

finally decided. 

The students who had a degree of 

B.Ed. from other two categories of 

institutions i.e.: 

a. the institution which did not 

make any application for recognition after 

coming into the Act of 1993. 

b. The institutions which made the 

applications but their applications had 

been rejected by the NCTE on various 

grounds have not been held entitled for 

admission to Special BTC Course, 2007. 

This Court has been made aware of 

the interim order passed by the Hon'ble 

Apex Court in the Special Leave to 

Appeal against the Full Bench judgment 

of this Court in the Case of Bhupendra 

Nath Tripathi which in the opinion of the 

court does in any way help the petitioners. 

The issue before this Court is more 

or less similar to the category of 

institutions who had not made the 

applications for recognition even after 

coming into force by NCTE Act of 1993. 

The only difference being that the 

institutions in the State of Jammu & 

Kashmir can not make such applications 

as the Act of 1993 had no territorial 

application in that State. 

19. In the opinion of the Court the 

State of U.P. in its wisdom has decided to 

entertain applications of those candidates 

only who have obtained a Degree of 

B.Ed. from the institution recognized by 

NCTE. The words had a Degree of B.Ed. 

even if given the broader interpretation as 

per the answers given by the Full Bench 

in the case of Bhupendra Nath Tripathi to 

question nos. 1, 2 and 3 will not cover an 

institution situate in the State of Jammu & 

Kashmir inasmuch as qua the State of 

Jammu & Kashmir, the NCTE Act has no 

territorial operation. Therefore, the issue 

of any approval being applied or being 

granted by the NCTE to such institutions 

of the State of Jammu & Kashmir will not 

arise. 

20. The competence of the State 

Government to lay down the conditions 

for entertaining the applications for 

admission to BTC Course 2007 as well as 

those which flow from the letter of the 

NCTE while granting permission to start 

Special BTC Course 2007 are not under 

challenge. 

21. In these set of circumstances if 

the State with reference to the letter of the 

NCTE has decided to entertain the 

applications of the candidates who have 

obtained a B.Ed. Degree from the 

institutions recognized by NCTE or who 

under the Full Bench judgment of the 

High Court may become entitle to such 

consideration alone. Such decision cannot 

be termed as arbitrary in view of the 

specific norms of teachers education 

provided under the NCTE Act which are 

not applicable to the institutions in Jammu 

& Kashmir. The candidate with a Degree 

of B.Ed. from institutions in Jammu & 

Kashmir form a different class and if such 

class of candidates have been excluded 

from consideration for admission to BTC 

Special Training Course, 2007 by the 

State Government purposely, it cannot be 

said to be violative of Article 14 of the 

Constitution of India. Such action of the 

district authorities to exclude the 

candidates like the petitioner from the 

zone of consideration is in conformity


with the terms and conditions laid down 

in the Government Order issued under the 

permission granted by the NCTE. 

22. Writ petition is dismissed. 

--------- 


CIVIL SIDE 


BEFORE 

THE HON’BLE A.P. SAHI, J. 

Civil Misc. Writ Petition No. 57354 of 2009 

C/M Lok Bharti Inter College & another 

…Petitioner 

Versus 

State of U.P. and others …Respondent 


Sri Chandra Shekhar Srivastav 

Sri Sudhanshu Srivastava 


Sri P.K. Srivastava 

Sri N.S. Yadav 

Sri Ajay Kumar Yadav 

C.S.C. 

Constitution of India Art-226-Natural 

justice-Dismissal order passed-in 

absence of reply filed by the petitionerinspite 

of repeated request to supply the 

copy of complaint for proper 

explanation-not given even of the 

direction of Court-held- non sustainablenon 

supply of copy cause great prejudice 

the petitioner-order impugned quashed. 

Held: Para 6 

In the opinion of the Court non-supply of 

the said document to the petitioner 

inspite of repeated demands violates the 

principles of natural justice and the 

Court is supported in its opinion by the 

Division Bench in the case Rayeen Fruits 

Co. and others Vs. State of U.P. and 

others reported in 2000 RD 440 and M/s 

Nagarjuna Constructions Co. Vs. Govt. of 

A.P. and others reported in 2008(12) JT 

371 Paragraph 30. On account of nonsupply 

of the objection filed by the 

respondent no.4 the cause of the 

petitioner has been prejudiced and 

therefore, the order impugned dated 

13.10.2009 is un-sustainable. 

(Delivered by Hon'ble A.P. Sahi, J.) 

1. Heard Sri Sudhanshu Srivastava 

learned counsel for the petitioner and Sri 

P.K.Srivastava for the respondent no.4 

and the learned standing counsel for the 

respondent nos. 1,2 and 3. In view of the 

consent of the learned counsels the 

petition is being disposed of finally at this 

stage without awaiting any further 

affidavits. 

2. The prime issue raised by the 

petitioner in this petition is that the 

impugned order dated 13.10.2009 is in 

violation of principles of natural justice 

inasmuch as the directions of this Court in 

the judgment dated 3.8.2009 have not 

been complied with in right earnest and 

the petitioner's claim has been non-suited 

without letting the petitioner know about 

the objection raised by the respondent 

no.4. Learned counsel for the petitioner 

contends that on account of the aforesaid 

twin errors committed by the District 

Inspector of Schools the impugned order 

is liable to be set aside as it is in gross 

violation of principles of natural justice. 

3. Learned counsel for the petitioner 

contends that there is no indication or 

mention of the demand made by the 

petitioner for supplying a copy of the 

reply submitted by the respondent no.4 on 

29.9.2009.

3 All] C/M, Lok Bharti Inter College and another V. State of U.P. and others 993 

4. Sri Srivastava contends that after 

having received the contention on behalf 

of the petitioner the District inspector of 

Schools vide order dated 2.9.2009 called 

upon the respondent no.4 to submit his 

reply which was submitted and which has 

been considered in detail while passing 

the impugned order. The error committed 

by the District Inspector of Schools is that 

inspite of a written request made, the said 

reply of the respondent no.4 had never 

been made available to the petitioner and 

in the absence of any knowledge of the 

contents of such objection, the petitioner 

had absolutely no occasion to submit a 

reply to the same. 

5. Having heard learned counsel for 

the parties, this Court does not find any 

recital in the order dated 13.10.2009 that 

the petitioner was ever made aware about 

the reply submitted by the respondent 

no.4 and the objections taken therein. This 

was necessary as the reply submitted by 

the respondent no.4 has been accepted by 

the District inspector of Schools and has 

also been made the basis of passing of the 

impugned order. Learned counsel for the 

respondents have also not been able to 

point out any such material or recital to 

that effect. 

6. In the opinion of the Court nonsupply 

of the said document to the 

petitioner inspite of repeated demands 

violates the principles of natural justice 

and the Court is supported in its opinion 

by the Division Bench in the case Rayeen 

Fruits Co. and others Vs. State of U.P. 

and others reported in 2000 RD 440 and 

M/s Nagarjuna Constructions Co. Vs. 

Govt. of A.P. and others reported in 

2008(12) JT 371 Paragraph 30. On 

account of non-supply of the objection 

filed by the respondent no.4 the cause of 

the petitioner has been prejudiced and 

therefore, the order impugned dated 

13.10.2009 is un-sustainable. 

7. For the reasons stated herein 

above the order dated 13.10.2009 is set 

aside and a direction is issued to the 

respondent no.3 to proceed to pass a fresh 

order after giving opportunity of hearing 

to the petitioner committee of 

management to rebut the response 

submitted by the respondent no.4 as 

expeditiously as possibly preferably 

within a period of four weeks from the 

date of production of a certified copy of 

this order before him. 

The writ petition is allowed. No 

order as to costs. 

--------- 


CIVIL SIDE 

DATED ALLAHABAD: 19:08:2009. 

BEFORE 

THE HON’BLE A.P. SAHI J. 


Sanskrit Grah Nirman Sahkari Samiti Ltd. 

…Petitioner 

Versus 



Sri S. Niranjan, 

Sri. Dharam Pal Singh 

Sri Vinod Kumar Singh 

Counsel for the Respondents: 

Sri Ramesh Upadhyaya 

Sri Ajit Kumar Singh 

Sri M.C. Tripathi 

S.C. 

Constitution of India Art.-226- 

Expungtion of long term entry in favour 

of petitioner-without notice opportunity-


held-order passed utter violation of 

principle of Natural Justice-not 

sustainable. 

Held: Para 8 

Having heard learned counsel for the 

parties and the submissions raised on 

their behalf , the petitioners have a 

remedy of getting their rights declared 

by filing a regular suit. Nonetheless, 

keeping in view the law laid down in the 

judgment referred to herein above, the 

order expunging the entries that have 

continued for decades together ought 

not to have been passed without putting 

the petitioner to notice. 

Case law discussed 

Chaturgun and others Versus State of U.P. and 

others reported in 2005 ALJ 756. 


1. Heard Sri M.N.Singh learned 

counsel for the petitioner and the learned 

standing counsel for the respondent nos. 

1,2 and 3 and Sri Ajit Singh for the 

respondent no.4. 

2. The challenge is to the order 

dated 10.4.95 as upheld by the learned 

Commissioner in revision vide order 

dated 23.11.05 whereby the entries 

allegedly in favour of the petitioner have 

been expunged. 

3. The contention advanced on 

behalf of the petitioner is that the 

petitioner society is in possession of plot 

nos. 268M, 270M and 281M total area of 

20 Bighas and 3 Biswas situate in Mauja 

Bingawan Pargana/Tahsil Kanpur , 

district Kanpur Nagar. It is submitted that 

the land in question was recorded in the 

name of the tenure holder since 1359 F 

and the said tenure holder executed a sale 

deed in favour of one Umesh Chandra 

Bharadwaj. The said Umesh Chandra 

Bharadwaj had executed a registered sale 

deed in favour of the petitioner society in 

1966 where after the petitioner society is 

in continuous possession of the land in 

dispute. 

4. It is alleged that an ex-parte report 

had been submitted by the revenue 

authority behind the back of the 

petitioner, and the S.D.M. vide order 

dated 10.4.95 directed the name of the 

petitioner society to be expunged from the 

revenue record. It is further alleged that 

the petitioner had no knowledge about the 

same and after obtaining a copy of the 

Khatauni they preferred a revision under 

section 219 of the U.P.Z.A. & L. R. Act 

which has been dismissed. 

5. The main contention raised on 

behalf of the petitioner is that even if the 

proceeding had been under taken for 

expunging the name of the petitioner 

society then the same ought to have been 

done after giving an opportunity of 

hearing, and having not done so, the 

impugned orders are in violation of 

principles of natural justice. 

6. The submission advanced is that 

long standing entries should not be 

ordinarily expunged summarily and at 

least an opportunity should be given 

before passing such an order. In support 

of his submissions learned counsel for the 

petitioner has relied upon a decision in the 

case of Chaturgun and others Versus 

State of U.P. and others reported in 2005 

ALJ 756. 

7. Learned standing counsel and Sri 

Ajit Singh learned counsel for respondent 

no.4 contend that the entries in favour of 

the petitioner society are fictitious and 

manipulated inasmuch as they are not in

3 All] Krishan Kumar V. State of U.P. and others 995 

possession of any valid title over the land 

and that the entries have been 

manipulated which were rightly expunged 

by the S.D.M. They further contend that 

there is no requirement for interference by 

this Court under Article 226 of the 

Constitution. It is further submitted that 

the nature of the proceeding being 

summary in nature, the petition should not 

be entertained against such an order. 

8. Having heard learned counsel for 

the parties and the submissions raised on 

their behalf , the petitioners have a 

remedy of getting their rights declared by 

filing a regular suit. Nonetheless, keeping 

in view the law laid down in the judgment 

referred to herein above, the order 

expunging the entries that have continued 

for decades together ought not to have 

been passed without putting the petitioner 

to notice. 

9. In view of this no useful purpose 

would be served by keeping the writ 

petition pending before this Court. The 

impugned order dated 10.4.95 as well as 

the order of the learned Commissioner 

dated 23.11.2005 are hereby set aside. 

The S.D.M respondent no.3 shall be at 

liberty to pass a fresh order in accordance 

with law after giving an opportunity of 

hearing to the petitioner. 

10. The writ petition is allowed. No 

order as to costs. Learned counsel for the 

petitioner prays that the S.D.M. be 

directed to dispose of the matter 

expeditiously. The S.D.M., Kanpur Nagar 

shall proceed to conclude the proceedings 

as expeditiously as possible but not later 

than six months. 

--------- 


CIVIL SIDE 


BEFORE 

THE HON’BLE R.K AGARWAL, J. 

THE HON’BLE JAYASHREE TIWARI, J. 


Krishan Kumar 

Versus 

State of U.P. and others 


Sri Ashok Khare 

Sri Durga Tiwari 


Sri Ghanshyam Maurya 

Sri Sunil Kumar Singh 

Sri Sanjiv Singh 

C.S.C. 

…Petitioner 

…Respondents 

Constitution of India-Article 226-Natural 

Justice-Cancellation of Residence 

certificate-before cancellation No Notice 

or opportunity of hearing given-heldorder 

not sustainable. 

Held: Para 5 

From a perusal of the order and the 

averments made in paragraph 16 of the 

writ petition, we are of the considered 

opinion that neither any show cause 

notice nor any opportunity of hearing 

was afforded to the petitioner stands 

established and the impugned order has 

been pased in gross violation of principle 

of equity, fair play and natural justice. 

The same cannot be sustained which is 

hereby set aside. The respondent no.3 

may proceed in accordance with law. 

(Delivered by Hon'ble R.K. Agrawal, J.) 

1. By means of the present writ 

petition the petitioner sought a writ , order


or direction in the nature of certiorari 

calling for the record of the case and 

quashing the order dated 11th November, 

2009 passed by the the Sub Divisional 

Magistrate Sadar, district Deoriarespondent 

no.3, filed as Annexure 7 to 

the writ petition by which the residence 

certificate issued to the petitioner on 23rd 

July, 2009 has been cancelled on the basis 

of the complaint made on 9th November, 

2009 by one Sanjay Tiwari, respondent 

no.6. 

2. According to the petitioner the 

complaint was made on 9th November, 

2009 and without affording any 

opportunity to show cause or hearing the 

order has been passed in haste on 11th 

November, 2009. The entire exercise has 

been done within a short span of two days 

which according to the petitioner itself 

speaks about the motive. The averment 

regarding neither issuing any show cause 

notice nor affording any opportunity of 

hearing to the petitioner has been made in 

paragraph 16 of the writ petition. 

3. We have heard Sri Ashok Khare, 

learned Senior Advocate assisted by Ms. 

Durga Tiwari, learned standing counsel 

appearing for respondent nos. 1 to 4, Sri 

Sunil Kumar Singh, learned counsel 

appearing for respondent no.6 and Sri 

Sanjiv Singh has filed his appearance on 

behalf of respondent no.5. 

4. With the consent of the learned 

counsel for the parties, the writ petition is 

being disposed of at the admission stage 

without calling for counter affidavit. From 

a perusal of the impugned order dated 

11th November, 2009, we find that the 

Sub Divisional Magistrate has mentioned 

that the complaint was filed by Sri Sanjay 

Tiwari on 9th November, 2009, an 

enquiry was conducted on 10th 

November, 2009 and the impugned order 

has been passed on 11th November, 2009 

whereby the petitioner's residence 

certificate has been cancelled. It does not 

mention that any showcause notice or 

opportunity of hearing was given to the 

petitioner before passing the impugned 

order. 

5. From a perusal of the order and 

the averments made in paragraph 16 of 

the writ petition, we are of the considered 

opinion that neither any show cause 

notice nor any opportunity of hearing was 

afforded to the petitioner stands 

established and the impugned order has 

been pased in gross violation of principle 

of equity, fair play and natural justice. 

The same cannot be sustained which is 

hereby set aside. The respondent no.3 

may proceed in accordance with law. 

6. The writ petition succeeds and is 

allowed. 

--------- 


CIVIL SIDE 


BEFORE 

THE HON’BLE RAKESH TIWARI, J. 


Smt. Raman Pandey & others …Petitioners 

Versus 

State of U.P. and others …Respondent 

Counsel for the Petitioners: 

Sri A.C. Tiwari 

Sri Akhilesh Kuamr Pandey 

Sri D.K. Jaiswal 

Sri Pawan Kumar Tiwari 


Sri H.M.B. Sinha (S.C.)

3 All] Smt. Raman Pandey and others V. State of U.P. and others 997 

C.S.C. 

Constitution of India-Art-226- Post 

retirel benefits-claim by second wife on 

basis of nomination made by deceased 

employee even the marriage of second 

wife declared void- in view of law laid 

down by apex court children of the 

second wife entitled equally half share 

with first wife. 

Held: Para 5 

In the present case, daughter of 

petitioner Priyanka Pandey ( Petitioner 

no. 1/1), who had filed impleadment 

application, has also attained majority. 

But Deepak Pandey ( petitioner no. 1/2 ) 

son of the deceased with the petitioner- 

Smt. Raman Pandey is still a minor being 

13 years of age, therefore, he is entitled 

to retirement benefits of the deceased 

employee particularly in the backdrop 

that Smt. Raman Pandey had been 

nominated as wife by the deceased in 

the service records for receiving his 

benefits. 


[200(1) E.S.C. Page 577 (SC) 

(Delivered by Hon'ble Rakesh Tiwari, J.) 

1. Heard counsel for the parties. 

This petition has been filed by Smt. 

Raman Pandey claiming herself to be wife 

of deceased employee Jayanti Prasad 

Pandey. 

Son of Smt. Savitri Devi claimed 

appointment on compassionate ground on 

the basis that Smt. Raman Pandey, the 

second living wife of the deceased is not 

entitled to the benefits on compassionate 

ground under Dying in Harness Rules as 

she is not within the definition of family 

therein. In that context, the Court in Writ 

Petition No. 18397 of 2002, wherein 

present petitioner- Smt. Raman Pandey 

was a party as respondent no. 4 and had 

also filed counter affidavit, held as 

follows : 

"In my opinion, If Smt. Raman 

Pandey is not legally wedded wife and the 

marriage of Smt. Raman Pandey is void. 

According to Hindu Marriage Act, she 

can not claim the benefits to claim and 

appointment under Dying in Harness 

because she does not come under the 

definition of family. The judgment relied 

upon by the counsel for the petitioner 

fully supports the contention of the 

petitioner." 

2. Now by means of this petition, 

Smt. Raman Pandey claims for a writ in 

the nature of mandamus commanding 

opposite party no. 1 to 3 to appoint the 

petitioner on compassionate ground 

according to eligibility on any suitable 

post. This prayer has not been pressed by 

the counsel for petitioner in the backdrop 

that Rajesh Kumar Pandey, elder son of 

the deceased employee has been provided 

appointment under Dying in Harness 

Rules pursuant to order passed by the 

Court in the aforesaid writ petition No. 

18397 of 2002. 

Counsel for the petitioner has 

confined his arguments only in respect of 

prayer no. 2 which is for a writ of 

mandamus "commanding the opposite 

parties to make payment of G.P.F., Group 

insurance and other dues in favour of the 

petitioner and family pension month to 

month towards the services rendered by 

her husband late Jayanti Prasad Pandey on 

consideration of the fact that she is only 

nominee of her husband in the service 

records."


Notices were issued vide order dated 

4.5.2007 to respondent no. 4 to 6. His 

Lordship Hon. Mr. Justice Sabhajeet 

Yadav vide order dated 10.4.08 directed 

the office to submit report about service 

upon aforesaid respondents and they were 

directed to file counter affidavit within 

four weeks. 

From the service report submitted by 

the office, it appears that neither 

acknowledge nor registered cover has 

been received back, therefore, in view of 

the High Court Rules, service is deemd to 

be sufficient upon respondent no. 4 to 6 

who have not put in appearance in the 

matter. 

Counsel for the petitioner has also 

submitted that respondent no. 6- Smt. 

Savitri is now living with one Ramfer 

Yadav, resident of Pura Meharban Ka 

Purva, village Panchayat Gobari, Tehsil 

Sadar, Pratapgarh after death of her 

husband and has now six issues from him. 

3. In support of his second prayer, 

the counsel for the petitioner has placed 

reliance upon the judgment of the Apex 

Court in Rameshwari Devi Vs. State of 

Bihar,( 2000 (1) E.S.C. page 577 (S.C.) 

wherein it was held that where a Govt. 

servant being a Hindu having two living 

wives, died while in service, then his 

second marriage was void under the 

Hindu law and as regards the status of 

second wife and children from second 

marriage is concerned, considering the 

question whether they were entitled to any 

share in the family pension and death cum 

retirement gratuity etc, , the Apex Court 

ruled that second wife having no status of 

widow is not entitled for anything. 

However, children from the second wife 

would equally share the benefits of death 

cum retirement gratuity and family 

pension till they attain their majority. 

In the present case, it appears that 

first wife of deceased employee is now 

living with another person.Both her sons 

have attained majority. One of the sons 

has also been given appointment by the 

department on compassionate ground. 

While the present petitioner- Smt. Raman 

Pandey, who is said to be the second wife, 

is nominated in the service records by the 

deceased whereas first wife Savitri Devi 

is not so nominated. 

4. The standing counsel on the basis 

of paragraph no. 4 of the counter affidavit 

submitted that marriage of Smt. Raman 

Pandey-second wife, is void as has also 

been held in Writ Petition No. 18397 of 

2002 referred to above, therefore, she is 

not entitled to any claim on retiral dues of 

the deceased govt. employee. The 

argument is fallacious and incorrect. The 

Court had not decided the status of Smt. 

Raman Pandey, the petitioner in that case 

as second wife nor had declared the 

marriage as void. The Court has laid 

emphasis that if Raman Pandey is second 

wife, even her marriage is void. Until and 

unless it is so declared, it cannot be said 

tobe a void marriage unless it is so 

declared by a court of cmpetent 

jurisdiction . The claim in her petition was 

for compassonate appointment and not for 

any declaration or adjudication that Smt. 

Raman Pandey is not the wife of the 

deceased. However, even if the petitioner 

can be said to be the second wife, in that 

case also she may not have any status of 

widow and will be entitled to anything but 

progenies of the deceased govt. employee 

through her, would equally share the 

benefits of death cum retirement gratuity 

and family pension till they attain

3 All] Smt. Shailendra Rai V. State of U.P. and others 999 

majority in accordance with ratio laid 

down in Rameshwari Devi's case (supra),. 

4. In the present case, daughter of 

petitioner Priyanka Pandey (Petitioner no. 

1/1), who had filed impleadment 

application, has also attained majority. 

But Deepak Pandey (petitioner no. 1/2) 

son of the deceased with the petitioner- 

Smt. Raman Pandey is still a minor being 

13 years of age, therefore, he is entitled to 

retirement benefits of the deceased 

employee particularly in the backdrop that 

Smt. Raman Pandey had been nominated 

as wife by the deceased in the service 

records for receiving his benefits. 

5. For all the reasons stated above, 

this petition is allowed. The respondents 

are directed to release retiral dues in 

favour of minor son Deepak Pandey in the 

form of Fixed Deposit in a nationalised 

bank earning maximum interest payable 

to him on his attaining majority i.e. 18 

years of age. The F.D. shall be made in 

the name of the minor Deepak Pandey, 

expeditiously within a period of two 

months from the date of presentation of a 

certified copy of this order and the 

petitioner who is natural guardian of the 

minor at present, will be entitled to draw 

interest half yearly on the deposit so made 

to meet expenses of education etc. of the 

children. No order as to costs. 

--------- 


CIVIL SIDE 


BEFORE 

THE HON’BLE SUDHIR AGARWAL, J. 


Smt. Shailendra Rai 

Versus 



Sri Markandey Rai 

Sri D.S.P. Tripathi 


Sri R.P. Dubey 

Sri C.K. Rai 

Sri Vipul Tripathi 

Sri Neeraj Tripathi 

Sri Prabhat Rai 

C.S.C. 

…Petitioner 


Constitution of India, Art.-226-Salary 

Art.21, 300-A- Salary of petitioner 

withheld since March 2005-inspite of 

repeated direction R-5 neither filed 

counter non appeared-only after issuing 

warrant- although payment made 

through cheque- but the fact remain 

regarding fixing liability- R.5 and R3 

both equally responsible direction for 

release of arrears of salary with 8% 

interest given- considering conduct of 

authorities exumplory cost imposed of 

Rs.2 lacs, out of which Rs.1,5000/ shall 

be recover from the personal benefit of 

R.5 an remaining 50,000/- from R3 in 

case of default to recover the same as 

arrears of land Revenue. 

Held: Para 22 and 25 

In this case, as already discussed above, 

the act of respondent no. 5 in non 

payment of salary to the petitioner is 

wholly unjustified and illegal. 

Simultaneously, this Court cannot leave


the respondent no. 3 as wholly innocent 

in the matter for the reason that he, 

being a superior and higher officer, if 

found that someone in his office is not 

acting properly and is causing a glaring 

injustice and illegality, it was incumbent 

upon him to apprise the State 

Government of such act of the 

respondent no. 5 recommending a 

suitable disciplinary action against him, 

but the respondent no. 3 also kept 

silence in this matter and it is only when 

he was personally summoned, took steps 

which he could have taken earlier for 

paying the salary to the petitioner. To 

this extent, the respondent no. 3 is also 

guilty and is to be held responsible. 

In view of the above discussion, this 

Court is satisfied that here is a case 

where the conduct of the respondents 

makes them liable for an exemplary cost 

which I quantify to Rs. two lacs. This 

would also be compensatory to the 

petitioner. The liability is distributed to 

the extent of Rs. 1.5 lacs against 

respondent no. 5 and fifty thousands 

against respondent no. 3. The above cost 

shall be paid by them within six months 

failing which it would be open to the 

Registrar General of this Court to take 

steps to realize the same amount as 

arrears of land revenue. After realizing 

the amount of cost, the same may be 

released in favour of the petitioner. 


AIR 1979, SC 49, JT 2009 (13) SC 643, 2009 

(2) SCC 592, JT 2007(3) SC 112, AIR 1979 SC 

429, AIR 2006 SC 182, AIR 2006 SC 898, 

(2007)9 SCC 497; (2009) 6 SCALE 17; (2009)7 

SCALE 622, JT(2009) 12 SC 198, 1972 AC 

1027, 1964 AC 1129, JT 1993 (6) SC 307, JT 

2004 (5) SC 17, (1996) 6 SCC 558, AIR 1996 

SC 715. 

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

1. Heard Sri Markandey Rai for the 

petitioner, Learned Chief Standing 

Counsel assisted by Standing Counsel 

representing respondents no. 1, 3, 4 and 5 

and Sri C.K. Rai, Advocate, for 

respondent no. 2. 

2. As agreed by learned counsels for 

the parties, since the pleadings are 

complete, the writ petition is being heard 

and decided finally under the Rules of the 

Court at this stage. 

3. Though the controversy, which 

has engaged the attention of this Court by 

means of the present writ petition is very 

short but shows the ways and means 

adopted by the respondents for harassing 

their employees to the extent of not only 

putting him/her to great inconvenience 

but making the entire family to suffer to 

the extent of starvation without there 

being any illegality or irregularity on the 

part of such an employee. 

4. The petitioner, Smt. Shailendra 

Rai, an Assistant Teacher in a Junior High 

School has approached this Court on 

account of non payment of her salary by 

the respondents since March' 2005 

without there being any fault on her part. 

A writ of mandamus has been prayed 

directing the respondents to pay salary to 

the petitioner since March' 1985. 

5. To start with, this Court directed 

the respondents to file counter affidavit 

informing the Court as to why salary has 

not been paid to the petitioner. On 

21.8.2006, the following order was passed 

by this Court: 

"Sri C.K. Rai Advocate has accepted 

notice on behalf of respondent nos. 2 and 

3, Standing Counsel accepts notice on 

behalf of respondent nos. 1, 4 and 5. 

Respondents may seek instruction as 

to why payment of salary is not being 

effected in favour of the petitioner. The


District Basic Education Officer, 

Sonebhadra may also file his affidavit 

along with the objection of the Finance 

and Audit Officer in his office, referred to 

in the letter dated 27.4.2006 List on 31st 

August, 2006." 

6. When the matter again came up 

on 27.10.2006, a vague and incomplete 

reply was filed which was noticed by this 

Court in its order dated 27.10.2006 as 

under : 

"Learned counsel for the petitioner 

states that he has not been served with 

counter affidavit filed by the District 

Basic Education Officer, Sonebhadra. 

Moreover, the affidavit filed is not 

accompanied with the objection of the 

Finance and Audit Officer referred to in 

the letter of the District Basic Education 

Officer dated 27th April, 2006, as was 

directed under order of this Court dated 

21st August, 2006. 

Let Sri C.K. Rai, learned counsel for 

respondent nos. 2 and 3 file a better 

affidavit in strict compliance of the order 

of this Court dated 21st August, 2006, by 

20th November, 2006. 

Put up on 20th November, 2006." 

7. Noticing that there was no fault 

shown on the part of the petitioner for non 

payment of salary, but inter alia shifting 

of responsibility sought to be indulged by 

the respondents, this Court on 11.11.2007 

passed the following order : 

"In the present case short counter 

affidavit has been filed and the same is 

only on behalf of respondent no. 3. In pith 

and substance the said short counter 

affidavit supports the version of the 

petitioner and entire burden has been 

fastened upon Finance and Accounts 

Officer, based at the office of District 

Basic Education Officer, Sonebhadra for 

ensuring payment of salary to petitioner. 

Backdrop of the case reflects that some 

adjustment has been made and the reason 

why Finance and Accounts Officer is not 

ensuring payment of salary to petitioner is 

not all before this Court, as such it would 

be expedient that the version of Finance 

and Accounts Officer should come before 

this Court. 

In these circumstances and in this 

background, Finance and Accounts 

Officer, Office of District Basic Education 

Officer indicating as to why salary is not 

being ensured to petitioner. While 

preparing counter affidavit details 

furnished in short counter affidavit filed 

on behalf of respondents no. 3 shall also 

be explained. For this purpose, learned 

counsel for petitioner is directed to serve 

a copy of this short counter affidavit upon 

Finance and Accounts Officer, Basic 

Education, Sonebhadra within three 

weeks from today. In the event of service 

of short counter affidavit alongwith a 

copy of this order in all eventuality 

counter affidavit has to be filed by 

Finance and Accounts Officer within next 

three weeks. 

List after one month." 

8. Thereafter, on 13.8.2009, 

5.10.2009 and 9.10.2009 having found 

that the respondents were neither able to 

give any justification for non payment of 

salary to the petitioner nor had made any 

effort to pay her salary, the following 

orders were passed : 

"The only grievance of the petitioner 

is that he is not being given salary since 

March 2005, though she is a regularly 

appointed teacher in a Junior High 

School maintained by the Basic Shiksha


Parishad. Though counter affidavit has 

been filed on behalf of respondent no. 3 

though his counsel but he learned counsel 

is not present. Sri Prabhat Rai, holding 

brief of Sri Neeraj Tripathi, learned 

counsel for the respondent no. 5 is present 

but he is not able to tell as to why the 

salary has not been paid to the petitioner 

till date. Since the Court is not getting any 

assistance from them so it is directed that 

respondents no. 3 and 5 are shall be 

present in Court and explain as to why the 

salary of the petitioner has not been paid 

so far. 

List this matter on 30th September 

on which date appropriate orders will be 

passed in this matter. Sri Prabhat Rai, 

holding brief for Sri Neeraj Tripathi, who 

has filed his Vakalatnama on behalf of 

respondent no. 5 and the learned standing 

counsel for respondents 3 & 5 are 

directed to make compliance of this order. 

The office is directed to furnish a copy of 

this order by Monday, i.e 17.08.2009. 

13.08.2009" 

"Vide order dated 13.08.2009 the 

respondents no. 3 and 5 both were 

required to appear before this Court on 

30.09.2009 in person to explain as to why 

the petitioner has not been paid salary so 

far but since 30.09.2009 was declared as 

holiday, Sri C.K. Rai, learned counsel 

appearing for respondent no. 3 stated that 

the respondent no. 3 is not present. Sri 

Vipul Tripathi, holding brief on behalf of 

Sri Neeraj Tripathi stated that he has filed 

his Vakalatnama on behalf of respondent 

no. 5 but it appears that the respondent 

no. 5 has engaged some other counsel. It 

is not concerned with the Court as to how 

many counsels were engaged in a matter 

but once notice has been issued to the 

party concerned and he is aware with the 

case, it is his obligation to keep watch of 

the case. 

In the facts and circumstances of the 

case, respondents no. 3 and 5 both are 

directed to be present in person before 

this Court on 09.10.2009. Sri Rai and Sri 

Tripathi shall communicate this order to 

respondents no. 3 and 5 respectively as 

the same has been passed in their 

presence. 

05.10.2009" 

"On 13.08.2009 this Court passed 

order directing the respondents no. 3 and 

5 both to be present in person before this 

Court to explain as to why the salary of 

petitioner has not been paid though he is 

a regularly appointed teacher in Junior 

High School maintained by Basic Shiksha 

Parishad. 

The respondent no. 3, Sri Rajesh 

Kumar is present but the respondent no. 5 

is not present. 

Sri Vipul Tripathi holding brief on 

behalf of Sri Neeraj Tripathi states that he 

has communicated the direction of this 

Court to respondent no. 5 but he has not 

responded. 

Let non-bailable warrant be issued 

to respondent no. 5 to ensure his presence 

before this Court on 21.10.2009. The 

office shall take appropriate steps for 

compliance of this order. The respondent 

no. 3 shall also remain present on the 

next date. 

List this matter on 21.10.2009. 

09.10.2009" 

9. The reluctant attitude shown by 

the respondent no. 5 compelled this Court 

in issuing non-bailable warrant on 

9.10.2009 as already noted above. 

However, this time, the Registry of this 

Court came to rescue of the respondents 

by not taking steps for issuing non 

bailable warrant as directed and on 

21.10.2009 a report was submitted that 

due to rush of work, no further action


could be taken by them and, therefore, 

they may be granted some further time to 

comply with the Court's order dated 

9.10.2009. 

10. In the meantime, an application 

no. 274455 of 2009 was filed on behalf of 

respondent no. 5 stating that firstly due to 

mistake of Sri Neeraj Tripathi, Advocate, 

he did not get any information of the 

order dated 17.8.2009 and, therefore, 

could not appear on 5.10.2009 and 

secondly that on 6.10.2009 when he 

received the information by that time he 

suffered viral fever and hence could not 

appear on 9.10.2009. The above statement 

is sought to be supported by a medical 

certificate issued by the Medical Officer, 

District Hospital, Sonebhadra dated 

12.10.2009 certifying that the respondent 

no. 5 Rajesh Kumar was in his treatment 

as an outdoor patient since 8.10.2009 to 

10.10.2009 and fitness certificate is being 

issued from 12.10.2009. 

11. It is to be noted that though 

respondent no. 5 is impleaded by his 

office and, therefore, he ought to be 

represented by learned Standing Counsel 

appointed by the State Government but in 

this case, the application has been filed 

through Sri Neeraj Tripathi, Advocate, 

who has also filed counter affidavit on 

behalf of respondent no. 5 earlier. The 

respondent no. 5 thus has engaged this 

private counsel but whether for the said 

purpose he obtained permission from the 

Government or not is not clear from the 

record. 

12. On the request of learned 

counsels for the parties, this matter was 

taken up on 28.10.2009 on which date Sri 

Manohar Prasad, Basic Shiksha Adhikari, 

Sonebhadra and Sri Rajesh Kumar, 

Finance and Accounts Officer in the 

office of Basic Shiksha Adhikari, 

Sonebhadra, both were present. A 

supplementary counter affidavit sworn on 

27.10.2009 at 3.10. P.M. by the 

respondent 3 was also filed stating that by 

cheque dated 15.10.2009, salary of the 

petitioner for the period of March' 2005 to 

October' 2009 has been paid and a 

photocopy of Treasury Cheque dated 

26.10.2009 was annexed. In para 4 and 5 

of the supplementary counter affidavit, it 

is said that due to some confusion and 

misconception, some delay has occurred 

in making payment of salary to the 

petitioner, which is regretted and it is said 

that since the petitioner's salary has been 

paid, therefore, no further cause of action 

survives and, the writ petition may be 

dismissed as infructuous. The deponent of 

the affidavit has also tendered his 

unconditional apology. 

13. Normally, when the relief sought 

in the writ petition is met in the hands of 

the respondents and this Court finds that 

no further cause of actions survives, as a 

normal practice, the writ petitions are 

dismissed having become infructuous but 

here is a case where the petitioner's salary 

was detained by the respondents illegally 

and without any lawful justification, as is 

evident from the above facts, and when 

she made this complaint to this Court in 

August 2006, even then the respondents 

did not look into the matter as a model 

and law abiding employer having some 

sense of sympathy and justice for their 

employees, but here in a casual fashion 

they filed incomplete and vague affidavits 

shifting blame from one and another. No 

attempt shown to be made to remedy the 

grievance of the petitioner and that is how 

she was compelled to suffer not only 

herself but the entire family for a further


period of three years and more. Not only 

this, the respondents shown the audacity 

and courage of even not attending this 

Court flouting its order to the maximum 

possible level and it is only when they 

found no other option, the salary is paid to 

the petitioner. This Court is thus clearly 

satisfied that their action by means of the 

supplementary counter affidavit is not 

bona fide but just to bury a just and valid 

grievance of harassment of the petitioner 

by their extraordinary, not only belated 

but also illegal and arbitrary act, and they 

are trying to get the matter consigned so 

as to wriggle out of the clutches of law in 

respect to affixing of responsibility and 

liability upon the officer concerned for 

not only illegal detention of salary of a 

person for almost four years but also by 

harassing and victimizing her for no fault 

on her part. 

14. In my view, here is a case which 

cannot be allowed to shut in such a 

manner by simply confining the matter to 

record without considering as to whether 

the respondents are in fact guilty of an 

illegal and arbitrary act, and, if so, how 

they must be made 

accountable/responsible for the same. 

15. An equity Court exercising 

jurisdiction under Article 226 of the 

Constitution of India is not only entitled 

to look into valid grievances of the citizen 

but also to pass appropriate orders against 

the State or its officers and 

instrumentality as the case may be where 

they are found to have acted in a wholly 

illegal and arbitrary manner. From the 

own admission of the respondents in the 

counter affidavit where they have not 

shown any fault on the part of the 

petitioner as a reason for non payment of 

salary to her since March' 2005, the denial 

of salary to the petitioner is evidently 

arbitrary and also infringes her 

constitutional right under Articles 21 and 

300A which provides that no person shall 

be deprived of her property except in 

accordance with the procedure prescribed 

in law. In the case in hand, the petitioner 

has been deprived of her lawful salary and 

wages, which she has earned after 

rendering service, in a manner which is 

not prescribed in law. 

16. Now, I may give in brief the 

explanation given by the respondents for 

non payment of salary to the petitioner. 

The petitioner was initially working as 

Assistant Teacher in a Primary School, 

Billi Obra and was promoted as Assistant 

Teacher (C.T. Grade) on 7.2.2004. It 

appears that a Government Order was 

issued on 9.6.2004 that the Teachers in 

the Primary Schools be allowed to be 

adjusted/accommodated according to the 

strength of the students in the schools and 

may be shifted to other schools where 

there is deficiency. The Board of Basic 

Education issued certain directions on 

24.7.2004 that the Teachers who are 

posted/appointed after July 2003 if are 

found in excess may be 

transferred/adjusted and those who have 

the longest period of posting should first 

be adjusted. It appears that the Secretary, 

Basic Education, Allahabad passed an 

order on 11.2.2005 stating that in the 

Junior High School, Billi, 8 teachers 

working and five of such Teachers were 

to be adjusted by the District Basic 

Education Officer but since Sri Shailendra 

Rai and Rajani Rajvanshi were two 

teachers who were posted after July, 2003 

therefore first of all the said two teachers 

be adjusted and thereafter adjustment of 

rest of three teaches should be made. 

Pursuant to the said order of Secretary,


Basic Education, Allahabad, the 

respondent no. 3 passed an order on 

2.3.2005 cancelling adjustment of Smt. 

Nirmala Devi-II, another teacher working 

in the Junior School, Billi, Sonebhadra. 

He also directed for compliance of the 

Secretary, Board of Basic Education's 

letter dated 11.2.2005. It is also said that 

in view of the aforesaid orders, no further 

teacher was required to be adjusted from 

aforesaid Junior High School since the 

strength of teachers was as per the 

requirement and standard fixed, therefore, 

the petitioner continued to work in the 

said institution and it was in the interest of 

the students at large. It is also said that in 

June 2006, the strength of Junior School 

reduced to three due to promotion and 

transfer of Sri Munni Lal, a senior 

Teacher of Junior High School, Billi, 

Chopan as Head Master to Junior High 

School, Obradeeh, Vikas Kshetra Chopan, 

Sonebhadra. It is further said that the 

petitioner's functioning in the institution 

concerned was justified in all these 

circumstances and, therefore, when the 

salary bills of the petitioner were received 

in the office of respondent no. 3, the same 

were countersigned by respondent no. 3, 

in particular Sri Vinod Sharma holding 

office of respondent no. 3, and, the file 

sent to the office of respondent no. 5 for 

payment of salary but it is he (respondent 

no. 5) who is not making payment to the 

petitioner. Para 10 and 11 of the counter 

affidavit of respondents no. 3 are 

reproduced as under: 

"10. That is is most respectfully 

submitted that since there was no 

requirement and occasion for adjustment 

of the petitioner for the reasons stated 

above and as such she remained posted in 

the institution in question and was 

discharging her duties and accordingly, 

her attendance was also certified by the 

Regional Asstt. Basic Shiksha Adhikari, 

Chopan, Sonebhadra and her salary bill 

was submitted in the office of the 

deponent upon which the same was 

counter-signed by the deponent and was 

sent of the the office of Finance and 

Accounts Officer of the office of B.S.A. 

Sonebhadra for payment of her salary. 

11. That it is relevant to mention here 

that the Finance and Accounts Officer of 

the office of the deponent without there 

being any order of the competent 

authority, deleted the salary of the 

petitioner and made payment of salary to 

the rest of the teachers working in Vikas 

Kshetra Chopan and their salary were 

transmitted in the Bank accounts 

concerned." 

17. It is said that on the 

representation made by the petitioner to 

respondent no. 3, repeated directions were 

issued to respondent no. 5 but he did not 

take steps for payment of salary to the 

petitioner. When the matter was brought 

to the notice of District Magistrate, 

Sonebhadra, he also passed an order on 

6.1.2006 for disbursement of salary to the 

petitioner but even thereafter the 

respondent no. 5, adopting an adamant 

attitude, did not pay salary to the 

petitioner. The stand taken by respondent 

no. 3 in para 14, 15 and 16 of his counter 

affidavit is reproduced as under: 

"14. That it is relevant to mention here 

that the abovenoted direction issued by 

the District Magistrate was also apprised 

to the Finance and Accounts Officer vide 

Letter dated 18.1.2006 issued by the office 

of the deponent but despite of the same, 

he has not paid the salary to the 

petitioner.


15. That it is also pertinent of the 

mention here that at present in the 

institution in question in view of strength 

of students, at least five teachers are 

required but against the same, only 3 

teachers are working and as such no 

occasion has arisen for adjustment of the 

petitioner, accordingly she continued to 

work in the said institution and has 

performed teaching work but despite of 

repeated directions issued by the higher 

authorities concerned as well as 

deponent, the Finance and Accounts 

Officer of the office of the deponent, is not 

making payment of salary to the petitioner 

for the reason best known to him. 

16. That it is pertinent of the mention 

here that in pursuance to the order passed 

by this Hon'ble Court dated 21.8.2006, 

the deponent has written a letter to the 

Finance & Accounts Officer asking him 

about the non-payment of salary to the 

petitioner. Copy of the said letter dated 

25.8.2006 is filed herewith as Annexure 

CA-5 to this affidavit." 

18. In the Counter affidavit filed on 

behalf of respondent no. 5, it is evident 

that he has levelled serious allegations 

against the respondent no. 3 stating that in 

his (respondent no. 3) affidavit he has 

concealed several facts. In fact in view of 

the Secretary, Board of Education's letter 

dated 24.7.2004, the petitioner ought to 

have been adjusted in some other 

institution but the same having not been 

done, her non payment of salary by 

respondent no. 5 is absolutely just and 

valid. From the documents appended to 

the affidavit filed by respondent no. 5, it 

is evident that the justification of a 

Teacher in a particular school and 

necessity of adjustment, if any, was to be 

considered firstly by the Board of Basic 

Education and, thereafter, by the District 

Basic Education Officer of the concerned 

District. No other authority or officer was 

entitled or empowered by any order either 

by the State Government or the Board of 

Basic Education authorizing him/her to 

flout either the orders passed by the 

District Basic Education Officer or to take 

a decision of his/her own so as to disobey 

or not to comply the order passed by the 

District Basic Education Officer. 

19. The respondent no. 5, Sri Rajesh 

Kumar, who was present in the Court 

when enquired as to how he was 

authorized and empowered to ignore the 

direction/order issued by District Basic 

Education Officer, and, whether the 

respondent no. 3 is not an officer higher 

in rank than him in the hierarchy, he 

could not give any justification for his 

action. He also could not explain as to 

how he could disobey the order of the 

District Basic Education Officer 

(respondent no. 3). In fact, even from the 

documents filed as enclosures to his 

counter affidavit in support of his 

averments made in the counter affidavit, 

he failed to show as to which part of those 

orders either of the State Government or 

that of Board of Board of Basic Education 

authorises him to take a decision as to 

whether a particular teacher would be 

entitled for payment of salary when the 

District Basic Education Officer in his 

own discretion has not found any reason 

for shifting or transfer a teacher and has 

cleared the salary bill of such teacher. 

20. With regard to non compliance 

of the Courts order regarding his 

presence, I find that on the one hand he 

claim to have fallen ill on 6.10.2009 but 

the medical certificate is for the period of 

8.10.2009 to 10.10.2009, it appears that 

only to cover up the date on which he was


supposed to appear before this Court, i.e 

9.10.2009. Moreover, swearing of para 5 

of the affidavit accompanying the recall 

application wherein he has said that he 

did not receive any information due to 

mistake on the part of the office of Sri 

Neeraj Tripathi, Advocate, is on the basis 

of the information received and regarding 

sickness and medical certificate, the 

averments contained in para 6 of the said 

affidavit have been partly sworn on the 

basis of personal knowledge and partly on 

the basis of record. This itself makes the 

aforesaid averments unreliable and 

incredible. 

21. Having found myself satisfied 

that the respondent no. 5 has no valid and 

lawful justification for detaining salary of 

the petitioner, I am also satisfied that his 

act was not only illegal and arbitrary but 

travels in the realm of malice in law, 

therefore, it deserves to be dealt with 

severely by this Court so that no 

Government officer in future may have 

the audacity of harassing a helpless poor 

employee, firstly, by torturing him/her by 

detaining his/her lawful dues and 

thereafter to escape from any liability so 

as to boast that nobody can touch him 

even if he commits an ex facie illegal or 

unjust act. Every Government officer, 

howsoever high, must always keep in 

mind that nobody is above law. The hands 

of justice are meant not to only catch out 

such person but it is also the 

constitutional duty of a Court of law to 

pass suitable order in such a matter so that 

such an illegal act may not be repeated, 

not only by him/her but others also. This 

should be a lesson to everyone 

committing an act which is ex facie unjust 

and having not been done for any just or 

lawful reason. Prima facie it must be 

treated to have been done for collateral 

purposes and covered by the term ''malice 

in law'. 

22. The Apex Court has 

summarised "malice in law " in (Smt.) 

S.R.Venkatraman Vs. Union of India 

and another, AIR 1979, SC 49 as under : 

"It is equally true that there will be 

an error of fact when a public body is 

prompted by a mistaken belief in the 

existence of a non-existing fact or 

circumstance. This is so clearly 

unreasonable that what is done under 

such a mistaken belief might almost be 

said to have been done in bad faith; and 

in actual experience, and as things go, 

these may well be said to run into one 

another." (Para 8) 

12. The Apex Court further in para 9 

of the judgment in S.R.Venkatraman 

(supra) observed: 

" 9. The influence of extraneous 

matters will be undoubted where the 

authority making the order has admitted 

their influence. It will therefore be a gross 

abuse of legal power to punish a person 

or destroy her service career in a manner 

not warranted by law by putting a rule 

which makes a useful provision for the 

premature retirement of Government 

servants only in the ''public interest', to a 

purpose wholly unwarranted by it, and to 

arrive at quite a contradictory result. An 

administrative order which is based on 

reasons of fact which do not exist must, 

therefore, be held to be infected with an 

abuse of power." 

13. In Mukesh Kumar Agrawal 

Vs. State of U.P. and others JT 2009 

(13) SC 643 the Apex Court said :


"We also intend to emphasize that 

the distinction between a malice of fact 

and malice in law must be borne out from 

records; whereas in a case involving 

malice in law which if established may 

lead to an inference that the statutory 

authorities had acted without jurisdiction 

while exercising its jurisdiction, malice of 

fact must be pleaded and proved." 

14. In Somesh Tiwari Vs. Union of 

India and others 2009 (2) SCC 592 

dealing with the question of validity of an 

order of transfer on the ground of malice 

in law , the Apex Court in para 16 of the 

judgment observed as under: 

"16. .... Mala fide is of two kinds-- 

one malice in fact and the second malice 

in law. The order in question would 

attract the principle of malice in law as it 

was not based on any factor germane for 

passing an order of transfer and based on 

an irrelevant ground i.e on the allegations 

made against the appellant in the 

anonymous complaint. It is one thing to 

say that the employer is entitled to pass 

an order of transfer in administrative 

exigencies but it is another thing to say 

that the order of transfer is passed by way 

of or in lieu of punishment. When an 

order of transfer is passed in lieu of 

punishment, the same is liable to be set 

aside being wholly illegal." 

15. In HMT Ltd. and another Vs. 

Mudappa and others JT 2007(3) SC 

112 the Apex Court in paras 18 and 19 

defined malice in law by referring to 

"Words and Phrases Legally Defined, 3rd 

Edn., London Butterworths, 1989" as 

under: 

"The legal meaning of malice is "illwill 

or spite towards a party and any 

indirect or improper motive in taking an 

action". This is sometimes described as 

"malice in fact". "Legal malice" or 

"malice in law" means ''something done 

without lawful excuse'. In other words, ''it 

is an act done wrongfully and wilfully 

without reasonable or probable cause, 

and not necessarily an act done from ill 

feeling and spite'. It is a deliberate act in 

disregard of the rights of others." 

"19. It was observed that where 

malice was attributed to the State, it could 

not be a case of malice in fact, or 

personal ill-will or spite on the part of the 

State. It could only be malice in law, i.e 

legal mala fide. The State, if it wishes to 

acquire land, could exercise its power 

bona fide for statutory purpose and for 

none other. It was observed that it was 

only because of the decree passed in 

favour of the owner that the proceedings 

for acquisition were necessary and hence, 

notification was issued. Such an action 

could not be held mala fide." 

16. In brief malice in law can be said 

when a power is exercised for an 

unauthorized purpose or on a fact which 

is claimed to exist but in fact, is non-est or 

for the purpose for which it is not meant 

though apparently it is shown that the 

same is being exercised for the purpose 

the power is supposed to be exercised. 

(See Manager Govt. Branch Press and 

another Vs. D.B.Belliappa AIR 1979 SC 

429; Punjab Electricity Board Vs. Zora 

Singh and others AIR 2006 SC 182; 

K.K.Bhalla Vs. State of U.P. and others 

AIR 2006 SC 898; P. Mohanan Pillai 

Vs. State of Kerala and others (2007) 9 

SCC 497; M.P.State Corporation Diary 

Federation Ltd. and another Vs. 

Rajneesh Kumar Zamindar and others 

(2009) 6 SCALE 17; Swarn Singh


Chand Vs. Punjab State Electricity 

Board and others (2009) 7 SCALE 622 

and Sri Yemeni Raja Ram Chandar Vs. 

State of Andhra Pradesh and others JT 

(2009) 12 SC 198. 

17. Regarding harassment of a 

Government employee referring to 

observations of Lord Hailsham in Cassell 

& Co. Ltd. Vs. Broome, 1972 AC 1027 

and Lord Devlin in Rooks Vs. Barnard 

and others 1964 AC 1129, the Apex 

Court in Lucknow Development 

Authority Vs. M.K. Gupta JT 1993 (6) 

SC 307 held as under; 

"An Ordinary citizen or a common 

man is hardly equipped to match the 

might of the State or its instrumentalities. 

That is provided by the rule of law....... A 

public functionary if he acts maliciously 

or oppressively and the exercise of power 

results in harassment and agony then it is 

not an exercise of power but its abuse. No 

law provides protection against it. He 

who is responsible for it must suffer 

it...........Harassment of a common man by 

public authorities is socially abhorring 

and legally impermissible. It may harm 

him personally but the injury to society is 

far more grievous." (para 10) 

18. The above observation as such 

has been reiterated in Ghaziabad 

Development Authorities Vs. Balbir 

Singh JT 2004 (5) SC 17. 

19. In the case of Registered 

Society Vs. Union of India and Others 

(1996) 6 SCC 530 the Apex court said as 

under: 

"No public servant can say "you may 

set aside an order on the ground of mala 

fide but you can not hold me personally 

liable" No public servant can arrogate in 

himself the power to act in a manner 

which is arbitrary". 

20. In the case of Shivsagar Tiwari 

Vs. Union of India (1996) 6 SCC 558 the 

Apex Court has held as follows: 

"An arbitrary system indeed must 

always be a corrupt one. There never was 

a man who thought he had no law but his 

own will who did not soon find that he 

had no end but his own profit." 

21. In the case of Delhi 

Development Authority Vs. Skipper 

Construction and Another AIR 1996 

SC 715 has held as follows: 

"A democratic Government does not 

mean a lax Government. The rules of 

procedure and/or principles of natural 

justice are not mean to enable the guilty 

to delay and defeat the just retribution. 

The wheel of justice may appear to grind 

slowly but it is duty of all of us to ensure 

that they do grind steadily and grind well 

and truly. The justice system cannot be 

allowed to become soft, supine and 

spineless." 

22. In this case, as already discussed 

above, the act of respondent no. 5 in non 

payment of salary to the petitioner is 

wholly unjustified and illegal. 

Simultaneously, this Court cannot leave 

the respondent no. 3 as wholly innocent in 

the matter for the reason that he, being a 

superior and higher officer, if found that 

someone in his office is not acting 

properly and is causing a glaring injustice 

and illegality, it was incumbent upon him 

to apprise the State Government of such 

act of the respondent no. 5 recommending 

a suitable disciplinary action against him,


but the respondent no. 3 also kept silence 

in this matter and it is only when he was 

personally summoned, took steps which 

he could have taken earlier for paying the 

salary to the petitioner. To this extent, the 

respondent no. 3 is also guilty and is to be 

held responsible. 

23. In the circumstances, the writ 

petition is allowed with the direction to 

the respondents to pay simple interest on 

the delayed payment of salary to the 

petitioner at the rate of 8% p.a. from the 

date the same became due till actual 

payment. 

24. Liberty is given to respondent 

no. 1 to realize the amount of interest paid 

to the petitioner under this order from the 

officials concerned who, it may found 

responsible after holding an appropriate 

departmental enquiry in this matter. 

25. In view of the above discussion, 

this Court is satisfied that here is a case 

where the conduct of the respondents 

makes them liable for an exemplary cost 

which I quantify to Rs. two lacs. This 

would also be compensatory to the 

petitioner. The liability is distributed to 

the extent of Rs. 1.5 lacs against 

respondent no. 5 and fifty thousands 

against respondent no. 3. The above cost 

shall be paid by them within six months 

failing which it would be open to the 

Registrar General of this Court to take 

steps to realize the same amount as 

arrears of land revenue. After realizing 

the amount of cost, the same may be 

released in favour of the petitioner. 

--------- 


CIVIL SIDE 


BEFORE 

THE HON’BLE PANKAJ MITHAL, J. 


Rishi Pal Singh 

Versus 



Sri Vijay Gautam 


C.S.C. 

…Petitioner 


Constitution of India-Article 226- 

Transfer of Sub-Inspector-who remained 

in adjoining District for 24 yearsinvolved 

in Criminal Case offence under 

379 IPC-on ground of challenge made 

that the approving authority-‘Police 

Establishment Board’ not properly 

constituted-G.O. dated 12.08.09 

providing the approval of the decision of 

Board by D.G.P.-which put further check 

on exercise of power of Transfer-helddirection 

of Supreme Court in Prakash 

Singh Case fully complied with-No scope 

for technical plea-Transfer order can not 

be interfered. 


In the aforesaid facts and circumstances, 

in so far as the police Establishment 

Board that has granted approval to the 

transfer of the petitioner is concerned 

has subserved the object with which the 

guidelines were laid down by the 

Supreme Court, the approval so granted 

would not stand vitiated only for the 

reason that the Director General of 

Police has not been included as one of its 

members specially when the approval 

granted by the Police Establishment 

Board is further required to be approved 

by the Director General of Police.

3 All] Rishi Pal Singh V. State of U.P. and others 1011 

Thus, in effect the guidelines issued by 

the Supreme Court with regard to the 

creation of the Police Establishment 

Board have been followed and 

implemented by the State Government in 

pith and substance according to the true 

spirit. Any technical infraction in the 

implementation of the said guidelines 

cannot be a subject of consideration by 



(2006) 8 SCC 1, Writ Petition No.1525 of 2009 

decided on 4.9.2009, 2003(1) UPLBEC 636. 

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

1. Petitioner who is a Sub-Inspector 

(Special Category) in U.P. Police has 

challenged the order dated 16.9.2009 

passed by the Deputy Inspector General 

(Establishment), U.P. Police 

Headquarters, Allahabad transferring him 

from district Gautam Budh Nagar to Mau 

in public interest with the approval of 

Police Establishment Board. 

2. On behalf of the petitioner a 

supplementary affidavit and then a second 

supplementary affidavit has been filed. 

Learned Standing Counsel was earlier 

allowed time to obtain instructions and to 

file counter affidavit. A counter affidavit 

as well as a supplementary counter 

affidavit has been filed by the learned 

Standing Counsel on behalf of 

respondents no.1 to 5 and respondent no.7 

to which even rejoinder affidavit has been 

filed. The counsel for the parties as such 

agree for final disposal of the writ petition 

at the admission stage itself. Accordingly, 

having heard Sri Vijay Gautam, learned 

counsel for the petitioner and the learned 

Standing Counsel for the respondentsat 

length, I proceed to decide the matter 

finally. 

3. Before addressing various points 

which have been canvassed by the learned 

counsel for the petitioner in order to assail 

the impugned order, it is tiride to mention 

that under the service jurisprudence 

transfer of an employee who holds a 

transferable post is a normal feature and 

has been recognised throughout as an 

incident of service. In the matter of the 

transfer, the Government/employer has a 

wide discretion and it is the employer 

who is the best judge to utilise the service 

of its employee and to place and post him 

at its discretion accordingly. The 

employee has no legal say in the matter of 

his posting except to bring to the notice of 

the authority concerned his personal 

difficulty or any hardship. The employee 

as such, as no vested right either to insist 

for a particular post or to be posted at a 

particular place or to stick to a particular 

one. In fact, transfer has been considered 

necessary in public interest and to 

maintain efficiency in public 

administration. Therefore, it has been 

settled by a catena of authorities that 

ordinarily transfer orders are not to be 

interfered with on the judicial side until 

and unless it is shown that the order of 

transfer passed is without jurisdiction; is 

in breach of any statutory rule or it has 

been motivated by malice of fact or law or 

is proved to be punitive, vindictive or 

stigmatic in nature. 

4. It is in the above settled legal 

background that I have to examine the 

validity of the impugned order. 

5. The first submission of the 

learned counsel for the petitioner is that 

the Police Establishment Board 

(hereinafter referred to as "the Board") 

which had granted approval to the transfer 

is not properly constituted as per the


directions of the Apex court in the case of 

Prakash Singh and others Vs. Union of 

India and others (2006) 8 SCC 1 and, as 

such, there is no approval by the Board 

and the order of transfer stands vitiated. 

The only defect pointed out in the 

constitution of the Board is that the 

Director General of Police is not the 

Chairman of the Board as it is headed by 

the Inspector General of Police 

(Establishment). 

6. In reply to this argument, learned 

Standing Counsel has submitted that in 

the case of Prakash Singh (supra) the 

Apex Court has merely issued guidelines 

for the better administration of the Police 

Force and one of the guidelines provides 

for establishment of a Police 

Establishment Board in each State for the 

purpose of transfer, posting and 

promotion and other matters relating to 

the services of the officers of the Police 

Force. In pursuance of the guidelines so 

issued by the Supreme Court, the 

Principal Secretary, U.P. Government 

vide letter dated 12.3.2008 notified six 

different Boards for supervising transfer, 

posting, promotion and other service 

related matters of the police department 

depending upon the category of officers. 

The Board in respect to the officers of the 

Police Force of the rank of Sub-Inspector 

and below comprises of Inspector General 

of Police (Establishment), Deputy 

Inspector General of Police 

(Establishment), Superintendent of Police 

(Karmik) and Additional Superintendent 

of Police (Karmik) and Deputy 

Superintendent of Police (Karmik). The 

transfer of the petitioner has been 

approved by the aforesaid Board and, as 

such, there is no illegality. 

7. No doubt, the directions/guidelines 

issued by the Supreme Court in the case 

of Prakash Singh (supra) are mandatory 

in nature, being one issued in exercise of 

power under Article 142 of the 

Constitution of India, but to find out the 

true mandate of the said guidelines it is 

imperative to underline the object behind 

issuing the same. 

8. Police force is a disciplined force 

which comprises of persons who are not 

only specialised and skilled but are 

charged with the preservation of public 

order and tranquillity; promotion of 

public heath and safety; and with 

prevention, detection and investigation of 

crime. Such persons in uniform are 

distinguishable from common man so that 

a person in need may recognise and 

approach them easily for necessary 

assistance. Therefore, the duty of the 

police personnel is basically to serve the 

public and to maintain the rule of law. 

Their approach has to be service oriented. 

The commitment, devotion and 

responsibility of the police personnel has 

to be to the rule of law so that they serve 

the people impartially, irrespective of 

their status and position. The police force 

therefore, has to maintain professional 

independence free of interference and 

influence of the Government. 

9. Realising the importance of the 

police force in a democratic set up, the 

Government of India appointed a National 

Police Commission to comprehensively 

review the police administrative system 

so as to secure its professional 

independence and to provide a 

supervisory mechanism which may 

dispense with unhealthy interference, 

influences and pressure in the matter of 

frequent and indiscriminate transfer of


officers of the police force on political 

considerations. The Commission so 

appointed submitted various reports in 

phases and the ultimate recommendation 

was to the effect that the police force be 

granted professional independence to 

enable it to work impartially as an agent 

of law so that the rule of law does not 

become a causality and the offenders are 

brought to book without any outside 

pressure or influence. It was with this 

object; to frame a new Act for the police 

force as recommended by the National 

Police Commission; and to constitute 

various boards for the purposes of 

ensuring that the police performs their 

duties and functions free from any 

pressure with the aim to serve the law of 

the land and the people that guidelines 

were issued by the Supreme Court in the 

case of Prakash Singh (supra) till 

appropriate legislation in terms of the 

guidelines so issued is framed. One of the 

guidelines so issued provided for the 

creation of the Police Establishment 

Board in each State comprising of 

Director General of Police and four other 

senior officers of the department to decide 

about the transfer, promotion and posting 

and other service related matters police 

officers up to a particular rank. Thus, in 

pith and substance the idea behind the 

creation of Police Establishment Board is 

to avoid frequent and indiscriminate 

transfers of the police officers at the 

behest of the Government. The guidelines 

issued by the Apex Court though 

mandatory but cannot be interpreted like a 

statute and in case the guidelines are 

principally followed and implemented in 

the true tenor as per the ratio decendi of 

the Prakash Singh case (supra) there 

would be no error in the constitution of 

the Board. 

10. In view of the object behind 

issuing the guidelines in the case of 

Prakash Singh (supra) it is obvious that 

the purpose is to streamline the police 

administration and to make the police 

force more efficient, free from all outside 

pressure, particularly from the 

Government side. Thus, the constitution 

of the Board which includes senior 

officers of the Police Department having 

specialised knowledge of the police 

administration is sufficient compliance of 

the guidelines so issued by the Apex 

Court. The non-inclusion of the Director 

General of Police as its Chairman by itself 

would not make the constitution of the 

Board illegal as it is otherwise able to 

serve the purpose for which it has been 

established. 

11. Reliance has been placed upon a 

decision of a learned Single Judge of the 

Lucknow Bench of this Court in Civil 

Misc. Writ Petition No.1525 of 2009 

Sunder Singh Solanki Vs. State of U.P. 

and others decided on 4.9.2009 to the 

effect that the State or its instrumentality 

have not no right to avoid the directions 

issued by the Hon'ble Supreme Court. 

12. The aforesaid decision, in no 

way helps the petitioner, inasmuch as the 

guidelines/directions so issued by the 

Apex Court have not been flouted and 

rather have been carried out in its true 

character and nature. 

13. The Secretary, Government of 

Uttar Pradesh vide letter dated 12.8.2009 

has further provided that the decisions 

taken by the Board so established are 

ultimately to be further approved by the 

Director General of Police before passing 

of any order by the superior 

officer/authority concerned. This is to put


a further check on the exercise of any 

power in the matter of transfer, promotion 

and posting of the officers of the police 

force. 

14. In view of the aforesaid direction 

so issued providing for further approval of 

the Director General of Police the 

irregularity, if any, in the constitution of 

the Board stands cured and the transfer 

would not stand vitiated on account of 

non constitution of the Board strictly in 

accordance with the guidelines of the 

Supreme Court. It is not the case of the 

petitioner that the approval of the Director 

General of Police was not taken before 

affecting the transfer. In my opinion, 

therefore, there is no substance in the 

above argument. 

15. Besides the above, in the counter 

affidavit in paragraph 12 it has been 

stated that the Supreme Court itself has 

subsequently appointed a Committee 

under the Chairmanship of Hon'ble Mr. 

Justice K.T. Thomas, retired Justice of the 

Supreme Court to supervise the 

implementation of the guidelines laid 

down in the case of Prakash Singh 

(supra). The said Committee has not 

pointed out any defect in the 

implementation of the guidelines by the 

State of U.P. or in the constitution of the 

Police Establishment Boards in U.P. 

Thus, when the Apex Court itself is 

monitoring the implementation of the 

aforesaid guidelines through a Committee 

appointed for the purpose, the petitioner is 

no one to complain that the Board is not 

properly constituted by means of this 

petition and the proper forum, if any, for 

the petitioner to raise the issue either 

before the said Committee or to approach 

the Supreme Court itself. 

16. In the aforesaid facts and 

circumstances, in so far as the police 

Establishment Board that has granted 

approval to the transfer of the petitioner is 

concerned has subserved the object with 

which the guidelines were laid down by 

the Supreme Court, the approval so 

granted would not stand vitiated only for 

the reason that the Director General of 

Police has not been included as one of its 

members specially when the approval 

granted by the Police Establishment 

Board is further required to be approved 

by the Director General of Police. 

17. Thus, in effect the guidelines 

issued by the Supreme Court with regard 

to the creation of the Police Establishment 

Board have been followed and 

implemented by the State Government in 

pith and substance according to the true 

spirit. Any technical infraction in the 

implementation of the said guidelines 

cannot be a subject of consideration by 


18. The second argument from the 

side of the petitioner is that the transfer of 

the petitioner is in violation of the 

Government Policy dated 6.6.2009 as 

there is no approval of the Chief Minister. 

19. Learned Standing Counsel, to 

counter the said argument, has submitted 

that the transfer policy is not binding in 

nature and otherwise also the aforesaid 

transfer policy is not applicable to the 

Police Department. In this connection he 

has placed reliance upon Annexure CA - 

3 to the counter affidavit which is a 

Government Order issued by the Special 

Secretary, U.P. Government on 

15.10.2009 clarifying that the Police 

Department is free from the transfer


policy dated 6.6.2009 right from the 

inception of the policy. 

20. In one of the writ petition i.e. 

Civil Misc. Writ Petition No.51317 of 

2009 (Narendra Sharma Vs. State of U.P. 

and others) involving the officers of the 

police department I had earlier referred 

the matter with regard to the binding 

nature and enforceability of the said 

transfer police to a larger Bench vide 

order dated 12.10.2009 but as to whether 

the said transfer policy is applicable to the 

police department or not is another 

question which I am called upon to 

examine herein. 

21. The service conditions of the 

police officers, both gazetted and non 

gazetted are covered by the Police Act, 

1961 and the U.P. Police Regulations 

which are said to have been framed under 

the said Act. The aforesaid Act and the 

Regulations provide a complete 

mechanism for the transfer of the police 

personnel. Further, the said mechanism 

has been strengthen by the guidelines 

issued by the Supreme Court in the case 

of Prakash Singh (supra). The said 

guidelines read with the provisions of the 

aforesaid Act and Regulations completely 

occupy the field leaving no scope for the 

Government to supplement them by any 

Government Order, Circular or any policy 

decision. Therefore, any policy decision 

governing the matter of transfer of police 

officers would not override the statutory 

provisions and the guidelines of the 

Supreme Court which are quasi legislative 

and of mandatory nature. The said policy, 

as such is ex facie of a general nature and 

is applicable only to those departments 

where there are no service rules and the 

field is not occupied. If it is allowed to 

run parallel it would be in direct conflict 

with the Regulations and guidelines of the 

Supreme Court. Accordingly, the said 

policy which is of general nature cannot 

be applied to the police department. 

22. The above view taken by me 

also finds support by a decision of another 

Single Judge of this Court dated 

15.10.2009 passed in Civil Misc. Writ 

Petition No.51998 of 2009 Constable 289 

CP Tahsildar Singh and others Vs. State 

of U.P. and others where dealing with a 

similar controversy in relation to transfers 

involving officers of U.P. Police it was 

observed that the transfer of officers of 

the police force are governed by the U.P. 

Police Regulations framed under the 

Police Act of 1961 and it is well settled 

that executive instruction or order cannot 

prevail over the statutory provision and 

therefore, the Government Order dated 

6.6.2009 would be inoperative and 

inconsistent to the said Regulations. 

23. It is for this reason that the 

Government issued a clarification on 

15.10.2009 vide Annexure - 3 to the 

counter affidavit that the police 

department is not outside the preview of 

the transfer policy dated 6.6.2009. 

24. Next submission of the learned 

counsel for the petitioner is that the 

transfer of the petitioner is a colourable 

exercise of power, inasmuch the same has 

been made on caste basis. He has 

submitted that from the western districts 

of U.P., namely, Gautam Budh Nagar, 

Ghaziabad, Baghpat, Meerut, Muzaffar 

Nagar, Saharanpur only Constables 

belonging to Jat and Gurjar community 

alone have been picked up and transferred 

to other districts.


25. As far as the petitioner is 

concerned, he has been transferred from 

Gautam Budh Nagar to Mau. It has come 

on record that from the district Gautam 

Budh Nagar only six transfers have been 

made out of more than 2000 police 

officers of sub-ordinate rank posted in the 

district. Thus, the number of officers 

transferred out of the district is negligible 

and on its basis it cannot be even 

imagined that any discrimination in the 

matter of transfer has been practised on 

the basis of caste. 

26. In the first supplementary 

affidavit a completely vague averment has 

been made that from the Meerut Zone 

about 400 Police Officers have been 

transferred in September, 2009 and 

approximately all of them belong to a 

particular community. In the second 

supplementary affidavit, it has been stated 

that approximately 250 Police Officers of 

a particular community are transferred 

from Meerut Zone in September, 2009. 

These two averments are contradictory to 

each other and cannot be reconciled. 

Further, as per the averments made in the 

second supplementary affidavit, the total 

number of police officers posted in a 

particular district and the number of 

police officers transferred is as under: 

District 

Total number 

of Police 

Officers 

Number of 

Police Officers 

of a particular 

community 

Number of 

transferred 

Police Officers 

of particular 

community 

Meerut 1500 22% i.e. 330 65 

Saharanpur 1275 20% i.e. 255 60 

Baghpt 360 32% i.e. 115 24 

27. The number of officers so 

transferred appears to be quite 

insignificant looking to the number of 

officers posted in each district. 

28. The learned Standing Counsel in 

this regard rightly submits that the process 

of transfer is not complete and the 

possibility of transfer of others officers 

which may include those of other 

community cannot be ruled out. In such a 

situation, in the absence of a clear cut 

averment as to why the department, rather 

the high level committee i.e. Police 

Establishment Board, would choose and 

transfer the police personnels of a 

particular community alone, the 

contention that the transfers are in 

colourable exercise of power is general in 

nature and too remote to be accepted. 

29. Apart from the above, Police 

Force is a disciplined force established for 

the purpose of maintaining law and order 

and for investigation of crimes. Therefore, 

in order to maintain strict discipline, 

sometimes whole sole transfers are 

necessary in administrative exigencies. It 

is a common phenomena that in such 

circumstances a whole Battalion or a 

Brigade or a Regiment is transferred, 

which may include generally 

Constables/Sepoys of a particular caste. In 

Army particularly there are specific 

Regiments for Jats, Gorakhas and Sikhs 

etc. Thus, where the Regiment as a whole 

is transferred it would result in the 

transfer of persons of particular 

community alone but such a transfer 

cannot be faulted on account of 

arbitrariness or discrimination. 

Muzaffar 

Nagar 

1250 25% i.e. 312 59 

30. Sri Vijay Gautam, learned 

counsel for the petitioner has placed 

reliance upon a decision reported in

3 All] Naik R.K. Mahapatra V. Chief of Army Staff and others 1017 

2003(1) UPLBEC 636 Bishan Pal Malik 

and others Vs. State of U.P. and others 

in support of the contention that the 

transfer on caste basis is a colourable 

exercise of power. In the aforesaid case, 

though the transfers were said to have 

been made in administrative exigencies, 

the Court found that the purpose was 

actually to flush out the officers belong to 

a particular caste due to out come of an 

action which involved the father of the 

Chief Minister. However, in the present 

case no such incident has been placed on 

record on the basis of which it can be 

imagined that the transfer of the police 

officers of a particular community is 

tainted with ulterior motive. 

31. In the last, a faint submission has 

been made that the impugned order of 

transfer of the petitioner is punitive in 

nature as is apparent from paragraph 5 of 

the counter affidavit. 

32. A perusal of the aforesaid 

paragraph reveals that the petitioner had 

remained posted for 25 years in the 

adjoining districts of Bulandshahr and 

Ghaziabad. He was involved in case 

crime no.983 of 2008 u/s 379 IPC 

pertaining to demand of illegal 

gratification in respect whereof an 

enquiry was conducted and a censure 

entry was awarded to the petitioner. It is 

in view of above circumstances and the 

conduct of the petitioner that a 

recommendation for his transfer was 

made, which on being approved by the 

Board has been implemented. Neither the 

impugned order of transfer nor the above 

paragraph 5 of the counter affidavit is 

stigmatic or punitive in nature. It only 

narrates the basis of award of censure 

entry to the petitioner which may have 

formed one of the grounds for his transfer. 

Obviously, transfers have to be made on 

consideration of certain aspects and the 

past record of the petitioner as such 

becomes an essential aspect within the 

domain of administrative exigency. 

Therefore, even if such an entry has 

formed a part of decision making process 

it can not be said to be objectionable. It is 

a well recognised principle of law that the 

legality of the order has to be judged 

independently only on the basis of the 

reasons mentioned in the order itself and 

more reasons can not be supplemented by 

material other than the order itself. 

33. In view of the above discussion, 

I am not inclined to exercise my extra 

ordinary discretionary jurisdiction under 

Article 226 of the Constitution so as to 

interfere with the impugned order of 

transfer. There is no merit in the petition 

and it is accordingly dismissed with no 

order as to costs. Petitioner is permitted to 

join at the transferred place within a 

week. 

--------- 


CIVIL SIDE 


BEFORE 

THE HON’BLE SHISHIR KUMAR, J. 


No.63829833 Naik R.K. Mahapatra 

…Petitioner 

Versus 

Chief of Army Staff and others 



Sri Colonel Ashok Kumar 

Sri Rohit Kumar 


Sri K.C. Sinha, A.S.G.I.


S.S.C. 

December,1999. Various other facts 

stated in the writ petition are not 

Defence Service Regulation (Regulation necessary to be mentioned herein. It has 

for Army) 1987-Para 164-Discharge from been stated that during leave period, 

Service-on charges of overstaying on 

petitioner was called back and due to 

leave-held-valid can not be interfered by 

Writ Court. 

aforesaid fact, annual leave of petitioner 

for the year 1999 has been elapsed. A 


show cause notice was issued to petitioner 

submitting reply and subsequently a show 

The Apex Court has further held that in cause notice was also issued directing 

the said circumstances discharge from 

petitioner to submit reply to said show 

service cannot be said to be by way of 

punishment. In Sugreev Singh's case cause notice. Petitioner has submitted 

(Supra), the Division Bench has also reply and an order of discharge from 

taken the same view. 

service was passed on the ground that 

petitioner was awarded four red ink 

After considering all facts and entries during his 13 years of service and 

circumstances of the present case and 

petitioner was send on leave for 64 days 

decisions of this Court as well as the 

Apex Court, I am of view that discharge but without any permission for extension 

of petitioner from service cannot be said of leave, he has overstayed, which is an 

to be illegal or disproportionate. 

offence under the Army Act but 


respondent without adopting any 

W.P. No. 10816 of 2000, W.P.No. 3201 of procedure as provided under the Act, an 

1994 decided on 2.2.2005, 1990 ACJ, 597, 

administrative action has been taken 

2002 (2) ESC (Allahabad), 207, 2008 (2) 

Supreme Court, 302, 2005 (2) ESC, 892. 

under the Army Rule 13(3)(4) of the 

Army Rules. The ground taken in the 

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

discharge certificate was that as petitioner 

has earlier been punished under Sections 

1. This writ petition has been filed 

40, 39, 63 of the Army Act, for various 

for quashing the order of discharge dated 

offences, therefore, he is being discharge 

25th May, 2000 (Annexure 10 to the writ 

from service being undesirable as 

petition) as well as the order dated 31st 

inefficient solider. Petitioner filed a 

May, 2005 (Annexure 17 to writ petition). 

complaint as provided under the Act that 

Further prayer in the nature of mandamus 

too has been dismissed. Hence, the 

commanding the respondent No.1 to treat 

present writ petition. 

petitioner to have continued in Colour 

Service till he would have completed 

3. Counter and rejoinder affidavits 

requisite service laid down in Para 164 of 

have already been exchanged, therefore, 

Defence Service Regulation (Regulations 

with the consent of parties, present writ 

for Army), 1987 with all consequential 

petition is being disposed of on the 

benefits. 

admission stage. 

2. The facts stated in the writ 

4. Learned counsel for petitioner 

petition are that petitioner who was 

submits that the ground taken by 

recruited in army was granted annual 

respondents while discharging petitioner 

leave from 12 th September, 1999 upto 28 th from service cannot be sustained in view


of the fact that if petitioner has committed 

some offence, he is liable for trial by the 

Court Martial. Court Martial being a 

procedure for punishment under the Act is 

to be adopted. Under Section 108 of the 

Army Act, there are four types of Court 

Martial by which petitioner can be tried. 

In case in the opinion of respondents, 

petitioner has committed any offence or 

overstayed on leave without sanction of 

the same, unless and until an opportunity 

to that effect is given, petitioner cannot be 

discharged from service. Under the Army 

Act and Rules, there is a procedure that, 

in case, some offence is committed by a 

person subject to the Army Act, a court of 

enquiry as provided under Rule 177 has to 

be ordered by the competent authority and 

in case it is found that prima-facie case is 

made out, then the commanding officer 

will pass an order for holding a Court 

Martial either summary, general or 

district. But taking action under Rule 13, 

without affording an opportunity to 

petitioner is not sustainable in law and is 

liable to be quashed. 

5. Assuming without admitting this 

fact, if petitioner was punished earlier on 

some offence that cannot be a ground for 

discharge of petitioner from army service. 

Petitioner has placed reliance upon a 

judgement of this Court in C.M.W.P. No. 

10816 of 2000 No.5042301A, L.B.Thapa 

Vs. Chief of Army Staff and others. 

Another judgement has been relied upon 

by petitioner in C.M.W.P.No. 3201 of 

1994 Shambu Gurung Vs. Union of 

India and others decided on 2.2.2005. 

Further reliance has been placed upon 

1990 ACJ, 597, Chaukas Ram Vs. Sub 

Area Commander and Another. Taking 

support of the aforesaid judgements, 

learned counsel for petitioner submits 

that, in case, no notice against 

contemplated discharge having been 

given to petitioner, it will be treated that 

order impugned of discharge has been 

passed in violation of the procedure laid 

down by Rule 13 and also against the 

principle of natural justice. Further 

argument has been raised that unless and 

until submission is recorded that trial of 

petitioner by Court Martial is inexpedient 

or impracticable against Rule 13, cannot 

be taken. In such situation, learned 

counsel for petitioner submits that 

discharge order passed by respondents is 

liable to be set aside. 

6. On the other hand, learned 

counsel for respondents submits that 

petitioner was NCO Incharge, Kerbside 

Petrol Pump and was posted to 45 

Company ASC (Supply) Type-B on 

3.9.1998. Petitioner had four red-ink 

entries from his previous units under 

various sections of the Army Act, 

awarded by different Commanding 

Officer under whom he was working. 

Petitioner requested for annual leave for 

the year 1999 in the month of December, 

1999. His leave was sanctioned and he 

was issued a railway warrant for both 

ways in advance as per the existing rules. 

Petitioner before proceeding on leave has 

to handover the charge but petitioner 

became absent without leave with effect 

from 29.12.1999 without handing over the 

charge of the petrol pump. An 

apprehension roll was issued as he left the 

unit without any proper order and 

permission. Petitioner reported on 

4.1.2000. Thereafter petitioner was sent 

on 34 days part of annual leave for the 

year 2000 on compassionate ground. His 

leave was extended by 30 days till 12th 

March, 2000. After re-joining on leave, 

petitioner was awarded "Severe 

Reprimand" for being absent without


leave with effect from 29.12.1999 to 

3.1.2000. This was his 5th red ink entry. 

Then a show cause notice was issued to 

petitioner on 17.1.2000 to discharge on 

account of four red ink entries being an 

undesirable/ inefficient person. Petitioner 

submitted a reply and same was 

considered and statutory complaint filed 

by petitioner has also been dismissed. 

7. It has further been submitted on 

behalf of respondents that army 

authorities in view of provisions had an 

option to try a person either by a Court 

Martial or to take an administrative action 

as provided under Rule 13 of the Army 

Rules. Further Section 20 of the Act gives 

power to Army authority to dismiss or 

remove any person subject to the act other 

than officer. The procedure has been 

prescribed that he can be dismissed from 

service on the basis of show cause notice 

and then he will have a remedy under 

Section 26 of the Army Act. The 

procedure for discharge has been 

provided under Rule 13 of the Rules. 

Reliance has been placed upon a 

judgement of this Court reported in 2002 

(2) ESC (Allahabad), 207 Sugreev Singh 

Desuriya Vs. The Central Government 

(H.C.). Placing reliance upon aforesaid 

judgement, learned counsel for 

respondent submits that this Court while 

considering similar provision which is 

under the Air Force Act and Rules has 

held that if a non-commissioned officer 

was discharged from service on the 

ground of service no longer required and 

unsuitable retention for Air Force on the 

ground of red and black ink entries in his 

conduct book, this Court has held that, in 

such circumstances, it cannot be said that 

procedure prescribed and adopted by 

respondents is faulted. The Court has 

further held that respondents have 

followed the procedure of giving warning 

and also issuing a show cause notice after 

he again incorporated red-ink entry in the 

conduct book and after considering the 

explanation has discharged him from 

service, it cannot be said to be contrary to 

the policy of discharge of habitual 

offender. The submission of petitioner 

regarding policy as ultra-virus was also 

not accepted. Further reliance has been 

placed on a Apex Court judgement 

reported in Judgement Today, 2008 (2) 

Supreme Court, 302 Union of India and 

others Vs. Rajesh Vyas. Relevant para 

10 is being reproduced below:- 

"10. As noted above, policy for 

discharge of habitual offender was 

considered by this Court in A.K.Bakshi's 

case (supra).After analyzing the policy, it 

was observed that the whole idea 

underlying the policy was to weed out the 

indisciplined personnel from the force. It 

was further observed that it was a 

discharge simplicitor and as such it 

cannot be held as termination of service 

by way of punishment for misconduct." 

8. Learned counsel for respondents 

has also placed reliance upon a judgement 

of this Court reported in 2005 (2) ESC, 

892 Ali Jabed Vs. Union of India and 

others. Placing reliance upon aforesaid 

judgement, learned counsel for 

respondents submits that this Court in 

similar circumstances taking into 

consideration the previous four red entries 

has held that discharge of a person cannot 

be said to be by way of punishment and 

has held that policy of discharging of 

habitual offender cannot be said to be 

ultra-virus and if a person has been 

awarded red-ink entries, punishment 

cannot be said to be illegal. Further it has 

been held by this Court that the person


concerned has given adequate opportunity 

of placing his defence in accordance with 

rules and procedure provided, therefore, it 

cannot be held that punishment awarded 

is not correct and proper. 

9. I have considered the submissions 

made on behalf of parties. From the 

record, it is clear that earlier petitioner has 

been awarded four red ink entries under 

various sections of the Army Act and he 

was punished for the same and it was 

incorporated in his service record. 

(a) Army Act Section 40 (C) on 16 Oct 

8914 days RI, by Lt.Col N.C.Dutta 

(b) Army Act Section 39 (d) on 30 Mar 

96- severe Reprimand by Lt.Col Surjit 

Singh. 

(c) Army Act Section 63 on 16 Sep 96- 

Severe Reprimand by Col Kamal Mohey. 

(d) Army Act Section 63 on 02 Apr 96- 

Severe Reprimand by Col JS Dhillon. 

(e) Army Act Section 30 (a) on 18 Mar 

2000- Severe Reprimand by Major J.S. 

Shekhawat. 

10. Lastly, petitioner was awarded 

Severe Reprimand under Section 39(A) 

on 18th March, 2000. The argument 

raised on behalf of petitioner to this effect 

that if some punishment is to be awarded 

to petitioner, there was no occasion for 

initiating an administrative action against 

petitioner Under Rule 13 (3)(iv) of the 

Army Rules. It was incumbent on the part 

of respondents to have an enquiry to hold 

a trial for the purposes of initiations 

action against petitioner. Rule 13 gives 

the power to the Sub Area Commander 

ordering discharge in the circumstances of 

the case permit to give the person whose 

discharge is contemplated, an opportunity 

to show cause against the contemplated 

discharge is to be given. From the perusal 

of aforesaid rule, it is clear that power has 

been conferred to army authorities to take 

administrative action against a person 

who is serving in the army. From the 

record it is clear that petitioner was 

habitual offender and earlier he was 

punished four times under various section 

of the army. The contention regarding that 

no administrative action should have been 

taken against petitioner as no Court 

Martial has been held, therefore, 

punishment is bad in law and cannot be 

accepted in view of provision of Section 

125 of the Act. It is the army authority to 

choose the forum. Under the Army Act, 

there are two modes of punishment which 

can be awarded to a army person, one by 

a Court Martial and another is 

administrative action provided under 

Army Act and procedure provided under 

Rule 13 of the Rules. The decision citied 

by learned counsel for petitioner is not 

applicable to the present case as in 

Chaukas Ram's Case (Supra), it was not a 

case of red-ink entry. In the aforesaid 

case, petitioner was involved in a crime 

and has concealed the said fact. The other 

two cases relied upon by learned counsel 

for petitioners relates to the decision of 

the statutory complaint. This Court in that 

circumstances has directed the army 

authorities to pass appropriate orders to 

decide the statutory complaint. The 

submission of the learned counsel for 

petitioner to this effect that punishment 

awarded to petitioner is very harsh. In my 

opinion, case in hand is a case of military 

personnel and discipline in the military 

service has to be maintained for the 

purposes and security of the country. In 

the case of Vidya Prakash Vs. Union of 

India reported in AIR 1988 Supreme 

Court, 705, question raised before the 

Apex Court was in order to withdrawing 

red-ink entries and if a person is absent


without leave, whether the punishment of 

dismissal is disproportionate or not. The 

Apex Court has held that if a person is 

punished for an offence of absent from 

duty on four occasions and red ink entry 

has been awarded, punishment awarded 

by the Court Martial for dismissal from 

service cannot be said to be 

disproportionate to the charges levelled 

against the person concerned. In AIR 

1996 Supreme Court, 1368, Union of 

India and others Vs. A.K.Bakshi, while 

considering similar provision of Air 

Force, which is in the Army Act, it has 

been held by the Apex Court that policy 

of discharge of habitual offender as 

prescribed in the policy discharging a 

person in accordance with law with the 

procedure laid down does not amount to 

removal by way of punishment. It is a 

discharge under the Rules. Similar policy 

for removal for undesirable and 

inefficient solders have been framed by 

the Army Authorities dated 28th 

December, 1988. The relevant part is 

being quoted below:- 

"JCOs, Wos and OR who have 

proved inefficient: 

3.(a) Before recommending or 

sanctioning discharge, the following 

points must be considered- 

(i) if lack of training is the cause of his 

inefficiency, arrangements will be 

made for his further training, 

(ii) if an individual has become 

unsuitable in his arm/service through 

no fault of his own, he will be 

recommended for suitable extraregimental 

employment. 

(b) Should it be decided to transfer a 

JCO, he may be transferred in his 

acting/substantive rank according to the 

merits of the case and will not be 

recommended for further promotion and / 

or increment of pay until he proves his 

fitness for promotion and / or increment 

of pay in his new unit. 

(c) Prior to transfer, if such a course is 

warranted on the merits of the case, a WO 

or an NCO may be reduced to one rank 

lower than his substantive rank under 

Army Act Section 20(4). 

Procedure for Dismissal/ Discharge of 

undesirable JCOs/WOs/OR 

4. AR 13 and 17 provide that a 

JCO/WO/OR whose dismissal or 

discharge is contemplated will be given a 

show cause notice. As an exception to 

this, services of such a person may be 

terminated without giving him a show 

cause notice provided the competent 

authority is satisfied that it is not 

expedient or reasonable practice to serve 

such a notice. Such cases should be rare, 

e.g., where the interests of the security of 

the State so require. Where the serving of 

a show cause notice is dispensed with, the 

reason for doing so are required to be 

recorded. See provision to AR 17. 

5. Subject to the foregoing, the procedure 

to be followed for dismissal or discharge 

of a person under AR 13 or AR17, as the 

case may be, is set out below- 

(a) Preliminary Enquiry. 

Before recommending discharge or 

dismissal of an individual the authority 

concerned will ensure- 

(i) that an impartial enquiry (not 

necessarily a Court of Inquiry) has been 

made into the allegations against him and 

that he has adequate opportunity of


putting up his defence or explanation and 

of adducing evidence in his defence. 

(ii) that the allegations have been 

substantiated and that the extreme step of 

termination of the individual's service is 

warranted on the merits of the case. 

(b) Forwarding of Recommendations. 

The recommendation for dismissal or 

discharge will be forwarded through 

normal channels, to the authority 

competent to authorise the dismissal or 

discharge, as the case may be, along with 

a copy of the proceedings of the enquiry 

referred to in (a) above. 

(c) Action by Intermediate Authorities. 

Intermediate authorities through 

whom the recommendations pass will 

consider the case in the light of what is 

stated in (a) above and make their own 

recommendations as to the disposal of the 

case. 

(d) Action by Competent Authority. 

The authority competent to authorise 

the dismissal or discharge of the 

individual will consider the case in the 

light of what is stated in (a) above. If he is 

satisfied that the termination of the 

individual's service is wait ranted he 

should direct that show cause notice be 

issued to the individual in accordance 

with AR 13 or AR 17 as the case may be. 

No lower authority will direct the issue of 

a show cause notice. The show cause 

notice should cover the full particulars of 

the cause of action against the individual. 

The allegations must be specific and 

supported by sufficient details to enable 

the individual to clearly understand and 

reply to them. A copy of the proceedings 

or the enquiry held in the case will also 

be supplied to the individual and he will 

be afforded reasonable time to state in 

writing any reasons he may have to urge 

against the proposed dismissal or 

discharge. 

(e) Action on receipt of the reply to the 

show cause notice. 

The individual's reply to the show 

cause notice will be forwarded through 

normal channels to the authority 

competent to authorise his 

dismissal/discharge together with a copy 

of each of the show cause notice and the 

proceedings of the enquiry held in the 

case and recommendations of each 

forwarding authority as to the disposal of 

the case. 

(f) Final Orders by the Competent 

Authority. 

The authority competent to sanction 

the dismissal/discharge of the individual 

will before passing orders reconsider the 

case in the light of the individual's reply 

to the show cause notice. A person who 

has been served with a show cause notice 

for proposed dismissal may be ordered to 

be discharged if it is considered that 

discharge would meet the requirements of 

the case. If the competent authority 

considers that termination of the 

individuals service is not warranted but 

any of the actions referred to in (b) to (j) 

of para 2 above would meet the 

requirements of the case, he may pass 

orders accordingly. On the other hand, if 

the competent authority accepts the reply 

of the individual to the show cause notices 

entirely satisfactory, he will pass orders 

accordingly."


11. The Apex Court has further held 

that in the said circumstances discharge 

from service cannot be said to be by way 

of punishment. In Sugreev Singh's case 

(Supra), the Division Bench has also 

taken the same view. 

12. After considering all facts and 

circumstances of the present case and 

decisions of this Court as well as the 

Apex Court, I am of view that discharge 

of petitioner from service cannot be said 

to be illegal or disproportionate. 

13. In view of aforesaid fact, the 

writ petition is devoid of merits and is 

hereby dismissed. 

No order is passed as to costs. 

--------- 


CIVIL SIDE 


BEFORE 



Jafar Khan 

Versus 



Sri Rohit Upadhyay 


Sri K.K. Chand 

Sri Rajesh Kumar Yadav 

C.S.C. 

…Petitioner 


Group-D Employees Service-Rule-1985- 

Cancellation of appointment of class 4 th 

employee- working government Girls 

Inter College- Principle is the only 

competent authority of order impugned 

passed by Secretary- without Notice 

opportunity without application of mind 

held illegal principle of Natural justice 

violated cannot sustain. 


In view of the aforesaid and the 

undisputed position with regard to 

applicability of the rules, the competent 

authority being the Principal, the order 

of cancellation, termination or otherwise 

could have only been passed by the 

Principal of the institution. The State 

Government does not have any power 

either defined under the aforesaid Rules, 

1985 or even as a residuary power to 

determine status of employment of a 

Class-IV employee of a Government Girls 

Degree College. 

In view of this, the directions issued by 

the State Government and the direction 

issued by the Director of Education at 

the best can be administrative 

recommendations. The proceedings are 

to be initiated by the Competent 

Authority. Keeping in view Rule 31 

referred to herein above if the 

appointment of the petitioner was illegal 

or invalid, the cancellation has to be 

initiated by the Principal of the 

Institution and it is the Principal who has 

to issue a notice to the petitioner and to 

cancel his appointment. It is admitted in 

the counter affidavit that the impugned 

orders have emanated without there 

being any notice or opportunity to the 

petitioner and the Principal has, as a 

matter of fact surrendered his 

jurisdiction in favour of State 

Government as well as Director of 

Education. This in the opinion of the 

Court is impermissible under law. 


1. Heard Sri Bheem Singh, learned 

counsel for the petitioner, learned 

standing counsel and Sri K.K. Chand, 

learned counsel for respondents No. 1, 2 

and 3 and perused the counter affidavit 

filed on behalf of the State.

3 All] Jafar Khan V. State of U.P. and others 1025 

2. Sri R.K. Yadav, Advocate for 

caveator has also been heard under 

Chapter 22, Rule 5(A) of the Allahabad 

High Court, Rules. 

3. The petitioner has come up 

against the order dated 27th September, 

2007 and 19th October, 2007 whereby the 

appointment of the petitioner as Class IV 

employee in a Government Girls Degree 

College has been cancelled on the ground 

that the selections held were invalid. 

4. The impugned order also recites 

that the petitioner had not filed his 

certificate with regard to low-vision 

before the Competent Authority and in 

spite of that he was selected. 

5. The contention raised on behalf of 

the petitioner is that the impugned order 

dated 27th September, 2007 has been 

passed by the Principal Secretary 

Government of U.P. who is not the 

Competent Authority to pass any such 

order and further the Director of 

Education had no authority to issue an 

order to the Principal of the Institution to 

cancel the appointment of the petitioner. 

It is urged that the said orders are without 

jurisdiction and consequently both the 

orders have been passed without giving 

any notice or opportunity to the petitioner 

and, therefore, it is in violation of the 

principles of natural justice. The 

averments to that effect have been made 

in paragraph 19 and 26 of the writ 

petition. The petitioner has also tried to 

justify the certificate issued to him by a 

medical practitioner and has urged that, 

had the petitioner been given an 

opportunity, he would have been 

demonstrated that he was fully qualified 

and eligible. 

6. Lastly, it has been submitted by 

Sri Bheem Singh, that the impugned order 

has been passed at the behest of a member 

of the Legislative Assembly and, 

therefore, the impugned orders are 

vitiated on the ground of malice as well. 

7. A counter affidavit has been filed 

on behalf of the State as well as also on 

behalf of the Caveator who is seeking 

impleadment. From the perusal of the 

counter affidavit filed on behalf of the 

State indicates that the stand taken is that 

since the State Government controls all 

Government Institutions, therefore, the 

Principal of a Degree College is also 

under the control of Government and 

there is no illegality in the issuance of the 

directions either by the Principal 

Secretary or by the Director of Education. 

8. So far as opportunity is 

concerned, it has been stated in paragraph 

16 of the counter affidavit that since the 

selections were invalid and illegal, 

therefore, there was no necessity of giving 

opportunity of hearing to the petitioner. 

9. A rejoinder affidavit has also been 

filed to the said counter affidavit denying 

the aforesaid allegations. 

10. Learned counsel for the 

proposed respondent has also adopted the 

same argument and urged that petitioner 

has obtained the appointment illegally and 

since his appointment is illegal the 

direction issued by the State to cancel the 

appointment of the petitioner does not 

suffer from any infirmity. 

11. It remains undisputed between 

the parties that the appointment of a 


Degree College has to be made by the


Principal of the Institution. The 

Competent Appointing Authority has 

been defined in Group-D Employees 

Service Rules, 1985 and thereafter the 

said rules for other matters, makes 

provision under Rules 31, that for such 

matters which are not specifically covered 

under the rules, the rules pertaining to 

government servants shall apply. 

12. In view of the aforesaid and the 

undisputed position with regard to 

applicability of the rules, the competent 

authority being the Principal, the order of 

cancellation, termination or otherwise 

could have only been passed by the 

Principal of the institution. The State 

Government does not have any power 

either defined under the aforesaid Rules, 

1985 or even as a residuary power to 

determine status of employment of a 


Degree College. 

13. In view of this, the directions 

issued by the State Government and the 

direction issued by the Director of 

Education at the best can be 

administrative recommendations. The 

proceedings are to be initiated by the 

Competent Authority. Keeping in view 

Rule 31 referred to herein above if the 

appointment of the petitioner was illegal 

or invalid, the cancellation has to be 

initiated by the Principal of the Institution 

and it is the Principal who has to issue a 

notice to the petitioner and to cancel his 

appointment. It is admitted in the counter 

affidavit that the impugned orders have 

emanated without there being any notice 

or opportunity to the petitioner and the 

Principal has, as a matter of fact 

surrendered his jurisdiction in favour of 

State Government as well as Director of 

Education. This in the opinion of the 

Court is impermissible under law. 

14. Accordingly, the orders 

impugned are unsustainable and the same 

are quashed. The impugned orders dated 

27th September, 2007 and 19th October, 

2007 are set aside with the direction to the 

respondent No. 3 to offer an opportunity 

to the petitioner and thereafter proceed to 

pass an appropriate order in accordance 

with law as expeditiously as possible 

preferably within a period of three months 

from the date of production of certified 

copy of this order before him. 

15. It is made clear that the payment 

of salary shall be subject to any order 

being passed by the Principal. 

16. With the aforesaid direction, the 

writ petition stands allowed. 

No order is passed as to costs. 

--------- 


CIVIL SIDE 


BEFORE 

THE HON’BLE SATYA POOT MEHROTRA, J. 


First Appeal From Order No. 2935 of 2009 

New India Assurance Company Ltd. 

…Defendant/Appellant 

Versus 

Mohd. Yameen & another …Respondents 

Counsel for the Appellant: 

Sri Dhananjay Awasthi 


Motor Vehicle Act, 1988-Section 149- 

Third party insurance-duty of insever to 

satisfy the award-Tribunal directed the

3 All] New India Assurance Co. Ltd. V. Mohd. Yameen and others 1027 

insurance Company to pay the entire 

amount of award-recover the same from 

vehicle owner-held perfectly justifiedappeal 

by insurance company dismissed. 

Held: Para 19 

In view of the above, it is evident that 

the Tribunal did not commit any illegality 

in directing the Insurance Company/ 

Appellant to make deposit of the amount 

of compensation and recover the same 

from the insured person i.e. the owner of 

the vehicle in question - respondent no.3 

herein. 


AIR 1998 SC 588, 2004(3) SCC 297 : 2004 (1) 

T.A.C. 321 : AIR 2004 SC 1531, 2008(1) T.A.C. 

803 (S.C.), (2007) 3 S.C.C. 700 : 2007 (2) 

T.A.C. 398, (2007) 5 S.C.C. 428: 2007 (2) 

T.A.C. 417. 

(Delivered by Hon'ble Satya Poot Mehrotra, J.) 

1. The present Appeal has been filed 

by the Insurance Company under Section 

173 of the Motor Vehicles Act, 1988 

against the award dated 22.5.2009 

whereby Rs. 1,69,940/- with interest @ 

6% per annum has been awarded as 

compensation to the claimantsrespondents 

on account of the death of 

Wasim in an accident which took place on 

23.4.2005 at around 4.00 a.m. in the 

morning wherein Canter No. UP23B- 

2043 collided with a Truck. 

2. The Motor Vehicles Accident 

Claims Tribunal framed five issues. 

3. Issue No.1 was in regard to the 

factum of accident having taken place on 

account of rash and negligent driving by 

the driver of the aforesaid vehicle, 

namely, Canter No. UP23B-2043. The 

Tribunal decided the said Issue in the 

affirmative. 

4. Issue No.2 was as to whether the 

vehicle in question was insured with the 

Insurance Company/ Appellant and as to 

whether the driver of the vehicle was 

having a valid and effective Driving 

License on the date of accident. The 

Tribunal held that the vehicle in question 

was insured with the Insurance Company/ 

Appellant on the date of the accident. 

However, it was held that the driver of the 

vehicle in question was not having valid 

and effective Driving License on the date 

of accident. 

5. Issue No. 3 was as to whether the 

Claim Petition was bad for non-joinder of 

necessary parties. The said Issue was 

decided against the opposite parties in the 

Claim Petition. 


deceased was travelling in the vehicle in 

question as gratituous passenger in an 

unauthorized manner which was violative 

of the terms and conditions of the 

insurance policy. The Tribunal decided 

the said Issue in the affirmative in favour 

of the Insurance Company/ Appellant. It 

was held that the vehicle in question was 

being used for commercial purposes, and 

the same was against the terms and 

conditions of the insurance policy. 


claimants-respondents were entitled to get 

compensation as against the opposite 

parties in the Claim Petition jointly or 

separately. It was held by the Tribunal 

that the claimants/ respondents were 

entitled for compensation amounting to 

Rs.1,69,940/- with interest @ 6%. 

However, the compensation was not 

payable by the Insurance Company/ 

Appellant but was payable by Mahmood 

Hasan, owner of the vehicle in questionrespondent 

no.3 herein.


8. The Insurance Company/ 

Appellant has filed the present Appeal 

impugning the aforesaid award. 

9. We have heard Shri Dhananjay 

Awasthi, learned counsel appearing for 

the Insurance Company/ Appellant, and 

perused the record. 

10. The impugned award has, 

interalia, directed that even though the 

amount of compensation is not payable by 

the Insurance Company/ Appellant, the 

Insurance Company/Appellant would 

deposit the amount within 60 days of the 

award, and the Insurance Company/ 

Appellant would be entitled to recover the 

same from the owner of the vehicle in 

question, i.e., respondent no.3 herein. 

11. It is submitted by Shri 

Dhananjay Awasthi, learned counsel 

appearing for the Insurance 

Company/Appellant that having decided 

Issue Nos. 2 and 4 in favour of the 

Insurance Company/ Appellant, the 

Tribunal erred in directing the Insurance 

Company/ Appellant to deposit the 

amount of compensation and recover the 

same from the owner of the vehicle in 

question, i.e., respondent no.3 herein. 

We have considered the submissions 

made by Shri Dhananjay Awasthi, and we 

find ourselves unable to accept the same. 

Sub-section (5) of Section 147 of the 

Motor Vehicles Act, 1988 lays down as 

under: 

"147. Requirements of policies and 

limits of liability .- (1) to (4)................. 

(5) Notwithstanding anything contained in 

any law for the time being in force, an 

insurer issuing a policy of insurance 

under this section shall be liable to 

indemnify the person or classes of persons 

specified in the policy in respect of any 

liability which the policy purports to 

cover in the case of that person or those 

classes of persons." 

The above provision, thus, provides 

that an insurer issuing a policy of 

insurance under Section 147 of the Motor 

Vehicles Act, 1988 shall be liable to 

indemnify the person or classes of persons 

specified in the policy in respect of any 

liability which the policy purports to 

cover in the case of that person or those 

classes of persons. 

Section 149 of the Motor Vehicles 

Act, 1988, in so far as is relevant, 

provides as follows: 

"149. Duty of insurers to satisfy 

judgments and awards against persons 

insured in respect of third party risks.-(1) 

If, after a certificate of insurance has 

been issued under sub-section (3) of 

Section 147 in favour of the person by 

whom a policy has been effected, 

judgment or award in respect of any such 

liability as is required to be covered by a 

policy under clause (b) of sub-section (1) 

of Section 147 (being a liability covered 

by the terms of the policy) [or under the 

provisions of Section 163-A] is obtained 

against any person insured by the policy, 

then, notwithstanding that the insurer may 

be entitled to avoid or cancel or may have 

avoided or cancelled the policy, the 

insurer shall, subject to the provisions of 

this section, pay to the person entitled to 

the benefit of the decree any sum not 

exceeding the sum assured payable 

thereunder, as if he were the judgmentdebtor, 

in respect of the liability, together 

with any amount payable in respect of


costs and any sum payable in respect of 

interest on that sum by virtue of any 

enactment relating to interest on 

judgments. 

(2) to (7)................." 

The above-quoted provision shows 

that in case any judgment or award in 

respect of the liability as is required to be 

covered by a policy under clause (b) of 

sub-section (1) of Section 147 (being a 

liability covered by the terms of the 

policy) or under the provisions of Section 

163-A is obtained against any person 

insured by the policy, then the insurer 

shall pay to the person entitled to the 

benefit of the decree any sum not 

exceeding the sum assured payable 

thereunder, as if he were the judgmentdebtor, 

in respect of the liability, together 

with the amount of costs and interest. This 

will be so even though the insurer may be 

entitled to avoid or cancel or may have 

avoided or cancelled the policy. 

In view of the aforesaid provisions, 

we are of the view that the direction given 

by the Tribunal directing the Insurance 

Company/ Appellant to make deposit of 

the amount of compensation and recover 

the same from the insured person i.e. the 

owner of the vehicle in question - 

respondent no.3 herein, does not suffer 

from any infirmity. 

13. The above conclusion is 

supported by the decisions of the Apex 

Court: 

In Oriental Insurance Co. Ltd. v. 

Inderjit Kaur and others, AIR 1998 SC 

588, their Lordships of the Supreme Court 

opined as under (paragraph 7 of the said 

AIR): 

"7. We have, therefore, this position. 

Despite the bar created by S. 64-VB of the 

Insurance Act, the appellant, an 

authorised insurer, issued a policy of 

insurance to cover the bus without 

receiving the premium therefor. By reason 

of the provisions of Ss. 147(5) and 149(1) 

of the Motor Vehicles Act, the appellant 

became liable to indemnify third parties 

in respect of the liability which that policy 

covered and to satisfy awards of 

compensation in respect thereof 

notwithstanding its entitlement (upon 

which we do not express any opinion) to 

avoid or cancel the policy for the reason 

that the cheque issued in payment of the 

premium thereon had not been 

honoured." 

(Emphasis supplied) 

14. This decision thus supports the 

conclusion mentioned above on the basis 

of Sections 147(5) and 149(1) of the 

Motor Vehicles Act, 1988. 

15. In National Insurance Co. Ltd.. 

v. Swaran Singh, 2004(3) SCC 297 : 

2004 (1) T.A.C. 321 : AIR 2004 SC 1531, 

their Lordships of the Supreme Court held 

as follows (paragraph 105 of the said 

AIR): 

"105. The summary of our findings to 

the various issues as raised in these 

petitions is as follows : 

(i) Chapter XI of the Motor Vehicles Act, 

1988 providing compulsory insurance of 

vehicles against third-party risks is a 

social welfare legislation to extend relief 

by compensation to victims of accidents 

caused by use of motor vehicles. The 

provisions of compulsory insurance 

coverage of all vehicles are with this 

paramount object and the provisions of


the Act have to be so interpreted as to 

effectuate the said object. 

(ii) An insurer is entitled to raise a 

defence in a claim petition filed under 

Section 163-A or Section 166 of the Motor 

Vehicles Act, 1988, inter alia, in terms of 

Section 149(2)(a)(ii) of the said Act. 

(iii) The breach of policy condition e.g., 

disqualification of the driver or invalid 

driving licence of the driver, as contained 

in sub-section (2)(a)(ii) of Section 149, 

has to be proved to have been committed 

by the insured for avoiding liability by the 

insurer. Mere absence, fake or invalid 

driving licence or disqualification of the 

driver for driving at the relevant time, are 

not in themselves defences available to 

the insurer against either the insured or 

the third parties. To avoid its liability 

towards the insured, the insurer has to 

prove that the insured was guilty of 

negligence and failed to exercise 

reasonable care in the matter of fulfilling 

the condition of the policy regarding use 

of vehicles by a duly licensed driver or 

one who was not disqualified to drive at 

the relevant time. 

(iv) Insurance Companies, however, with 

a view to avoid their liability must not 

only establish the available defence(s) 

raised in the said proceedings but must 

also establish 'breach' on the part of the 

owner of the vehicle; the burden of proof 

wherefor would be on them. 

(v) The Court cannot lay down any 

criteria as to how the said burden would 

be discharged, inasmuch as the same 

would depend upon the facts and 

circumstances of each case. 

(vi) Even where the insurer is able to 

prove breach on the part of the insured 

concerning the policy condition regarding 

holding of a valid licence by the driver or 

his qualification to drive during the 

relevant period, the insurer would not be 

allowed to avoid its liability towards the 

insured unless the said breach or 

breaches on the condition of driving 

licence is/are so fundamental as are found 

to have contributed to the cause of the 

accident. The Tribunals in interpreting 

the policy conditions would apply "the 

rule of main purpose" and the concept of 

"fundamental breach" to allow defences 

available to the insurer under Section 

149(2) of the Act. 

(vii) The question, as to whether the 

owner has taken reasonable care to find 

out as to whether the driving licence 

produced by the driver, (a fake one or 

otherwise), does not fulfil the 

requirements of law or not will have to be 

determined in each case. 

(viii) If a vehicle at the time of accident 

was driven by a person having a learner's 

licence, the insurance Companies would 

be liable to satisfy the decree. 

(ix) The claims tribunal constituted under 

Section 165 read with Section 168 is 

empowered to adjudicate all claims in 

respect of the accidents involving death or 

of bodily injury or damage to property of 

third party arising in use of motor vehicle. 

The said power of the tribunal is not 

restricted to decide the claims inter se 

between claimant or claimants on one 

side and insured, insurer and driver on 

the other. In the course of adjudicating 

the claim for compensation and to decide 

the availability of defence or defences to 

the insurer, the Tribunal has necessarily 

the power and jurisdiction to decide 

disputes inter se between the insurer and 

the insured. The decision rendered on the 

claims and disputes inter se between the 

insurer and insured in the course of 

adjudication of claim for compensation by 

the claimants and the award made 

thereon is enforceable and executable in


the same manner as provided in Section 

174 of the Act for enforcement and 

execution of the award in favour of the 

claimants. 

(x) Where on adjudication of the claim 

under the Act the tribunal arrives at a 

conclusion that the insurer has 

satisfactorily proved its defence in 

accordance with the provisions of 

Sections 149(2) read with sub-section (7), 

as interpreted by this Court above, the 

Tribunal can direct that the insurer is 

liable to be reimbursed by the insured for 

the compensation and other amounts 

which it has been compelled to pay to the 

third party under the award of the 

tribunal. Such determination of claim by 

the Tribunal will be enforceable and the 

money found due to the insurer from the 

insured will be recoverable on a 

certificate issued by the tribunal to the 

Collector in the same manner under 

Section 174 of the Act as arrears as land 

revenue. The certificate will be issued for 

the recovery as arrears of land revenue 

only if, as required by sub-section (3) of 

Section 168 of the Act the insured fails to 

deposit the amount awarded in favour of 

the insurer within thirty days from the 

date of announcement of the award by the 

tribunal. 

(xi)The provisions contained in subsection 

(4) with the proviso thereunder 

and sub-section (5) which are intended to 

cover specified contingencies mentioned 

therein to enable the insurer to recover 

amount paid under the contract of 

insurance on behalf of the insured can be 

taken recourse to by the Tribunal and be 

extended to claims and defences of the 

insurer against the insured by relegating 

them to the remedy before regular court 

in cases where on given facts and 

circumstances adjudication of their 

claims inter se might delay the 

adjudication of the claims of the victims." 


16. Proposition nos. (vi) and (x), 

reproduced above support the conclusion 

that the direction given by the Tribunal in 

the award impugned in the present case is 

in accordance with law. 

In National Insurance Co. Ltd. v. 

Laxmi Narain Dhut, 2007 (2) T.A.C. 398 

(S.C.), their Lordships of the Supreme 

Court considered the decision in National 

Insurance Co. Ltd. v. Swaran Singh 

(supra) and held as under (paragraph 35 

of the said TAC): 

"35. As noted above, the conceptual 

difference between third party right and 

own damage cases has to be kept in view. 

Initially, the burden is on the insurer to 

prove that the license was a fake one. 

Once it is established the natural 

consequences have to flow. 

In view of the above analysis the 

following situations emerge: 

(1) The decision in Swaran Singh's case 

(supra) has no application to cases other 

than third party risks. 

(2) Where originally the license was fake 

one, renewal cannot cure the inherent 

fatality. 

(3) In case of third party risks the insurer 

has to indemnify the amount and if so 

advised to recover the same from the 

insured. 

(4) The concept of purposive 

interpretation has no application to cases 

relatable to Section 149 of the Act. 

The High Courts/Commissions shall now 

consider the matter afresh in the light of 

the position in law as delineated above. 

The appeals are allowed as aforesaid with 

no order as to costs." 

(Emphasis supplied)


17. In view of the above decision, it 

is evident that in case of third party risks, 

the decision in National Insurance Co. 

Ltd. v. Swaran Singh and others (supra) 

would apply, and the insurer has to 

indemnify the amount to the third party 

and thereafter may recover the same form 

the insured. 

18. In Prem Kumari and others Vs. 

Prahlad Dev and others, 2008(1) T.A.C. 

803 (S.C.), their Lordships of the 

Supreme Court have reiterated the view 

expressed in National Insurance Company 

Limited Vs. Laxmi Narain Dhut case 

(supra) explaining the decision in 

National Insurance Company Limited Vs. 

Swarn Singh and others (supra), and held 

as under (paragraphs 8 and 9 of the said 

TAC): 

"8. The effect and implication of the 

principles laid down in Swarn Singh's 

case (supra) has been considered and 

explained by one of us (Dr. Justice Arijit 

Pasayat) in National Insurance Co. 

Ltd.v. Laxmi Narain Dhut, (2007) 3 

S.C.C. 700 : 2007 (2) T.A.C. 398. The 

following conclusion in para 38 are 

relevant: 

"38. In view of the above analysis the 

following situations emerge: 

(1) The decision in Swaran Singh's case 

(supra) has no application to cases other 

than third party risks. 

(2) Where originally the license was a 

fake one, renewal cannot cure the inherent 

fatality. 

(3) In case of third-party risks the insurer 

has to indemnify the amount, and if so 

advised, to recover the same from the 

insured. 

(4) The concept of purposive 

interpretation has no application to cases 

relatable to Section 149 of the Act. 

9. In the subsequent decision 

Oriental Insurance Co. Ltd. v. Meena 

Variyal and Others, (2007) 5 S.C.C. 428: 

2007 (2) T.A.C. 417, which is also a two 

Judge Bench while considering the ratio 

laid down in Swaran Singh's case (supra) 

concluded that in a case where a person is 

not a third party within the meaning of the 

Act, the Insurance Company cannot be 

made automatically liable merely by 

resorting to Swaran Sing's case (supra). 

While arriving at such a conclusion the 

Court extracted the analysis as mentioned 

in para 38 of Laxmi Narain Dhut (supra) 

and agreed with the same. In view of 

consistency, we reiterate the very same 

principle enunciated in Laxmi Narain 

Dhut (supra) with regard to interpretation 

and applicability of Swaran Singh's case 

(supra)." 


19. In view of the above, it is 

evident that the Tribunal did not commit 

any illegality in directing the Insurance 

Company/ Appellant to make deposit of 

the amount of compensation and recover 

the same from the insured person i.e. the 

owner of the vehicle in question - 

respondent no.3 herein. 

20. After making the deposit of the 

amount, as directed by the impugned 

award, it will be open to the Insurance 

Company/ Appellant to recover the same 

from the insured person i.e. the owner of 

the vehicle in question - respondent no.3 

herein by moving appropriate application 

before the Tribunal in this regard. 

21. It is made clear that in case the 

claimants-respondents or the owner of the 

vehicle in question/ respondent no.3 

herein files an Appeal against the 

impugned award, it will be open to the

3 All] National Insurance Co.Ltd. V. Smt. Guddi Devi and others 1033 

Insurance Company/ Appellant to contest 

the same on the grounds legally open to it. 

22. The amount of 25,000/- 

deposited in this Court while filing the 

present Appeal will be remitted to the 

Tribunal for being adjusted towards the 

amount to be deposited by the Insurance 

Company/ Appellant, as per the directions 

given in the impugned award. 

23. Subject to the aforesaid 

observations, the Appeal filed by the 

Insurance Company/Appellant is 

dismissed. However, on the facts and in 

the circumstances of the case, there will 

be no order as to costs. 

--------- 


CIVIL SIDE 


BEFORE 

THE HON’BLE S.P. MEHROTRA, J. 


First Appeal From Order No. 3049 of 2009 

National Insurance Company Ltd. 

…Petitioner 

Versus 

Smt. Guddi Devi & others …Respondent 


Sri Saral Srivastava 


Motor Vehicle Act, 1988-Section-170, 

readwith 149-Appeal by insurance 

Company-Challenging the quantum of 

award-application by insurance 

Company already rejected by claim 

tribunal-held-quantum of compensation 

can not be questioned by insurance 

company. 

Held: Para 15 

In our opinion, as the application of the 

Appellant-Insurance Company under 

Section 170 of the Motor Vehicles 

Act,1988 was rejected by the Tribunal, it 

is not open to the Appellant-Insurance 

Company to raise the question of 

quantum of compensation, awarded by 

the Tribunal in the impugned award. The 

pleas raised in this regard by Sri Saral 

Srivastava, learned counsel for the 

Appellant-Insurance Company cannot, 

therefore be considered. 

(Delivered by Hon'ble S.P. Mehrotra, J.) 

1. The present appeal has been filed 

against the judgment and order /award 

dated 25.7.2009 passed by the Motor 

Accidents Claims Tribunal, Mainpuri in 

Claim Petition No. 318 of 2006, filed by 

the claimant-respondent nos. 1 to 7 under 

Section 166 of the Motor Vehicles Act, 

1988 on account of the death of Ram 

Prakash in an accident which took place 

at about 5.45 PM on 14.5.2006. 

2. It was, inter-alia, averred in the 

Claim Petition that on 14.5.2006 at about 

5.45 PM, the deceased Ram Prakash with 

his wife Smt. Guddi Devi, Balister Singh, 

Prem Chandra, Raj Kishore and others 

while returning after attending a marriage 

ceremony in village Dalelpur at the place 

of the sister of the deceased,was waiting 

for vehicle on the road -side on GT Road, 

Kurawali-Etah Marg, a Mini Truck Tata 

407 DL-1LG 391,which was coming from 

the direction of Etah and was being driven 

by the Driver rashly and negligently, hit 

the said Ram Prakash, resulting in his 

death on the spot. The Driver ran away 

with the said Mini Truck, i.e., the vehicle 

in question from the spot. The accident 

was witnessed by Smt.Guddi Devi and 

others. The First Information Report was 

lodged in regard to the accident, which 

was registered as Case Crime No. 174 of


2006 under Sections 279, 304A, Indian 

Penal Code in Police Station Kurawali, 

District Mainpuri. The deceased was aged 

34 years at the time of his death and was a 

healthy person. The deceased was an 

agriculturist and was carrying on the 

business of sale and purchase of 

buffaloes, and his monthly income was 

not less than 7,000/- rupees. An amount 

of Rs.24,25,000/- with interest @ 12 % 

per annum was claimed as compensation 

in the Claim Petition. 

3. Joint Written Statement was filed 

by respondent nos. 8 and 10. The 

Appellant- Insurance Company also filed 

its Written Statement. 

The Tribunal framed four issues. 

Issue no.1 was as to whether the 

Driver of the aforesaid vehicle in question 

while driving the same in rash and 

negligent manner, hit the said Ram 

Prakash resulting in the death of the said 

Ram Prakash. The Tribunal decided the 

said issue in the affirmative in favour of 

the claimant-respondent nos. 1 to 7. 

Issue no.2 was as to whether the 


Appellant-Insurance Company at the time 

of the accident. The Tribunal held that the 


Appellant-Insurance Company at the time 

of the accident, and decided Issue no.2 

accordingly. 

Issue no. 3 was as to whether the 

Driver of the vehicle in question was 

having a valid and effective licence at the 

time of the accident. The Tribunal held 

that the Driver of the vehicle in question 

was having a valid and effective licence at 

the time of the accident, and decided Issue 

no.3 accordingly. 

Issue no.4 was regarding the relief, if 

any, to which the claimant-respondent 

nos.1 to 7 were entitled. The Tribunal 

held that the claimant-respondent nos. 1 

to 7 were entitled to compensation 

amounting to Rs.4,89,500/- with interest 

@ 6% per annum. 

4. The Appellant- Insurance 

Company has filed the present appeal 

against the said award. 

5. We have heard Sri Saral 

Srivastava, learned counsel for the 

appellant and perused the record filed 

with the appeal. 

6. From the perusal of the record, it 

is evident that an application under 


1988 was filed on behalf of the Appellant- 

Insurance Company before the Tribunal. 

However, by the order dated 7.3.2009, the 

Tribunal rejected the said application. 

7. Section 170 of the Motor Vehicles 

Act, 1988 lays down as under:- 

"170 Impleading insurer in certain 

cases- Where in the course of any inquiry, 

the Claims Tribunal is satisfied that – 

(a) there is collusion between the 

person making the claim and the person 

against whom the claim is made, or 

(b) the person against whom the 

claim is made has failed to contest the 

claim, 

it may, for reasons to be recorded in 

writing, direct that the insurer who may 

be liable in respect of such claim, shall be 

impleaded as a party to the proceeding

3 All] National Insurance Co.Ltd. V. Smt. Guddi Devi and others 1035 

and the insurer so impleaded shall 

thereupon have, without prejudice to the 

provisions contained in sub-section (2) of 

Section 149, the right to contest the claim 

on all or any of the grounds that are 

available to the person against whom the 

claim has been made." 

Sub-section (2) of Section 149 of the 

Motor Vehicles Act, 1988 referred to in 

Section 170 of the said Act is reproduced 

below:- 

" 

(1)............................................................... 

....................... 

(2) No sum shall be payable by an insurer 

under sub-section (1) in respect of any 

judgment or award unless, before the 

commencement of the proceedings in 

which the judgment or award is given the 

insurer had notice through the Court or, 

as the case may be, the Claims Tribunal 

of the bringing of the proceedings, or in 

respect of such judgment or award so 

long as execution is stayed thereon 

pending an appeal; and an insurer to 

whom notice of the bringing of any such 

proceedings is so given shall be entitled 

to be made a party thereto and to defend 

the action on any of the following 

grounds, namely:- 

(a) that there has been a breach of a 

specified condition of the policy, being 

one of the following conditions, namely:-- 

i.a condition excluding the use of the 

vehicle- 

(a) for hire or reward, where the 

vehicle is on the date of the contract 

insurance a vehicle not covered by a 

permit to ply for hire or reward, 

or 

(b) for organised racing and speed 

testing, or 

(c) for a purpose not allowed by the 

permit under which the vehicle is used, 

where the vehicle is a transport vehicle, 

or 

d. without side-car being attached 

where the vehicle is a motor cycle; or 

(ii) a condition excluding driving by a 

named person or persons or by any 

person who is not duly licensed, or by any 

person who has been disqualified for 

holding or obtaining a driving licence 

during the period of disqualification; or 

(iii) a condition excluding liability for 

injury caused or contributed to by 

conditions of war, civil war, riot or civil 

commotion; or 

(b) that the policy is void on the ground 

that it was obtained by the non disclosure 

of a material fact or by a representation 

of fact which was false in some material 

particular. 

(3) to (7.....................................". 

8. Reading Sections 170 and 149(2) 

of the Motor Vehicles Act, 1988 together, 

it is evident that in case the Tribunal 

grants permission to the insurer under 

Section 170, the insurer will get right to 

contest the Claim Petition on all or any of 

the grounds that are available to the 

person against whom the claim has been 

made. However, if such permission is not 

granted by the Tribunal, then the insurer 

will be entitled to contest the Claim 

Petition on the limited grounds mentioned 

in sub-section (2) of Section 149 of the 

Motor Vehicles Act, 1988. 

9. It follows, therefore, that in case 

an appeal is filed by the insurer against an 

award in a case where its application 

under Section 170 of the Motor Vehicles 

Act, 1988 was rejected by the Tribunal, it 

(insurer) will be able to challenge the 

award only on the limited grounds 

mentioned in sub-section (2) of Section 

149 of the said Act.


10. As noted above, in the present 

case, the Tribunal rejected the application 

of the Insurance Company for permission 


Act, 1988. 

11. In view of the rejection of the 

said application under Section 170 of the 

aforesaid Act, it is evident that the 

Appellant-Insurance Company can 

challenge the impugned award only on the 

grounds mentioned in sub-section (2) of 


1988. Such grounds are evidently in 

respect of Issue Nos.2 and 3. 

12. As noted above, in regard to 

Issue Nos. 2 and 3, the Tribunal has 

recorded findings of fact that on the date 

of the accident, the vehicle in question 

was insured with the Appellant-Insurance 

Company, and the Driver of the vehicle in 

question was having a valid and effective 

licence. 

13. Sri Saral Srivastava, learned 

counsel for the Appellant-Insurance 

Company has not been able to point out 

any error in the said findings recorded by 

the Tribunal. The Appellant-Insurance 

Company has failed to establish any 

infirmity or illegality in the impugned 

award on the grounds open to the 

Appellant-Insurance Company to raise in 

view of the provisions of sub-section (2) 

of Section 149 of the Motor Vehicles Act, 

1988. 

14. Sri Saral Srivastava, learned 

counsel for the Appellant-Insurance 

Company submits that the quantum of 

compensation as determined by the 

Tribunal is not correct as the Tribunal has 

erred in applying multiplier of 15 and has 

wrongly taken the monthly income of the 

deceased as Rs.4,000/-. 

15. In our opinion, as the application 

of the Appellant-Insurance Company 


Act,1988 was rejected by the Tribunal, it 

is not open to the Appellant-Insurance 

Company to raise the question of quantum 

of compensation, awarded by the Tribunal 

in the impugned award. The pleas raised 

in this regard by Sri Saral Srivastava, 

learned counsel for the Appellant- 

Insurance Company cannot, therefore be 

considered. 

16. In view of the above, we are of 

the opinion that the appeal filed by the 

Appellant-Insurance Company lacks 

merits, and the same is liable to be 

dismissed. 

17. The appeal is, accordingly, 

dismissed. However, on the facts and in 

the circumstances of the case, there will 

be no order as to costs. 

18. The amount of Rs.25,000/- 

deposited by the Appellant-Insurance 

Company while filing the present appeal, 

will be remitted to the Tribunal for being 

adjusted towards the amount payable 

under the impugned award. 

--------- 


CIVIL SIDE 


BEFORE 

THE HON’BLE SUDHIR AGARWAL, J. 


Vinay Kumar Upadhyay …Petitioner 

Versus 

State of U.P. and others …Respondents

3 All] Vinay Kumar Upadhyay V.State of U.P. and others 1037 


Sri Ashok Tripathi 

Sri N.L. Srivastava 


Sri D.K. Tripathi 

Sri P.C. Shukla 

S.C. 

U.P. Collection Peon Service Rule-2004- 

Rle-5-Substantive appointmentpetitioner 

was denied as not achieved 

70% target of collection during four 

fasli-fasli means an year e.g. Ravi and 

Kharif-while petitioner has been 

awarded satisfactory collection in four 

fasal-moreover for lessure collection 

peon can not be held directly 

responsible-order quashed-direction for 

reconsideration issued. 

Held pare 13 

Besides, the rule also required 

"satisfactory service" in the "last four 

Fasals" and not "Fasali". The distinction 

between a "Fasali" and "Fasal" has been 

considered by this Court in Mithlesh 

Kumar and another Vs. State of U.P. and 

others, 2008 (2) ESC 1332 and this Court 

held as under: 

"This Court finds that though in the 

Rules one has to show his average 

recovery of at least 70% in the last four 

Fasals but the chart was submitted by 

Tahsildars not based on the Fasals but 

Fasalis i.e. the year which includes both 

the Fasals namely, Ravi and Kharif. The 

Selection Committee was also aware of 

this fact that it has to consider recovery 

performance of last four Fasals but 

thereafter it has clearly erred by not 

confining to consider performance with 

respect to recovery in last four Fasals but 

has taken the aforesaid chart to be 

correct without noticing the fact that the 

chart (Annexure-CA-2) was prepared on 

the basis of last four Fasalis and not on 

the basis of last four Fasals. One Fasali 

year has more than one Fasal. It is not 

the entire Fasali year but last four Fasals 

performance ought to have been 

considered by the Selection Committee. 

It has considered performance of the 

candidates beyond the period for which 

it is provided under Rule 5(1) of 1974 

Rules." 

Case law discussed- 

2008(2)ESC 1332, Special Appeal No. 294 of 

2008, Manbodh Vs. State of U.P. and others 

connected with Special Appeal No. 398 of 

2008. 

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

1. Heard Sri N.L. Srivastava, learned 

counsel for the petitioner and learned 

Standing Counsel appearing for 

respondents no. 1 to 3. The respondent no. 

4 was issued notice by registered post 

pursuant to this Court's order dated 

13.10.2008. As per the office report the 

notice through registered post/AD sent on 

17.10.2008 and the office report dated 

13.07.2009 shows that notice has been 

received unserved with post office report 

"refused". In the circumstances the 

service of notice is deemed sufficient. 

Neither any counter affidavit has been 

filed on behalf of respondent no. 4 nor 

any one has put in appearance on his 

behalf. Respondents no. 1 to 3 have filed 

counter affidavit and supplementary 

counter affidavit. Petitioner has also filed 

rejoinder affidavit and, therefore, as 

requested and agreed by learned counsels 

for the parties, this writ petition has been 

heard and is being decided finally at this 

stage under the Rules of the Court. 

2. By means of the present writ 

petition the order dated 03.10.2007 passed 

by the District Magistrate, Sant Ravidas 

Nagar (Bhadohi) has been assailed 

whereby the representation of petitioner 

against his supersession/non selection for 

substantive appointment on the post of


Collection Peon has been rejected 

confirming selection and appointment of 

respondent no. 4 for such appointment. 

3. Learned counsel for the petitioner 

submitted that he has not been selected 

for substantive appointment on the post of 

Collection Peon on the ground that in the 

Fasali years 1410, 1411, 1412 and 1413 

the percentage of recovery was 15.5, 75, 

16.9 and 23.4 respectively resulting in 

average recovery of 32.7 though as per 

U.P. Collection Peon Service Rules, 2004 

(hereinafter referred to as the "Rules, 

2004") the average recovery ought to have 

been at least 70%. The respondent no. 4 

who was admittedly junior to the 

petitioner but his recovery having been 

noticed above 70% in the said Fasali 

years, was selected and given 

appointment to the post of Collection 

Peon. It is submitted that under Rule 5 of 

Rules, 2004 the criteria for selection for 

regular appointment to the post of 

Collection Peon in respect to Seasonal 

Collection Peon is satisfactory service in 

the last at least four "Fasals". The 

explanation thereof further provides that 

satisfactory service means good conduct 

shown from beginning and in the last 

"four Fasals" he has cooperated for 

making recovery at least to the extend of 

70% as prescribed by the Government. He 

contended that the respondents no. 1 to 3 

have erred in considering the record of 

preceding four Fasali years instead of four 

Fasals. Further that the petitioner has not 

been found guilty or lacking coordination 

or cooperation in making recovery to the 

extent of 70% but since the recovery as a 

matter of fact was less than 70% for that 

purpose the petitioner has been 

superseded. He pointed that Rule 5 of 

Rule, 2004 required only cooperation on 

the part of the petitioner since the 

recovery as a matter of fact is the primary 

duty of the Collection Amin to whom a 

Collection Peon assist and, therefore, the 

relevant considerations as contemplated 

and provided in the Rules, 2004 have not 

been taken into account. 

4. Learned Standing Counsel relying 

on his counter affidavit, however, 

supported the selection of respondent no. 

4 as well as the impugned order passed by 

the District Magistrate, Sant Ravidas 

Nagar (Bhadohi) and said that the same 

has been passed in accordance with law. 

5. Having considered the rival 

submissions as well as the record I find 

that the only issue up for consideration in 

this case is whether the petitioner has 

been considered and rejected for the post 

of Collection Peon on relevant 

considerations as provided under Rule 5 

or not. 

6. Rule 5 of Rules, 2004 reads as under: 

^^5- lsok esa fofHkUu Jsf.k;ksa ds inksa ij HkrhZ fuEufyf[kr 

lzksrksa ls dh tk;sxh%& 

¼,d½ ipkl izfr'kr p;u lfefr ds ek/;e ls lh/kh HkrhZ 

}kjk] 

¼nks½ ipkl izfr'kr in ,sls lkef;d laxzg vuqlsodksa esa ls 

ftUgksaus de ls de pkj Qlyha rd larks"ktud dk;Z fd;k 

gks vkSj ftudh vk;q ml o"kZ dh igyh tqykbZ dks ftlesa 

p;u fd;k tk; 45 o"kZ ls vf/kd u gks] p;u lfefr ds 

ek/;e ls Hkjs tk;sxsaA 

ijUrq ;fn mi;qZDr vH;FkhZ miyC/k u gks rks [k.M 

¼,d ½ ds v/khu 'ks"k fjfDr;ka lh/kh HkrhZ }kjk Hkjh tk;sxhaA 

Li"Vhdj.k%& larks"ktud dk;Z dk rkRi;Z gksxk 'kq: ls vUr 

rd vPNs vkpj.k dks lfEefyr djrs gq, vfUre pkj 

Qlyksa ds nkSjku ljdkj }kjk fu;r fofgr Lrj ds vuqlkj 

de ls de lRrj izfr'kr olwyh esa iw.kZ lg;ksx iznku 

djukA** 

7. A perusal of Rules shows that a 

Seasonal Collection Peon if has

3 All] Vinay Kumar Upadhyay V.State of U.P. and others 1039 

satisfactorily worked for at least "four 

Fasals" and is not above 45 years of age 

would have to be considered and if he 

fulfils the above criteria, is entitled to be 

selected for the post of Collection Peon. 

8. The term "satisfactory service" 

has been explained and it provides that 

the Seasonal Collection Peon shall extend 

"full cooperation for recovery in the last 

four Fasals" according to the standard 

prescribed by the State Government i.e. at 

least 70% recovery. It nowhere provides 

the Seasonal Collection Peon himself 

would make recovery to the extent of 

70% or at any other level. 

9. In taking the aforesaid view I am 

also supported by a Single Judge decision 

of this Court in Civil Misc. Writ Petition 

No. 2421 of 2006, Ishwar Chandra Vs. 

District Magistrate, Khalilabad, Sant 

Kabir Nagar and others decided on 

22.08.2008. Though that was a case of 

compulsory retirement but in respect to 

duties of Collection Peon this Court held 

that a Collection Peon is only required to 

assist the Collection Amin and is not 

responsible for the collection of dues 

itself which is the primary duty of 

Collection Amin. 

10. The respondents in the counter 

affidavit have nowhere pleaded or shown 

as to how a Seasonal Collection Peon can 

be held directly responsible for lesser 

recovery. On the contrary, the U.P. 

Collection Manual, Chapter IX para 61 

provides for duties of the Collection Peon 

and reads as under: 

^^61- drZO;& ljdkjh cdk;ksa ds laxzg lEcU/kh vkns'kksa es 

vehu ds vkns'kksa dk vuqikyu djuk pijklh dk ije~ 

drZO; gSA tc vehu ljdkjh /ku ysdj ;k=k dj jgk gks 

;k vius {ks= esa :dk jgs] rc og pijklh mlds lkFk 

jgsxkA fofHkUu izdkj dh dzwj dkydze vknsf'kdkvksa ds 

fu"iknu ds fy, Hkh pijkfl;ksa dh lsokvksa dk mi;ksx fd;k 

tk ldsxkA ,sls ekeyksa esa og Lo;a dksbZ laxzg ugha djsxkA 

rglhynkj rFkk vU; ofj"b vf/kdkfj;ksa ds vkns'kksa ds 

v/khu] ,dhd`r laxzg vehuksa ds v/khu] laxzg pijkfl;ksa dks 

vU; drZO; lkSais tk;saxsA** 

11. It shows that the Collection Peon 

has to obey the orders given by the 

Collection Amin and when the Amin is 

travelling alone with Government revenue 

or is staying in his area of jurisdiction, the 

Collection Peon will always stay with him 

so that his services may be utilised by the 

Collection Amin. Para 61 Chapter IX 

further provides very clearly that the 

Collection Peon himself will not make 

any recovery at all. 

12. That being so, and in the light of 

the statutory provisions contained in Rule 

5, it is evident that the Collection Peon 

himself is not at all responsible for any 

recovery whatsoever. Hence the 

assumption on the part of the District 

Magistrate, respondent no. 2 that the 

petitioner having failed to make recovery 

to the extent of 70% in the preceding four 

Fasali years cannot be said to have failed 

to satisfy the criteria of "satisfactory 

service" is patently illegal and in the teeth 

of the statute. 

13. Besides, the rule also required 

"satisfactory service" in the "last four 

Fasals" and not "Fasali". The distinction 

between a "Fasali" and "Fasal" has been 

considered by this Court in Mithlesh 

Kumar and another Vs. State of U.P. and 

others, 2008 (2) ESC 1332 and this Court 

held as under: 

"This Court finds that though in the 

Rules one has to show his average 

recovery of at least 70% in the last four


Fasals but the chart was submitted by 

Tahsildars not based on the Fasals but 

Fasalis i.e. the year which includes both 

the Fasals namely, Ravi and Kharif. The 

Selection Committee was also aware of 

this fact that it has to consider recovery 

performance of last four Fasals but 

thereafter it has clearly erred by not 

confining to consider performance with 

respect to recovery in last four Fasals but 

has taken the aforesaid chart to be 

correct without noticing the fact that the 

chart (Annexure-CA-2) was prepared on 

the basis of last four Fasalis and not on 

the basis of last four Fasals. One Fasali 

year has more than one Fasal. It is not the 

entire Fasali year but last four Fasals 

performance ought to have been 

considered by the Selection Committee. It 

has considered performance of the 

candidates beyond the period for which it 

is provided under Rule 5(1) of 1974 

Rules." 

14. The above judgement was taken 

in Special Appeal No. 294 of 2008, 

Manbodh Vs. State of U.P. and others 

connected with Special Appeal No. 398 of 

2008, Dev Kumar Vs. State of U.P. and 

others, decided on 17.07.2009 and the 

Hon'ble Division Bench while dismissing 

both the above appeals and confirming the 

judgment under appeal held as under: 

"In our considered opinion, the 

learned Judge was perfectly justified in 

arriving at the findings on the basis of 

material available on record and 

thereafter concluding that the selections 

had been made contrary to the provisions 

contained in Rule 5 (1) read with Rule 17 

(A) of the Rules. In support of the 

conclusion drawn, the learned Judge has 

very succinctly and appropriately drawn 

the distinction between the words "Fasal" 

and "Fasali". The meaning of the said 

words are defined in the Law Lexicon 

1997 Edition at page 713, which read as 

follows:- 

"Fasl. (A.) Harvest; fasli-jyasti, faslkami. 

(M.) Addition or reduction in the 

revenue on account of double crops, or 

the loss of one. (Bad. Pow. iii. 99) 

Fasli. Of or belonging to a harvest; 

the Mahommadan official era. (Bad. Pow. 

II. 13, 14) 

Agricultural lease in which the word 

'Fasli' is used unless there are indications 

that the intention of the parties was to use 

the word in its strict sense, should be held 

to be for the agricultural year. (LR 2 A. 

139 (Rev.) 

Fasli or Fusli. What relates to the 

seasons; the harvest year. (Mac. Mhn. 

Law.) The name of an era instituted by 

Akbar, who made the samwat year agree 

with that of the hijra by arbitrarily cutting 

649 years off from the former. This was 

done in the year 963 of the hijra which 

year was therefore also 963 fasli; but fasli 

or harvest year was necessarily counted 

according to the seasons while that of the 

hijra is the lunar year of only 354 days. 

Thus a difference of several years has 

arisen between the hijra year and the fasli 

year. (See also 1896 AWN 123). 

Fasli-jasti (Tel.) An extra crop, one 

more than usual; an extra cess imposed 

on land bearing more than one annual 

crop." 

The aforesaid definitions would, 

therefore, reflect that the word Fasal 

means crop whereas the word Fasali is 

related to the revenue year, which 

ordinarily in the State of Uttar Pradesh 

comprises of two harvest seasons - the 

Kharif and the Rabi. Learned counsel for 

the appellants could not point out any 

material to the contrary to persuade us to 

opine otherwise.

3 All] Aligarh Muslim University and another V.Industrial Tribunal and another 1041 

We find no good reason to differ 

from the view taken by the learned 

Judge." 

15. In the result, the writ petition is 

allowed. The impugned order dated 

03.10.2007 as well as the selection and 

appointment of respondent no. 4 is hereby 

quashed. The respondent no. 2 is directed 

to reconsider the matter of appointment 

on the post of Collection Peon of the 

petitioner and the respondent no. 4 in 

accordance with law and in the light of 

the observations made hereabove, 

expeditiously, preferably within a period 

of two months from the date of 

production of a certified copy of this 

order. There shall be no order as to costs. 

--------- 


CIVIL SIDE 


BEFORE 

THE HON’BLE RAN VIJAI SINGH, J. 


Aligarh Muslim University, Aligarh and 

another 

…Petitioner 

Versus 

Industrial Tribunal(4), Agra and another 

…Respondent 


Ms. Sunita Agrawal 


S.C. 

Sri J.J. Munir 

U.P. Industrial Dispute Act-Section 6-A- 

Restoration of Ex Party award published 

on 20.04.95-publication of Notice Board 

on 22.05.95-application for recall of 

award moved on 25.10.96- allowed on 

03.05.97 nowhere in restoration 

application on date of knowledge 

disclosed- in spite of registered notices 

workman did not response- after expiry 

of 30 days from the date of publicationtribunal 

become “functus officio” at last 

its jurisdiction to entertain any 

application- restoration order set-a-side. 

Held: Para 15 

Under these facts and circumstances, 

since the application for setting aside the 

exparte award was filed after the expiry 

of 30 days of its publication, therefore it 

could not be entertained as the Tribunal 

had become functus officio and lost its 

jurisdiction to entertain any application. 


AIR 1981 S.C. 606 14, (2005) 9 S.C.C. 331. 6 

and 8, A.I.R. 1985 Supreme Court 294, 

2005(2) U.P. L.B.E.C. 1751And 2 008(118) 

F.L.R. 922. 

(Delivered by Hon'ble Ran Vijai Singh, J.) 

1. This writ petition has been filed 

for issuing a writ of certiorari quashing 

the orders dated 3rd May, 1997 and 22nd 

August, 1997 passed by Industrial 

Tribunal (4), Agra (respondent No. 1). 

Vide order dated 3rd May 1997, the 

Tribunal had allowed the restoration 

application for setting aside an exparte 

award dated 10th February, 1995 rendered 

in Adjudication Case No. 204 of 1994, 

whereas by the subsequent order dated 

22nd August, 1997, the Tribunal had 

rejected the petitioners' application to 

recall the order dated 3rd May, 1997. 

2. The facts giving rise to this case 

are that the respondent no 2. claiming 

himself to be a workman has raised an 

industrial dispute. The dispute was 

referred under Section 4-K of the U.P. 

Industrial Dispute Act, 1947 (hereinafter 

referred to as Act of 1947) The reference 

was registered as Adjudication Case No. 

204 of 1994 before the Industrial Tribunal 

(4) Agra. The dispute referred was


'whether the employers were justified in 

terminating the services of the workman 

from 16th April, 1993 and if not then to 

what relief the workman was entitled to.' 

3. The petitioners-employers 

appeared before the Tribunal and filed 

their written statement stating therein that 

the State had no jurisdiction to refer the 

dispute under Section 4-K of the Act of 

1947. It was also contented that the 

respondent no. 2 is not workman as his 

engagement was only for a fixed period 

and that had come to an end after expiry 

of the aforesaid period. 

4. The notices were issued to the 

parties through registered post but it 

appears the workman did not appear 

before the Tribunal and on 10th February, 

1995, the Tribunal has passed an exparte 

award deciding the reference against the 

workman. 

5. The aforesaid award was 

published on 20th April,1995 under 

Section 6 (3) of the Act of 1947 and it 

was also published on the notice board on 

22nd May, 1995. 

6. It appears thereafter the 

respondent no. 2 filed an application on 

25th October, 1996 before the Tribunal 

for setting aside the exparte award dated 

10th February, 1995 with a prayer to 

restore the Adjudication Case No. 204 of 

1994 to its original number. The 

petitioners-employers have filed a 

detailed reply to the restoration 

application supported with an affidavit 

stating therein that the application itself 

was not maintainable as it was filed 

beyond the period of limitation as 

prescribed under Rule 16 of the rules 

framed under the Act. It was also stated 

that the Tribunal had sent registered 

letters to both the parties on 24th 

December, 1994 fixing 9th February, 

1995 but the workman did not appear. It 

was also stated that the workman had not 

stated in his application as to on which 

date he had acquired knowledge of the 

exparte award. It was also contended that 

the award attained finality under Section 6 

(5) of the Act on its publication under 

Section 6(3) of the act and Under Section 

6 (A) of the Act of 1972, the award 

became enforceable after the expiry of 30 

days from the date of its publication. 

7. The Tribunal after hearing both 

the parties had allowed the restoration 

application by the impugned order dated 

3rd May, 1997. While allowing the 

application, the Tribunal has observed 

that the limitation shall start from the date 

of the knowledge of the award and not 

from the date of its publication. 

8. Thereafter the petitionersemployers 

have filed an application on 

21st June, 1997 for recalling the order 

dated 3rd May, 1997 on the ground that 

the workman had not disputed the address 

indicated in the summons sent by the 

Tribunal through registered cover which 

had not returned back after service. The 

presumption goes that there was sufficient 

service on the workman. The Tribunal 

thereafter hearing the parties had rejected 

the application of the petitioners vide 

order dated 22nd August 1997. Hence this 

writ petition. 

9. Ms. Sunita Agarwal learned 

counsel appearing for the petitioners has 

assailed the impugned orders on 

following grounds:

3 All] Aligarh Muslim University and another V.Industrial Tribunal and another 1043 

1. Because the exparte award dated 

10th February, 1995 was published in 

accordance with Section 6 (3) of the U.P. 

Industrial Disputes Act, 1947 on 20th 

April 1995 and was also put on the notice 

board on 22nd May, 1995, therefore, it 

became enforceable after 30 days from its 

publication as per provision contained 

under Section 6-A of the Act of 1947. 

2. Because the Tribunal had become 

functus officio after 30 days from the date 

of publication of award and it had no 

jurisdiction to proceed any further. 

In support of her submissions she has 

placed reliance upon the few judgments of 

the Apex court namely A.I.R. 1981 S.C. 

606 14 Grindlays Bank Vs. Central 

Government Industrial Tribunal and 

(2005) 9 S.C.C. 331. 6 and 8 Sangham 

Tape Co. Vs. Hansraj (Grindlays Bank 

Ltd.) 

3 Because under Rule 16 (2) of the 

U.P. Industrial Disputes Rules, 1957 an 

application to set-aside an exparte award 

could be filed within ten days from the 

date of the exparte award and even if it be 

assumed that the said application could be 

made within 30 days from the date of 

publication of the exparte award even 

then the restoration application filed on 

25th October, 1996 was barred by time. 

In the submissions of learned counsel 

for the petitioners, the language used in 

Section 6 (A) of the U.P. Industrial 

Dispute Act is identical to Section 17-A 

of the Industrial dispute Act, 1947 ( Act 

No. 14 of 1947), (Central Act) 

(hereinafter referred to as Act No. 14 of 

1947) and in the cases referred above, it 

has been held that the award becomes 

enforceable after expiry of 30 days from 

the date of its publication and the 

Tribunal/labour court retain their 

jurisdiction within thirty days from the 

publication and thereafter the 

Tribunal/labour court becomes functus 

officio. In her submissions, although 

cases referred above are related to under 

Section 17-A of the Act No.14 of 1947 

but it will be fully applicable with respect 

to Section 6-A of the U.P. Industrial 

Dispute Act, 1947. 

Refuting the submissions of learned 

counsel for the petitioners, Sri J.J.Munir 

learned counsel appearing for the 

respondent no. 2 submitted that an 

application for setting aside an exparte 

award can be entertained by the Tribunal 

and Tribunal does not become functus 

officio as argued by learned counsel for 

the petitioner. In support of his 

submissions, he has placed reliance upon 

the judgment of the Apex Court reported 

in A.I.R. 1985 Supreme Court 294 

Satnam Verma Vs. Union of India. 

10. I have heard learned counsel for 

the parties and perused the record. 

11. It has not been disputed by the 

learned counsel for the parties that the 

matter was referred by the State 

Government under Section 4-K of the Act 

of 1972 for adjudicating the reference as 

mentioned above and the said reference 

was registered as Adjudication Case No. 

204 of 1994 before the Industrial Tribunal 

(4) Agra. The notices were issued to the 

parties through registered post but the 

respondent no. 2 did not appear and the 

Tribunal has passed an exparte award on 

10th February, 1995 deciding the 

reference against the workman. The 

aforesaid award was published on 20th 

April, 1995 under Section 6 (3) of U.P. 

Industrial Dispute Act, 1947. The


respondent no. 2 has filed an application 

for setting aside the exparte award and 

that was allowed vide order dated 3rd 

May, 1997 and the application to recall 

the order dated 3rd May, 1997 was 

rejected by the Tribunal vide order dated 

22nd August, 1997. 

12. Rule 16 (2) provides that an 

application to set aside the exparte award 

can be filed within 10 days of such award. 

From the pleadings of the parties, it 

transpires that the factum of sending of 

notices through registered post has not 

been denied and it has also not been stated 

that on which date the respondent no. 2 

acquired knowledge of the exparte award. 

Further the application for setting aside 

exparte award was filed after 30 days of 

its publication. In these circumstances, it 

cannot be said that the application filed by 

the respondent no. 2 to set aside the 

exparte award was within time or there 

was a reasonable reason to not apply for 

the same. 

13. The Apex Court, in the case of 

Grindlays Bank (supra) has held that the 

Tribunal/court retained its jurisdiction to 

set aside an exparte award provided the 

application has been filed within 30 days 

of its publication. In the case of Sangham 

Tape Co. (supra), the Apex court has held 

that once the award becomes enforceable, 

the Industrial Tribunal or labour court 

becomes functus officio. 

14. Here in the present case, as has 

been mentioned above, the award was 

given on 10th February,1995 and it was 

published on 20th April, 1995 and it was 

also published on the notice board on 

22nd May, 1995, whereas the respondent 

no. 2 has filed the application for setting 

aside the exparte award on 25th October, 

1996 apparently this was beyond 30 days 

from the date of its publication i.e. 20th 

April 1995 or 22nd May, 1995. Section 6- 

A of the U.P. Industrial Dispute Act 

provides that the award becomes 

enforceable after 30 days of its 

publication. The language used in Section 

6-A of the U.P. Industrial Dispute Act is 

identical to the language used in Section 

17-A of the Industrial Dispute Act, 1947. 

In the cases of Grindlays Bank (supra) 

and Sangham Tape Co. (supra), the Apex 

Court has held that once the award 

becomes enforceable, the Industrial 

Tribunal or labour court become functus 

officio. Although in the case of Satnam 

Verma, (the case cited by respondent's 

counsel) the Apex Court has held that the 

labour court has jurisdiction to entertain 

the application for setting aside the 

exparte award but the facts of this case are 

totally different as in the case of Satnam 

Verma the application was filed prior to 

the publication of the award and was well 

within time, therefore, the case cited by 

the respondent's counsel is distinguishable 

on facts. 

15. Under these facts and 

circumstances, since the application for 

setting aside the exparte award was filed 

after the expiry of 30 days of its 

publication, therefore it could not be 

entertained as the Tribunal had become 

functus officio and lost its jurisdiction to 

entertain any application. 

16. This Court has also taken the 

same view in the cases of State of U.P Vs. 

the Presiding Officer Labour Court (II) 

U.P. Meerut and another 2005 (2) U.P. 

L.B.E.C. 1751 and 2 008 (118) F.L.R. 

922 District Panchayat (Zila Parishad) 

Kanpur Dehat Vs. Presiding Officer,

3 All] Rishikesh Lal Srivastava V.State of U.P. and others 1045 

Labour Court (IV) Kanpur Nagar and 

another. 

17. In view of that, the impugned 

order passed by the Tribunal cannot be 

sustained. The writ petition succeeds and 

is allowed. The impugned orders dated 

3rd May, 1997 and 22nd August, 1997 

passed by Industrial Tribunal (4) Agra 

(respondent no. 1) are hereby quashed. 

There shall be no order as to costs. 

However dismissal of this writ petition 

will not preclude the respondents to 

approach the appropriate forum if any 

available under law against the exparte 

award. 

--------- 


CIVIL SIDE 


BEFORE 

THE HON’BLE C.K. PRASAD, C.J. 

THE HON’BLE DILIP GUPTA, J. 



With 

Civil Misc. Writ Petition No.21965 of 2003. 

Rishikesh Lal Srivastava …Petitioner 

Versus 

State of U.P. & others …Opposite Parties 


Sri Harish Chandra Singh 

Sri R.K. Ojha 

Sri O.P. Pandey 

Sri A.P. Singh 

Sri S.C. Singh 


Sri R.C. Dwivedi, 

Sri N.K. Pandey, 

Sri R.C. Singh 

Sri Dinesh Dwivedi 

Sri M.C. Chaturvedi, C.S.C. 

assisted by Dr. Y.K. Srivastava, 

Standing Counsel. 

U.P. Intermediate Education Act-1921- 

Chapter III Reg.-31- prior approval of 

dismissal-whether prior approval for 

awarding punishment of dismissal to a 

Class 4 th employee is must as 

contemplated in Regulation 31 held 

“No” various reasons discussed 

Practice and Procedure-Law Conflicting 

view of different D.B. Judgment-the 

judgment reported in 2006 (3) ESC 1765, 

2006(65) ALR 767 and 2000 (1) UPLBEC 

707 approved hold correct law. 

Held: Para -73 

Our answer to the questions referred to 

us are as under: 

(i) For awarding a punishment as 

enumerated under Regulation 31 

Chapter III of the U.P. Intermediate 

Education Act, 1921 to a Class-IV 

employee of a institution recognized 

under the aforesaid Act, no prior 

approval or sanction from the Inspector 

of Schools is required. 

(ii) The Division Bench judgments in the 

case of Ali Ahmad Ansari Vs. District 

Inspector of Schools, Kushinagar 

[2006(3) ESC 1765 (All)] and Pujari 

Yadav Vs. Ram Briksh Yadav [2006(65) 

ALR 767] lay down the correct law in 

contradistinction to the Division Bench 

judgment of Principal, Rashtriya Inter 

College, Bali Nichlaul, District 

Maharajganj And Others [(2000) 1 

UPLBEC 707] and the other judgments to 



[1991 (1) UPLBEC 467], [1998(2) UPLBEC 

1101], [2000(1) UPLBEC 707],[2000 (3) E.S.C. 

1880 (All.), [2001(1) UPLBEC 487], [2002 (4) 

ESC 201], [2006(3) ESC 1765 (All) (DB)], 

(1998)2 UPLBEC 1101, [2000(3) E.S.C. 1880 

(All), 1998 Lab IC 1252, (2007) 1 AWC 253, 

1981 U.P.L.B.E.C. 135, 1988 U.P.L.B.E.C 123, 

1998(3) A.W.C.1940(L.B.), [AIR 2002 SCC 

1334], [(1951) 2 All E.R. 839], [AIR 1953 SCC


394], [(2003) 2 SCC 577], [(2005) 5 SCC 561], 

[2002 (3) ESC 108] 

(Delivered by Hon'ble C.K. Prasad, C.J.) 

1. The learned Single Judge while 

hearing this petition on 21.3.2007 and 

finding conflicting views between the two 

Division Bench judgments of this Court in 

the case of 2000(1) UPLBEC 707 and 

2006(3) ESC 1765 (All), referred, under 

Rule 6 Chapter VIII of the Allahabad 

High Court Rules, the following questions 

for determination by a larger Bench: 

(i) Whether prior approval for awarding 

punishment of dismissal to a Class- 

IV employee is contemplated and 

required under Chapter-III, 

Regulation 31 of U.P. Intermediate 

Education Act, 1921 

(ii) Which of the Division Bench 

judgments, as noticed above, lays 

down the correct law 

2. In the light thereof, the case was 

posted for consideration before a Division 

Bench on 12.08.2009 which, finding 

conflict between the judgments rendered 

by the two Division Benches as referred 

in the order of the learned Single Judge, 

directed the matter to be heard by a larger 

Bench and accordingly the matter has 

come up before us for consideration. 

3. The facts lie in a narrow compass. 

Petitioner - Rishikesh Lal Srivastava is a 

class IV employee working in 

Intermediate College, Vedupar in the 

district of Kushi Nagar (hereinafter 

referred to as ''the College'). While he was 

in service, the Principal of the College by 

order dated 5th of July 1994 dismissed 

him from service and aggrieved by the 

same, he filed Writ Petition No. 473 of 

1996 (Rishikesh Lal Srivastava vs. State 

of U.P. & others) before this Court inter 

alia praying for a direction to the District 

Inspector of Schools to pay salary. This 

Court directed the District Inspector of 

Schools to examine his case and in the 

light thereof, the District Inspector of 

Schools passed order dated 21 st of April 

1998 for payment of his salary. The 

Committee of Management of the College 

challenged the said order of the District 

Inspector of Schools by filing another writ 

petition and the same was disposed off 

with a direction to the District Inspector 

of Schools to record reasons as to whether 

the service of the said employee was 

legally terminated, whether approval of 

the District Inspector of Schools was 

required for such termination and whether 

in fact approval was granted or not. In the 

light of the aforesaid direction, the 

District Inspector of Schools passed order 

dated 28th of July 1998 and upheld the 

order of removal of the petitioner from 

service. It is this order of the District 

Inspector of Schools, which has been 

challenged in Civil Misc. Writ Petition 

No. 19101 of 1999 (Rishikesh Lal 

Srivastava vs. State of U.P. & others). 

4. Chandra Bali, a class IV 

employee of Seth Ganga Ram Jaiswal 

Inter College, Baraut, Allahabad, 

aggrieved by the order of termination 

passed by the Principal of the College, 

represented before the District Inspector 

of Schools, Allahabad who disapproved 

his dismissal by order dated 12th of May 

2003 inter alia observing that before 

terminating his service, prior approval 

under Regulation 31 of Chapter III framed 

under the U.P. Intermediate Education 

Act, 1921 was not obtained. The Principal 

of the College aggrieved by the same has


preferred Civil Misc. Writ Petition No. 

21965 of 2003 (The Principal, Seth Ganga 

Ram Jaisawal Inter College, Baraut, 

Allahabad vs. The District Inspector of 

Schools, Allahabad and others). 

5. It is not in dispute that both the 

Colleges are duly recognized by the U.P. 

Intermediate Education Act 1921 (U.P. 

Act 2 of 1921) [hereinafter referred to as 

the ''Act'] and the Regulations framed 

thereunder. It is also an admitted position 

that both the Colleges receive grant-in-aid 

from the State Government and 

disbursement of salary of the employees 

is governed by the U.P. High School and 

Intermediate Colleges (Payment of 

Salaries of Teachers and other 

Employees) Act, 1971 (U.P. Act No. 24 

of 1971). 

6. We have heard Sri Harish 

Chandra Singh, learned counsel for the 

petitioner in writ petition no.19101 of 

1999, Sri R.C. Dwivedi, learned counsel 

for respondent Nos. 3 and 4 and Sri N.K. 

Pandey, learned counsel for respondent 

no.5. We have also heard Sri R.K. Ojha, 

learned counsel for the Principal of the 

College - petitioner in writ petition 

no.21965 of 2003 and Sri R.C. Singh, 

learned counsel on behalf of the 

respondent no.4 - employee therein and 

Sri M.C. Chaturvedi, learned Chief 

Standing Counsel on behalf of the State in 

both the petitions. 

7. Before we enter into merit of the 

case, it is apt to go into the legislative 

history. The legislature enacted the U.P. 

Intermediate Education Act, 1921 (U.P. 

Act No 2 of 1921) for regulating and 

supervising the system of the High School 

and Intermediate Education. 

8. Sections 16-A to 16-I were 

inserted in the Act by Section 7 of 

Intermediate Education (Amendment) 

Act, 1958 (U.P. Act No. 35 of 1958). 

Section 16-G of the Act as inserted by the 

U.P. Act No. 35 of 1958 reads as 

follows:- 

"16-G. Conditions of service of 

teachers -(1) Every person employed in a 

recognized institution shall be governed 

by such conditions of service as may be 

prescribed by Regulations and any 

agreement between the management and 

such employee insofar as it is inconsistent 

with the provisions of this Act or with the 

Regulations shall be void. 

(2) Without prejudice to the generality 

of the powers conferred by subsection 

(1), the Regulations may 

provide for-- 

(a) the period of probation, the 

conditions of confirmation and the 

procedure and conditions for 

promotion and punishment, including 

suspension pending inquiry and the 

emoluments for the period of 

suspension and termination of 

service with notice; 

(b) the scales of pay, and payment of 

salaries ; 

(c) transfer of service from one 

recognized institution to another ; 

(d) grant of leave and Provident Fund 

and other benefits ; and 

(e) maintenance of record of work and 

service. 

(3)(a). No Principal, Headmaster or 

teacher may be discharged or 

removed or dismissed from service 

or reduced in rank or subjected to 

any diminution in emoluments, or


served with notice of termination of 

service except with the prior 

approval in writing of the Inspector. 

The decision of the Inspector shall be 

communicated within the period to 

be prescribed by regulations. 

(b). The Inspector may approve or 

disapprove or reduce or enhance the 

punishment or approve or disapprove 

of the notice for termination of 

service proposed by the 

management: 

Provided that in the cases of 

punishment, before passing orders, the 

Inspector shall give an opportunity to the 

Principal, the Headmaster or the teacher 

to show cause within a fortnight of the 

receipt of the notice why the proposed 

punishment should not be inflicted. 

(c) An appeal against the order of the 

Inspector under clause (b), may be 

made to the Regional Appellate 

Committee constituted under clause 

(d) within one month from the date 

of such order being communicated to 

the parties concerned and the 

Regional Appellate Committee may, 

after such enquiry as it considers 

necessary, confirm the order or set 

aside or modify it, and the order 

passed by the Regional Appellate 

Committee shall be final. 

(d) The Regional Appellate Committee 

in each region shall consist of-- 

(i) the Regional Deputy Director, 

Education who will be President of 

the Committee, 

(ii) a member of the State Maneger's 

Association nominated by that 

Association, and 

(iii) a member of the U.P. Madhyamik 

Shiksha Sangh nominated by that 

Sangh. 

(4) An order made or decision given by 

the competent authority under subsection 

(3) shall not be questioned in 

any court and the parties concerned 

shall be bound to execute the 

directions contained in the order or 

decision within the period that may 

be specified therein. 

(5) In this section and section 16-F the 

powers conferred on or the duties 

assigned to the Inspector and the 

Regional Deputy Director, Education 

shall, in the case of an institution for 

girls, be respectively exercised or 

discharged by the Regional 

Inspectress of Girl's Schools and the 

Deputy Director of Education 

(Women). 

9. Section 2 of the U.P. Act No. 7 of 

1966 amended Section 16-G of the Act 

and substituted Section 16 G (3) (c). 

Section 2(i) of U.P. Act 7 of 1966 reads 

as follows: 

"2. Amendment of Section 16-G of 

U.P. Act II of 1921.--In Sub-section (3) 

of Section 16-G of the Intermediate 

Education Act, 1921, hereinafter referred 

to as the principal Act,-- 

(i) For clause (c) the following shall be 

substituted, namely - 

"(c) Any party may prefer an appeal to 

the Regional Deputy Director, 

Education, against an order of the 

Inspector under clause (b), whether 

passed before or after the 

commencement of the Uttar Pradesh 

Intermediate 

Education 

(Sanshodhan) Adhiniyam, 1966, 

within one month from the date of 

communication of the order to that 

party, and the Regional Deputy 

Director may after such further 

enquiry, if any, as he considers 

necessary, confirm, set aside or 

modify the order, and the order


passed by the Regional Deputy 

Director shall be final. In case the 

order under appeal was passed by the 

very person holding the office of 

Regional Deputy Director while 

acting as Inspector, the appeal shall 

be transferred by order of the 

Director to some other Regional 

Deputy Director for decision, and the 

provisions of this clause shall apply 

in relation to decision by that other 

Regional Deputy Director as if the 

appeal had been preferred to 

himself." 

Further Section 15 of the U.P. 

Secondary Education Laws (Amendment) 

Act, 1975 (Act No. 26 of 1975) amended 

Section 16 G of the Act. Same reads as 

follows: 

15. Amendment of Section 16 G.-- In 

Section 16 G of the principal Act - 

(i) in the marginal heading for the words 

"conditions of service of teachers" 

the words "conditions of service of 

Head of Institutions, teachers and 

other employees" shall be 

substituted; 

(ii) in sub-section (2), in clause (a), for 

the words "including suspension 

pending enquiry", the words and 

brackets "(including suspension 

pending or in contemplation of 

enquiry or during the pendency of 

investigation, enquiry or trial in 

criminal case for an offence 

involving moral turpitude)" shall be 

substituted; 

(iii) for sub-section (5), the following 

sub-sections and Explanation shall be 

substituted, namely:- 

"(5) No Head of Institution or teacher 

shall be suspended by the 

Management, unless in the opinion 

of the Management- 

(a) the charges against him are serious 

enough to merit his dismissal, 

removal or reduction in rank; or 

(b) his continuance in office is likely to 

hamper or prejudice the conduct of 

disciplinary proceedings against him; 

or 

(c) any criminal case for an offence 

involving moral turpitude against 

him is under investigation, enquiry or 

trial. 

(6) Where any Head of Institution or 

teacher is suspended by the 

Committee of Management, it shall 

be reported to the Instructor within 

thirty days from the date of the 


Secondary Education Laws 

(Amendment) Act, 1975, in case the 

order of suspension was passed 

before such commencement, and 

within seven days from the date of 

the order of suspension in any other 

case, and the report shall contain 

such particular as may be prescribed 

and be accompanied by all relevant 

documents. 

(7) No such order of suspension shall, 

unless approved in writing by the 

Inspector, remain in force for more 

than sixty days from the date of 


Secondary Education Laws 

(Amendment) Act, 1975 or as the 

case may be from the date of such 

order and the order of the Inspector 

shall be final and shall not be 

questioned in any Court. 

(8) If, at any time, the Inspector is 

satisfied that disciplinary 

proceedings against the Head of 

Institution or teacher or being


delayed, for no fault of the Head of 

Institution or the teacher, the 

Inspector may after affording 

opportunity to the Management to 

make representation revoke an order 

of suspension passed under this 

section. 

(9) All appeals pending before the 

Deputy Director of Education 

(Women) immediately before the 

commencement of this sub-section 

shall be transferred to the Joint 

Director of Education (Women) for 

disposal: 

Provided that where the Deputy 

Director of Education (Women) has 

already commenced the hearing of any 

such appeal before the commencement of 

this sub- section, the appeal shall be 

disposed of by the Deputy Director of 

Education (Women) herself. 

Explanation. - For the purposes of 

this section, the expression ''Regional 

Deputy Director, Education shall, in 

relation to a girls' institution mean the 

Joint Director of Education (Women)." 

10. In exercise of power conferred 

under Section 16-G of the Act, 

Regulations have been framed and 

Chapter 3 thereof pertains to Conditions 

of Service. Regulation 31, which is 

relevant for the purpose, reads as 

follows:- 

"31. Punishment to employees for 

which prior sanction from Inspector or 

Regional Inspectress would be essential 

may be any one of the following: 

(1) Discharge, 

(2) Removal or Termination, 

(3) Demotion in grade, 

(4) Reduction in emoluments. 

Principal or Headmaster would be 

competent to give above punishment to 

Fourth-class employees. In case of 

punishment awarded by competent 

officer, the Fourth-class employee may 

appeal to Management Committee. This 

appeal must be preferred within one 

month of the date of intimation of the 

punishment and Management Committee 

on receipt of appeal will decide the matter 

within six weeks. On consideration of all 

necessary records and after giving an 

opportunity of hearing to the employee, if 

he wants to appear before the 

Management Committee, it will give its 

decision. 

Fourth-class employee would also have a 

right to represent against the decision of 

the Management Committee on his appeal 

to the District Inspector of 

Schools/Regional Inspectress of Girls 

Schools within one month of the date of 

intimation of the decision: 

11. By this juncture, it would be 

appropriate to quote Regulation 100 of 

Chapter 3, which reads as follows:- 

"100. In respect of clerks, which includes 

Librarian also, the Management 

Committee and in respect of Fourth 

class employees, the 

Principal/Headmaster shall be the 

appointing authority. Regarding 

appointment, probation of clerk, which 

includes Librarian also, and Fourth class 

employees, the period for which is one 

year, confirmation and other service 

conditions, etc. relating to it, provisions 

with necessary changes described in 

Regulations 1, 4 to 8, 10, 11, 15, 24 to 26, 

30, 32 to 34, 36 to 38, 40 to 43, 45 to 52, 

54, 66, 67, 70 to 73 and 76 to 82 shall 

apply. But in respect of Fourth class


employees Regulations 77 to 82 would 

apply only when necessary directions in 

this regard are issued by the State 

Government. Provisions in Regulations 9, 

12, 13, 14, 16 to 20, 27, 28, 54, 55 to 65 

and 97 would not apply in respect of such 

employees." 

12. From a plain reading of the 

aforesaid Regulation, it would be evident 

that various Regulations would be 

applicable in the case of Class IV 

employees for the purpose of 

confirmation and other service conditions, 

but Regulation 31 has not been made 


employees. It is, at this stage, to apt to 

quote Regulation 37, which reads as 

follows:- 

"37. Soon after the report of the 

proceedings and recommendation from 

the inquiring authority are received, the 

Committee of Management shall after 

notice to employee, meet to consider the 

report of the proceeding and 

recommendation made and take decision 

on the case. The employee shall be 

allowed, if he so desires, to appear before 

the Committee in person to state his case 

and answer any question that may be put 

to him by any member present at the 

meeting. The Committee shall then send a 

complete report together with all 

connected papers to the Inspector or 

Regional Inspectress as the case may be, 

for approval of action proposed by it. 

But, regarding fourth-class 

employees, no report shall be sent to 

the Inspector or Inspectress for 

approval. Abovesaid all proceedings in 

this regard shall be done by appointing 

authority." 

13. It has been contended on behalf 

of Class IV employees that prior approval 

from the District Inspector of Schools is 

sine qua non for dismissing Class IV 

employee and in support of the 

submission, reliance has been placed on 

the following judgments of this Court :- 

Shankar Saran Vs. Vesli Inter College, 

[1991 (1) UPLBEC 467], Daya Shankar 

Tewari Vs. Principal, R.D.B.M. 

Uchchatar Madhyamik Vidyalaya, 

Neogaon, Mirzapur and others, [1998 (2) 

UPLBEC 1101], Principal, Rastriya Inter 


Maharajganj and another Vs. District 

Inspector of Schools, Mahrajganj and 

others, [2000 (1) UPLBEC 707], Sita 

Ram Vs. District Inspector of Schools, 

Allahabad and others, [2000 (3) E.S.C. 

1880 (All.)], Committee of Management, 

St. Charles Inter College, Sardhana and 

others Vs. District Inspector of Schools, 

Meerut and others, [2001 (1) UPLBEC 

487], Ram Khelawan Maurya Vs. District 

Inspector of Schools, Jaunpur and others, 

[2002 (4) ESC 201]. 

14. However, counsel representing 

the Committee of Management and the 

Principal, contend that prior approval of 

the District Inspector of Schools is not 

necessary before terminating the services 

of Class IV employees and in support 

thereof, reliance has been placed on the 

following judgments of this Court: 

Principal, Shitladin Inter College, 

Bagbana, District Allahabad Vs. District 

Inspector of Schools, Allahabad and 

another, [1994 (3) ESC 112 (All)], Swami 

Vivekanand Uchchatar Madhyamik 

Vidyalaya, Unnao and another Vs. 

District Inspector of Schools, Unnao and 

another, [1998 (3) A.W.C. 1940 (L.B.)], 

Ali Ahmad Ansari Vs. District Inspector


of Schools, Kushinagar and others, 

Reported in [2006 (3) ESC 1765 

(All)(DB)]. 

15. In the case of Shankar Saran 

(Supra), a Division Bench of this Court 

has held that an order of dismissal passed 

against a class IV employee without prior 

approval of the District Inspector of 

Schools, is illegal. Relevant portion of the 

judgment of this Court in the aforesaid 

case reads as follows: 

"13- blds vfrfjDr vf/kfu;e ds vUrxZr cuk;s fu;eksa 

ds v/;k;&3 ds fofu;e 31 ds vk/kkj ij ;kph dh lsok;sa 

fcuk ftyk fo|ky; fujh{kd dh iwoZ vuqefr ds lekIr fd;k 

tkuk Hkh iw.kZr;k voS/kkfud FkkA iwjs rF;ksa ls ;g Hkh Li"V 

gS fd izcU/k lfefr vkSj iz/kkukpk;Z us kksj :i ls vuqfpr 

n`f"Vdks.k ;kph ds lEcU/k esa viuk;k vkSj ftyk fo|ky; 

fujh{kd vkSj iz/kkukpk;Z us ;kph dks voS/kkfud :i ls ckgj 

j[kkA" 

16. A more detailed and exhaustive 

consideration is found in the case of Daya 

Shankar Tewari (supra), wherein the 

learned Single Judge concluded as 

follows: 

"8. While considering the aforesaid 

contention, I find that sub-section (3) of 

Section 16-G of U.P. Intermediate 

Education Act, 1921 clearly provides for 

approval of Inspector in case of discharge, 

removal, dismissal from service, 

reduction in rank diminution in 

emoluments and termination of service 

but this provision only makes reference of 

Principal, Headmaster and teachers and 

no categorical reference of Class-IV 

employee has been made therein. But subsection 

(1) of Section 16-G provides that 

the condition of service of every person 

employed in a recognized institution shall 

be governed by Regulations. Therefore, 

Statute permits framing of Regulations 

providing conditions of service every 

person employed and therefore, this 

includes Class-IV employees also. 

Regulation 31 of Chapter-III of the 

Regulations so framed under the U.P. 

Intermediate Education Act, 1921, 

provides for prior approval in case of 

certain punishments including 

termination. Regulation 100 of the said 

Regulations though does not categorically 

make Regulation 31 applicable in case of 

Class-IV employees but it also does not 

categorically exclude Regulation 31 from 

its applicability to Class-IV employees. 

Therefore, the only provisions of 

Regulation 31 indicates its scope of 

applicability. It is true that first paragraph 

of Regulation 31 while providing for prior 

approval in case of some punishment, 

does not refer to Class-IV employees 

specially but the said first paragraph 

providing for prior approval refers to all 

employees and there is no reason to 

presume exclusion of Class-IV employees 

from the applicability of the said 

Regulation. The subsequent paragraphs in 

Regulation 31 clearly refer to Class-IV 

employees." 

17. A perusal of the said decision 

indicates that the Court came to the 

conclusion that even though Regulation 

100 does not categorically apply 

Regulation 31, yet it also does not exclude 

the same. Further, the learned Single 

Judge in paragraph 11 found that 

Regulation 37, which provides for 

sending of a report, limits the same in 

respect of Class-IV employees to be sent 

to the appointing authority instead of the 

Inspector and nothing more, which is 

quoted below: 

"11. A perusal of Regulations 36 and 

37 of the said Regulations indicate that 

they provide for procedure in respect of


disciplinary proceeding. Proviso to 

Regulation 37 only excludes Class-IV 

employees to the extent the said 

Regulation 37 requires sending of the 

report and the recommendation to the 

District Inspector of Schools for approval 

making it clear that the said entire 

proceedings relating to Class-IV 

employees are to be performed by the 

appointing authority. This has been done 

as in respect of Class-IV employees the 

appointing authority is the Principal 

whereas in respect of teachers the 

appointing authority is committee of 

management and Regulation 37 provides 

for sending of report and recommendation 

of the Enquiry Officer to committee of 

management which was to consider the 

same and take a decision and then to send 

the entire record to the Inspector for his 

approval. Therefore, proviso to 

Regulation 37 was required making it 

clear that for Class-IV employees ending 

of papers to the Inspector was to be made 

by the Principal, being the appointing 

authority and in this case papers were not 

to be sent by the committee of 

management which is not the appointing 

authority." 

18. For ready reference, at this 

juncture, we may record that even though 

there was a decision to the contrary in the 

case of Principal, Shitladin Inter College 

(supra), the same appears to have not been 

noticed in the judgment of Daya Shankar 

Tewari (supra), which was rendered at 

later point of time. 

19. The decision in the case of Daya 

Shankar Tewari (supra) came to be 

considered by a Division Bench in the 

case of Principal, Rastriya Inter College, 

(supra) and the Division Bench affirmed 

the decision of Daya Shankar Tewari's 

(supra) case, with an approval in 

paragraph 4 and 5, which is as follows:- 

"4. A learned Single Judge of this 

Court (Hon'ble Aloke Chakrabarti, J.) in 

Daya Shankar Tewari Vs. Principal and 

others, (1998) 2 UPLBEC 1101, has held 

that such prior approval is necessary. The 

learned Single Judge has gone into the 

matter in great detail and has examined 

the relevant provisions in the U.P. 

Intermediate Education Act as well as 

Regulations 31 and 100 of the 

Regulations made under the aforesaid 

Act. 

5. We are in respectful agreement with 

the aforesaid decision of the learned 

Single Judge in Daya Shankar Tewari's 

case. The decision of the Full Bench of 

this Court in Magadh Ram Yadav v. Dy. 

Director of Education and others, 1979 

ALJ 1351, which is relied upon by the 

learned Counsel for the appellant is in our 

opinion not applicable as it has not 

considered Regulations 31 and 100 of the 

U.P. Intermediate Education Regulation." 

20. A learned Single Judge of this 

Court followed the case of Daya Shankar 

Tewari (supra) in the decision of Sita 

Ram Vs. District Inspector of Schools, 

Allahabad and others, [2000 (3) E.S.C. 

1880 (All.)] and held as follows : 

"6. Now there is no escape from the in 

holding that prior approval of the DIOS is 

essential in awarding punishment of 

termination, dismissal etc. of Class-IV 

employee. The contention of the learned 

Counsel for the respondent is that 

approval was not required because 

petitioner was a Class-IV employee, is not 

acceptable. It is not disputed by the 

respondents that no approval of the DIOS 

prior to his termination by the Principal


was obtained. The petition, therefore, 

deserves to be allowed and the impugned 

order of termination be quashed on this 

ground alone. Since the impugned order is 

liable to be quashed on the ground that no 

approval of the DIOS was obtained in the 

case of the petitioner, prior to terminating 

him from service, the other grounds 

sought to challenge the propriety of the 

impugned order is not considered." 

21. It may again be pointed out that 

none of the aforesaid decisions took 

notice of the decision in the case of 

Principal, Shitladin Inter College, 

(supra). The same position was reiterated 

in the case of Committee of 

Management, St. Charles Inter College, 

Sardhana (supra) by a learned Single 

Judge of this Court, as contained in 

paragraph 12, which reads as follows:- 

"12. The next question is whether 

the management could dismiss a class IV 

employee without obtaining prior 

approval of the DIOS as provided in 

Chapter III, Regulation 31. Counsel for 

the petitioners argued that no prior 

approval of DIOS was required for 

dismissing a class IV employee. On the 

other hand Counsel for the respondent 

No. 2 urged that prior approval of DIOS 

was necessary. In the alternative the 

learned Counsel urged that in cases where 

prior approval of DIOS has not been 

obtained the class IV employee could 

prefer appeal before the management and 

representation before the DIOS. The 

argument is supported by a Single Judge 

decision of this Court in Daya Shanker 

Tiwari v. Principal, R.D.B.M. Uchchatar 

Madhyamik Vidyalaya, Neogaon, 

Mirzapur and others, 1998 (1) ESC 403 

(All). The learned Single Judge held that 

the provisions of Regulation 31 read with 

Section 16-G (1) were applicable before 

dismissing a class IV employee. And 

prior approval of Inspector or Regional 

Inspectress was required to be obtained by 

the management. This decision was 

approved by a Division Bench of this 

Court in Principal, Rastriya Inter 


Maharajganj and others v. District 

Inspector of Schools, Maharajganj and 

others, (2000) 1 UPLBEC 707. Therefore, 

since prior approval of DIOS was not 

obtained by the petitioners before 

dismissing the respondent No. 2, the 

DIOS rightly set aside the dismissal 

order." 

Another learned Single Judge in the 

case of Ram Khelawan Maurya Vs. 

District Inspector of Schools (supra) 

arrived at the same conclusion by holding 

as follows:- 

"7. It is settled law that the 

punishment can be awarded after prior 


Schools or the Regional Inspectress of 

Girls School. Since approval of the 

District Inspector of Schools was not been 

obtained, the decision of the Committee 

of Management is bad in law. 

It is submitted on behalf of 

respondents that Regulation 31 of the U.P. 

Intermediate Education Regulations while 

providing for prior approval in case of 

Class IV employees the said paragraph 

refers to all employees and there is no 

reason to exclude Class IV employees 

from the applicability of the said 

regulation. Subsequent paragraph of the 

Regulation 31 also refers to Class IV 

employee. 

This Court in the case of Principal, 

Rashtriya Inter College (supra) has held 

that prior approval in case of dismissal of


non-teaching staff is necessary and if such 

prior approval is not taken before 

termination of the services, the 

termination is illegal. 

The learned Single Judge in Daya 

Shankar Tiwari v. Principal, Smt. 

Ramwati Devi Beni Madho Uchchatar 

Madhyamik Vidyalaya, Mirzapur and 

others, 1998 Lab IC 1252, has held that 

the provision of Regulation 31 read with 

Section 16-G (1) of the Act make it clear 

that in case of Class IV employees prior 

approval of Inspector or Regional 

Inspectress is necessary. This case has 

been approved by the Division Bench of 

this Court." 

22. There is yet another decision of 

a learned Single Judge to the same effect 

in the case of Principal, P.N.V. Inter 

College, Chilli Hamirpur & another Vs. 

D.I.O.S. Hamirpur & another, (2007) 1 

AWC 253. 

Thus, it can be seen that the decision 

in the case of Shankar Saran Vs. Vesli 

Inter College (supra), which was 

delivered on 3rd March, 1991, there was 

no detailed discussion on the various 

provisions of the Act and a conclusion 

was drawn on the strength of Regulation 

31 only to the effect that prior approval 

was required. The latter decisions from 

Daya Shankar Tewari's case (supra) 

onwards, upon a discussion of the 

relevant provisions, came to the 

conclusion that prior approval was 

required, but as pointed out hereinabove, 

none of the said decisions took notice of 

the decision in the case of Principal, 

Shitladin Inter College, (supra). 

23. The decisions, which hold that 

no such prior approval is required begin 

with the case of Principal, Shitladin Inter 

College (supra), wherein a learned Single 

Judge drew the following conclusion: 

"9. Regulations 35 to 44-A provide the 

manner in which enquiry is to be 

conducted. In case the enquiry is not 

conducted against the delinquent 

employee, any order awarding 

punishment will be illegal. In case all the 

procedures were followed, the order of 

punishment imposed by the authority 

concerned cannot be set aside. The 

District Inspector of Schools has not 

recorded any finding that the enquiry 

officer or the Principal did not follow the 

procedure prescribed for holding enquiry 

and in giving opportunity of hearing 

before awarding punishment. 

The disciplinary proceedings against 

a Class IV employee of the institution is 

in the nature of domestic enquiry. If the 

disciplinary authority, after holding the 

enquiry, in a fair manner, comes to the 

conclusion on the basis of appreciation of 

evidence on record that the charges 

against the delinquent employee is 

proved, the Committee of Management on 

appeal being filed can re-appraise the 

evidence and can come to different 

conclusion. The aggrieved employee is 

given right of making representation 

against the decision of the Committee of 

Management given in appeal. The power 

given to the District Inspector of Schools 

is in the nature of supervisory jurisdiction. 

He can set aside the findings recorded by 

the disciplinary authority of the 

Committee of Management when it is 

either perverse or based on no material 

evidence or certain material evidence has 

been ignored. He has further to examine 

whether procedure prescribed for holding 

the enquiry was followed and it was fair 

and impartial enquiry. He has, however,


no jurisdiction to re-appraise the evidence 

on record. 

Learned counsel for the respondent 

urged that the order of dismissal from 

service was otherwise illegal as before 

passing the order of dismissal no prior 


Schools was taken as provided under 

Regulation 31 of Chapter III of the 

Regulations framed under the Act 

Regulation 31 of Chapter III of the 

Regulation framed under the Act had been 

amended by Notification No. 7/562/5-8 

(Board, September 1974) Allahabad dated 

10th March, 1975 issued in pursuance to 

the approval of the State Government 

contained in G.O. No. 789(1)-15/(7) 75 

dated March 1, 1975 and by the 

amendment so brought specific provisions 

have been made pertaining to 

appointment, disciplinary proceedings, 

appeal etc. in so far as Class IV 

employees are concerned. Amendment to 

Regulation 31 lays down power to 

appoint, punish and further provides for 

the appellate authority to hear appeals 

against punishment imposed and 

procedure for disposal of appeal and 

against the said appeal a further 

representation has been provided to the 

District Inspector of Schools, Regional 

Inspectress of Girls Schools concerned. 

The said Regulation is extracted 

hereunder. 

"31& deZpkfj;ksa dks izk;% n.M] ftlds fy, fujh{kd vFkok 

e.Myh; fujhf{kdk dh iwoZ Lohd`fr vko';d gksxh] 

fuEufyf[kr esa ls fdlh ,d :i ls gks ldrh gS%& 

¼d½ i`FkDdj.k vFkok izeqfDrA 

¼[k½ Js.kh esa voufrA 

¼x½ ifjfLFkfr;ksa esa dehA 

prqFkZ Js.kh deZpkfj;ksa dks mijksDr dksbZ n.M nsus gsrq 

iz/kkukpk;Z vFkok iz/kkuk/;fidk l{ke gksxkA l{ke vf/kdkjh 

}kjk n.M fn;s tkus dh n'kk esa prqFkZ Js.kh deZpkfj;ksa }kjk 

izca/k lfefr dks vihy dh tk ldsxhA ;g vihy n.M 

lwfpr fd;s tkus dh frfFk ls ,d ekg ds vUnj izLrqr gks 

tkuh pkfg, vkSj ml ij izca/k&lfefr }kjk fu.kZ; dj 

vihy dh izkfIr frfFk ls vf/kdre N% ekg ds Hkhrj ns fn;k 

tk;sxkA leLr vko';d vfHkys[kksa ij fopkj djus ,oa 

deZpkjh dks] ;fn og izca/k lfefr ds le{k Lo;a mifLFkr 

gksuk pkgs] lquokbZ ds i'pkr izca/k&lfefr vihy ij fu.kZ; 

nsxhA 

prqFkZ Js.kh deZpkjh dks ;g Hkh vf/kdkj gksxk fd 

mldh vihy ij fd;s x;s izca/k lfefr ds fu.kZ; ds fo:) 

og ftyk fon~;ky; fujh{kd e.Myh; ckfydk fon~;ky; 

fujhf{kdk dks] fu.kZ; lwfpr fd;s tkus dh frfFk ls ,d ekg 

ds vUnj lE;kosnu dj ldsxkA 

fdUrq izfrcU/k ;g gksxk fd ;fn izca/k lfefr mi;qZDr 

fu/kkZfjr N% lIrkg dh vof/k ds Hkhrj viuk fu.kZ; mijksDr 

vihy ij u ns rks lEcaf/kr deZpkjh viuk vH;kosnu lh/ks 

ftyk fon~;ky; fujh{kd e.Myh; ckfydk fon~;ky; fujhf{kdk 

dks mijksDr N% lIrkg dh vof/k chr tkus ij ns ldrk gSA 

ftyk fon~;ky; fujh{kd e.Myh; ckfydk fon~;ky; fujhf{kdk 

}kjk mijksDr vH;kosnu ij vH;kosnu dh izkfIr dh frfFk ls 

vf/kdre rhu ekg ds Hkhrj fu.kZ; ns fn;k tk;sxk vkSj ;g 

fu.kZ; vfUre gksxkA 

vH;kosnu ds izLrqrhdj.k] fopkj ,oa fu.kZ; ds laca/k esa 

vko';d ifjorZu ds lkFk bl v/;k; ds fofu;e 86 ls 

92 ykxw gksxsA" 

24. Regulation 100 of Chapter III 

inserted by the said Notification 

Regulations 1, 4 to 8, 10, 11, 15, 24 to 26, 

30, 32 to 34, 36 to 38, 40 to 43, 45 to 52, 

66, 67, 70 to 73 and 76 to 82 with 

necessary modifications have been made 


employee. Unamended Regulation 31 has 

not been applicable. 

25. From a reading of amended 

Regulation 31 it is clear that as far as 

employees who are employed by 

Committee of Management a different 

procedure has been prescribed but as 

regards Class IV employees, different 

procedure has been prescribed before 

passing an order of punishment. In case of 

an employee other than Class IV 

employee it is Committee of Management 

who has to impose punishment and such 

punishment cannot be made without prior



Schools/Regional Inspectress of Girls 

Schools concerned. But in a case of Class 

IV employee the imposition of 

punishment is made by the Principal or 

the Headmaster of the institution 

concerned and against the said order an 

appeal is maintainable before the 

Committee of Management of the 

institution within a prescribed time and 

after the dismissal of appeal by the 

management a right to make further 

representation has been given within a 

prescribed time. The procedure for 

disposal of representation by the District 

Inspector of Schools is to be made in 

accordance with Regulations 86 and 98 of 

the Regulations framed under the Act. 

26. This provision clearly makes 

distinction in the manner of imposition of 

punishment. In case of Class IV 

employees no prior approval of the 

District Inspector of Schools is required. 

In case, the intention of the Legislature 

had been to obtain prior approval of the 

District Inspector of Schools before 

imposition of penalty, the right of appeal 

could have not been given to the 

Management and thereafter a further right 

to make representation to the District 

Inspector of Schools. 

27. Learned counsel for respondent 

No. 2 has placed reliance upon the 

Committee of Management, Janta Inter 

College, Karni, Faizabad vs. District 

Inspector of Schools, Faizabad and 

others, 1981 U.P.L.B.E.C. 135, wherein it 

was held that prior approval of the 

District Inspector of Schools is to be 

obtained to the decision of the Committee 

of Management to award punishment. It 

was a case of Class III employee and is 

not applicable to the facts of the present 

case. 

In Brij Raj Singh vs. District 

Inspector of Schools and other, 1988 

UPLBEC 123, it was held that if the order 

of termination is passed in violation of 

Regulations 35 and 36 in terminating the 

services of a Class IV employee the same 

cannot be upheld. The court did not hold 

that prior approval was necessary even in 

Class IV employees' services. 

In Shankar Sharan vs. Waslee Inter 

College, 1991(2) ALR 1, it was held that 

if the services of Class IV employee is 

terminated without giving opportunity of 

hearing it is liable to be quashed. The 

decision was mainly based on the facts of 

the case." 

28. The other decision, which has 

been cited at the Bar in support of the said 

proposition is that of Swami Vivekanand 

Uchchatar Madhyamik Vidyalaya, Unnao 

and another Vs. District Inspector of 

Schools, Unnao and another, 1998 (3) 

A.W.C. 1940 (L.B.). We are not referring 

to any paragraph of the said judgment, as 

in our opinion, the same is not a case 

directly for the proposition as advanced 

before us as we shall explain it later on. 

29. The Division Bench decision, on 

the basis whereof the conflict has been 

referred to be resolved by us, is the case 

of Ali Ahmad Ansari Vs. District 

Inspector of Schools, Kushinagar and 

others (supra), where the Division Bench 

after having traced the various provisions 

held as follows: 

"8. Although the opening words of 

Regulation 31 provides that punishment 

to employee requires prior sanction from 

the District Inspector of Schools or


Regional Inspectress of Girls Schools but 

the later part of the said regulation 

provides that Principal or the Headmaster 

would be competent to give the above 

punishment to Class-IV employee. The 

first part of the said regulation specifically 

provide that prior sanction from Inspector 

for awarding punishment to employee is 

necessary whereas in the next part of the 

said regulation it is said that for Class-IV 

employee the Principal or Headmaster 

would be competent to give punishment. 

Further with regard to punishment 

awarded to a Class-IV employee, right of 

appeal has been given to the employee 

before the Management Committee within 

one month. The Class-IV employee has 

also been given right of representation 

against the decision of the Management 

Committee on his appeal to the District 

Inspector of Schools. The proviso to the 

said regulation further provides that if the 

Management Committee does not give a 

decision on the appeal of the employee 

within six weeks, the employee has right 

to represent the District Inspector of 

Schools directly. Had the prior approval 

for awarding the punishment to the Class 

IV employee was also required, there was 

no object and purpose for giving the right 

of representation to the same authority. 

The provisions of seeking prior approval 

for awarding punishment from the District 

Inspector of Schools and the provisions 

for right of representation to the District 

Inspector of Schools cannot go together. 

The above intend is further clear from the 

subsequent regulations of Chapter-III, i.e., 

Regulations 44 and 44-A. Regulation 44 

clearly mentions that the Inspector or 

Regional Inspectress shall for the purpose 

of proceedings as envisaged in subsection 

3(a) of Section 16(G) of the Act or 

for adjudication of proposed punishment 

against any employee of clerical cadre 

within six weeks of receipt of complete 

proposal inform the Management about 

his decision. Regulation 44-A further 

provides that Inspector or Regional 

Inspectress may accept or reject the 

punishment proposed in respect of 

employee of clerical cadre. Had the prior 

approval of Inspector was also 

contemplated for Class-IV employees 

under Regulation 31, the mention of only 

Class-III employee in Regulations 44 and 

44-A would not have been there. 

Regulations 44 and 44-A are extracted 

below: 

"44. The Inspector or Regional 

Inspectress shall for the purpose of 

proceedings as envisaged in sub-section 

3(a) of Section 16(g) of the Act or for 

adjudication of proposed punishment 

against any employee of clerical cadre 

within six weeks of receipt of complete 

proposal inform the Management about 

his/her decision. If incomplete proposal is 

received from the Management, the 

sanctioning authority shall ask to resubmit 

the complete proposal and period 

of six weeks as proposed in this 

regulation would be counted from the date 

of receipt of complete papers to the 

sanctioning authority. These papers may 

be sent either by registered post or by 

special bearer. 

44-A. (1) The Inspector or 

Inspectress may accept or reject the 

punishment proposed in respect of 

employees of clerical cadre. He may 

either extend or reduce it : 

Provided that Inspector or Inspectress 

would give a notice to the concerned 

employee before issuing an order in 

respect of punishment to show cause 

within fifteen days of service of the notice 

as to why he should not be punished as 

proposed.


Either party within a period of one 

month from the date of receipt of 

information may appeal to the Regional 

Deputy Director of Education against an 

order of Inspector or Inspectress and 

Regional Deputy Director of Education, 

after any such additional enquiry, if any, 

which he may deem fit, can affirm or 

cancel or modify the order, which will be 

final. On appeal of an employee, decision 

of Regional Deputy Director of Education 

would be given within a period of three 

months." 

30. The scheme of the Regulations 

31 to 45 of Chapter-III, thus, do not 

provide that prior approval is required for 

awarding punishment of removal or 

termination of a Class-IV employee from 

the District Inspector of Schools." 

31. Learned counsel, appearing for 

the employees, namely Sri Harish 

Chandra Singh and Sri R.C. Singh, have 

urged that Regulation 31, clearly 

stipulates that the Conditions of Service 

of all Employees of an Intermediate 

College including Class-IV employees are 

to be governed by the same and, 

therefore, the decision by the Division 

Bench in the case of Ali Ahmad Ansari 

Vs. District Inspector of Schools, 

Kushinagar And Others (supra) does not 

lay down the law correctly. 

32. Sri R.C. Singh vehemently urged 

that the opening part of Regulation 31 

leaves no room for doubt that prior 

approval is required for all class of 

punishments referred to therein in respect 

of all employees and that such prior 

approval cannot be excluded. He contends 

that the latter part of the procedure, which 

makes provision for appeal from the 

decision of the Head of the Institution to 

the Committee of Management and 

further representation to the District 

Inspector of Schools does not take away 

the power of granting prior approval. 

33. He further submits that 

Regulation 37, which carves out a proviso 

in respect of Class-IV employees, not 

obliging the disciplinary authority to 

forward papers for approval, does not 

curtail the powers of District Inspector of 

Schools to grant prior approval. He 

contends that if such an interpretation is 

given, then Regulation 31 would become 

redundant and, therefore, the principle of 

harmonious construction should be 

applied for which, he drew support from 

the conclusion drawn by the learned 

Single Judge in the case of Daya Shankar 

Tewari (supra). He further contends that 

Class-IV employees are clearly covered 

by Regulation 31, and if the legislature 

has omitted the use of specific words, 

then the said gap or omission, being an 

accidental omission, should be filled in by 

this Court by applying the tools of 

purposive interpretation. 

34. Shri R.C. Singh in his written 

submissions has also invited the attention 

of the Court to the general principles 

relating to addition of words when 

permissible and the duty of the Court to 

avoid anomalies and ambiguity including 

inconsistencies and repugnancies. The 

rules of interpretation, as enunciated in 

Chapter II of the Statutory Rules of 

Interpretation by Justice G.P. Singh, have 

been pressed into service. He contends 

that the Court should avoid a construction 

that was never intended by the legislature 

and the provisions made for the protection 

of an employee should be construed in a 

manner that it provides for a complete 

umbrella under the law to an employee,


designed for protection of his interest 

against any arbitrary action by the 

disciplinary authority. 

35. The submission is that the level 

of satisfaction at the time of grant of prior 

approval by the District Inspector of 

Schools would be different and would be 

of a far lesser intensity, as at that point of 

time, he has to simply accord his approval 

and not enter into the validity or 

otherwise of the merits of the charges for 

punishment. He contends that if the 

provision is read in this way, then there 

would be no embarrassment to the 

Committee of Management to hear an 

appeal against an order of dismissal even 

if there is a prior approval and the District 

Inspector of Schools would not be 

deprived of his authority to decide a 

representation on merits, which he can do 

uninfluenced by the prior approval 

granted by him. It is urged that when an 

appeal or representation is filed, then the 

level of investigation and the scope of 

power exercised would be entirely 

different from that at the stage of prior 

approval being granted at the time of 

dismissal. He, therefore, submits that the 

omission by the legislature and keeping in 

view the provisions of Regulation 31, 37 

and 100, this Court should interpret the 

provisions so as to resolve the conflict by 

pressing into service the recital in the title 

heading of Section 16-G, which has 

neither been considered or interpreted 

from this angle in any of the decisions 

which have been cited by the Bar. 

36. Sri Harish Chandra Singh has 

supported the same contentions and 

submitted that the view expressed by this 

Court in Daya Ram Tewari's (supra) case, 

as upheld by the Division Bench later on 

should be approved as laying down the 

correct law. 

37. Sri R.K. Ojha, Sri R.C. Dwivedi 

and Sri Yadav, for the employers, namely 

the Principal of the Institution have relied 

their submissions in spite of only a couple 

of decisions in their favour, to urge that 

the entire Scheme of the Act is clear 

enough to hold that prior approval of the 

District Inspector of Schools is not 

contemplated and any such interpretation 

would be a violation of the provisions 

resulting in absurdity. They contend that 

this situation has arisen on account of the 

decision in Principal, Shitladin Inter 

College, (supra) having not been noticed 

either in Daya Shankar Tewari's (supra) 

case or any of the latter decisions. On the 

strength of his written submissions, he 

also invited the attention of the Court to 

the fact that the Division Bench decision 

in the case of Principal, Rashtriya Inter 

College (supra) holding that prior 

approval was necessary and approving the 

decision of Daya Shankar Tewari's 

(supra) case was put in jeopardy before 

the Apex Court in Special Leave Petition 

No.2337 of 2001, wherein initially the 

judgment of the Division Bench was 

stayed by the Apex Court in the following 

terms: 

"The Hon'ble Supreme Court by 

filing Special Leave petition, numbered as 

Appeal (Civil) no.2337 of 2001 and 

Hon'ble Apex Court in its interim order 

was pleased to pass following orders: 

"LA 1 is allowed. 

It is contended that the action under 

Regulation in question does not require 

prior approval of the Inspector in the Case 

of Class IV employee and further more


the action in question was taken on the 

basis of the complaint and order of the 

Inspector himself. 

Issue notice. 

Stay in the meanwhile. 

Sd/ B.N. Kirpal J. 

Sd/ Ruma Pal, J." 

38. It has been stated that the said 

appeal was even though dismissed on 

02.11.2001, yet the question of law raised 

therein was left open to be decided. The 

said order of the Apex Court is quoted 

below : 

"Leaving the question of law open, 

the Special Leave petition is dismissed." 

39. Relying on the decision of Shri 

Shitladin Inter College (supra) case and 

the latter Division Bench judgment in the 

case of Ali Ahmad Ansari (supra), Sri 

Ojha contends that the words of 

Regulation 31 read with Regulation 37, 

are unambiguous and clear enough, which 

do not require any purposive 

interpretation as suggested by the other 

side and further, the history of various 

amendments brought about in Section 16- 

G and the Regulations framed would 

clearly demonstrate that had the 

legislature intended to bring about any 

such provision seeking prior approval, 

then the same would have been expressly 

included, and the legislature or the 

Regulation making authority having not 

done so, there is no occasion for this 

Court to read into the provisions, the 

requirement of a prior approval in respect 

of a punishment to be awarded to a Class- 

IV employee. He further submits that if 

that is done, then it would be encroaching 

upon the function of the legislature or the 

rule making authority, which our Courts 

have held to be outside their jurisdiction 

and even otherwise, there is no necessity 

of doing so, as there is an ample 

protection in the Act making room for 

reconsideration of the matter at the stage 

of appeal before the Committee of 

Management and by way of a 

representation even thereafter to the 

District Inspector of Schools himself. 

40. Mr. Ojha further submits that 

Regulation 37 clarifies the position, where 

the sending of reports for the purpose of 

approval has been clearly excluded, and 

Regulation 31 stands specifically 

excluded in the matter of Class-IV 

employees by way of Regulation 100. He 

submits that Regulation 31, therefore, 

cannot be read beyond for which it has 

been intended, and he further submits that 

if such a provision was necessary, then 

the legislature could have done it, as was 

done in the case of Class-III employees 

by introducing Regulation 44 and 44-A of 

the Regulations under Chapter III 

aforesaid, which have been already 

quoted and reproduced hereinbefore while 

referring to Ali Ahmad Ansari's case. 

41. He submits that if the 

interpretation of having a prior approval is 

accepted, then it would be an anomalous 

situation where the Committee of 

Management would hear an appeal in 

respect of a decision taken after approval 

by a higher authority, namely the District 

Inspector of Schools. This incongruity 

would further stand multiplied, if the 

District Inspector of Schools is called 

upon to hear a representation in respect of 

the same matter, for which he has granted 

prior approval. 

42. He further submits that the 

words 'prior approval' in respect of the 

punishments referred to in Regulation 31


also envisage the examination of the 

matter by the District Inspector of Schools 

on merits, and it is for this reason that all 

documents are required to be sent to the 

District Inspector of Schools, as per 

Regulation 37. However for Class-IV 

employees, such documents would not be 

required to be sent to the District 

Inspector of Schools and the entire 

procedure has to be followed by the 

disciplinary authority, i.e., the Head of the 

Institution in the instant case. Sri Ojha, 

therefore, submits that this provision itself 

specifically excludes the exercise of 

power by the District Inspector of Schools 

to grant prior approval, as he cannot enter 

into the merits of the charges nor the 

papers in respect thereof are required to 

be sent to the District Inspector of 

Schools. He submits that, fortified with 

the decisions in the case of Ali Ahmad 

Ansari (supra) and Principal, Shitladin 

Inter College (supra), his submissions 

should be accepted and the ratio in the 

aforesaid two decisions should be 

approved as laying down the correct law. 

43. Sri M.C. Chaturvedi, learned 

Chief Standing Counsel for the State with 

the aid of his written submissions and the 

decisions cited at the Bar, raised the same 

submissions, and urged that the District 

Inspector of Schools is under no legal 

obligation to grant prior approval in 

respect of the proposal of punishment 

against a Class - IV employee. He submits 

that the word 'employees' occurring in the 

opening part of Regulation 31 would 

stand restricted to such employees about 

whom reference has been made in the 

latter Regulations and a Class-IV 

employee would stand excluded by virtue 

of the specific provision contained in 

Regulation 100. He contends that the ratio 

of the decision in the case of Daya 

Shankar Tewari's (supra) does not lay 

down the correct position of law 

inasmuch as the Court could not have 

read into a provision by employing any 

tool of interpretation, so as to include 

something, which has been specifically 

excluded. He contends that the wisdom of 

the legislature cannot be doubted as the 

legislature will be presumed to be 

conscious of the existence of Regulation 

31, while framing Regulation 100, and 

when there is a conscious departure by 

excluding the applicability of Regulation 

31, then in that event, it would be 

inappropriate for this Court to read into a 

provision, which has not been made 

applicable. He submits that in the event 

the interpretation as contended by the 

other side is accepted, the same would 

result in incongruity and would not be in 

accordance with the Scheme of the Act 

and Regulations referred to hereinabove. 

44. Having heard learned counsel 

for the parties, it would be appropriate for 

us to declare the law on the basis of first 

principles underlying the interpretation on 

the basis whereof the dispute has to be 

resolved. This is necessary in view of the 

conflict of the two Division Bench 

decisions, as pointed out in the referring 

order. 

45. Before proceeding to do so, we 

may, at the very outset, record that 

another Division Bench decision relating 

to the same subject, which arose out of a 

reference in a second appeal and which 

was not cited at the Bar, has come to our 

notice and which, in our opinion, 

substantially answers the issues referred 

before us. The same is reported in 2006 

(65) ALR Page 767 Pujari Yadav Vs. Ram 

Briksh Yadav decided on 09.10.2006. The 

said decision has distinguished the ratio of


the decisions in the case of Daya Shankar 

Tewari (supra) as approved in Principal 

Rashtriya Inter College (supra), by 

tracing the legislative history of Section 

16-G of the Act and Regulation 31, and 

has proceeded to approve and follow the 

view taken by the Division Bench in the 

case of Ali Ahmad Ansari (supra), 

thereby holding that it is not necessary to 

seek prior approval of the District 

Inspector of Schools before terminating 

the services of a Class-IV employee. Our 

task therefore, has been rendered more 

convenient and our burden is lessened. 

46. The Scheme of the provisions as 

contained in Regulation 31 clearly 

demonstrates that the said Regulation uses 

the word 'employees' in the opening 

sentence, where the recital is that prior 

sanction from the Inspector would be 

essential for awarding any of the 

punishments as enumerated from Sl. No. 

1 to 4 therein. The word 'employees' has 

not been defined under the U.P. 

Intermediate Education Act, 1921. 

However, the said word employee has 

been defined under Section 2 (f) of the 

Uttar Pradesh High Schools and 

Intermediate Colleges (Payment of 

Salaries of Teachers and other 

Employees) Act, 1971 as follows : 

"2. Definitions .- ''employee' of an 

institution means a non-teaching 

employee in respect of whose 

employment maintenance grant is paid by 

the State Government to the institution ;" 

47. In our opinion, the word 

'employees' occurring in the opening 

words of Regulation 31 does not include 

Class - IV employees, as it is clearly 

distinct in its operation as compared to the 

definition of the word 'employees' 

occurring in Section 2(f) of U.P. Act No. 

24 of 1971. The reason is not far to see. In 

the Regulations framed under Chapter III, 

a specific procedure has been carved out 

for taking disciplinary action against 

Class-IV employees, whereas in U.P. Act 

No.24 of 1971, the purpose is distinct, 

namely the payment of salary to all the 

employees who receive the same, as a 

result of extension of benefit of grant-inaid 

given by the government. Thus, the 

purpose for which the said words have 

been used in the two enactments are 

clearly different and, therefore, the word 

''employee' as understood in U.P. Act 

No.24 of 1971 is altogether in a different 

context. It is well settled that the same 

words used in separate statutes may not 

connote the same meaning as they operate 

in different fields. 

48. Regulation 31 was amended 

twice, firstly by notification dated 1st 

March, 1975 and subsequently vide 

notification dated 27th February, 1978. 

The Division Bench judgment in the case 

of Pujari Yadav Vs. Ram Briksh Yadav 

(supra) clarified and interpreted the 

aforesaid amendments in Regulation 31 

and the impact thereof was discussed in 

paragraph 21 to 23 of the said decision 

which is as follows : 

"21. The Board has framed regulations 

under section 15 of the Act. Regulation 31 

of Chapter - III of the Regulation (see 

Appendix-II of the judgment) provides 

that the prior approval of the Inspector 

will be necessary for the punishments 

enumerated therein. This includes 

dismissal also which is the case in 

present. Regulation 31 unlike section 16- 

G(3) of the Act is not confined to the 

teachers and Head of Institutions but 

refers to the 'employees' which prima


facie include non-teaching staff as well as 

Class-IV employees also. 

Regulation 31 has been amended twice: 

By the Notification No.789 (1)/15 (7)-75 

dated 1st March 1975 published vide No. 

Board-7/562-V-8 (Board September, 

1974) Allahabad dated 10th March 1975 

(the 1975 Notification). By this 

notification two clauses were added in 

Regulation 31. 

By Notification No.8372/15 (7)- 

12(103)/77 Lucknow: dated 27th 

February 1978 (the 1978 Notification). By 

this Notification the two clause added by 

the 1975 Notifications were modified. 

The effect of the first clause added by the 

1975 Notification was to empower the 

principal to award any punishment to 

Class-IV employees and his order is 

subject to appeal before the Committee of 

Management. The second clause provides 

further appeal to the D.I.O.S./Regional 

Inspector. These clauses are further 

amended by the 1978 Notification, 

however substantially they remain the 

same." 

49. Thereafter, the Court came to the 

conclusion that in view of the aforesaid 

amendments as noted above and the 

addition of the two clauses in Regulation 

31, the Principal or Headmaster of the 

Institution became competent to terminate 

the services of a Class-IV employee with 

further provision of an appeal and a 

representation to the Inspector of Schools 

thereafter. The Division Bench carefully 

examined the impact of the said 

amendments and came to the conclusion 

that the purpose of including the two 

clauses as brought by way of amendments 

in 1975 and 1978, clearly establish that 

the Principal is empowered to terminate 

the services of a Class-IV employee 

without taking prior approval of the 

Inspector. Such a decision by the 

Principal or Headmaster was to be final, 

subject to an appeal before the Committee 

of Management and then a further appeal 

to the Inspector. The relevant paragraphs 

of the said judgment namely paragraphs 

24 to 26 are quoted below : 

"24. The services in the present case 

were terminated on 12.6.1977 and as such 

the Regulation 31 as amended by the 

1975 notification was applicable. The 

question is, whether Regulation 31 as 

amended by the 1975 Notification 

requires prior approval of the Inspector 

before terminating the services a Class-IV 

employee or not. 

It is correct that the cases (mentioned 

in paragraph 19 of this judgment) do 

support the submission of the plaintiffappellant. 

However, these cases have not 

taken into account the amendment made 

in Regulation 31 by the 1975 or 1978 

Notification. They have taken into 

account Regulation 31 as it was originally 

framed. These cases have not considered 

the Regulation 31as amended from time 

to time and cannot be pressed to show that 

prior approval was necessary before 

terminating services of Class-IV 

employees. This question has to be 

decided in the light of the Regulation 31 

of Chapter-III as amended. 

Regulation 31 as it was originally 

framed required prior approval of the 

D.I.O.S. before terminating service of an 

employee. However, after addition of two 

clauses in Regulation 31 in 1975 it clearly 

empowered the principal to terminate the 

services of Class-IV employee. It further 

provided an appeal to the Committee of 

Management and thereafter to the 

Inspector itself. In case prior approval of


Inspector was necessary before 

terminating services of Class-IV 

employee then what was the point in 

providing appeal first to the Committee of 

Management and then to the Inspector. In 

case the Inspector has already granted 

approval for terminating the service then 

can he change his decision in the appeal. 

In our opinion the purpose of including 

two clauses by 1975 notification, which 

continued with some modification by 

1978 notification, clearly show that the 

principal is empowered to terminate the 

services of the Class-IV employee 

without taking any prior approval of the 

Inspector and his decision is final; it is 

subject to an appeal before the Committee 

of Management then to the appeal before 

the Inspector." 

50. We have given our thoughtful 

consideration to the aforesaid reasoning 

given in the decision of Pujari Yadav 

(supra) and we find that Regulation 31 

stands qualified by making an express and 

separate provision for the procedure to be 

followed in the case of Class-IV 

employees and, therefore, the word 

'employees' occurring in the opening 

sentence of Regulation 31 does not 

include within its fold, a Class-IV 

employee. It is for this reason that 

Regulation 31 to that extent stood 

excluded in its applicability to Class-IV 

employees. To our mind, the Regulation 

making Authority was conscious of the 

amendments brought about in Regulation 

31 in 1975 and 1978, and it is for the said 

reason that the applicability of Regulation 

31 to that extent has not been included in 

Regulation 100. The reasoning given in 

Pujari Yadav's case (supra) has our firm 

approval as we find that the amendments 

bring about a sea-change of procedure in 

relation to Class-IV employees with an 

exclusive dominant role assigned to the 

Head of the institution for taking 

disciplinary action. These amendments, 

which were introduced stepwise, in our 

opinion, exclude the role of the Inspector 

of Schools at the stage of taking action by 

the disciplinary authority. The 

amendments clearly and unambiguously, 

which have been quoted in detail in 

Appendix A to the judgment in Pujari 

Yadav's case (supra), exhibit the intention 

of the rule making authority to clothe the 

Head of the institution with exclusive 

powers of initial disciplinary control 

unfettered by any prior sanction from any 

other authority. 

51. With profound respect, we find 

fallacy in the reasoning of learned Single 

Judge, in the case of Daya Shankar 

Tewari (supra) as upheld by the Division 

Bench in the case of Principal, Rashtriya 

Inter College (supra) and quoted 

hereinabove. The learned Single Judge in 

Daya Shankar Tewari's case proceeded on 

a consideration of Section 16-G (3) of the 

Act, and held that the said provision 

provides for Conditions of Service of all 

employees including Class-IV employees 

as well. According to the learned Single 

Judge, Regulation 31 of Chapter III, so 

framed would, therefore, apply to a Class- 

IV employee and in order to explain the 

impact of Regulation 100, held that even 

if, Regulation 31 had not been made 

specifically applicable, yet the same was 

not categorically excluded. 

52. Apart from the reasons given by 

the Division Bench in the case of Pujari 

Yadav (supra) hereinabove, we may 

further add that there is a legal principle 

engrained in the maxim "expressum facit 

cessare tacitum". The said maxim means 

when there is express mention of certain


things, then anything not mentioned is 

excluded. The aforesaid well-known 

maxim was described as a principle of 

logic and commonsense and not merely a 

technical rule of construction. Reference 

may be had to the decision in the case of 

B. Shankara Rao Badami Vs. State of 

Mysore, [1969 (1) SCC 9] and followed 

in Union of India Vs. Tulsiram Patel 

[(1985) 3 SCC 398] [paragraph 70]. 

53. In our opinion, the aforesaid 

principle squarely applies in the present 

context and for the reasons given 

hereinabove and hereinafter, we would 

interpret Regulation 31 read with 

Regulation 100 to mean that the sanction 

of prior approval in respect of the 

termination of a Class-IV employee 

would stand excluded. The reasoning 

given by the learned Single Judge in Daya 

Shanakar Tiwari (supra) to that extent 

does not lay down the law correctly and, 

therefore, its approval by the Division 

Bench in the case of Principal Rashtriya 

Inter College, (supra) also cannot be said 

to be laying correct law. 

54. There is yet another reason to 

come to this conclusion, which has also 

been taken note of in the case of Pujari 

Yadav (supra). The provision of appeal 

against an order of termination passed by 

the Head of the Institution lies to the 

Committee of Management. The order of 

the Committee of Management can be put 

in jeopardy in a further appeal before the 

District Inspector Schools. The hierarchy 

so provided, therefore, clearly amplifies 

the intention of the legislature that a 

Class-IV employee would have the 

benefit of appeals to the higher authorities 

at two stages. If a prior approval or 

sanction was intended before the 

punishment to be awarded, then the 

District Inspector of Schools would be 

supposed to go into the merits of such a 

punishment. That is the purpose for a 

prior approval or sanction, which requires 

the sanctioning authority to examine an 

order of punishment in depth before 

proceeding to grant sanction. It is for this 

reason that Regulation 37 quoted 

hereinabove, makes it imperative for the 

punishing authority to send all documents 

including reports to the Inspector of 

Schools for approval. 

55. There is yet another reason to 

come to the same conclusion. Regulation 

37 specifically excludes for sending of 

any such report to the Inspector in the 

case of Class-IV employees and all 

proceedings in relation to Regulation 37 

have to be undertaken by the appointing 

authority. The aforesaid statutory 

provision, therefore, does not allow the 

sending of any such documents to the 

Inspector in the case of Class-IV 

employees. It injuncts the sending of any 

such papers to the District Inspector of 

Schools for examination. In our opinion, 

the intention of the legislature is clear 

enough that the District Inspector of 

Schools is not required to examine the 

material on the basis whereof any 

punishment has been awarded to a Class- 

IV employee. To our mind, there is no 

purpose to seek prior approval or sanction 

when the Inspector cannot examine the 

documents, which are necessary for 

granting such sanction. To interpret it 

otherwise, would be to do violation to the 

procedure, which specifically states that 

all proceedings in this regard have to be 

performed by the appointing authority, 

namely the Head of the Institution. If we 

interpret the provisions making it 

compulsory to obtain a sanction, then the 

aforesaid procedure as engrained in


Regulation 37 would be rendered 

inoperative. There being no requirement 

of sending the papers to the Inspector, the 

intention appears to be clear that the role 

of the Inspector stands excluded at that 

stage. The question of granting prior 

sanction without any purpose would be a 

meaningless exercise, and therefore, we 

would refrain from rendering an 

interpretation that leads to futility. 

56. While applying the rules of 

harmonious construction, the Court has to 

be cautious in interpreting the provisions, 

which may lead to anomalous results. We 

find it apt to record that the rules of 

harmonious construction, while 

interpreting such statutes, immediately 

come into play in a situation of the 

present kind and reference in this 

connection can be made from 

Interpretation of Statues by Justice 

Markandey Katju in which it has been 

stated as follow: 

"Where different interpretations of a 

statute are possible, the court can adopt 

that which is just, reasonable and sensible 

as it can be presumed that the legislature 

would have used the words in the sense 

which least offends our sense of justice. 

Similarly, if the harmonical construction 

leads to some absurd or repugnant result 

or inconsistency with the rest of the 

instrument, it may be departed from so as 

to avoid that absurdity and inconsistency. 

There may be cases where there appears 

to be inconsistency or repugnancy in a 

statute and in such cases the principle of 

harmonious construction is applied. This 

is, however, subject to the principle that 

the special rule will override the general 

rule. Similarly, it is ordinarily not open to 

the court to add words to a statute on the 

grounds that there is an omission in the 

words used in the statute." 

(Interpretation of Statutes, by Justice 

Markandey Katju, Judge Supreme Court 

of India.) 

57. In the case of Padmasundara 

Rao and others Vs. State of Tamil Nadu 

and others, [AIR 2002 SCC 1334], a 

Constitution Bench of the Supreme Court 

ruled that the principle of casus omissus 

can be permitted to be pressed into 

service in case of a clear necessity and 

when reason for it is found in the four 

corners of the statute itself but at the same 

time a casus omissus should not be 

readily inferred. 

58. In the case of Magor and St. 

Mellons Rural District Council Vs. 

Newport Corporation, [(1951) 2 All E.R. 

839], the remarks of Lord Denning in the 

Court of Appeals has been quoted, which 

read as follows : 

"We sit here to find out the intention 

of Parliament and Ministers and carry it 

out, and we do this better by filling in the 

gaps and making sense of the enactment 

than by opening it up to destructive 

analysis." 

59. It has also been held by the 

Supreme Court in the case of Rao Shiv 

Bahadur Singh and another Vs. The State 

of Vindhya Pradesh [AIR 1953 SCC 394] 

that the Court has to avoid a construction, 

which may render devoid any part of the 

statute. It has been held by the Supreme 

Court in the case of Nasiruddin and 

others Vs. Sita Ram Agarwal [(2003) 2 

SCC 577] in paragraph 37 that the use of 

negative words are mandatory in 

character and the Court has to proceed 

accordingly. Sounding a caution to the 

Courts while interpreting a Rule, the


Supreme Court in the case of State of 

Kerala and Another Vs. P.V. Neelakandan 

Nair and others [(2005) 5 SCC 561] in 

paragraphs 8 to 16 held that while 

interpreting a Rule, attention should be 

paid not only to what has been said, but 

also to what has not been said. The Rule 

has to be interpreted not like a Euclid's 

theorem, but with some imagination of 

the purposes, which lie behind the Rule. 

A Full Bench of the Andhra Pradesh High 

Court in B. Prabhavathi Vs. Govt. of 

Andhra Pradesh, [2002 (3) ESC 108] in 

paragraph 44 ruled that Rules framed 

under the Act should be harmoniously 

interpreted as they form part of the Act. 

60. Having considered the principles 

enunciated and referred to hereinabove 

and applying them to the present 

controversy, it is clear to us that nothing 

has been omitted by the legislature, which 

may require filling up by the Court as 

suggested by Sri R.C. Singh. As 

explained hereinabove in Pujari Yadav 

(supra), the rule making authority itself 

proceeded to fill in the gaps by making 

express recitals in Regulations 31, 37, 100 

and the other provisions relating thereto. 

The amendments in Regulation 31 lead to 

a heavy full stop to the role of the 

Inspector and is not a silent comma 

expressing doubt. The same brings about 

a clarity which has an almost window 

pave effect and removes the cloud of 

doubt that has been raised to be resolved 

by us. 

61. There is yet another principle, 

which deserves to be taken notice of. If 

the sanction is required prior to giving 

effect to a punishment in respect of a 

Class-IV employee, then the District 

Inspector of Schools would hear an appeal 

against his own approval. This, to our 

mind, would bring about an anomaly, 

which may extend to an absurdity. The 

same authority cannot be presumed to 

have been conferred with a power to hear 

an appeal against its own approval. This 

would be rendering nugatory the 

hierarchy provided for in Regulation 31 

itself, where an appeal is provided to the 

Committee of Management against the 

order of disciplinary authority and a 

further appeal to the Inspector of Schools. 

The purpose, therefore, is clear enough 

and it does not suffer from any ambiguity 

which may require us to render an 

interpretation, which otherwise would 

bring about an incongruous result. As 

observed above, the Rules of 

Interpretation as enunciated by the Apex 

Court do not permit us to give an 

interpretation, which would obviously 

result in a clear anomaly as pointed out 

hereinabove. This we adopt, as the law 

permits us to apply 'the intention seeking' 

Rule of Interpretation to illustrate the 

anomaly that may result in the event we 

accept the proposition that a prior 

sanction is required. 

62. A feeble submission raised by 

Sri R.C. Singh was that the District 

Inspector of Schools has to merely grant 

prior approval and not to make an indepth 

examination, as at that stage, he 

would be proceeding as if to perform a 

routine work. Such an action would not, 

therefore, prevent him from hearing an 

appeal when the matter may arise out of 

an appeal before the Committee of 

Management. 

63. We are not inclined to accept the 

aforesaid submission for the simple 

reason that the District Inspector of 

Schools, in our opinion, does not perform 

a mere ministerial act while granting


sanction. We agree with the submission of 

Sri Ojha that a combined reading of 

Regulations 31 and 37 makes it amply 

clear that the District Inspector of Schools 

is not required to undertake any such 

exercise, which is to be done only by the 

Head of the Institution in the case of Class 

- IV employees. The submission is, 

therefore, devoid of substance and has 

been noted only to be rejected. 

64. We have also perused the notes 

submitted by Sri R.C. Singh annexing 

therewith the General Principles of 

Interpretation as contained in Chapter II 

of the Statutory Rules of Interpretation, 

by Justice G.P. Singh. Having given our 

anxious consideration to the said Rules, as 

contained therein and as pointed out by 

Sri R.C. Singh, we find that said Rules on 

the contrary militate against the 

submissions as advanced on behalf of the 

employees pointed out hereinabove. The 

aforesaid principles have been considered 

in a large number of authorities and the 

conclusion drawn is that the intent and 

purpose of the provisions in the light of 

the enactment made, has to be considered 

in order to avoid any absurdity. We have 

already pointed out that by a reading of 

the Regulations, it is more than clear that 

the Rule making authority clearly 

intended to exclude the applicability of 

prior sanction as contained in Regulation 

31 in respect of Class-IV employees. To 

add further, would be repeating what has 

already been observed hereinabove. 

65. Another aspect of the matter, 

which clarifies the intention of the Rule 

making authority as pointed out by Sri 

R.K. Ojha is that in respect of Class-III 

employees, Regulations 44 and 44-A were 

expressly included under Chapter III, 

which envisage a separate procedure in 

respect of disciplinary action for the 

clerical cadre of employees. This 

however, illustrates that the Rule making 

authority did not apply any other 

provision to Class-IV employees and 

specifically empowered the Head of the 

Institution, namely the Principal or the 

Headmaster to take action at his end in 

respect of a disciplinary proceeding 

against a Class-IV employee. The 

aforesaid illustration further removes the 

cloud and expresses clarity on a 

comparison of the provisions that had 

been referred to hereinabove. 

66. Responding to the submissions 

that were raised, Sri M.C. Chaturvedi, 

learned Chief Standing Counsel appears 

to be right in his submissions that the 

Rule making authority clearly intended to 

restrict the meaning of the word 

'employees' occurring in Regulation 31 in 

accordance with Regulation 100 to mean 

that a prior sanction would not be 

required in the case of a Class-IV 

employee. We accept his submission that 

the wisdom of the legislature should not 

be doubted and the Rule making authority 

will be presumed to be conscious of the 

departure that was deliberately made for 

the procedure to be adopted in the case of 

Class-IV employees. 

67. Having laid threadbare the first 

principles on which we have interpreted 

the provisions, we have no hesitation in 

coming to the conclusion that there is no 

requirement under the Regulations for a 

prior sanction or approval of the Inspector 

of Schools in respect of order of 

termination of Class-IV employees. 

68. Coming to the decisions that 

have been cited at the Bar, we may point 

out that in the case of Shankar Saran Vs.


Vesli Inter College (supra), the learned 

Single Judge has merely recorded 

conclusions without discussing the impact 

of the provisions, and it appears that no 

such issues were raised therein to 

contradict the opinion of the requirement 

of a prior sanction. The decision in the 

case of Daya Shankar Tewari (supra), 

which was rendered in the year 1998, 

unfortunately did not take notice of the 

decision in the case of Principal, 

Shitladin Inter College (supra), which had 

been rendered way back in 1994 itself. 

The decision in the case of Principal 

Shitladin Inter College (supra), in our 

opinion, has correctly construed the 

provisions and we accordingly, approve 

the same. 

69. Unfortunately, the Division 

Bench judgment in the case of Principal 

Rashtriya Inter College (supra), which 

approved the decision in the case of Daya 

Shankar Tewari (supra) also did not 

notice the reasoning given by the learned 

Single Judge in the case of Principal, 

Shitladin Inter College (supra). The same 

was religiously followed in the 

subsequent decisions in the case of Sita 

Ram (supra) as well as in the decision of 

Ram Khelawan Maurya Vs. District 

Inspector of Schools (supra). 

70. On the other hand, the Division 

Bench decision in the case of Ali Ahmad 

Ansari (supra) also did not take notice of 

the earlier Division Bench decision in the 

case of Rashtriya Inter College (supra) 

and while holding that no prior 

approval/sanction is required, the said 

Division Bench also appears to have not 

been apprised of the decision in the case 

of Principal Shitladin Inter College 

(supra). The other decision in the case of 

Swami Vivekanand Uchchatar 

Madhyamik Vidyalaya (supra), in our 

opinion, does not dwell upon the 

controversy presently involved and does 

not contain any discussion on the issue 

raised in the present matter, as such a 

reference to the said decision by the 

learned counsel is of no assistance in 

resolving the present dispute. As noticed 

above, the Court has come across the 

Division Bench decision in Pujari Yadav 

(supra), which has substantially answered 

the question referred before us and having 

taken notice of the same, we fully approve 

the view taken therein. 

71. In view of the conclusions, as 

drawn hereinabove, we are respectfully 

unable to agree with the view expressed 

in Daya Shankar Tiwari's case as upheld 

by the Division Bench in the case of 

Principal Rastriya Inter College (supra) 

and followed later on in the decisions of 

learned Single Judges referred to 

hereinabove. 

72. We approve the view taken in 

the case of Principal, Shitladin Inter 

College (supra), the Division Bench 

judgment in the case of Ali Ahmad Ansari 

(supra) and the decision in the case of 

Pujari Yadav (supra) as laying down the 

correct law. 

73. Our answer to the questions 

referred to us are as under : 

(i) For awarding a punishment as 

enumerated under Regulation 31 Chapter 

III of the U.P. Intermediate Education 

Act, 1921 to a Class-IV employee of a 

institution recognized under the aforesaid 

Act, no prior approval or sanction from 

the Inspector of Schools is required. 

(ii) The Division Bench judgments in the 

case of Ali Ahmad Ansari Vs. District

3 All] Matloob Gaur V.State of U.P. and another 1071 

Inspector of Schools, Kushinagar 

[2006(3) ESC 1765 (All)] and Pujari 

Yadav Vs. Ram Briksh Yadav [2006(65) 

ALR 767] lay down the correct law in 

contradistinction to the Division Bench 

judgment of Principal, Rashtriya Inter 


Maharajganj And Others [(2000) 1 

UPLBEC 707] and the other judgments to 


The reference is answered accordingly. 

74. Let the papers be placed before 

the learned Single Judges before whom 

the writ petitions are pending to proceed 

with the matter in the light of the answers 

given by us in the present reference. 

--------- 


CIVIL SIDE 


BEFORE 

THE HON’BLE SUNIL AMBWANI, J. 

THE HON’BLE RAN VIJAY SINGH, J. 


Matloob Gaur 

…Petitioner 

Versus 

State of U.P. and another …Respondents 


Sri Kesari Nath Tripathi 

Sri Suneet Kumar 


Sri Devendra Kumar 

S.C. 

U.P. Nagar Palika Adhiniyam 1916- 

Section 48 (2) (b) Removal of chairman 

of Nagar Panchayat burden of Proof 

wrongly shifted upon petitionersallegations 

not fall within the meaning of 

misconduct- No concern with the duty 

discharged by petitioner-heldorder of 

removal- illegal 

Held: Para 19 

On the aforesaid discussion we find that 

the State Government not only wrongly 

placed the burden of proof of the 

charges on the petitioner to be disproved 

by him, but also failed to discuss the 

evidence led by the petitioner. The 

charge No.1 had no concern with the 

misconduct and did not fall in any of the 

grounds given in Section 48 (2) (b) and 

that charge No.2 was wholly vague and 

was not related to the duties performed 

by the petitioner. The third and fourth 

charge, were also not proved against the 

petitioner. 


2005(3) AWC 2818, 2000(3) ESC 1611(All), 

2005(4) AWC 3563. 

(Delivered by Hon’ble Sunil Ambwani, J.) 

1. Heard Shri Kesari Nath Tripathi, 

Senior Advocate assisted by Shri Suneet 

Kumar, learned counsel for the petitioner. 

Learned Standing Counsel appears for the 

respondents. Shri Devendra Kumar has 

entered caveat for the Administrator and 

Executive Officer of the Nagar Panchayat, 

Kithore, Distt. Meerut. 

2. Shri Matloob Gaur, the petitioner 

was elected as Chairman of Nagar 

Panchayat, Kithore, Distt. Meerut in 

November, 2006. A notice dated 5.2.2008 

was issued to him by the State 

Government on 5th February, 2008 and 

was served upon him by the District 

Magistrate, Meerut by his letter dated 

8.2.2008 to show cause as to why he 

should not be remove from the post of the 

Chairman of the Nagar Panchayat under 

Section 4 (2) (b) (ii), (iv), (ix), (x), (xi), 

(xii) and (xvii) of the U.P. Municipalities 

Act, 1916. The notice also contained an


order by which the petitioner's financial 

and administrative powers under the 

proviso to Section 48 (2) of the U.P. 

Nagar Palika Adhiniyam, 1916 were 

ceased, and were directed to be exercised 

by the District Magistrate, or an officer 

nominated by the District Magistrate, who 

shall not be Sub Divisional Magistrate to 

exercise such powers until the petitioner 

is exonerated of the charge. The District 

Magistrate by his communication letter 

dated 8.2.2008 directed the Sub 

Divisional Officer, Mawana to exercise 

the financial and administrative powers, 

until the conclusion of the proceedings. 

3. The show cause notice contained 

four charges namely; (1) that the 

petitioner had stated in his affidavit filed 

along with nomination paper on 

5.10.2006 that there was no case pending 

against him in any Court. He did not 

disclose the cases, which are pending 

against him and thus concealed the facts; 

(2) the log book dated 2.8.2007 of the 

consumption of diesel was only with 

regard to tractor. The tractor driver stated 

that the diesel is filled directly at the 

petrol pump and is not consumed 

separately. No log book was maintained 

for the period prior to the period 2.8.2007, 

causing doubt over the consumption of 

diesel; (3) the contract for parking place 

for the year 2007-08 of Nagar Panchayat 

Kithore, was settled by the petitioner in 

favour of his brother Shri Maroof Ahmad. 

Three persons namely Shri Maroof 

Ahmad, Dilshad and Sher Mohammed 

participated in the auction held on 

30.5.2007, whereas the amended bylaws 

were published in the gazette on 

14.7.2007. The petitioner violated the 

conditions of Section 18 (b) (ii), which 

prohibits the Chairman of the Nagar 

Palika to give benefits to his family 

members either directly or indirectly; and 

(4) the plot No.908, 903, 935 are 

registered as a pond and is not in the 

possession of the Chairman of the Nagar 

Panchayat, but plot No.702, which is 

entered as 'khata kuria' (manure pits) has 

been used to construct a house for which a 

suit is pending in the civil court and that 

Court directed the parties to maintain 

status quo. In preliminary enquiry the 

charge was found fully proved against the 

Chairman. 

4. The petitioner in his reply dated 

20.2.2009 after referring to the documents 

in his support denied the allegations and 

submitted that no enquiry was made from 

him nor any facts were placed before him. 

He has not misused the property and 

money of Nagar Panchayat in any 

manner. With regard to allegations in 

charge No.1 relating to concealment of 

the cases at the time of filing nomination 

does not come within the purview of 

Section 48 of the Nagar Palika 

Adhiniyam, 1916. He has not been 

convicted in any offence, and that in all 

the cases in which the decisions were 

made, the petitioner was either discharged 

or acquitted. Regarding Charge No.2 the 

petitioner stated that the consumption of 

diesel relates to the tractor of Nagar 

Panchayat. The log book of the period 

prior to 2.8.2007 is available in the office 

of Nagar Panchayat in which entreis have 

been made by the tractor driver. The 

petitioner has not used the diesel in any 

other vehicle or for any other purpose. 

The driver had stated that he directly fills 

the diesel in the tractor. The petitioner is 

not responsible for maintenance of the log 

book of the tractor. On charge No.3 the 

petitioner alleged that Shri Maroof 

Ahmad is a contractor of collecting 

parking fees from 1.4.2006, much before


the petitioner was elected as Chairman. At 

that time Shri Shams Parvez was the 

Chairman. There are no dues pending on 

Shri Maroof and that Nagar Panchayat has 

not sufferred any loss. The petitioner's 

brother Maroof Ahamd is living 

separately from the petitioner and has 

ration card in his own name. The 

petitioner has no concern with his 

business. The contract of parking fees has 

been given in accordance with the rules 

and that the contract settled after due 

execution vide publication in Amar Ujala 

and Punjab Kesari newspapers on 

17.5.2007, 23.5.2007 and 29.5.2007 was 

approved by the Board. The Munadi was 

also made in Nagar Kithore area on 

16.5.2007 and 21.5.2007 before auction 

was held on 30.5.2007. Shri Maroof was 

the highest bidder and as old contractor 

with no complaint against him, his highest 

bid was accepted and approved by the 

Board. 

5. On the last charge the petitioner 

stated in his reply that Khasra No.702 is 

situated in Mohalla Mausam Khani, 

Nagar Panchayt Kithore, whereas the 

petitioner's house is situate in Mohalla 

Badbaliyan Nagar Panchayat Kithore. 

There is no dispute or suit pending in any 

Court relating to Plot No.702 and that 

charge is entirely false and baseless. He 

further submitted that the enquiry report 

has been prepared on the pressure 

exercised by Shri Munkad Ali, member of 

Rajya Sabha/ leader of Bahujan Samaj 

Party. Shri Munkad Ali has illegally 

occupied Nagar Panchayat land. The 

petitioner has initiated proceedings for his 

eviction from Khasra No.632 Kabristan 

and 633 Rasta belonging to Nagar 

Panchayat and had also made complaint 

to the Sub Divisional Magistrate, Mawana 

on 24.9.2007 and 26.9.2007. A writ 

petition No.42015 of 2007 filed by the 

petitioner impleading Shri Munkad Ali as 

respondent is pending. The petitioner had 

defeated Shri Majid Ali, the brother of 

Munkad Ali in the elections giving rise to 

the complaint against him. Khasra No.702 

is old abadi on which house of Farooq, 

Mashroor, Hazi Aarif, Shahid Manzoor 

and Shamshad have been constructed. 

6. It is alleged that the Principal 

Secretary, Nagar Vikas Anubhag No.1 

fixed 27.8.2008 for hearing. The 

intimation of the date was received by the 

petitioner on 23.8.2008. On the date fixed 

no document was shown to the petitioner. 

The petitioner was required to submit his 

reply either orally or in writing. Since no 

further documents were relied upon, the 

petitioner stated that he has already given 

his reply in writing. The petitioner, 

thereafter, waited for a decision to be 

taken by the State Government. By an 

order dated 14.11.2008 giving rise to this 

writ petition the petitioner has been 

removed from the office of the Chairman 

of Nagar Panchayat, Kithore giving rise to 

this writ petition. 

7. Shri Keshari Nath Tripathi, 

learned counsel for the petitioner submits 

that the powers under Section 48 to 

remove the elected Chairman of the Nagar 

Panchayat should be sparingly exercised 

by the State Government. These powers 

cannot be compared with the powers of 

misconduct of a government servant. An 

elected Chairman can be removed on the 

grounds given in Section 48 (2) (b) of the 

U.P. Municipalities Act, 1916 but that the 

charge should be serious enough to 

initiate the action and to exercise the 

powers of removal. In the present case the 

first charge relating to the cases pending 

against the petitioner at the time of filing


of the nomination and the failure to 

disclose the pendency of the case can not 

be a ground of removal as the 

disqualification under Section 12 (D) and 

Section 43 (AA) of the Act, may be 

incurred after the petitioner is elected. 

The State Government did not disclose 

the pendency of any case against the 

petitioner by giving the details and that 

the impugned order also does not give 

reference to the pendency of any case 

against the petitioner on the day, when he 

contested the election. The charge is not 

only vague but is also non existing and 

does not fall in any of the conditions of 

exercise of powers under Section 48 (1) 

(b) of the Act. 

8. With regard to second charge 

relating to the consumption of diesel, it is 

submitted that the petitioner as Chairman 

of the Nagar Panchayat was not directly 

concerned with the consumption of diesel 

and the supervision of the log book. The 

charge does not give the details of the 

consumption of the diesel and the alleged 

discrepancy in the log book. The 

allegation that the log book dated 

2.8.2007 only relates to the diesel 

consumed by the tractor, and that log 

book prior to 2.8.2007 was not maintained 

was entirely vague and did not allege or 

establish any misconduct against the 

petitioner. The petitioner had clearly 

stated that the maintenance of log book is 

a matter to be looked after by the 

Executive Officer and that log book of the 

period prior to 2.8.2007 is available. The 

Executive Officer, incharge for 

maintaining log book may not have 

produced the same before the enquiry 

officer but that by itself could not be a 

ground to make an enquiry unless it was 

shown that the diesel was misused. 

9. On the third charge the State 

Government has illegally and arbitrarily 

accepted the report of the District 

Magistrate that the proceedings of auction 

held on 30.5.2007 should have awaited 

the selection of the parking place in 

accordance with the amended bylaws 

published on 14.7.2007, and that the 

petitioner has not given any reply or 

evidence to disprove the fact. The 

Chairman has given direct benefit of 

contract to his brother in violation of 

Section 48 (b) (2) of the Act and has thus 

committed an act, which makes him liable 

to be removed from the office. It is 

submitted by Shri K.N. Tripathi that 

Section 48 (2) (b) (ii) relates to knowingly 

acquire or continued to have, directly or 

indirectly or by a partner, any share or 

interest, whether pecuniary or of any 

other nature, in any contract or 

employment with by or on behalf of the 

Municipality or (iii) knowingly acted as 

President or as a member in a matter other 

than a matter referred to in clauses (a) to 

(g) of sub-section (2) of Section 32, in 

which he has, directly or indirectly, or by 

a partner, any share or interest whether 

pecuniary or of any other nature, or in 

which he was professionally interested on 

behalf of a client, principal or other 

person. There are no allegation that the 

petitioner has any pecuniary interest in the 

contract awarded to his brother, who was 

working as a contractor of the Nagar 

Panchayat from before the election of the 

petitioner as Chairman. The allegations 

that the petitioner had approved the 

contract before the matter could be 

considered by the Board is entirely 

incorrect as the petitioner as Chairman of 

the Nagar Panchayat did not approve the 

contract. The proceeding of the auction 

and the highest bid was approved by the


Executive Officer and was approved by 

the Board. 

10. With regard to findings on the 

last allegations Shri Kesari Nath Tripathi 

submits that the report of the District 

Magistrate accepted by the State 

Government was entirely vague and did 

not give the details either of the 

construction of the house or the pendency 

of the case. The petitioner had clearly 

stated in his reply that his house was not 

constructed at Plot No.702 Mohalla Khani 

but was situated in Mohalla Badbalian 

and that infact the house of Farooq, 

Mashroor and others were constructed on 

the Khasra No.702 recorded as purani 

abadi. The State Government without 

considering the petitioner's reply has 

mechanically believed the report of the 

District Magistrate in exercising the 

extreme powers of removal of elected 

Chairman of the Nagar Panchayat. 

11. Shri Kesari Nath Tripathi has 

relied upon the judgments in Munna Lal 

Gupta Vs. State of U.P. & Ors., 2005 

(3) AWC 2818; Nasimuddin Vs. State 

of U.P. & Ors., 2000 (3) ESC 1611 (All.) 

and Smt. Kesari Devi Vs. State of U.P. 

& Ors., 2005 (4) AWC 3563 in support 

of his submission that the burden of 

proving of charges is upon the State 

Government. It cannot be shifted on the 

petitioner. An elected Chairman of the 

Nagar Panchayat cannot be removed only 

on the ground that he could not defend 

himself of the charges, which were 

entirely vague and were not supported by 

any material in proof of the allegations by 

the District Magistrate. In Nasimuddin 

Vs. State of U.P. (Supra) the Court relied 

upon Israt Ali Khan Vs. State of U.P. in 

finding that the State Government did not 

hold enqiry in a quasi judicial manner and 

found the charges to be proved without 

discussing the evidence on its merits. In 

Smt. Kesari Devi (Supra) this Court held 

that in removing the elected 

representative the State Government must 

record specific finding of misconduct on 

the charges after considering the material 

placed by such elected representative. 

12. Learned Standing Counsel on 

the other hand submits that the charges 

were fully proved. The petitioner had 

misused his office. He was facing several 

criminal cases at the time, when he 

contested the elections and that charge of 

misuse of diesel in failing to maintain the 

log book properly and allowing his 

brother to be awarded the contract for 

parking place was sufficient to remove the 

petitioner. Further the petitioner had 

occupied public utility land in Khasra 

No.702 for constructing his house. The 

State Government considered the 

preliminary enqiry report and the reply 

submitted by the petitioner in taking 

action against him. The Writ Petition 

No.8761 of 2008, Matloob Gaur Vs. State 

of U.P. against notice dated 5.2.2008 was 

dismissed by the High Court on 7.5.2008. 

He was given full and adequate 

opportunity to defend himself both by 

filing a reply in writing and to appear and 

making oral submissions. The preliminary 

enquiry report was found established 

against the petitioner. The complaint 

made by Hazi Rais Ahmad and Smt. 

Naeem, Nagar Panchayat Kithore were 

supported by the affidavits verified by 

them and that Regional Naib Tehsildar 

had caused an enquiry and found the 

allegations to be proved. There is no 

illegality in the order of the State 

Government to cause interference in the 

matter.


13. A Nagar Panchayat under 

Art.243 (Q) of the Constitution of India is 

a local body of a transitional area, in 

transition from a rural area to an urban 

area to which the elections are held in 

accordance with the procedure prescribed 

in the U.P. Municipalities Act, 1916. The 

Chairman is elected directly and that his 

term is coterminous with the term of the 

Nagar Panchayt. He may resign in writing 

to the State Government and can be 

removed, under Section 48, where the 

State Government has at any time reason 

to believe that (a) there has been a failure 

on the part of the President in performing 

his duties or that he is under clause (b) 

incurred any of the disqualification or 

conducted himself in a manner provided 

in the fifteen clauses of Clause (b) of subsection 

(2) of Section 48. The proceedings 

for removal must serve the principle of 

nature justice and that decision must show 

that the authority had applied its mind to 

the allegations made, the explanation 

furnished and the material produced by 

the elected representative. 

14. The elected public representative 

of local body is accountable to his 

electorate. His removal by the State 

Government has serious consequence as 

the people, who had elected him, loose 

their voice to be represented by him. The 

power of judicial review, in such matters 

is limited but has to be exercised with 

caution. An elected representative should 

ordinarily be allowed to complete his term 

for which he is elected. If the State 

Government wants to curtail the term on 

any of the ground given in Section 48 (2) 

(b) of the Act, there must be a complaint 

on which a preliminary enquiry is made, 

and that material collected during the 

enquiry must be put to the elected 

representative in the form of specific 

charge. The burden of proving such 

charges is upon the complainant. The 

charges must be specific and must contain 

all the details to submit effective reply. 

The findings must not only be based on 

material but should also relate to the 

grounds given in detail in Section 48 (2) 

(b) of the Act. The State Government 

must consider and after enquiries serving 

the principles of natural justice find with 

reasons to be recorded in writing that the 

allegations are sufficiently serious to 

remove him from the elected office. The 

proviso to sub-section (2) (A) provides 

that where the State Government has 

issued notice in respect of any of the 

grounds in clause (a) or sub-clause (ii), 

(iii), (iv), (vi), (vii) and (viii) of Clause 

(b) and sub-section (2), it may instead of 

removing him, given him a warning. 

15. In the present case the charge 

No.1 against the petitioner did not fall in 

any of the clauses for removing the 

Chairman under Section 48 (2) of the Act. 

The disclosure of the pendency of the 

case, at the time of contesting the 

elections is a matter of incurring 

disqualification for contesting the 

elections with an object to inform the 

electorate as well as to verify whether the 

person is qualified to contest the election 

of the President. Such a charge will not 

fall within the meaning of the ground in 

Section 48 (2) (b) (i), which provides for 

incurring any disqualification mentioned 

in Section 12-D and 43 (aa) of the Act. 

Section 12-D of the Act provides for 

disqualification for registration in an 

electoral roll, such as the person is not a 

citizen of India or is of unsound mind, 

and so declared by the competent court or 

is for the time being disqualified from 

voting under the provisions of any law 

relating to corrupt practice and other


offences in connection with elections. In 

such case his name has to be struck of the 

electoral roll. Section 43 AA provides for 

disqualification for a Presidentship and 

which includes the disqualification such 

as the person is not the elector for any 

ward or has not attained the age of 30 

years on the date of his nomination. A 

person is also disqualified under subsection 

(2) for being chosen and for being 

President of the municipality, if he is or 

has become subject to any disqualification 

mentioned in clauses (a) to (g) and for (i) 

to (k) of Section 13D. The failure to 

disclose the pendency of case is not a 

ground of disqualification unless such 

case has resulted into the disqualification 

for contesting the elections such as 

conviction for any offence punishable 

with imprisonment under Section 171 (E) 

or under Section 17 (F) of the IPC, 1860 

in Section 13D (h) (ii) or sentence to 

imprisonment for contravention of any of 

the order under the Essential 

Commodities Act etc. or for an offence, 

which is declared by the State 

Government to involve such moral 

turpitude as to render him unfit to be a 

member etc. given in Section 13-D (h) (j) 

provided that in case of (j) the 

disqualification shall cease on the expiry 

of five years. 

16. The disqualification of a person 

to be elected as a member under Section 

12-D and the disqualification to contest as 

a President under Section 43-AA can be a 

ground to file and declare the election of 

the President to be invalid but that these 

grounds cannot be the subject matter of 

complaint and enquiry by the State 

Government in removing a President 

under Section 48 of the Act. 

17. The second charge related to the 

negligence in maintaining the log book of 

the use of diesel in the tractor of the 

Nagar Panchayat. The charge only related 

to the maintenance of log book, which is 

the job of the driver and has to be 

supervised under Section 60 of the Act by 

the Executive Officer. The Act does not 

provide for supervision of maintenance of 

log book and consumption of diesel to be 

made by the Chairman of the Nagar 

Panchayat. The State Government neither 

charged nor alleged any misuse of the 

diesel, purchased by the Nagar Panchayat, 

by the petitioner. The charge, therefore, 

did not relate to the petitioner and any 

case did not prove any misuse of the 

property and assets of the Nagar 

Panchayat. In respect of third charge the 

State Government has found substance in 

the report of the District Magistrate that 

the auction took place on 30.5.2007, 

whereas the amended bylaws for 

identifying the parking place were 

published on 14.7.2007 and that 

Chairman has not given any reply or 

evidence in this regard. The Chairman is 

not permitted to give any contract either 

directly or indirectly and that he had 

approved the contract before it was placed 

before the Board. The State Government 

did not consider the petitioner's reply that 

the brother of the petitioner was already 

working as a contractor of the Nagar 

Panchayat prior to his election. He was 

living separately and that notification of 

the bylaws, was subsequent to the auction 

held after giving due publicity in which 

three persons had participated. There was 

no finding that the petitioner had obtained 

any financial gain or that he had given 

any favour to his brother. The burden of 

proving was also wrongly shifted upon 

the petitioner. No one had challenged 

settlement of the contract or that the offer


was inadequate. There was no allegation 

of any direct or indirect benefit accrued to 

the petitioner in respect of award of the 

contract to his brother. There are no 

findings on the reply given by the 

petitioner that his brother is living 

separately and has a separate ration card 

in his name and that the petitioner had no 

concern with him. 

18. With regard to the last charge, 

once again the State Government wrongly 

placed the burden on the petitioner. There 

is no finding that the petitioner's house is 

constructed on the Khasra No.702. On the 

contrary the finding is that the Chairman 

could not prove by any evidence in his 

reply that his house is not constructed at 

Khasra No.702 and that no case is 

pending in respect of his house on Khasra 

No.702 in any civil court or any revenue 

court filed either by the petitioner or his 

father. The State Government has not 

given clear finding with regard to 

construction of the house of the petitioner 

on public utility land and has not 

considered the petitioner's reply that his 

house is not constructed on Khasra 

NO.702 but is actually constructed in 

Mohalla Badbaliyan. Further there was no 

finding on the reply given by the 

petitioner that the house of Farooq, 

Mashroor and others are constructed on 

Khasra No.702. 

19. On the aforesaid discussion we 

find that the State Government not only 

wrongly placed the burden of proof of the 

charges on the petitioner to be disproved 

by him, but also failed to discuss the 

evidence led by the petitioner. The charge 

No.1 had no concern with the misconduct 

and did not fall in any of the grounds 

given in Section 48 (2) (b) and that charge 

No.2 was wholly vague and was not 

related to the duties performed by the 

petitioner. The third and fourth charge, 

were also not proved against the 

petitioner. 

20. Since we have found that four 

charges levelled against the petitioner 

were not proved, we are not going into 

allegations of malafide. We may, 

however, observe that in order to remove 

an elected Chairman of Nagar Panchayat, 

the State Government must have a good 

case, falling within the grounds given in 

Section 48 of the Act and on which the 

explanation of the person is not sufficient. 

The charges, even if proved, may not 

always result in a decision of removing 

him from the office. The State 

Government may exceed unless the 

charges are very serious giving him a 

warning in as much as a President 

removed under sub-section (2-A) shall 

also cease to be a member of the Nagar 

Panchayat and in case of his removal of 

any of the ground mentioned in Clause (a) 

or sub-clauses (vi), (vii) or (viii) of clause 

(b) of sub-section (2) is not eligible under 

sub-section (4) for reelection as President 

or member for a period of five years from 

the date of his removal. This penalty 

clause put the State Government under a 

duty to remove a President only if the 

charges are serious and that in the opinion 

of the State Government the person does 

not deserve to continue in the office as the 

Chairman of Nagar Panchayat. Each case, 

however, will depend upon its own facts. 

21. The writ petition is allowed. The 

order of the State Government dated 14th 

November, 2008 removing the petitioner 

from the office of the Chairman of Nagar 

Panchayat, Kithore, Distt. Meerut is set 

aside. The petitioner shall be allowed to 

resume the charge, if the charge of the

3 All] Ashutosh Kumar Tripathi V.State of U.P. and others 1079 

Chairman, Nagar Panchayat has been 

taken away from him. 

---------- 


CIVIL SIDE 


BEFORE 

THE HON’BLE AMITAVA LALA, J. 

THE HON’BLE SHISHIR KUMAR, J. 


Ashutosh Kumar Tripathi …Petitioner 

Versus 



Sri Bhanu Prakash Singh 

Sri Avinash Chandra Srivastava 


Sri Amit Sthalekar 

S.C. 

U.P. Services (Reservation of Physically 

Handicapped, Dependent of Freedom 

fighter and Ex-Serviceman, Amendment 

Act-1997-Claim of 2% reservation of 

1556 post- can be done only by the state 

govt. with consultation of High Court- 

Question of reservation not approved by 

full bench- no such direction can be 

issued-petition dismissed. 

Held: Para 3 

We have also gone through the Full 

Bench judgement of our High Court 

reported in 2005 (4) ESC 2378 (All) 

Sarika Vs. State of U.P. and others where 

also it has been held that the reservation 

will be made, if required, for the judicial 

service by the State Government, then it 

should be made in consultation with the 

High Court. Therefore, when such Full 

Court of this High Court did not approve 

any such proposal for reservation, we 

are of view that the prayer of the 

petitioner cannot be considered and as 

such writ petition is liable to be 

dismissed and is accordingly dismissed, 

however, without imposing any cost. 


2000 (IV) SCC 640, 2005 (4) ESC 2378 (All). 

(Delivered by Hon’ble Amitava Lala, J.) 

1. This writ petition has been made 

to obtain an appropriate direction upon 

the Registrar General of this High Court 

to keep 2% of the posts in direct 

recruitment to U.P.H.J.S.- 09 reserved for 

the candidates of dependent of freedom 

fighters. The learned counsel has relied 

upon U.P. Public Services (Reservation of 

Physically Handicapped, Dependence of 

Freedom Fighters and Ex-servicemen) 

(Amendment) Act 1997. He said that by 

way of amendment in Section 3 (1) there 

shall be reservation at the stage of direct 

recruitment in public services i.e. two per 

cent of vacancies for dependents of 

freedom fighters and one per cent of 

vacancies for ex-servicemen. 

2. However, we have considered the 

Constitution Bench judgement of the 

Supreme Court reported in 2000 (IV) 

SCC 640 State of Bihar and another Vs. 

Bal Mukund Sah and others which 

speaks as follows:- 

"Any scheme of reservation foisted 

on the High Court without consultation 

with it directly results in truncating the 

High Court's power of playing a vital role 

in the recruitment of eligible candidates 

to fill up these vacancies and hence such 

appointments on reserved posts would 

remain totally ultra vires the scheme of 

the Constitution enacted for that purpose 

by the Founding Fathers."


3. We have also gone through the 

Full Bench judgement of our High Court 

reported in 2005 (4) ESC 2378 (All) 

Sarika Vs. State of U.P. and others 

where also it has been held that the 

reservation will be made, if required, for 

the judicial service by the State 

Government, then it should be made in 

consultation with the High Court. 

Therefore, when such Full Court of this 

High Court did not approve any such 

proposal for reservation, we are of view 

that the prayer of the petitioner cannot be 

considered and as such writ petition is 

liable to be dismissed and is accordingly 

dismissed, however, without imposing 

any cost. 

--------- 

APPELLATE JURISDITION 

CIVIL SIDE 

DATED ALLAHABAD:04.08.2009 

BEFORE 

THE HON’BLE C.K. PRASAD, C.J. 


Special Appeal (D) No. 318 of 2006 

With 

Special Appeal (D) No. 615 of 2009 

Superintending Engineer, Jhansi Lalitpur 

Circile, P.W.D. Jhansi and others 

…Appellants/Respondents 

Versus 

Anoop Kumar Rathore 

…Respondent/Petitioner 

Counsel for the Appellants: 

Sri K.S. Kushwaha, S.C. 

Sri M.S. Pipersenia, Addl. CSC 


Sri Indra Raj Singh 

U.P. Subordinate Offices Ministerial Staff 

(Direct Recruitment) Rules 1985- Rule 

23-Rule provides mode of selectionwritten 

test and Hindi typing test-only 

these candidate after qualifying in both 

test on basis of merit shall be called for 

interview-advertisement provides 

preference of Hindi Type knowing 

Candidates- petitioner respondent 

qualify in written test but remain 

unsucess in type test-nor called for 

interview-held-on conflict of rules as 

well as in advertisement-rule shall 

prerail as per law developed by apex 

Court-held-petitioner/ respondent can 

not be selected- order passed by Single 

Judge-set a side. 

Held: Para-27 

In view of the judgment dated 

09.09.2005 having been set aside by us, 

we have no hesitation in further 

expressing the same opinion in respect 

of the judgment dated 12.01.2009 

passed in Writ Petition No.51691 of 

2006, inasmuch as the said judgment 

proceeds on the same presumption and 

findings that were drawn in favour of the 

petitioner in Writ Petition No.7660 of 

1999. Therefore, the judgment dated 

12.01.2009 passed in Writ Petition 

No.51691 of 2006 is also set aside. 


JT 2007(3) SC 352. 

(Delivered by Hon'ble C.K. Prasad, C.J.) 

1. These two special appeals arise, 

though against separate judgments dated 

09.09.2005 and 12.01.2009 respectively, 

out of common questions of law and fact 

pertaining to the same process of selection 

on the post of Junior Clerk in the Public 

Works Department, against an 

advertisement dated 10.08.1998 published 

by the Chief Engineer, Public Works 

Department, Jhansi Region, Jhansi, where 

the respondent-petitioner Anoop Kumar 

Rathore (hereinafter referred to as the 

''petitioner') claimed appointment on the 

basis of the said selection.

3 All] Superintending Engineer and others V.Anoop Kumar Rathore 1081 

2. The dispute raised by the 

petitioner is that knowledge of Hindi 

typewriting was only a preferential 

qualification, and not essential, as per the 

advertisement itself, and therefore, the 

appellants - employer could not have 

disqualified the candidature of the 

petitioner on that count. The stand of the 

appellants in response is that the word 

preference in the advertisement was a 

mistake, and that the Rules provide for 

knowledge of Hindi typewriting as an 

essential qualification for the post in 

question, which would prevail as against 

an error in the advertisement. The learned 

Single Judges while allowing the writ 

petitions have found favour with the plea 

of the petitioner, hence these appeals 

under Rule 5 Chapter VIII of the 

Allahabad High Court Rules, 1952. 

3. Short facts giving rise to the 

present appeals are that the petitioner 

applied for the post of Junior Clerk in the 

Public Works Department in the Jhansi 

Region against the advertisement issued 

by the Chief Engineer of the said region 

dated 10.08.1998. He appeared in the 

written examination, which was 

conducted on 13th December 1998 and by 

a subsequent letter dated 5th February 

1999, he was called upon to appear in the 

typing test scheduled on 13.02.1999. The 

petitioner appears to have made himself 

available for the typing test, but could not 

qualify the same. The result of the written 

test was declared and a merit list was 

prepared, which was sent to the State 

Government. The petitioner was, 

however, not interviewed, as only those 

candidates were called for interview who 

qualified in the Hindi typing test with a 

speed of 25 words per minute. 

4. At this stage, the petitioner filed 

Writ Petition No. 7660 of 1999 praying 

for a writ of mandamus commanding the 

respondent authorities (appellants herein) 

to give him an opportunity to appear in 

the interview for the post of Junior Clerk 

and thereafter declare his result. This 

Court entertained the writ petition and 

thereafter vide order dated 26.02.1999 

stayed the declaration of the result of the 

said selections. Out of the selected 

candidates, one Santosh Kumar Yadav 

filed Writ Petition No. 7903 of 2000 and 

the said writ petition was heard along 

with Writ Petition No. 7660 of 1999, 

where after by an order dated 20.04.2001, 

the interim order dated 26.02.1999 was 

modified directing the respondents therein 

to declare the results, which were made 

subject to the final decision of the writ 

petition. These facts are mentioned in the 

order dated 26.08.2006 passed by the 

Chief Engineer, Public Works 

Department, Jhansi Region, Jhansi. 

5. The writ petition filed by the 

petitioner, i.e. Writ Petition No. 7660 of 

1999 was finally decided on 9th 

September 2005 after exchange of 

affidavits, and the learned Judge held that 

the qualification of possessing proficiency 

in Hindi typewriting was only a 

preferential qualification as per the 

advertisement for the post in question, 

and since it was not an essential 

qualification, the Department had erred in 

excluding the petitioner from the 

interview. Accordingly, a direction was 

issued to interview the petitioner 

separately and to convey the result of the 

said interview to the Board for final 

consideration. The Department preferred 

Special Appeal (Defective) No. 318 of 

2006 assailing the said judgment, which 

was presented before the Court on


08.05.2006 and an order was passed on 

11.05.2006 to list the appeal after the 

delay condonation application was 

disposed off. 

6. The Department interviewed the 

petitioner on 24.07.2006 in compliance of 

the directions of this Court. The petitioner 

also filed Contempt Petition No. 2092 of 

2006 alleging disobedience of the order 

dated 09.09.2005, in which an order was 

passed on 27th July, 2006 directing the 

Chief Engineer to decide the claim of the 

petitioner within a period of six weeks. 

Accordingly, the Chief Engineer 

proceeded to consider the claim of the 

petitioner and rejected the same by order 

dated 26.08.2006. 

7. The aforesaid order dated 

26.08.2006 gave rise to Writ Petition No. 

51691 of 2006 preferred by the petitioner 

assailing the said order on the ground, that 

once this Court had already held that 

knowledge of Hindi typewriting by a 

candidate was a preferential qualification, 

then the same could not have been made a 

ground to reject the candidature of the 

petitioner. The said writ petition was 

finally allowed on 12.01.2009 by this 

Court, which has given rise to Special 

Appeal (Defective) No. 615 of 2009. It is 

in the aforesaid backdrop that both the 

appeals have been heard and are being 

disposed off together. 

8. Shri M.S. Pipersenia, learned 

Additional Chief Standing Counsel, 

appearing on behalf of the appellants, 

addressed the Court in both the appeals 

and Shri Indra Raj Singh has been heard 

in response thereto on behalf of the 

petitioner - Anoop Kumar Rathore. 

9. Shri Pipersenia, while advancing 

his submissions in Special Appeal 

(Defective) No. 318 of 2006 against the 

judgment of the learned Judge dated 

09.09.2005, urged that the said judgment 

proceeds on an erroneous assumption of 

fact as well as in law, inasmuch as the 

knowledge of typewriting in Hindi, as 

reflected in the advertisement dated 

10.08.1998 as a preferential qualification, 

was a mistake and which had been 

pointed out through the averments 

contained in the counter affidavit and 

further, even otherwise the Rules 

applicable to the controversy clearly 

provide the knowledge of Hindi 

typewriting as an essential qualification 

and not as a preferential qualification. He 

contends that in view of the above, the 

finding recorded by the learned Judge in 

the judgment dated 09.09.2005 treating 

the knowledge of Hindi typewriting as a 

preferential qualification is erroneous and, 

therefore, the same deserves to be set 

aside. For this, he has invited the attention 

of the Court to the contents of the 

advertisement, the averments contained in 

the counter affidavit filed on behalf of the 

State in the writ petition as well as the 

provisions contained in the Public Works 

Department Ministerial Establishment 

Rules 1965, the Subordinate Offices 

Ministerial Staff (Direct Recruitment) 

Rules 1975, the U.P. Subordinate Offices 

Ministerial Staff (Direct Recruitment) 

Rules, 1985 and the Uttar Pradesh 

Procedure for Direct Recruitment for 

Group "C" Posts (Outside the Purview of 

the Uttar Pradesh Public Service 

Commission) Rules, 1998. On the 

strength of the relevant Rules prescribed 

therein, Shri Pipersenia contends that 

since the Rules provide for knowledge of 

Hindi typewriting as an essential 

qualification, therefore, the learned Judge


committed an error in accepting the 

contention on behalf of the petitioner that 

the said qualification was preferential. 

10. Shri Indra Raj Singh, on the 

other hand, urged that the advertisement 

clearly indicates that the knowledge of 

typing in Hindi was a preferential 

qualification and the Rules 1998, which 

have an overriding effect read with the 

subsequent amendments, ruled out the 

possibility of possession of the knowledge 

of typewriting in Hindi as an essential 

qualification. 

11. Shri Indra Raj Singh further 

contends that since the order passed by 

the Chief Engineer on 26.08.2006 

suffered from the same infirmity, and 

since the learned Judge in the judgment 

dated 09.09.2005 had already held that the 

qualification was only a preferential 

qualification, therefore, the subsequent 

writ petition filed by the petitioner, i.e. 

Writ Petition No. 51691 of 2006 was 

rightly allowed and, as such, the judgment 

dated 12.01.2009 also does not require 

any interference at the instance of the 

appellants. 

12. Shri Pipersenia, in rejoinder, has 

urged that the judgment of the learned 

Judge dated 12.01.2009 in Writ Petition 

No. 51691 of 2006, giving rise to Special 

Appeal No. 615 (Defective) No. 2009, is 

founded on an earlier decision of this 

Court dated 09.09.2005. Therefore, in the 

event the judgment dated 09.09.2005 is 

set aside, then the judgment dated 

12.01.2009 in the subsequent writ petition 

has also to fall through. He contends that 

the order of the Chief Engineer dated 

26.08.2006 is valid and in accordance 

with the Rules and, therefore, the same 

was unjustifiably interfered with by the 

learned Judge. 

13. Having heard the learned 

counsel for the parties, it would be 

appropriate to refer to the relevant Rules, 

which have been relied upon by the 

contesting parties. From the record, it 

appears that for the purposes of 

recruitment to the post of ministerial staff, 

the State Government framed "Rules for 

the Recruitment of Ministerial Staff to the 

Subordinate Offices", which were 

promulgated on 11.07.1950 and published 

in the gazette on 16.07.1950. Rule 6 of 

the said Rules provided as follows:- 

"6. Subjects of the test. - (1) The 

competitive tests shall comprise a written 

test as well as an oral test. 

(2) The subjects of the tests and 

maximum marks on each subject shall be 

as follows:- 

Subjects 

Marks 

Oral 

1. Personality ... ... ... ... 25 

2. General knowledge and suitability for 

the particular post. 25 

Written 

1. Simple drafting (in Hindi) ... ... 50 

2. Essay and Precis writing 50 

(in Hindi) 

3. Simple drafting and Precis 

writing (in English) 50 

Optional 

1. Typewriting in English 

and Hindi ... 50 

2. Shorthand in Hindi 

and English ... 50 

__________________________________ 

NOTE- Candidates must take one of 

the optional subjects but may take both if 

they so choose."


14. The aforesaid Rule along with 

the other provisions in the said Rules was 

incorporated as Appendix ''B' in "the 

Public Works Department Ministerial 

Establishment Rules, 1965". The relevant 

Rule 5 (2) is quoted below:- 

"5. Sources of recruitment – 

(1) ... ... ... 

(2). Direct recruitment to the post of 

Junior Noters and Drafters, Record 

Keepers, Routine Clerks and the Lower 

Grade Clerks in all the offices shall be 

made on the results of a competitive 

examination prescribed in the ''Rules for 

the Recruitment of Ministerial Staff to the 

Subordinate Offices' published under 

Government notification no.0-1119/II- 

B/50, dated July 11, 1950, as amended 

from time to time. 

NOTE- A copy of the Rules referred 

to above in force at the time of 

commencement of these rules in given in 

Appendix ''B' to these rules." 

15. These Rules continued to be in 

vogue till the new Rules were framed by 

the State Government notified on 29 th 

July, 1975 known as "the Subordinate 

Offices Ministerial Staff (Direct 

Recruitment) Rules, 1975". The aforesaid 

Rules were made applicable to all the 

departments as per Rule 2 of the said 

Rules. Simultaneously, the said Rules 

were given an overriding effect insofar as 

the pre-existing Rules were inconsistent 

with the said Rules. This provision was 

contained in Rule 3 thereof. The State 

Government, however, through a specific 

Rule 20 of the said Rules further 

rescinded the Rules for the Recruitment of 

Ministerial Staff to the Subordinate 

Offices, which had been promulgated on 

11.07.1950 and published in the gazette 

on 16.07.1950, referred to hereinabove. 

Thus, the Rules 1975 thereafter held the 

field. The State Government promulgated 

another set of new Rules known as "the 

U.P. Subordinate Offices Ministerial Staff 

(Direct Recruitment) Rules, 1985", which 

also has an overriding effect insofar as the 

previous Rules are inconsistent in this 

regard. Rule 35 of the said Rules provided 

for regulation of other matters, if they 

were not specifically covered by the said 

Rules. Sri Pipersenia, during the course of 

his submission, specifically invited the 

attention of the Court to sub-rule (5) of 

Rule 23, which makes a provision for the 

procedure of selection on the post of 

Clerk/Typist. The same is quoted below:- 

"23. Procedure of Selection.-(1). ... 

... ... 

(2) .... ... ... ... 

(3) .... ... ... ... 

(4) .... ... ... ... 

(5) In the case of candidate to be 

selected for the post of clerk/typist as also 

for any other post for which typing has 

also been prescribed as an essential 

qualification only those candidates who 

know typewriting will be considered 

and final assessment of merit shall be 

made only after adding the marks 

obtained in Hindi typewriting. The 

candidates shall be required to appear at a 

competitive test for Hindi typing. Marks 

shall be allowed for Hindi typing out of 

the maximum marks of 50. The marks 

obtained in Hindi typing shall be added to 

the marks already obtained under sub-rule 

(4) and the final merit list shall in such 

case be prepared on the basis of aggregate 

marks." (Emphasis supplied). 

16. The aforesaid Rule, therefore, 

clarifies that in the case of a candidate to 

be selected for the post of a Clerk or 

Typist, only those candidates who know


Hindi typewriting would be considered 

and the final assessment of merit shall be 

made only after adding the marks 

obtained in the Hindi typewriting. 

17. Sri Indra Raj Singh, questioning 

the applicability of the said Rule, urged 

that the said Rule would apply only to the 

post of Clerk-cum-Typist and, therefore, 

the said Rule would not be applicable in 

the present case. 

18. Having given our anxious 

consideration to the aforesaid aspect of 

the matter, we are unable to subscribe to 

the suggestion made by the learned 

counsel for the petitioner that the 

aforesaid Rule would apply in the case of 

a candidate applying for Clerk-cum- 

Typist. The words Clerk and Typist are 

clearly segregated by an oblique stroke, 

which clearly means the said words do 

not, in any way, suggest a single post of 

Clerk-cum-Typist, rather the placement of 

the words are clearly narrated in the 

alternative and separate. The words 

cannot be construed to mean a post, which 

has both the connotations. 

19. Nonetheless, taking any view of 

the matter, whether the post is of a Clerk 

or a Typist or a Clerk-cum-Typist, the 

position remains the same, namely that 

the candidate for any of such posts has to 

qualify a Hindi typewriting test for being 

selected. 

The advertisement also clearly 

indicates the post of a Junior Clerk and, 

therefore, the essential qualification of 

typing as prescribed in the said Rule is 

clearly relatable to both the posts 

separately. A candidate applying for the 

post of a Clerk shall only be considered 

provided such a candidate knows typing 

as well. It is a well-known Rule of 

Interpretation that the Legislature or the 

Rule-making Authority cannot be 

presumed to have used surplusage and the 

literal meaning has to be given its true 

sense. Viewed from any angle, it is more 

than clear that the Rule provides that for 

both the posts, i.e. posts of Clerk as well 

as Typist, a candidate should know 

typewriting in order to enable him to 

qualify for appointment on such a post. 

The preparation of the final merit has to 

be made after assessment of the 

knowledge of tying as indicated in the 

aforesaid Rule. We are, therefore, of the 

firm view that the post of Junior Clerk, 

which was advertised by the Department, 

was clearly governed by the qualifications 

prescribed and referred to herein above 

under the 1985 Rules. 

20. It is further clear that the 

Department itself realized its mistake and 

error in the advertisement and took up a 

clear stand before the learned Judge in 

Writ Petition No.7660 of 1999 that the 

advertisement suffered from an error to 

the effect that the knowledge of typing 

was a preferential qualification. The said 

position has been reiterated before us by 

the learned counsel for the appellants that 

the word "preferential" occurring against 

the column of "knowledge of typing" was 

a clear mistake and de hors the Rule 

aforesaid. The order dated 26.08.2006, 

which was impugned in Writ Petition 

No.51691 of 2006, also narrates the same 

position. We do not find any error in the 

stand taken by the appellants and, 

therefore, we hold that the knowledge in 

typing in Hindi was an essential 

qualification as per the Rule aforesaid and 

that the advertisement suffered from an 

error to that extent. In view of this, the 

conclusion drawn by the learned Judge in


the judgment dated 09.09.2005 does not 

appear to be in conformity with law. 

21. At this juncture, it would be apt 

to record that whenever there is a conflict 

between the Rules and the advertisement, 

it is settled law that the Rules would 

prevail. Reference may be had to the 

decision of the Supreme Court in the case 

of Malik Mazhar Sultan & Anr. Vs. U.P. 

Public Service Commission & Ors., JT 

2007 (3) SC 352. 

22. This is not a case where any 

change of qualification has been brought 

about after the advertisement was made. 

This is a clear case where the incorrect 

qualification was reflected in the 

advertisement. A qualification, which was 

essential under the Rules, was wrongly 

referred to as a preferential qualification. 

In our opinion, an incorrect advertisement 

referring to a wrong Rule would neither 

create or confer a right on a candidate to 

claim selection nor would it give rise to 

any legitimate expectation to a candidate, 

in law. The Rule on the date of 

advertisement, which has been pointed 

out on behalf of the appellants, was very 

much in existence and was applicable. 

Learned counsel for the petitioner could 

not successfully dispute the applicability 

of the Rules 1985. 

23. Sri Indra Raj Singh alternatively 

urged that the Rules 1998 have an 

overriding effect. We have perused the 

same and the said argument is stated only 

to be rejected, inasmuch as the Rules 

1998 are the Rules of procedure and they, 

in no way, take away the impact of the 

substantive Rules, which held the field on 

the date when the advertisement was 

issued. Even otherwise, the Rules 1998, in 

no way, contradict the Rules 1985 and 

rather they supplement the same, as 

would be evident from a perusal of Rules 

5 and 6 of the Rules 1998. 

24. We may hasten to add that the 

Rules have been subsequently modified in 

the year 2001 and even thereafter, but 

such modifications are not at all relevant 

to be discussed herein, as this matter 

specifically concerns the 1985 Rules that 

were applicable on the date of 

advertisement, i.e. 10.08.1998. No other 

Rule apart from the Rules 1985 was 

applicable in respect of the selections in 

question in the year 1998 and the learned 

counsel for the petitioner could not show 

anything to the contrary. 

25. In view of the findings aforesaid, 

we are of the view that the learned Single 

Judge committed an error in allowing 

Writ Petition No.7660 of 1999 and 

permitting the petitioner to be 

interviewed. We, accordingly, set aside 

the judgment dated 09.09.2005 passed in 

Writ Petition No.7660 of 1999. 

26. The judgment in Writ Petition 

No. 51691 of 2006 dated 12.01.2009 

appears to have been delivered under the 

impression that the said judgment dated 

09.09.2005 had become final and had not 

been challenged. We may record that the 

judgment dated 09.09.2005 had already 

been assailed through Special Appeal 

(Defective) No.318 of 2006, which fact 

appears to have escaped the notice of the 

learned Judge, while rendering the 

judgment dated 12.01.2009. In view of 

the fact that Writ Petition No.7660 of 

1999 stands dismissed upon the judgment 

dated 09.09.2005 having been set aside, 

the very foundation of the judgment dated 

12.01.2009 is taken away. Accordingly, 

the petitioner would, therefore, not be

3 All] Dr. R.C. Agrawal and another V. Bharat Press and others 1087 

entitled to any benefit under the judgment 

dated 09.09.2005 and, therefore, he would 

not be entitled for being considered 

against the post of Junior Clerk in 

question. 

27. In view of the judgment dated 

09.09.2005 having been set aside by us, 

we have no hesitation in further 

expressing the same opinion in respect of 


Writ Petition No.51691 of 2006, 

inasmuch as the said judgment proceeds 

on the same presumption and findings that 

were drawn in favour of the petitioner in 

Writ Petition No.7660 of 1999. Therefore, 


Writ Petition No.51691 of 2006 is also set 

aside. 

28. Accordingly, both the special 

appeals are allowed and the writ petitions 

filed by the petitioner, i.e. Writ Petition 

No.7660 of 1999 and Writ Petition 

No.51691 of 2006 are dismissed. 

29. In the facts and circumstances of 

the case, there shall be no order as to 

costs. 

--------- 


CIVIL SIDE 


BEFORE 

THE HON’BLE MRS. POONAM SRIVASTAVA, J. 


Dr. Ram Chandra Agrawal and another 

…Petitioners 

Versus 

Bharat Press and others 

…Defendant-Respondents 


Sri Manish Trivedi 

Sri A.K. Bajpai 


Sri M.K. Gupta 

Sri Nikhil Kumar 

Sri Shikha Singh 

U.P. Urban Building (Control of Rent 

and Eviction) Act 1972 Sec-21(i) (a)- 

Bona-fide need-Land lord -very old 

man-suffering from massive heart 

attack-strictly restrained from using 

stairs-his son being Doctor-wants to 

open a clinic-rejection by the 

authorities below- held-not proper if 

the case remanded-very purpose of 

eviction frustrated. 

Held: Para 27 

I am conscious of the fact that this 

Court cannot reevaluate the evidence 

and substitute its own findings 

because two views are possible. A bare 

perusal of the release application, 

objections filed by tenants and the 

various affidavits it is abundantly clear 

that the landlords (psetitioners) who 

are owners, require the shops for their 

personal need. They are the first and 

the rightful claimant to use their own 

property as they want it. This is a 

situation where father and son with 

their spouses are facing a number of 

problems and therefore the release of 

the shops cannot be refused. The very 

purpose of the Act stands frustrated if 

the two judgments of the courts are 

left to stand. 


AIR 1999 Supreme Court, 100, 2009(1) ARC, 

829, 2008(3) ARC 532.(2000)1 SCC, 679, 

2000 SCF BRC,24, (1996) 5 SCC, 353, 

(2002) 5 SCC, 397:2002 SCFBRC 388, AIR 

1965 AP 435, (1979)1 SCC 273: 1986 

SCFBRC 346, JT 2002(10) SC 203:2003 

SCFBRC 137, JT 2004(Suppl.1) SC 538: 2004 

SCFBRC 338, 1977 ARC 46, 2007 (68) 

ALR,555, 2007(68) ALR, 603, 2008(71) ALR, 

857, 2009(2) ARC,715, 2003(1) ARC, 256, 

(1993) 3 SCC, 483, AIR 2002 Supreme 

Court,200, 2004 All. C.J., 304 (S.C.).


(Delivered by Hon’ble Ms. Poonam Srivastav, J.) 

1. Heard Sri Manish Trivedi and 

Sri A.K. Bajpai, learned counsels for the 

petitioners, Ms. Shikha Singh Advocate 

for the respondent no. 1, Sri Nikhil 

Kumar Advocate for the respondent no. 

2 and Sri M. K. Gupta Advocate for the 

respondent no. 3. 

2. Counter and rejoinder affidavits 

have been exchanged and as agreed 

between the counsels for the parties, 

writ petition is heard finally. 

3. Notices were accepted by Sri 

M.K. Gupta Advocate on behalf of 

respondent no. 3 Yogesh Kishan Dhall, 

son of Late Kishan Chand Dhall, Sri 

Nikhil Kumar Advocate on behalf of 

respondent no. 2 Sohan Agrawal and 

Ms. Shikha Singh Advocate on behalf of 

respondent no. 1 Bharat Press. Counter 

affidavit has been filed on behalf 

respondent nos. 1 and 2. Sri M.K. Gupta 

Advocate filed an application on 

3.9.2009 bringing on record a 

compromise application on behalf of the 

petitioners and respondent no. 3. Joint 

affidavits have been filed by Anoop 

Chandra Agrawal and Sri Neeraj Dhall 

where the parties have entered into an 

agreement on account of the reason that 

father of the respondent no. 3 who is a 

very old man and was admitted in Apolo 

Hospital, New Delhi and therefore he 

requested for some sympathetic 

consideration. Finally they entered into 

an agreement after institution of the writ 

petition that the respondent no. 3 will 

continue as tenant of the disputed shop 

on the ground floor for a period of 5 

years at the government rental value of 

Rs. 3,000/- per month from the date of 

order of the court and parties have 

agreed that for a period of 5 years, the 

petitioners will not seek eviction of the 

respondent no. 3 alone and the 

respondent no. 3 has further agreed to 

vacate the disputed shop in recognition 

of the fact that the petitioner no. 1 Dr. 

Ram Chandra Agrawal will require the 

shop for his proposed registered clinic 

for his private practice only. 

Accordingly the writ petition was 

decided in terms of compromise viz.-aviz 

between the petitioners and 

respondent no. 3 on 11.9.2009. 

4. The dispute relates to a shop 

situated on the ground floor of 

accommodation No. 106/93, K.P. 

Kakkar Road, Allahabad. The 

respondents are three different tenants 

occupying entire ground floor. The 

respondent no. 1 is a tenant at the rate of 

Rs. 100/- per month and respondent nos. 

2 and 3 are paying Rs. 200/- per month 

as rent. The petitioner no. 1 retired as 

eye surgeon from Sitapur Eye Hospital 

Trust and was living with his family in 

his ancestral house. The petitioner no. 2 

is his only son who has now shifted 

from Sultanpur to Allahabad with his 

entire family in the year 1995 and is 

living in the residential accommodation 

situated above the shop. Petitioner no. 1 

and his wife have also shifted to 

Allahabad and are living on the second 

floor with his son petitioner no. 2. 

5. A release application was filed 

by the petitioners under Section 21(1)(a) 

of U.P. Act No. 13 of 1972 (hereinafter 

referred to as the Act) for release of 

three shops on the ground floor. The 

need and requirement pleaded in the 

release application is that the petitioner 

no. 2 was previously enrolled as an 

Advocate but did not practice and


finally surrendered his registration 

certificate to the Bar Council of U.P. on 

25.5.1995. He started printing business 

in partnership of one Sanjeev Misra in 

the name and style of M/s Printrite 

which was run from the house of Mr. 

Sanjeev Misra, 523/450, Badshahi 

Mandi, Allahabad. The partnership was 

dissolved in the year 2001 and the 

petitioner no. 2 having no other option 

was compelled to take away the printing 

machines, computer, furniture etc. 

which are now kept on the second floor 

of the disputed shop. Since then the 

petitioner no. 2 is idle without any work 

and unemployed, therefore, he required 

the shops in dispute for his personal use 

to set up his printing business. The need 

of the petitioner no. 1 was also set up 

for the ground floor accommodation i.e. 

the disputed shop as petitioner no. 1 had 

suffered massive heart attack on 

15.9.2002 and was admitted in Nazareth 

Hospital, Allahabad. He was referred to 

Escort Hospital, New Delhi and is also a 

patient of diabetes and high blood 

pressure and doctor has strictly advised 

him not to use stairs but having no other 

option but to ascend and descend the 

staircase on the second floor number of 

times during the day. The petitioner no. 

1 also required job as he wanted to open 

a small clinic on the ground floor after 

shifting so that he may be engaged and 

also put his skill to good use. Thus the 

bonafide need set up in the release 

application was on the aforesaid two 

grounds. On perusal of the release 

application, it transpires that it was 

urgently required for both the 

petitioners. Request to the respondents 

to vacate the ground floor failed to yield 

any result. 

6. The respondents-tenant filed 

their objection denying their bonafide 

need of the petitioners pleading 

comparative hardship in their favour. 

Specific objection was that the 

petitioner no. 1 and his wife did not 

reside in Allahabad and they are 

permanently residing at Sultanpur and 

they have two big houses at Sultanpur. 

He is rerunning his medical clinic at 

Sultanpur and claim by the petitioner 

that he had a massive heart patient and 

diabetes is concocted and not worth 

reliance. The ground for release of the 

disputed shop was also denied. Sales tax 

registration, partnership deed and 

dissolution deed were also denied. The 

petitioner had also filed affidavit of 

Sanjeev Misra, erstwhile partner of the 

petitioner no. 2 which is numbered as 

Paper No. 48B supporting the 

contention of the petitioner no. 2 

regarding partnership business of 

printing press for the period from 1995 

to 2001. Subsequently when Sanjeev 

Misra was got employed after death of 

his father in Allahabad University on 

compassionate ground, the partnership 

firm was dissolved. Neeraj Dhall, son of 

respondent no. 3 had given his affidavit 

on 1.7.2008 expressing willingness to 

vacate the back portion hall of the first 

floor of the disputed house. The 

petitioners had also offered an 

alternative accommodation to 

respondent nos. 2 and 3 to shift their 

business to the first floor from the 

ground floor of the same building but 

they refused to agree and instead 

preferred to contest the release 

application. 

7. The trial court dismissed the 

release application vide its judgment 

dated 11.8.2008. The petitioners


preferred an appeal under Section 22 of 

the Act challenging the judgment passed 

by the Prescribed Authority which was 

numbered as Rent Appeal No. 119 of 

2008. 

8. During pendency of the appeal, 

additional documentary evidence was 

also brought on record on behalf of the 

petitioner. A request was made by the 

landlord that documents brought on 

record at the stage of appeal were old 

documents and were misplaced and 

mixed up with the old unused papers 

and not traceable and, therefore, it could 

not be brought on record while the 

proceedings were pending before the 

Prescribed Authority. The said 

documents were refused by the appellate 

court primarily on the ground that the 

petitioners failed to file the partnership 

deed which was very essential and, 

therefore, document relating to 

partnership with Sanjeev Misra was not 

acceptable and thus the contention of 

learned counsel for the petitioners is 

that the same were refused illegally. 

Another application was moved on 

behalf of the petitioners under Section 

34 read with Rule 22(f) of the Rules 

framed under the Act bringing to the 

notice of the Court that the partnership 

deed was also on record of the trial 

court and, therefore, the court has 

wrongly rejected the application for 

taking the documents on record. 

However, this application was once 

again rejected by the appellate court on 

17.3.2009. However, the appellate court 

required both the contesting parties to 

submit their written submissions and 

thereafter dismissed the appeal vide 

judgment and order dated 28.5.2009. 

Both the judgments are impugned in the 

instant writ petition. 

9. The submission of learned 

counsels appearing for the landlordpetitioners 

is that both the courts below 

have erred in law and also principles 

laid down by the Apex Court as well as 

this Court in its various decisions taking 

lop sided view in favour of the tenants 

on wholly irrelevant consideration. 

Besides refusal to accept documents 

relating to partnership with Sanjeev 

Mishra on one hand and taking an 

adverse view for want of those very 

documents are evidently erroneous. 

10. The respondent nos. 1 and 2 

have contested the release application. 

Counter and rejoinder affidavits as well 

as written submissions have been filed 

by respective counsels. Two judgments 

of the courts below have been supported 

by Ms. Shikha Singh and Nikhil Kumar 

Advocates. It is submitted on behalf of 

the tenants that both the courts below 

have come to conclusion that the 

landlord does not require the 

accommodation in question and need is 

not bonafide therefore the writ petition 

is liable to be dismissed. 

11. Learned counsels on behalf of 

the petitioners have challenged each and 

every findings of the two courts and 

have laid emphasis that once the 

Prescribed Authority had taken into 

consideration and given findings on the 

partnership deed, the appellate court 

could not have refused documents who 

is the last court of fact. However, 

affidavit of partner Sanjeev Misra was 

already on record and that was sufficient 

to substantiate that some printing 

business was carried out in the 

partnership of Sanjeev Misra and 

petitioner no. 2. Besides the claim of the 

petitioner no. 1 that on every day he has


to climb 50 steps on second floor and 

the courts were completely misled while 

rejecting the release application. 

12. I have heard the respective 

counsels at length and also examined 

two judgments in detail as well as 

various documents filed in support of 

the respective submissions. On a close 

scrutiny of the judgments and arguments 

advanced by the learned counsels 

appearing on behalf of the petitioners 

and respondents, it is apparent that the 

judgments are not legally balanced. 

Both the courts while holding that the 

petitioner no. 1 is having two big houses 

at Sultanpur as well as taking into 

consideration the fact that he is a retired 

eye surgeon at Sultanpur has completely 

lost sight of the fact that now the same 

retired man is living at Allahabad with 

his son on the second floor and he 

cannot be compelled to live in 

Sultanpur. He may have a number of 

houses in different cities but it is 

absolutely immaterial. It is not for the 

court to direct the landlord to choose the 

place where he should reside, specially 

in the instant case where the courts 

below have completely given a goodbye 

to the consideration that the petitioner 

no. 1 is an old ailing man having heart 

problem and if he wants to live with his 

son and his family, it ought to have been 

respected. The courts cannot compel the 

petitioner to live and run business in a 

particular city or in a particular 

building, specially the courts were liable 

to take into consideration that the 

petitioner no. 2 is the only son of the 

petitioner no. 1 and if he has preferred 

to live with him despite the misery of 

scaling steep stairs every day, the 

findings cannot be said to be justiciable, 

specially when both the courts have 

accepted the fact that the petitioner no. 

1 is a heart patient but declined to 

release on the basis of an assumption 

that he is living in Sultanpur. Some 

stray prescriptions have been relied 

upon to come to this conclusion whereas 

it is amply explained that he had gone to 

Sultanpur for a few days and some of 

his old acquaintances approached him 

and he had written out the said 

prescriptions. The ground of bonafide 

need has not been accepted only on 

account of the finding that he has two 

houses at Sultanpur but the courts 

completely overlooked the fact that it is 

situated outside the municipal limit of 

Allahabad where the landlord has 

preferred to reside in his old age with 

his only son. The appellate court has 

also gone to the extent of taking into 

consideration some family settlement 

which cannot be taken into 

consideration and it is something 

between the landlords interse. Both the 

courts have completely failed to 

appreciate the grounds as well as 

evidence on record and also the fact that 

all the printing machineries and 

appliances are kept at the residence of 

petitioner no. 2 on the second floor. In 

fact while declining to accept the case 

of the landlord, the courts have relied 

upon seal of the treasury on the back 

side of the stamp of first page of 

dissolution deed which mentions 

19.5.1998. It is absolutely insignificant 

as this was not a case or objection set up 

by the tenant. It is not unusual, old 

stamps are in possession and there is no 

limitation for using them. No inference 

can be drawn on its basis. While coming 

to conclusion against the landlord the 

courts below have taken into 

consideration that first floor portion was 

vacated by some tenant and was given


to Neeraj Dhall. This has specifically 

been replied by the landlord on affidavit 

that he had agreed to vacate the ground 

floor portion and, therefore, the first 

floor was offered to him as an 

alternative accommodation but 

subsequently he declined from his own 

assurance. It is also stated on affidavit 

that the petitioner no. 2 is doing job 

work by getting orders from different 

Universities and is getting printing work 

from the market which is hardly 

profitable and he gets only nominal 

commission. Thus he is suffering in day 

to day business. 

13. In fact after going through the 

judgment, I realize that the courts have 

taken small and extraneous matter into 

consideration and not considered 

broadly the principles laid down for 

coming to definite conclusion whether 

the accommodation is required 

bonafidely or not and also regarding the 

comparative hardship. I have also 

noticed that the appellate court though 

has halfheartedly come to a conclusion 

that the landlords are suffering hardship 

but since the finding on the bonafide 

need was recorded against the landlord, 

the appeal has also been dismissed. The 

courts have strenuously tried to negate 

the case of the landlord ignoring 

specific assertions on affidavit. The 

court has also disbelieved the assertion 

that partnership stands dissolved for 

want of the partnership deed on one 

hand while they have refused to accept 

the document in evidence. 

14. The Apex Court in the case of 

Sarla Ahuja Vs. United India 

Insurance Co. Ltd., AIR 1999 Supreme 

Court, 100 has held that to deprive a 

landlord of the benefit of release on 

account of availability of alternative 

residential accommodation in another 

city is not a ground to disentitle the 

landlord from recovery of possession of 

tenanted accommodation. The Apex 

Court has categorically come to a 

conclusion that it is unnecessary to 

make endeavour as to how the landlords 

have adjusted in another 

accommodation. This is what exactly 

the courts below have done in the 

instant case. They have tried to 

somehow advise the landlord and also 

grant heavy consideration to the tenant 

only because they have set up a 

goodwill since last 40-50 years or 

because they do not have any other 

place to go. The courts below were 

liable to take into consideration that it is 

the landlord himself who is the best 

judge of his requirement. The courts 

cannot dictate how and where he should 

live. Same view was expressed in the 

case of Nanak Chand (since deceased) 

and others Vs. Jai Bhagwan, 2009 (1) 

ARC, 829. In the said case the landlord 

had sought release on the ground that he 

is retired and wants to live in his 

hometown and also to do the research 

work and write articles and papers on 

the subject of science and also teach 

some students free of charge. This court 

was of the view that it is a very valid 

ground and held that the landlord was 

entitled for his accommodation. Similar 

view was expressed in the case of 

Shamshad Ahmad and others Vs. Tilak 

Raj Bajaj (d) by L. Rs. and others, 

2008 (3) ARC 532. Extract of relevant 

paragraph is quoted below:- 

"The Counsel is also right in 

submitting that admittedly, Matloob 

Ahmad had retired from service. Even if 

the tenant was right in submitting that


the landlord belonged to a higher strata 

of society, it did not mean that all 

throughout his life after retirement, 

Matloob Ahmad, husband of applicant 

No. 6 should not do any work. If he 

wanted to get himself engaged in doing 

some business. It could not be held that 

he would not be entitled to possession of 

property for doing business since he 

was rich and even without doing any 

business, he could maintain himself. A 

finding as to bonafide requirement for 

doing ready made business by Matloob 

Ahmad has been expressly recorded by 

the Appellate Authority. The said 

finding was a finding of fact. Neither it 

could have been interfered with, nor it 

has been set aside by the writ Court. In 

view of the above position, the High 

Court was wrong in allowing the writ 

petition." 

15. Ragavendra Kumar Vs. Firm 

Prem Machinery and Company, (2000) 

1 SCC, 679, 2000 SCFBRC, 24, is 

another authority for the proposition 

that the landlord is the best judge of his 

own requirement for residential or 

commercial purpose and has complete 

freedom in the matter. In this authority 

the Apex Court has relied upon its 

earlier judgment in Prativa Devi Vs. 

T.V. Krishnan, (1996) 5 SCC, 353. 

16. In Joginder Pal Vs. Naval 

Kishore Behal, (2002) 5 SCC, 397 : 

2002 SCFBRC 388, the Apex Court 

with a reference to the provisions of 

East Punjab Urban Rent Restriction Act, 

on the question of bonafide need, after 

surveying its earlier pronouncements, 

has held that the requirement of a major 

son and a coparcener in a joint Hindu 

family intending to start a business is 

the requirement of the landlord himself 

as was held in B. Balaiah Vs. Chandoor 

Lachaiah, AIR 1965 AP 435. The 

words "for his own use" must receive a 

wide, liberal and useful meaning rather 

than a strict or narrow construction. It 

has been further held that while casting 

its judicial verdict, the Court shall adopt 

a practical and meaningful approach 

guided by the realities of life. 

17. In Mst. Bega Begum and 

others Vs. Abdul Ahad Khan and 

others, (1979) 1 SCC 273: 1986 

SCFBRC 346, it has been held that rent 

control laws must be construed 

reasonably. They should be interpreted 

in such a way as to achieve the object of 

enabling landlord to evict tenant where 

the statute grants such right in favour of 

landlord. 

18. It has been held by the Apex 

Court in the case of Akhileshwar 

Kumar and others Vs. Mustaqim and 

others, JT 2002 (10) SC 203 : 2003 

SCFBRC 137, that landlord has the 

right of choosing the accommodation 

which would be reasonable to satisfy his 

requirements. In Sarla Ahuja Vs. 

United India Insurance Co. Ltd. 

(supra) it has been held by the Apex 

Court that the fact that landlady was in 

possession of another flat in another city 

is not a ground to disentitle her to seek 

recovery of possession of tenanted 

premises. 

19. The Apex Court in Shakuntala 

Bai and others Vs. Narayan Das and 

others, JT 2004 (Suppl. 1) SC 538 : 

2004 SCFBRC 338, has held that there 

is no warrant for interpreting a Rent 

Control legislation in such a manner. 

The basic object of which is to save 

harassment of tenants from


unscrupulous landlords. The object is 

not to deprive the owners of their 

properties for all time to come. 

20. Smt. Sharda Devi Vs. Colonel 

Dinesh Chandra and others, 1977 ARC 

46, is an authority for the proposition 

that if a landlord owns house at several 

places and needs one of several other 

houses to settle after retirement, need is 

genuine and landlord can settle at any 

place of his liking. Tenant cannot 

superimpose his wishes on landlord. 

21. In the case of Raj Kumar Vs. 

IIIrd Additional District Judge, Meerut 

and others, 2007 (68) ALR, 555, the 

Court was of the view that it is settled 

position of law that the landlord is the 

best judge of his requirement for 

residential or business purpose. 

22. In the case of Mohd. Ayyub 

Vs. District Judge, Lucknow and 

another, 2007 (68) ALR, 603, it was 

held that bonafide need and requirement 

of a premises for business purposes and 

augmentation of income for oneself and 

for the family cannot be negativated in 

any circumstances. The intention to 

establish son in his career and the 

requirement of the premises for the 

same purpose cannot be termed as 

malafide. Need of landlord to settle his 

son in independent business cannot be 

defeated on mere fact that the son was 

working in a tailoring shop. Every 

individual has a right to settle himself 

independently in business. 

23. This Court in the case of 

Harish Bhatia Vs. Smt. Johra Begum, 

2008 (71) ALR, 857, has held that to 

establish her son in business the 

landlady could establish the business of 

her son from the room available on the 

second floor and it is not for the tenant 

to dictate to the landlord how he should 

adjust without getting possession of the 

tenanted premises. 

24. In the case of Mohabbey Ali 

Vs. Tej Bahadur and others, 2009 (2) 

ARC, 715 the Court declined to look 

and examine comparative hardship of 

the tenant. An identical situation appear 

in the instant case, the tenant has 

nowhere stated that he has tried to look 

an alternative accommodation 

whatsoever, after initiation of the 

proceedings before the Prescribed 

Authority. In such a circumstance, I am 

of the view that the tenant is not entitled 

for comparison of his hardship while 

recording a finding on the question. In 

the case of Sushila Vs. IInd Additional 

District Judge, 2003 (1) ARC, 256 

similar view was adopted. Also in the 

case of Gulab Bai Vs. Nalin 

Narsimonia, (1993) 3 SCC, 483 the 

Apex Court held that the tenant should 

make an effort to search for an 

alternative accommodation and a 

specific assertion is essential to 

establish his 'hardship'. 

25. The Apex Court held that the 

word 'reasonable requirement' 

undoubtedly postulate that there must be 

an element of need to a mere desire or 

wish. The view taken by the Apex Court 

was that the distinction between desire 

and need should doubtless be kept in 

mind but it should not be extended so 

far as to make even a genuine need as a 

desire. Perusal of two judgments 

apparently has stretched its arms too 

long while declining to accept the need 

of the landlords as 'bonafide'. Stray 

circumstances have been given tall


meaning only to discard the evidence 

and the contention of the landlord. It is 

eloquent on the face of the two 

judgments of the courts below that 

conscious and deliberate effort has been 

made to negate the valid contention of 

the petitioners. 

26. In view of the aforesaid 

discussions, it is a foregone conclusion 

that the need of the landlord is genuine, 

bonafide and the landlords are 

defenitely suffering greater hardship and 

they are entitled for release of the two 

shops in possession of respondent nos. 1 

and 2. Both the father and son have 

conclusively pleaded and affirmed their 

independent need for a vacant 

accommodation and therefore, both the 

shops are liable to be released in their 

favour. I am not inclined to remand the 

matter for afresh decision. Admittedly, 

father is a very old man and remand of 

the case might render the entire purpose 

of institution of the release application 

fruitless. The Apex Court in the case of 

G. C. Kapoor Vs. Nand Kumar Bhasin 

and others, AIR 2002 Supreme Court, 

200 allowed the release application 

straightaway setting aside the findings 

of the Prescribed Authority, Appellate 

Authority and the High Court on the 

question of bonafide need and 

comparative hardship. The Apex Court 

was of the view that no fruitful purpose 

will be solved in remanding the matter 

and thereby opening another gate of 

fresh series of litigation. Similar view 

was adopted by the Apex Court in the 

case of R.V.E. Venkatachala Gounder 

Vs. Viswesaraswami V.P. Temple and 

another, 2004 All. C.J., 304 (S.C.). 

27. I am conscious of the fact that 

this Court cannot reevaluate the 

evidence and substitute its own findings 

because two views are possible. A bare 

perusal of the release application, 

objections filed by tenants and the 

various affidavits it is abundantly clear 

that the landlords (petitioners) who are 

owners, require the shops for their 

personal need. They are the first and the 

rightful claimant to use their own 

property as they want it. This is a 

situation where father and son with their 

spouses are facing a number of 

problems and therefore the release of 

the shops cannot be refused. The very 

purpose of the Act stands frustrated if 

the two judgments of the courts are left 

to stand. 

28. In the circumstances and for 

the reasons detailed herein above the 

writ petition is allowed. The judgment 

and order dated 11.8.2008 passed by the 

Small Causes Court, Allahabad in P.A. 

Case No. 13 of 2005 and judgment and 

order dated 28.5.2009 passed by the 

Additional District and Session Judge, 

Court No. 12, Allahabad in Rent 

Control Appeal No. 119 of 2008 are 

quashed. 

29. In the end, learned counsels for 

the tenants have made a request for 

granting some time to the tenants to 

vacate the shops in question. However, 

the request of the learned counsels for 

the tenants that some time may be 

allowed to vacate the shops in question 

appears to be reasonable and justified. 

30. The tenants are permitted six 

months' time from today to vacate the 

shops in question and handover vacant 

possession to the landlord till 25.4.2010 

provided they file an undertaking within 

a period of four weeks before the


Prescribed Authority that they will 

continue to pay rent at the rate of Rs. 

3000/- per month from the date of 

judgment till they hand over vacant 

possession and also they will not sublet 

or handover possession to any third 

person but for the landlords. In the 

event the tenants fail to file an 

undertaking in the shape of an affidavit 

within the aforesaid period, this liberty 

of six months shall automatically come 

to an end. 

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Nov - High Court of Judicature at Allahabad

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