original jurisdiction civil side dated: allahabad 17.11siva rama krishna vs. nadimpalli venkata rama...

3 All]. Satya Prakash Singh Vs. Dinesh Prakash Singh & Ors. 1301

ORIGINAL JURISDICTIONCIVIL SIDE

DATED: ALLAHABAD 17.11.2014

BEFORETHE HON'BLE SUNEET KUMAR, J.

Civil Misc. Transfer Application No.343670 of 2014

In Arbitration Application No. 35 of 2009

Satya Prakash Singh ApplicantVersus

Dinesh Prakash Singh & Ors. Opp. Parties

Counsel for the Applicant:Sri Ajay Kumar Singh, Sri Ashish KumarSingh, Sri Amit Kumar Singh

Counsel for the Opp. Parties:Sri Gautam Baghel, Sri Pawan Shukla, SriVivek Kumar Singh, Sri M.D. SinghShekhar, Sri Udai Chandani

Arbitration and Conciliation Act 1996-Section-11(6)-Application for appointmentof Arbitral Tribunal-once by exercisingpower the Chief Justice appointed theArbitral Tribunal and became final undersection 25 of the Act-except thecontingencies given in section 14-ChiefJustice or the Judge nominated ceasedwith any jurisdiction-application whollymisconceived-not maintainable.

Held: Para-39Having considered the law and provisionsof the Act, in the facts of the present casewhere the subject matter of the disputewas referred to arbitration and thearbitration proceedings have been closed.Similar application for referring the verysame claim under Section 11, in myopinion, once the power was exercisedunder Section 11 and an arbitrator wasappointed, the proceedings have beenclosed under Section 25, there is no furtherpower, considering the nature of powerunder Section 11 read with the Scheme, toonce again refer the same disputes toarbitration, under Section 11. Therefore, in

my opinion, the second application is notmaintainable and is consequentlydismissed. Interim order is vacated.

Case Law discussed:(2009) 4 SCC 523; (2005) 8 SCC 618; 2012 (6)ADJ 214; (2009) 8 SCC 520; 2013 (5)

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

(In Re: Civil Misc. Transfer ApplicationNo. 343670 of 2014)

1. The applicant had earlier filed anapplication no. 35 of 2009 under Section11(6) for appointment of an ArbitralTribunal for settlement of disputebetween the applicant and the oppositeparties, with regard to a partnership deed.Hon'ble Chief Justice in exercise of hispowers under Section 11(6) appointedJustice D.P.S. Chauhan, a retired Judge ofthis Court as sole Arbitrator to decide theclaims arising between the parties.

2. The parties put in appearancebefore the Arbitral Tribunal and during thependency of the arbitration proceedings, theArbitral Tribunal by order dated 5.10.2014,in Arbitration Case No. 35-09 of 2012(Staya Prakash vs. Dinesh Prakash Singhand others) District Mirzapur, closed thecase, under Section 25 of the Arbitrationand Conciliation Act, 19961 and posted thecase for award on 9.11.2014 at 2:00 PM.

3. The applicant has again approachedthe Court on 17.10.2011 by filing thepresent Civil Misc. Transfer Application,under Paragraph 8 of the Scheme ofAppointment of Arbitrators by Hon'ble theChief Justice of Allahabad High Court,19962, seeking the following prayer:-

"It is therefore, most respectfullyprayed that this Hon'ble Court may

1302 INDIAN LAW REPORTS ALLAHABAD SERIES

graciously be pleased to withdraw theauthority given to the learned Arbitratorin Arbitration Case No. 35/2009 of 2012(Satya Prakash Singh vs. Dinesh Singh &others) and/or designate any otherArbitrator for the settlement of ClaimPetition between between the claimantand opposite party no. 1, and/or pass anyother and further order which may meetat the end of justice, otherwise theapplicant/opposite party no. 1 shall sufferan irreparable loss and injury."

4. I have heard Sri M.D. SinghShekhar, learned Senior Advocateassisted by Sri Udai Chandani, learnedcounsel appearing for the applicant andSri Ajai Kumar Singh, learned counsel forthe contesting opposite parties.

5. A preliminary objection has beenraised by Sri Ajai Kumar Singh that theapplication is not maintainable, theapplicant has challenged the appointmentof the arbitrator on the grounds mentionedunder section 12 sub-section (3)questioning the independence orimpartiality of the arbitrator and undersection 14 for terminating the mandate ofthe arbitrator, for undue delay. The ChiefJustice or his designate shall have nojurisdiction under Section 11(6) or theScheme framed by Hon'ble the ChiefJustice under sub-section (10) of Section11 to go into the question of Section 12 orSection 14 of Act, to remove thearbitrator.

6. The learned Senior Advocatewould submit that the application ismaintainable and the grounds stated inSection 12(3) and 14(1) are evident fromthe record of the arbitration case, theapplicant has lost faith in the ArbitralTribunal as the arbitrator is not

independent or impartial, further, therehas been undue delay in concluding thearbitration proceedings, more than threeyears has lapsed. The learned SeniorAdvocate to substantiate his argumentrelied upon the following judgments:-Union of India vs. Singh Builders3, SBP& Co. vs. Patel Engineering Ltd. andanother4, Rungta Projects Ltd. vs.Government of Uttar Pradesh andanothers5, Indian Oil Corporation Ltd.and others vs. Raja Transport (P) Ltd. 6

7. Sri Ajai Kumar Singh contendsthat once an order has been passed underSection 11(6) for appointment of anArbitrator by the Chief Justice or hisdesignate, the Chief Justice or hisdesignate becomes functus officio. TheArbitrator for want of independence orimpartiality under Section 12(3) can beremoved by following the procedureprescribed under section 13 of the Act,which in the present case was notfollowed, admittedly, no written statementwas filed before the Arbitrator. Toterminate the mandate of the Arbitrator,for undue delay, under section 14, theremedy is to approach the original CivilCourt having jurisdiction and not theChief Justice or his designate underSection 11 of the Act. The presentapplication has been filed with mala fideintention, to restrain the Arbitrator fromrendering the award on 9.11.2014. SriSingh in support of his submissions hasrelied upon following judgments:- SureshChandra Agarwal vs. Mahesh ChandraAgarwal7, M/s S.K. & Associates vs.Indian Farmer & Fertilizers8, Rakesh Jainvs. M/s Willowon Builders (India) Pvt.Ltd.9, Ghaziabad Development Authorityvs. Subodh Builders Pvt. Ltd.10,Ahluwalia Contractors (India) Ltd. vs.Housing and Urban Development


Corporation & others11, ChintakayalaSiva Rama Krishna vs. NadimpalliVenkata Rama Raju AIR12, M/s SBP &Co vs. M/s Patel Engineering Ltd. andothers13.

8. Rival submissions fall forconsideration.

9. The question for determination isas to whether this application filed underthe Scheme of 1996, read with Section 11of the Act is maintainable or whether, theChief Justice or his designate hasjurisdiction to terminate the mandate ofthe Arbitrator, already appointed underSection 11, and to appoint substituteArbitrator.

10. Section 12 of the Act providesthe grounds for challenge, whereas,Section 13 prescribes the procedure to befollowed for such a challenge. Section 14of the Act permits the termination of themandate of an arbitrator, for the reasonsstated therein and Section 15 of the Actprovides for appointment of substitutearbitrator, in case, the mandate of thearbitrator, already appointed, isterminated. Since these are the relevantprovisions of the Act and have a bearingon the facts and circumstances of thepresent case, which are as follows:-

"12. Grounds for challenge.

(1)When a person is approached inconnection with his appointment as anarbitrator, he shall disclose in writing anycircumstances likely to give rise tojustifiable doubts as to his independenceor impartiality.

(2)An arbitrator from the time of hisappointment and throughout the arbitralproceedings, shall, without delay, disclose

to the parties in writing any circumstancesreferred to in Sub-section(1) unless theyhave already been informed of them byhim.

(3) An arbitrator may be challengedonly if-

(a) circumstances exit that give riseto justifiable doubts as to hisindependence or impartiality, or

(b) he does not possess thequalifications agreed to by the parties.

(4) A party may challenge anarbitrator appointed by him, or in whoseappointment he has participated, only forreasons of which he becomes aware afterthe appointment has been made"

13. Challenge procedure.(1) Subject to Sub-section (4), the

parties are free to agree on a procedure forchallenging an arbitrator.

(2)Failing any agreement referred toin Sub-section (1), a party who intends tochallenge an arbitrator shall,within fifteendays after becoming aware of theconstitution of the arbitral Tribunal ofafter becoming aware of anycircumstances referred to in Sub-section(3) of Section 12, send a writtenstatement of the reasons for the challengeto the arbitral Tribunal.

(3) Unless the arbitrator challengedunder Sub-section(2) withdraws from hisoffice or the other party agrees to thechallenge, the arbitral Tribunal shalldecide on the challenge.

(4) If a challenge under anyprocedure agreed upon by the parties orunder the procedure under Sub-section (2)is not successful, the arbitral Tribunalshall continue the arbitral proceedings andmake an arbitral award.

(5) Where an arbitral award is madeunder Sub-section (4), the party


challenging the arbitrator may make anapplication for setting aside such anarbitral award in accordance with section34.

(6) Where an arbitral award is setaside on an application made underSubsection (5), the Court may decide as towhether the arbitrator who is challengedis entitles to any fees.

"14 Failure or impossibility to act.(1)The mandate of an arbitrator shall

terminate if-(a) he becomes de jure or de facto

unable to perform his functions or forother reasons fails to act without unduedelay; and

(b) he withdraws from his office orthe parties agree to the termination of hismandate.

(2) If a controversy remainsconcerning any of the grounds referred toin clause,

(a) of Sub-section (1), a party may,unless otherwise agreed by the parties,apply to the Court to decide on thetermination of the mandate.

(3) If, under this Section or Sub-section (3) of Section 13, an arbitratorwithdraws from his office or a partyagrees to the termination of the mandateof an arbitrator, it shall not implyacceptance of the validity of any groundreferred to in this section or Sub-section(3) of Section 12.15. Termination of mandate andsubstitution of arbitrator.

(1) In addition to the circumstancesreferred to in Section 13 or Section 14,the mandate of an arbitrator shallterminate-

(a) where he withdraws from officefor any reason; or

(b) by or pursuant to agreement ofthe parties.

(2) where the mandate of anarbitrator terminates, a substitutearbitrator shall be appointed according tothe rules that were applicable to theappointment of the arbitrator beingreplaced.

(3) Unless otherwise agreed by theparties, where an arbitrator is replacedunder Sub-section (2), any hearingspreviously held may be repeated at thediscretion of the arbitral Tribunal.

(4) Unless otherwise agreed by theparties, an order or ruling of the arbitralTribunal made prior to the replacement ofan arbitrator under this section shall notbe invalid solely because there has been achange in the composition of the arbitralTribunal."

11. The applicant in the present casehas prayed for termination of the mandateof the arbitrator (though worded as towithdraw the authority and designate anyother arbitrator for settlement) becausethe applicant apprehends bias on the partof the arbitrator, thus, doubting hisindependence or impartiality. The SeniorAdvocate has taken the Court through therecord to demonstrate the lack ofindependence or impartiality of thearbitrator. The details need not be goneinto as it is not relevant to the questionsought to be answered.

12. The grounds for challenge to themandate of the arbitrator falls underSection 12 sub-section (3)(a) of the Act.Section 13(3) of the Act makes it clearthat unless the arbitrator challengedwithdraws from his office or the otherparty agrees to the challenge, the arbitralTribunal shall decide on the challenge,


admittedly, this procedure was notfollowed by the applicant. The applicanthad not challenged the arbitrator byfollowing the procedure of challengeprescribed under sub-clause (2) of Section13. The applicant within 15 days afterbecoming aware of any circumstancesreferred to in sub-section (3) of Section12 must, send a written statement of thereasons for the challenge to the arbitralTribunal under Section 13(3).

13. The arbitral Tribunal shalldecide on the challenge on merits except-

a). if the arbitrator whoseappointment is challenged withdrawsfrom his office on his own, or

b). the other party agrees tothechallenge.

14. By virtue of Section 13(4) of theAct, if a challenge under any procedureagreed upon by the parties or under theprocedure under sub-section (2) fails, thearbitral Tribunal has to continue thearbitral proceedings and make an arbitralaward. Sub-section (5) of Section 13 ofthe Act empowers a party challenging thearbitrator to make an application forsetting aside such arbitral award madeunder sub-section (4) in accordance withSection 34 of the Act.

15. Under Section 14(2) of the Act,the court has the power to decide on thetermination of the mandate on any of thegrounds referred to in Clause (a) of sub-section (1) and also in the circumstancesenumerated in Section 15 of the Act andappoint an arbitrator. Under Section 14 ofthe Act the mandate of an arbitratorstands terminated if he becomes de jure orde facto unable to perform his functionsor for other reasons fails to act without

unnecessary delay or he withdraws fromhis office or the party agreed to thetermination of his mandate. As perSection 14(1)(b) the mandate of anarbitrator shall terminate if he withdrawsfrom his office or the parties agree to thetermination of his mandate.

16. Section 15 provides for aprocedure which has to be followed whenmandate of the arbitrator is terminatedand substitution of the arbitrator in thecircumstances set out under Sub-section(1) including those referred under Section13 and 14 of the Act is required. As perSection 15 sub-section (2) of the Actwhere the mandate of an arbitratorterminates, a substitute arbitrator has to beappointed according to the rules that wereapplicable to the appointment of thearbitrator being replaced.

17. In the present case the applicantinstead of pursuing the remedy availablefor challenging the arbitrator as laid downin Section 13 or Section 14 has soughtappointment of a substitute Arbitrator onthe ground that the Arbitrator is notindependent or impartial, under Section11 read with the Scheme.

18. The Chief Justice or hisdesignate in exercise of power underSection 11(4) or sub-clause (6) cannotterminate the mandate of the arbitrator onchallenge by a party on groundsmentioned in Section 12 or 13 of the Act,therefore, this court has no jurisdictionunder Section 11 to substitute anarbitrator so appointed in terms of thearbitration agreement. The meaningfulinterpretation of these sections, if readtogether, is that challenge to theappointment of the arbitrator has to beraised by the applicant before the arbitral


Tribunal itself. If he succeeds in thechallenge, the applicant has no cause orgrievance left but if he fails then he has toparticipate in the arbitral proceedings andif aggrieved by the award, to challengethe same in accordance with provisions ofthe Section 34 of the Act including themandate of the Arbitrator.

19. Once the matter reaches thearbitral Tribunal or the sole arbitrator, theHigh Court would not interfere with theorders passed by the arbitrator or arbitralTribunal during the course of thearbitration proceedings and the partiescould approach the Court only in terms ofSection 37 of the Act or in terms ofSection 34 of the Act.

20. The seven judge ConstitutionBench of the Supreme Court in S.B.P. AndCompany vs. Patel Engineering Ltd.14 hasobserved that the High Court should refrainfrom interfering against any order passed bythe Arbitral Tribunal during arbitrationproceedings under Article 226 or 227 of theConstitution. The aggrieved party has aremedy under Section 34 or Section 37 byfiling an appeal, if available.

21. This Court in Rakesh Jain vs.M/s Willowon Builders (India) Pvt.Ltd.15, where the question before theCourt was as to whether, "is it open to theChief Justice, exercising jurisdictionunder Section 11(4) of the ArbitrationAct, to remove an appointed Arbitratorand appoint another Arbitrator in hisplace?" The Court held that once anArbitrator has been appointed, before theapplication is filed, it would not be opento Hon'ble the Chief Justice or hisdesignate to remove the said Arbitratorand appoint another Arbitrator in hisplace.

22. It is to be noted that the Act isenacted mainly in the pattern of the ModernLaw adopted by the United NationsCommission on International Trade law.The object and the reasons of the Actclearly indicate that the intention of the Actis to lay emphasis on speedy disposal ofarbitration proceedings. The Act also seeksto minimize judicial intervention in theprogress and completion of arbitrationproceedings, which is crystal clear from abare reading of Section 5 of the Act whichprovides that no judicial authority wouldintervene except where so provided in theAct. Consequently, the bar on Courtinterference on challenging the arbitralTribunal during the pendency of thearbitration proceeding was meant tominimize judicial intervention at that stage,as any interference at that stage would beagainst the spirit with which the Act wasenacted. Sub-section (5) of Section 13 of theAct lays down that challenging an arbitralaward is permitted even on the groundstaken by the aggrieved party on which thechallenge to the arbitral Tribunal was made.There is no provision in the Act whichwould enable the Court to remove anArbitrator during the arbitrationproceedings. But, at the same time the partyhaving grievance against an Arbitratorcannot be said to be without a remedy andthe said remedy becomes available as soonas the arbitral award is made by thearbitrator or the arbitral Tribunal.

23. Thus clear mandate is to barjudicial interference except in the mannerprovided in the Act. Conversely if there isno provision to deal with a particularsituation, Courts cannot assumejurisdiction and interfere.

24. Comparing this legislation withthe earlier legislation on the subject-


namely the Arbitration Act, 1940, themessage is loud and clear. The legislaturefound mischief in various provisionscontained in the Arbitration Act, 1940which would enable a party to approach theCourt time and again during the pendencyof arbitration proceedings resulting intodelays in the proceedings. Law makerswanted to do away with such provisions.

25. The new Act deals with thesituation even when there is challenge to theconstitution of the arbitral Tribunal. It is leftto the arbitrator to decide the same in thefirst instance. If a challenge before thearbitrator is not successful, the arbitralTribunal is permitted to continue the arbitralproceedings and make an arbitral award.Such a challenge to the constitution of thearbitral Tribunal before the Court is thendeferred and it could be only after thearbitral award is made that the partychallenging the arbitrator may make anapplication for setting aside an arbitralaward and it can take the ground regardingthe constitution of arbitral Tribunal whilechallenging such an award.

26. Thus course of action to bechartered in such contingency is spelt outin the Act itself. Court interference onbasis of petitions challenging arbitralTribunal during the pendency of thearbitration proceedings would be clearlyagainst the very spirit with which the Acthas been enacted. The mischief whichexisted in the earlier enactment and issought to be removed by the presentenactment cannot be allowed to beintroduced by entertaining petitions in theabsence of any provision in the new Actin this respect.

27. Now coming to Section 14 of theAct, so far as the provisions of the

Arbitration Act, 1940 are concerned,Section 14(1)(a) and sub-section (2) of thepresent Act substantially correspond toSection 8(1)(b) and Section 11(1) of theArbitration Act, 1940. A bare perusal ofSection 14 would show that the mandate(authority) of an arbitrator shall terminateon two conditions being satisfied:-

1.) The arbitrator becomes de jure orde facto unable to perform his functionsor for other reasons fails to act withoutundue delay and.

2.) The arbitrator withdraws fromhis office or the parties agreed to thetermination of his mandate.

28. It will thus, be seen that it is notopen to a party to unilaterally terminatethe mandate of an arbitrator on the groundthat the arbitrator de jure or de factounable to perform his functions or forother reasons failed to act without unduedelay.

29. In such situation, where one ofthe parties wants the mandate of thearbitrator be terminated on the abovegrounds, it will have to take thecontroversy to the Court under sub-section (2) and the Court will then decideon the termination of the mandate.Compared to the old law when the Courthad power to give leave to revoke theauthority of an arbitrator under Section 5or to remove an arbitrator undercircumstances detailed in Section 11 ofthe Arbitration Act 1940. The Court hasnow no such power, except when it isasked to decide a controversy broughtbefore it by any party as to whether anarbitrator has become de jure or de factounable to perform his functions or for anyother reason failed to act without unduedelay. Even here a party may not


approach the Court for this purpose, if itis so agreed by the parties, it is clear fromthe use of words "unless otherwise agreedby the parties" used in sub-section (2). Noappeal lies from an order of the Court onthe controversy, which is clear fromperusal of Section 37.

30. A conjoint petition underSection 11(6) and Section 14 does not lie,since under Section 11(6) the petition hasto be heard and decided by the ChiefJustice or his designate, while a petitionunder Section 14 lies to the "Court". Sincefora are different, conjoint petition doesnot lie. (Grid Corporation of Orissa Ltd.vs. AES Corporation16.

31. An application under Section14(2) of the Act for decision ontermination of the mandate of anarbitrator lies only before the "Court" asdefined in Section 2(1)(e) of the Act.

32. In a case, where, the SupremeCourt had appointed the arbitrator inquestion, on an application made to itunder Section 11(5) and (6) of the Act,held that application under Section 14(2)of the Act for terminating the mandate ofthe arbitrator was not maintainable beforethe Supreme Court. The jurisdictionwhich the Chief Justice or his designateexercises under Section 11(6) of the Actis limited jurisdiction. The Supreme Courtbecomes functus officio after exercisingjurisdiction under Section 11(6) of theAct. (Nimet Resources Inc. vs. EssarSteels Ltd.17).

33. There is no automatictermination of the mandate of anarbitrator on the alleged ground of hisfailure to act without undue delay. It isonly the Court which will have to resolve

the dispute whether the arbitrator hadfailed to act without any undue delay. Butif the arbitrator fails to concludearbitration proceedings within the timeagreed to between the parties and partiesdo not extend the mandate of thearbitrator any further, the mandate of thearbitrator automatically terminates.(N.B.C.C. Ltd. vs. J.G. Engineering Pvt.Ltd.18).

34. Termination of arbitralproceedings is different from terminationof the mandate of the arbitrator.Termination of arbitral proceedings isgoverned by Section 32 of the Act. Thearbitral proceedings can come to an endon the events mentioned in Section 32 hadoccurred. Thus, mandate (authority) of anarbitrator can be terminated but thatwould not mean that the arbitralproceedings have also terminated.

35. If an arbitrator refuses to act asan arbitrator, a substitute arbitrator wouldbe appointed in his place under sub-section (2) or Section 15, except wherethe intention of the parties was to refer thedisputes to arbitration by a particularperson only.

36. "Rules" referred to in Section15(2) would refer not only to anystatutory rules or rules framed under theAct or under the Scheme, but also meanthat substitute arbitrator must beappointed according to the originalagreement or provision applicable to theappointment of the arbitrator at the initialstage. (Yashwitha Construction (P) Ltd.vs. Simplex Concrete Piles India Ltd.19).

37. In National Highways Authorityof India vs. Bumihiway D.D.B. Ltd.20Supreme Court held that provisions of

3 All]. M/s Banaras Auto Traders & Anr. Vs. M/s Reliance Web Stores Ltd. & Ors. 1309

Section 15(2) states that a substitutearbitrator shall be appointed according tothe rules applicable to the appointment ofarbitrator being replaced. Appointment ofretired Chief Justice by the High Courtunder Section 11(6) was set aside anddirections was given that India RoadCongress be approached as per the agreedprocedure to appoint the arbitrator.

38. The application is misconceivedand is not maintainable under paragraph 8of the Scheme, paragraph 8 refers towithdrawal of authority by the Chief Justiceon receipt of a complaint from either partyto the arbitration agreement or otherwise isof opinion that the person or institutiondesignated by him under paragraph 3 hasneglected or refused to act or is incapable ofacting he may withdraw the authority givenby him to such person or institution anddealing with the request himself ordesignate another person or institution forthat purpose. Paragraph 3 provides thatupon receipt of a request under paragraph 2,the Chief Justice may either deal with thematter entrusted to him or designate anyother person or institution for that purpose;and paragraph 2 provides where a request tothe Chief Justice under sub-section 4 or sub-section 5 or sub-section 6 of Section 11shall be made in writing and accompaniedby the documents mentioned therein. Thusreading of paragraph 2, 3 and 8 wouldclearly demonstrate that the powersconferred under paragraph 8 has nothing todo with the removal of an arbitrator orappointment of a substitute arbitrator.Paragraph 8 only confers power upon theChief Justice to withdraw the authoritygiven by him to the designate person orinstitution for that purpose.

39. Having considered the law andprovisions of the Act, in the facts of the

present case where the subject matter ofthe dispute was referred to arbitration andthe arbitration proceedings have beenclosed. Similar application for referringthe very same claim under Section 11, inmy opinion, once the power wasexercised under Section 11 and anarbitrator was appointed, the proceedingshave been closed under Section 25, thereis no further power, considering thenature of power under Section 11 readwith the Scheme, to once again refer thesame disputes to arbitration, underSection 11. Therefore, in my opinion, thesecond application is not maintainableand is consequently dismissed. Interimorder is vacated.

--------ORIGINAL JURISDICTION

CIVIL SIDEDATED: ALLAHABAD 12.11.2014


Civil Misc. Arbitration Petition No. 57 of 2007

M/s Banaras Auto Traders & Anr.Petitioners

VersusM/s Reliance Web Stores Ltd. & Ors.

...Respondents

Counsel for the Petitioner:Sri Udai Chandani

Counsel for the Respondents:Sri R.D. Khare, Sri Siddharth, SriSiddharth Khare, Siddharth Singh

Arbitration & Conciliation Act 1996-Section11(5)-Territorial jurisdiction-both partiesresiding at Mumbai-as per section 16 offranchisee agreement only Civil Court atMumbai-entrusted with jurisdiction-merefiling application before Civil CourtVaranasi-not confer jurisdiction ofAllahabad High Court-application rejected.


Held: Para-13A perusal of the demand made by thenotice dated 20.6.2007 send byapplicants to the defendants is a usefulmaterial for coming to the conclusionthat the dispute, as per the demand ofthe applicants, relate to damages andclaims and not to immovable property.In such a situation, under law, the suitcould have been filed at Mumbai wherethe defendants resides, or where somecause of action arose, i.e. in the State ofUttar Pradesh. Hence, the relevantclause in the agreement conferringjurisdiction in the matter solely upon theCourts at Mumbai cannot be said to beillegal in view of the Supreme courtjudgments noticed herein above.

Case Law discussed:(2007) 7 SCC 125; (2006) 11 SCC 521; (2007)1 SCC 467; (2000) 8 SCC 151; (2010) 1 SCC673.


1. Heard Sri Udai Chandani, learnedcounsel for the applicant and SriSiddharth Singh, learned counselappearing for the opposite parties.

2. The application has been filedunder Section 11(5) of the Arbitration andConciliation Act. 1996 for settlement ofdispute as per the arbitration clausecontained in Section 16 of the FranchiseAgreement dated 8.10.2004. Theapplication is being opposed by the oppositeparties that in view of Section 16 of theagreement the Courts of Mumbai will haveexclusive jurisdiction in respect of thisagreement, thus, this Court shall have nojurisdiction to entertain the application.

3. Learned counsel for the applicantsubmits that he has already filedArbitration Case No. 50 of 2007, (M/sBanaras Auto Traders and others vs. M/s

Reliance Web Stores Ltd. and others) beforethe Court of District Judge, Varanasi forinjunction to restrain the opposite partiesfrom terminating the Franchise Agreementdated 8.10.2004 further restraining theopposite parties from interfering in thefunctioning the petitioner as Franchise underthe said agreement. The opposite parties haveappeared in the arbitration case before theDistrict Judge, Varanasi and raised objectionregarding jurisdiction of the Court as theparties had agreed that the Courts of Mumbaishall have exclusive jurisdiction in thematter. Learned counsel for the partiessubmit that the arbitration case is stillpending before the Varanasi Court.

4. The submission of learnedcounsel for the applicant is that section 42of the Act inter alia provides that when anapplication has been made in the Court,that Court alone shall have jurisdictionover the arbitral proceedings and allsubsequent applications arising out of thatagreement and the subsequentproceedings shall be made in that Courtand in no other Court.

5. In support of his submission, thelearned counsel for the applicant has placedreliance upon:- Adhunik Steels Ltd. vs.Orrisa Manganese and Minerals (P) Ltd.(2007) 7 SCC 125, Jindal Vijaynagar Steelvs. Jindal Praxair Oxygen Co. Ltd. (2006)11 SCC 521, Pandey & Co. Builders (P)Ltd. vs. State of Bihar and another (2007) 1SCC 467, Datar Switchgears Ltd. vs. TaraFinance Ltd. and another (2000) 8 SCC151, Bharat Sanchar Nigam Ltd. andanother vs. Dhanurdhar Champatiray (2010)1 SCC 673.

6. In rebuttal, learned counsel for theopposite parties would submit that thisCourt will not have jurisdiction, as no

3 All]. M/s Banaras Auto Traders & Anr. Vs. M/s Reliance Web Stores Ltd. & Ors. 1311

property is involved, further, the contractitself provides that the Courts at Mumbaishall have jurisdiction, which ispermissible as per section 20 of the Act.Learned counsel for the opposite parties,in support of his submission has placedreliance upon Balaji Coke Industries Pvt.Ltd. Ms. Maa Bhagwati Coke Guj Pvt.Ltd., 2009 (9) SCC 403 and order passedin Arbitration and ConciliationApplication No. 20 of 2008 (M/s UjhaniFuel Point and others vs. M.S. RelianceIndustries Limited) and NKC ProjectsPvt. Ltd. and another vs. UtilityEnergytech & Engineering Pvt. Ltd. andanother 2009 (4) ALJ 18 (DB).

7. Rival submissions fall forconsideration.

8. The "Court" is defined undersection 2(e), means principal Civil Courtof original jurisdiction in the District, andincludes the High Court in exercise of itsordinary civil jurisdiction, havingjurisdiction to decide the questionsforming the subject matter of thearbitration, if the same had been thesubject matter of the suit.

9. Section 19 of the contract reads asfollows:-

Section 19: Dispute Resolution andJurisdiction

"If any dispute arises in respect ofthis Agreement, the parties shall endeavorto settle the dispute by direct negotiationsin good faith. If such negotiations do notsettle the dispute, the parties agree tosubmit the matter to settlementproceedings under the rules of theArbitration and Conciliation Act, 1996,(the 'Act') as applicable for the time being

in force. The place of the Arbitration willbe Mumbai and the language of theproceedings will be English. The arbitralaward shall be in writing and shall befinal and binding on the parties.Judgement upon the award may beentered in any Court having jurisdictionthereof; provided, however, that thisclause shall not be construed to limitReliance from brining any action in anyCourt of competent jurisdiction forinjunctive or other provisional relief asReliance deems to be necessary orappropriate to protect its System,Proprietary Rights, trade marks, tradenames, service marks, logotypes, insignia,trade dress and designs, or to enjoin orrestrain Franchisee from otherwisecausing immediate and irreparable harmto Reliance.

Subject to the above, the Courts ofMumbai shall have exclusive jurisdictionin respect of this Agreement."

10. It is evident from the arbitrationclause that the Courts of Mumbai haveexclusive jurisdiction. Mere filing of anapplication under section 9 of the Actbefore the Court at Varanasi would notconfer jurisdiction upon this Court toentertain the application under Section11(5) for appointment of an Arbitrator.

11. The Supreme Court in JindalVijaynagar Steel (JSW Steel Ltd) vs.Jindal Praxair Oxygen Co. Ltd. (2006) 11SCC 521 held that once the parties havechosen a particular place to be the placefor arbitration and proceedings connectedthereto for resolve of dispute, the saidplace alone shall have jurisdiction.

12. The Supreme Court in the caseof Balaji Coke Industry Pvt. Ltd. Vs. Ms


Maa Bhagwati Coke Guj Pvt. Ltd., 2009(9) SCC 403, where Clause 14 of theagreement, which was a High Seas SaleAgreement, provided that the sale contractwould be subject to Kolkata jurisdiction.The venue of the arbitration was also agreedto be Kolkata, West Bengal. Afterdiscussing several earlier judgments on theissue, the Apex Court held that the partieshad knowingly and voluntarily agreed forKolkata jurisdiction and even if the Courtsin Gujarat also had jurisdiction, theagreement to have the disputes decided inKolkata by an Arbitrator was valid and therespondent-Company had wrongly chosento file an application under Section 9 of theAct before a Court in Gujrat and the samewas in violation of the agreement. TheApex Court relied upon an earlierjudgement in the case of A.B.C. Laminart(P) Ltd. Vs. A.P. Agencies, 1989 (2) SCC173 to approve a legal proposition that solong as the parties to a contract do not oustthe jurisdiction of all the Courts, whichwould otherwise have jurisdiction to decidethe cause of action under the law, it couldnot be said that the parties had by theircontract ousted the jurisdiction of the Court.To similar effect is a judgment of this Courtrendered by a Division Bench in the case ofNKC Projects Pvt. Ltd. and Anr. Vs. UtilityEnergytech & Engineers Pvt. Ltd. & Anr.,2009 (4) ALJ 18 (DB).

13. A perusal of the demand madeby the notice dated 20.6.2007 send byapplicants to the defendants is a usefulmaterial for coming to the conclusion thatthe dispute, as per the demand of theapplicants, relate to damages and claimsand not to immovable property. In such asituation, under law, the suit could havebeen filed at Mumbai where the defendantsresides, or where some cause of actionarose, i.e. in the State of Uttar Pradesh.

Hence, the relevant clause in the agreementconferring jurisdiction in the matter solelyupon the Courts at Mumbai cannot be saidto be illegal in view of the Supreme courtjudgments noticed herein above.

14. In view of the aforesaiddiscussions, it is held that this applicationunder Section 11 of the Act has beenwrongly filed before this Court atAllahabad. The proper Court for filing suchapplication would be at Mumbai. In thatview of the matter, this application isdismissed, but with liberty to the applicantsthat they may prefer similar applicationbefore the competent Court at Mumbai.

--------REVISIONAL JURISDICTION


BEFORETHE HON'BLE PRADEEP KUMAR SINGH

BAGHEL, J.

Civil Revision No. 143 of 2013

Awadh Bihari Tripathi ...RevisionistVersus

Smt. Shanti Devi Shukla ...Respondent

Counsel for the Revisionist:Sri Radha Kant Ojha, Sri SatyendraChandra Tripathi

Counsel for the Respondents:Sri B.K. Srivastava, Sri C. K. Singh, SriDhiraj Srivastava

(A) Provincial Small Causes Court Act-1887-Section 25-jurisdiction of RevisionalCourt-held-very limited-no illegality orperversity committed by Court below-nointerference required-revision dismissed.

Held: Para-18The revisional jurisdiction of this Courtunder Section 25 of the Provincial Small

3 All]. Awadh Bihari Tripathi Vs. Smt. Shanti Devi Shukla 1313

Cause Courts Act, 1887 is limited. TheCourt can interfere under this sectiononly when the finding recorded by theCourt below is totally perverse and isbased on no evidence. Learned counselfor the revisionist-tenant has failed topoint out any perversity in the order ofthe Court below, as discussed above. Thefindings of the Court below on variouspoints are based on documentary as wellas oral evidence. It has not been pointedout that the Court below has ignored anyimportant documentary evidence filed bythe tenant-revisionist or it has taken intoconsider any fact, which was not on therecord.

(B) C.P.C. Order XV Rule V-first date ofhearing-whether the date of fillingwritten statement or the day on whichissue framed? Held-in view of law laiddown by Apex Court in case of Chotticase-first date of hearing would be15.06.10 when written statement filed-while rent deposited on 15.07.10 notentitled to a claim benefit of statutoryprotection.

Held: Para-16This Court after considering thejudgment of the Supreme Court inrespect of the Small Cause Courts Actheld that the first date of hearing shallbe the date for appearance as well asfinal hearing. Applying the said principlein the present case, the tenant had filedhis written statement on 15th June,2010 and submitted his tender on 15thJuly, 2010, therefore, I do not find anyerror in the finding of the Court belowthat the tenant has deposited the arrearsof rent after the first date of hearing.Thus, he was not entitled for the benefitof Section 20(4) of the U.P. Act No. 13 of1972.

Case Law discussed:2002 (1) ARC 370; AIR 1993 SC 2525; 1995(1) ARC 563; 1999 (4) AWC 3484 (SC); 2002(2) ARC 160; 2006 (2) ARC 208; 2011 (5)AWC 4405; 2012 (4) AWC 3374; 2013 (1) ARC335; 2013 (2) AWC 1509; 2014 (1) ARC 692;1999 (2) ARC 71.

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

1. This is a revision preferred by atenant under Section 25 of the ProvincialSmall Cause Courts Act, 1887 against thejudgment and order dated 01st March,2013 and decree dated 07th March, 2013passed by the Judge, Small CauseCourt/Additional District Judge, CourtNo. 7, Kanpur Nagar, whereby SmallCause Suit No. 160 of 2009 (Smt. ShantiDevi Shukla v. Sri Awadh BihariTripathi) filed by the landlady-respondenthas been decreed by directing the tenant-revisionist to vacate the suit premiseswithin thirty days and to pay the arrears ofrent of Rs.70,066/- and damages at therate of Rs.2,000/- per month since 28thSeptember, 2009 till the actual physicalpossession is handed over to the landlady.

2. The essential facts are that therespondent is landlady/owner of PremisesNo. 133/16, Transport Nagar, KanpurNagar. The revisionist is tenant in a shopsituated in the said premises at the rate ofRs.2,000/- per month excluding the tax.Said shop was let out in the year 1986vide a lease agreement dated 16thDecember, 1986 for a period of 11months. The tenancy started from 15thDecember, 1986 and came to an end on14th November, 1987. However, in spiteof expiry of said period of agreement, thetenant did not vacate the suit premises.Thereafter at the instance of the landladythe rent was enhanced from Rs.1,000/- toRs.2,000/- per month in terms of Clause-14 of the agreement. It is stated that thetenant has deposited the rent from 16thNovember, 1987 to 31st December, 1990at the rate of Rs.2,000/- per month, whichcomes to a total sum of Rs.75,000/-, andthe landlady issued a receipt of the said


amount on 04th December, 1990. It isfurther stated that when the landladyasked the tenant to pay 18% tax inaddition to the rent in terms of theagreement since January, 2001, the tenantrefused to pay the said tax and alsostopped paying rent since January, 2001.When after several requests the tenant didnot pay the rent and the tax, the landladyon 24th August, 2009 sent a notice to thetenant determining his tenancy and madea demand of arrears of rent. Vide saidnotice the tenant was asked to vacate thepremises in terms of the notice. The saidnotice was served on the tenant on 28thAugust, 2009 but neither he did payarrears of rent, as demanded in the notice,nor did he vacate the premises. The tenanthad sent a reply to the said notice on 19thSeptember, 2009, wherein he disputed therate of rent. According to the tenant,agreed rent was Rs.1,000/- per month andnot Rs.2,000/- per month, as claimed bythe landlady in her notice.

3. Against this background, thelandlady-respondent instituted a suit foreviction and arrears of rent in the Court ofJudge, Small Cause, Kanpur Nagar whichwas registered as Small Cause Suit No.160 of 2009 (Smt. Shanti Devi v. SriAwadh Bihari Tripathi). The revisionist-tenant contested the suit and filed hiswritten statement and denied the claimmade by the landlady.

4. The Court below framed sixissues for determination which are asunder:

(i) Whether rate of rent is Rs.2000/-per month excluding the taxes as claimedby the plaintiff-landlady or is Rs.1000/-including taxes per month as claimed bythe defendant-tenant?

(ii) Whether defendant is entitled toget the benefits of the provisions ofSection 20(4) of U.P. Act No. 13 of 1972?

(iii) Whether the defence of thedefendant is liable to be struck off fornon-compliance of Order XV Rule 5(2) ofthe Code of Civil Procedure?

(iv) Whether the defendant hascommitted default in payment of rentfrom 1.1.2001 and he is in arrears of rentfor more than 4 months?

(v) Whether the suit filed by theplaintiff without consent of the co-owneris not maintainable?

(vi) Whether any other relief can begranted to the plaintiff?

5. The Issue No. 1 was decided infavour of the landlady and it was foundthat the rate of rent was Rs.2000/- permonth and not Rs.1000/- per month, asclaimed by the tenant. As regards IssueNo. 2, the Court below recorded a findingthat the tenant has not deposited the entirerent and cost of the suit in terms ofSection 20(4) of the Uttar Pradesh UrbanBuildings (Regulation of Letting, Rentand Eviction) Act, 1972 (U.P. Act No. 13of 1972). The tenant is not entitled for thebenefit of Section 20(4) of the U.P. ActNo. 13 of 1972, as the tenant-revisionisthas failed to deposit the entire arrears ofrent on the first date of hearing of the suit.In addition to above, he has not depositedthe entire arrears of the rent and theexpenses. Issue No. 3, which deals withstriking off the defence of the tenant, wasdecided in favour of the tenant and theCourt below refused to strike off thedefence of the landlady on the ground thatthe tenant has made substantialcompliance of the deposits of the rent.With regard to Issue No. 4 the Courtbelow was satisfied that the tenant hasmade default and in spite of notice


demanding the arrears of rent, it was notpaid for more than four months. Thus, thesaid issue was decided against the tenant.Issue No. 5 was in respect ofmaintainability of the suit. It was allegedby the tenant that all the landlords havenot joined the suit but the Court below hasdecided the said issue in favour of thelandlady. Accordingly, the Court belowvide impugned judgment and decreedecreed the suit of the landlady-respondent.

6. I have heard Sri Radha Kant Ojha,learned Senior Advocate, assisted by SriSatyendra Chandra Tripathi, learnedCounsel for the tenant-revisionist, and SriB.K. Srivastava, learned Senior Advocate,assisted by Sri C.K. Singh and Sri DhirajSrivastava, learned Counsel for thelandlady-respondent.

7. Sri Radha Kant Ojha, learnedSenior Counsel appearing for the tenant-revisionist, submits that the tenant hasdeposited the entire rent on the first dateof hearing. In this case, since the issueshave been framed, there cannot be thefirst date of hearing before framing of theissues. He submits that the Court belowhas illegally accepted that the first date ofhearing is 15th June, 2010 when therevisionist had filed his written statement.The Court below has failed to understandthat it is well settled that the first date ofhearing will be the date when the Courtapplies its mind and it would not be priorto the date of filing of the writtenstatement, where the issues were notframed. If the issues are framed, then thatwill be the date of first hearing. He furthersubmits that in the present case writtenstatement was filed on 15th June, 2010and thereafter the next date fixed was15th July, 2010. On that date, the Court

below has granted permission to therevisionist-tenant to deposit the arrears ofrent under Section 20(4) of the U.P. ActNo. 13 of 1972. Thus, prior to 15th July,2010 the Court below had not applied itsmind, therefore, the revisionist-tenant wasentitled to get benefit of Section 20(4) ofthe U.P. Act No. 13 of 1972. He hasplaced reliance on a judgment of theSupreme Court in the case of Mam ChandPal v. Smt. Shanti Agarwal, 2002 (1)ARC 370.

8. Sri Ojha further contended thatthe agreement dated 16th December, 1986was an unregistered document, therefore,the Court below has illegally placedreliance on the said agreement. He hasfurther urged that the landlady has filed asuit under Section 21 of the U.P. Act No.13 of 1972, therefore, it is evident that theprovisions of the U.P. Act No. 13 of 1972are applicable to the suit premises. SriOjha has also contended that the findingof the Court below refusing to givebenefit of Section 20(4) of the U.P. ActNo. 13 of 1972 on the ground that thetenant has failed to deposit the entire rentand the expenses, is erroneous and againstthe evidence on record.

9. Sri B.K. Srivastava, learnedSenior Counsel appearing for thelandlady-respondent, has submitted thatthe provisions of the U.P. Act No. 13 of1972 are not applicable to the premises indispute. The tenancy has rightly beendetermined by the landlady-respondent.He further submitted that in the presentcase the suit was filed on 27th October,2009 and in the summons 02ndDecember, 2009 was fixed for writtenstatement/hearing. The tenant had refusedto accept the summons. Thus, thepublication was made on 03rd February,


2010. In pursuance thereof, the tenantappeared for the first time before the Courtbelow on 24th February, 2010 and movedan application for getting copy of the plaintand other papers. He sought adjournmentson 19th March, 2010, 02nd April, 2010,31st May, 2010 and 11th June, 2010 andhe filed his written statement on 15th June,2010. The tenant-revisionist moved anapplication on 15th July, 2010, being PaperNo. 22-Ga(2), for passing tender to makedeposit under Section 20(4) of the U.P. ActNo. 13 of 1972 on which 16th July, 2010was fixed. On 16th July, 2010 the matterwas adjourned and on 21st July, 2010 thetenant-revisionist deposited a sum ofRs.1,90,000/-. From the aforesaidchronological dates, learned SeniorCounsel appearing for the landlady-respondent sought to argue that the tenant-revisionist has failed to deposit the amounton the first date of hearing, which in thepresent case was on 15th June, 2010, whenthe Court had applied its mind. Therefore,the Court below has rightly rejected theclaim of the tenant-revisionist to givebenefit of Section 20(4) of the U.P. ActNo. 13 of 1972.

10. Sri B.K. Srivastava has furthersubmitted that in addition to above, thetenant-revisionist did not deposit the entirearrears of rent, tax, interest, court fee.According to him, the arrears of rent wasRs.2,28,000/-. The tenant has depositedonly Rs.1,14,000/-. Thus, there was ashortfall of Rs.1,14,000/-. The tax wasRs.41,041/-, whereas the tenant depositedRs.15,390/-. Under the head of interestRs.58,995/- was due, out of which he hasdeposited only Rs.49,162.50. The court feewas Rs.10,996/-, out of which he haddeposited Rs.5,196.50. Thus, the tenantought to have deposited a total sum ofRs.3,39,031/- but he deposited only

Rs.1,90,000/-. Therefore, there was a hugeshortfall of Rs.1,55,282/-. For this reasonalso, he was not entitled for the benefit ofSection 20(4) of the U.P. Act No. 13 of1972. He further submitted that underSection 25 of the Provincial Small CauseCourts Act this Court has limitedjurisdiction and if the finding is notperverse, this Court should not interfereunder the revisional jurisdiction underSection 25.

11. In support of his submissions, SriSrivastava has relied upon several decisionsof the Supreme Court in Siraj AhmadSiddiqui v. Shri Prem Nath Kapoor, AIR1993 SC 2525; Advaita Nand v. Judge,Small Causes Court, Meerut and others,1995 (1) ARC 563; Smt. Sudershan Deviand another v. Smt. Sushila Devi andanother, 1999 (4) AWC 3484 (SC); and,Ashok Kumar and others v. Rishi Ram andothers, 2002 (2) ARC 160, and of this Courtin Saadat Ali v. J.S.C.C., Moradabad andothers, 2006 (2) ARC 208; CommercialAuto Sales (P) Ltd. v. Auto Sales(Properties), 2011 (5) AWC 4405; Rashid v.Kailash Chand, 2012 (4) AWC 3374; OmPrakash v. Sri Anil Kumar, 2013 (1) ARC335; Mahesh Chandra and others v.Ashwani Kumar, 2013 (2) AWC 1509; andMela Ram (since deceased and substitutedby legal heirs) v. Arun Kumar Agrawal,2014 (1) ARC 692.

12. I have considered the rivalsubmissions advanced by the learnedCounsel appearing for the parties andperused the records.

13. Before adverting to the issuewhether the revisionist-tenant is entitledto the benefit of Section 20 (4) of the U.P.Act No. 13 of 1972 or not, it is necessaryto examine whether the rent of the


tenanted premises was Rs.2,000/- permonth, as claimed by the landlady, orRs.1,000/-, as claimed by the tenant-revisionist. The landlady has relied uponan agreement dated 16th December, 1986,whereby the shop was let out to therevisionist-tenant at the rate of Rs.1,000/-per month. Clause-14 of the saidagreement provides that in case afterexpiry of the eleven months the tenantdoes not vacate the premises and hecontinues in possession, in that event therent shall be Rs.2,000/- per month. Therevisionist-tenant has denied thisagreement. A copy of the said agreementis on the record. The Court below hasrecorded a finding that this agreementbears the signature of the tenant and hedid not file Handwriting Expert opiniondenying his signature. Thus, I do not findany error in the finding of the Courtbelow that there is existence of anagreement between the parties.

14. The landlady has also filedcounter-foil of the rent, which has beenduly proved by her witness. From thesame counter-foil it was noticed by theCourt below that the receipt of previoustenants and other tenants have also beenissued. On the basis of the documentaryevidence as well as statement of P.W.-1Sri Rajesh Kumar Shukla, it has beenestablished by the landlady that the rate ofrent was Rs.2,000/- per month. The Courtbelow has elaborately analysed theevidence while recording its finding onthis point i.e. Issue No.1. Learned SeniorCounsel appearing for the revisionist-tenant Sri Ojha has failed to point out anyerror in the finding of fact recorded by theCourt, therefore, I find that the findingrecorded by the Court below that the rentwas Rs.2,000/- per month does not sufferfrom any illegality.

15. It is submitted by Sri Ojha thatthe first date of hearing in the present caseshall be the date when the Court belowhas framed the issues. In the cases of thesmall cause suits, the issue about the firstdate of hearing is no more res integra.

16. The Supreme Court in the case ofSiraj Ahmad Siddiqui (supra) has held thatthe first date of hearing is the date on whichthe Court proposes to apply its mind todetermine the point in controversy betweenthe parties to the suit and to frame theissues, if necessary. The Court held that"when time is fixed by the court for thefiling of the written statement and thehearing, these dates bind the defendant,regardless of the service of the summons,and compliance with the provisions ofSection 20(4) of the said Act must bejudged upon the basis of the dates so fixed".In respect of Section 20 (4) of the U.P. ActNo. 13 of 1972 the Court held that the datefor filing of the written statement andhearing shall be the first date of hearing.The aforesaid ratio was explained by theSupreme Court in the case of Advaita Nand(supra). The Court held that the first date ofhearing shall be the date when the time isfixed by the Court for filing the writtenstatement and hearing. Same view has beentaken by this Court also in the case of Chottiv. 13th Additional District and SessionsJudge, Agra and others, 1999 (2) ARC 71.This Court after considering the judgmentof the Supreme Court in respect of theSmall Cause Courts Act held that the firstdate of hearing shall be the date forappearance as well as final hearing.Applying the said principle in the presentcase, the tenant had filed his writtenstatement on 15th June, 2010 and submittedhis tender on 15th July, 2010, therefore, I donot find any error in the finding of theCourt below that the tenant has deposited


the arrears of rent after the first date ofhearing. Thus, he was not entitled for thebenefit of Section 20(4) of the U.P. ActNo. 13 of 1972.

17. As regards the submission of SriOjha that the tenant has deposited the entirerent and the finding of the Court below thatthere was a shortfall of amount is incorrect,this Court finds that the finding of the Courtbelow that the rent is Rs.2,000/- per monthhas been found to be correct in the earlierpart of this judgment. The tenant hasdeposited the rent at the rate of Rs.1,000/-per month. Thus, there is a shortfall ofRs.1,58,000/- and for this reason also, hisclaim for the benefit of Section 20(4) of theU.P. Act No. 13 of 1972 has rightly beenrejected by the Court below. The finding ofthe Court below that the tenant has made adefault for more than four months, is afinding of fact. Learned Senior Counselappearing for the revisionist-tenant couldnot satisfy the Court that the said finding isperverse. The Court below has noticed thefact that the statement of D.W.-1 AwadhBihari that after receiving the notice he hadsent the rent of the months of October &November, 2009 by money-order, was notcorrect as no receipt of the money-orderwas filed before the Court below.Therefore, said fact has been rightly ignoredby the Court below. The landlady has filed asuit under Section 28(A) of the U.P. ActNo. 13 of 1972. Section 20(2)(A) of theU.P. Act No. 13 of 1972 provides that if atenant is in arrears for more than fourmonths and he fails to deposit the rent inspite of the notice, then he shall be liable foreviction. For the reasons stated above, thefinding of the Court below on Issue No. 4also does not suffer from any error.

18. The revisional jurisdiction ofthis Court under Section 25 of the

Provincial Small Cause Courts Act, 1887is limited. The Court can interfere underthis section only when the findingrecorded by the Court below is totallyperverse and is based on no evidence.Learned counsel for the revisionist-tenanthas failed to point out any perversity inthe order of the Court below, as discussedabove. The findings of the Court below onvarious points are based on documentaryas well as oral evidence. It has not beenpointed out that the Court below hasignored any important documentaryevidence filed by the tenant-revisionist orit has taken into consider any fact, whichwas not on the record.

19. After careful consideration ofthe facts and circumstances of the case, Iam of the view that the revision lacksmerit and is liable to be dismissed. It is,accordingly, dismissed.

20. Considering the facts andcircumstances of the case, the tenant-revisionist is granted three months' time tovacate the premises in question on thefollowing conditions:

(i) The revisionist shall file anundertaking within one month from todaybefore the Judge, Small Cause Court,Kanpur Nagar that on or before the expiryof the three months he will handoverpeaceful possession to the landlady-respondent and shall not create any thirdparty interest in any manner.

(ii) For the period of three months,which has been granted to him to vacatethe premises, he shall pay damages at therate of Rs.2,000/- per month for the use ofaccommodation.

(iii) In case of default in complianceof any of the conditions, the interim ordershall stand vacated.

3 All]. Amit Agarwal Vs. Atul Gupta 1319

21. No order as to costs.--------



BEFORETHE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Transfer Application No. 519 of2014

(U/s24 C.P.C.)

Amit Agarwal ...PetitionerVersus

Atul Gupta ...Respondent

Counsel for the Petitioner:Sri Shashi Nandan, Sri Prabhakar Dwivedi,Sri Anil Kumar

Counsel for the Respondent:Sri K.R. Sirohi, Sri Pankaj Dubey

C.P.C.-Section 24-Transfer of ArbitrationAppeal pending before D.J. Merrut to anyother adjoining District-on ground byconduct of presiding judge-no hope of fairjustice-bent upon to grant interim orderin favor of Respondent-held the ground oftransfer wholly vague unsubstantiated-noground for interference-rejected.

Held: Para-30 & 3930. If there is a deliberate attempt toscandalize a judicial Officer of subordinateCourt, it is bound to shake confidence ofthe litigating public in the system and hasto be tackled strictly. The damage iscaused not only to the reputation of theconcerned Judge, but, also to the fairname of judiciary. Veiled threats, abrasivebehaviour, use of disrespectful language,and, at times, blatant condemnatoryattacks, like the present one, are oftendesignedly employed with a view to tamea Judge into submission to secure adesired order. The foundation of oursystem is based on the independence andimpartiality of the men havingresponsibility to impart justice i.e. Judicial

Officers. If their confidence, impartialityand reputation is shaken, it is bound toaffect the very independence of judiciary.Any person, if allowed to make disparagingand derogatory remarks against a JudicialOfficer, with impunity, is bound to result inbreaking down the majesty of justice.

39. In the light of the above expositionof law, the pleadings in the case in handhave been examined. The grounds takenby applicant is vague and whollyunsubstantiated. The mere allegation isnot sufficient to justify transfer unless itis also substantiated by relevantmaterial, which is not the case in hand.No ground, therefore, justifying transferis made out under Section 24 C.P.C.

Case Law discussed:AIR 1960 Kerela 91; AIR 2003 AP 312; 1914(27) MLJ 645; AIR 1990 MP 320; (1882) ILR 5All 60; (1979) Cri.L.J. 459(SC); 1990 (1) SCC4; AIR 2008 SC 1333; AIR 2009 SC 1374; AIR2009 SC 1773; (1938) 2 MLJ 249; AIR 1933Lahore 635; AIR 1975 Delhi 42; AIR 1953Orissa 46; AIR 1996 Kerela 113; AIR 1976 P &H 321; 2007 (3) AWC 3119; AIR 1995Karnataka 112; AIR 1981 Madas 54 or 24; AIR1981 Madras 24; AIR 1988 Gujrat 63; AIR2003 AP 448; AIR 2001 Culcutta 26; (1998) 7SCC 248; 2013 (2) AWC 1546; AIR 2003 AP312.

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

1. Heard Sri Shashi Nandan, SeniorAdvocate, assisted by Sri PrabhakarDwivedi, learned counsel for theapplicant, Sri K.R.Sirohi, SeniorAdvocate, assisted by Sri Pankaj Dubey,learned counsel for opposite party andperused the record.

2. This transfer application has beenfiled under Section 24 C.P.C., seekingtransfer of non admitted ArbitrationAppeal No. Nil of 2014 (Atul Gupta Vs.Amit Agarwal) pending in the Court ofDistrict Judge, Meerut to any other


District Judge of any nearby Districtmaking allegations against Sri AmarSingh Chauhan, District Judge, Meerut.Paras 23 to 26 of the affidavit, filed insupport of transfer application containallegation, which read as under:

"23. That at about 3.30 p.m. theappeal filed under section 37(2)(b) ofArbitration and Conciliation Act, 1996 bythe respondent was taken up before theDistrict Judge Meerut then the time wassought from the counsel for the applicantto file objection as in the said appeal thecaveat of the applicant was already filedthen in utter surprise the District JudgeMeerut Sri Amar Singh Chauhan told tothe counsel for the applicant to preparethe objection within 30 minutes so as tohear the matter at 4.00 p.m. and since itwas not possible to prepare the objectiontowards the said appeal within 30 minutesand as such only after various requestand persuasion, the District Judge Meerutfixed the next date as 03.11.2014. It isalso stated that on 30/31.10.2014, theelections of District Bar Association wasscheduled.

24. That as the earlier occasion alsothe present Presiding Officer/Sri AmarSingh Chauhan District Judge Meerut hascompletely ignored the arguments andobjection filed by the petitioner and beingprejudiced he has passed the order dated20.12.2013. Further more the presentDistrict Judge Meerut is much interestedto pass interim order in favour ofrespondent due to which earlier on29.10.2014 when the case was taken up,the Presiding Officer earlier granted only30 minutes time to prepare the objectionsto the appeal and only after great requestand persuasion the next date has beenfixed as 03.11.2014.

25. That is is also stated that sincethe aforesaid appeal dated 29.10.2014filed by the respondent under section37(2)(b) of Arbitration and ConciliationAct-1996 before the District JudgeMeerut has yet not been admitted and assuch no any number etc. has been given tothe said appeal and due to said reason noany certified copy of the order sheet couldbe obtained by the petitioner.

26. That as a matter of fact now theapplicant lost all his hope to get justice inthe Arbitration Appeal No.Nil of 2014(Atul Gupta Vs. Amit Agarwal) pendingbefore Sri Amar Singh Chauhan DistrictJudge Meerut in as much as the saidCourt is even not ready to consider thematerial brought on record and theargument advance before him on behalf ofthe applicant which is apparent from theaforesaid facts."

3. From the bare perusal thereofclearly shows that assertions areabsolutely vague, unsubstantiated andlacks trustworthiness.

4. Learned counsel for opposite partyopposed the application submitting thatthere is no ground for transfer the case.

5. The power of transfer of a casefrom one Court to another under Section24 C.P.C. is very wide. However, whileexercising such power, the Court itselfmust look into the ground taken forjustifying transfer and should consider thematter within permissible limitations so asnot to exercise power on mere asking byapplicant.

6. The plaintiff, as obiter litis ordominus litis, has a right to chose anyforum, the law allows him. It is asubstantive right but of course subject to


control by statute like Sections 22 to 23 ofC.P.C.

7. The mere factum of expenses ordifficulties should not justify transfer of acase from one Court to another, unlessCourt finds that expenses and difficultiesin the Court, where it is pending, is sogreat as to lead injustice to applicant, or,the suit has been filed in a particularCourt for the purpose of workinginjustice. (P. Sadayandi Nadar and Ors.vs. Venugopala Chetty and Ors., AIR1960 Kerela 91; Satyasri Fertilisers vs.E.I.D. Parry (India) Ltd., AIR 2003 AP312; and, The Hindustan Assurance andMutual Benefit Society Ltd. vs. RailMulraj and Ors., 1914 (27) MLJ 645).

8. It is always necessary to the Courtto find out from the allegations made intransfer application, whether anyreasonable ground is made out for transferof the case. (Smt. Sudha Sharma vs. RamNaresh Jaiswal, AIR 1990 MP 320)

9. Transfer of cases from one Courtto another is a serious matter particularlywhen transfer is sought by makingallegations against Presiding Officer. Itsometimes indirectly cause doubt on theintegrity and competence of PresidingOfficer of the Court from whom thematter is transferred. In cases whereground for transfer is likelihood of bias ofPresiding Officer, it is onerous duty ofCourt to see, whether such ground hasbeen substantiated with reasonablecertainty or not. It should not be donewithout a proper and sufficient cause. InTula Ram Vs. Harjiwan Das (1882) ILR 5All 60 it was held that the Court has toconsider whether applicant has made out acase to justify it, closing doors of theCourt in which suit is brought to plaintiff,

and leaving him to seek his remedy inanother jurisdiction.

10. In Meneka Sanjay Gandhi Vs.Rani Jekhmalani, (1979) Cri.L.J. 458(SC) the Court said:

Assurance of a fair trial is the firstimperative of the dispensation of justiceand the central criterion for the court toconsider when a motion for transfer ismade is not the hypersensitivity orrelative convenience of a party or easyavailability of legal services or like minigrievances. Something more substantial,more compelling, more imperiling, fromthe point of view of public justice and itsattendant environment, is necessitous ifthe Court is to exercise its power oftransfer. This is the cardinal principlealthough the circumstances may bemyriad and vary from case to case.(emphasis added)

11. Again in the context of power ofSupreme Court with regard to transfer ofcases under Section 25 C.P.C. inSubramaniam Swamy Vs. RamakrishnaHegde, 1990(1) SCC 4, the Court said:

"The question of expediency woulddepend on the facts and circumstances ofeach case but the paramount considerationfor the exercise of power must be to meet theends of justice. It is true that if more than onecourt has jurisdiction under the Code to trythe suit, the plaintiff as dominus litis has aright to choose the Court and the defendantcannot demand that the suit be tried in anyparticular court convenient to him. The mereconvenience of the parties or any one of themmay not be enough for the exercise of powerbut it must also be shown that trial in thechosen forum will result in denial of justice.Cases are not unknown where a party


seeking justice chooses a forum mostinconvenient to the adversary with a view todepriving that party of a fair trial. TheParliament has therefore, invested this Courtwith the discretion to transfer the case fromone Court to another if that is consideredexpedient to meet the ends of justice. Wordsof wide amplitude- for the ends of justice-have been advisedly used to leave the matterto the discretion of the apex court as it is notpossible to conceive of all situationsrequiring or justifying the exercise of power.But the paramount consideration must be tosee that justice according to law is done; iffor achieving that objective the transfer ofthe case is imperative, there should be nohesitation to transfer the case even if it islikely to cause some inconvenience to theplaintiff. The petitioner's plea for the transferof the case must be tested on this touchstone.(emphasis supplied)

12. The age of wife and distancebetween place of residence and place wherematrimonial proceedings were filed, as wellas absence of people who would escort her,are some of the grounds consideredreasonable justification, for directingtransfer of case, to a place more suitable toher. In Kulwinder Kaur @ KulwinderGurcharan Singh vs. Kandi FriendsEducation Trust and Ors., AIR 2008 SC1333 the Court said that order of transfermust reflect application of mind and thecircumstances which weighed the Court intaking action or transfer of case from oneCourt to another.

13. In Kulwinder Kaur @Kulwinder Gurcharan Singh (supra), theCourt said:

"14. Although the discretionarypower of transfer of cases cannot beimprisoned within a strait-jacket of any

cast-iron formula unanimously applicableto all situations, it cannot be gainsaid thatthe power to transfer a case must beexercised with due care, caution andcircumspection. Reading Sections 24 and25 of the Code together and keeping inview various judicial pronouncements,certain broad propositions as to what mayconstitute a ground for transfer have beenlaid down by Courts. They are balance ofconvenience or inconvenience to plaintiffor defendant or witnesses; convenience orinconvenience of a particular place oftrial having regard to the nature ofevidence on the points involved in thesuit; issues raised by the parties;reasonable apprehension in the mind ofthe litigant that he might not get justice inthe court in which the suit is pending;important questions of law involved or aconsiderable section of public interestedin the litigation; interest of justicedemanding for transfer of suit, appeal orother proceeding, etc. Above are some ofthe instances which are germane inconsidering the question of transfer of asuit, appeal or other proceeding. Theyare, however, illustrative in nature and byno means be treated as exhaustive. If onthe above or other relevantconsiderations, the Court feels that theplaintiff or the defendant is not likely tohave a fair trial in the Court from whichhe seeks to transfer a case, it is not onlythe power, but the duty of the Court tomake such order."

14. In the matrimonial matters theconvenience of wife and in particular thatshe has no one in her family to escort herto undertake a long journey has been heldto be good ground for transfer of case asis also evident from Apex Court's decisionin Anjali Ashok Sadhwani vs. AshokKishinchand Sadhwani, AIR 2009 SC


1374 and Fatema vs. Jafri Syed Husain @Syed Parvez Jafferi, AIR 2009 SC 1773.

15. One of the common groundwhich generally is taken is of distrust inPresiding Officer of the Court. Here theCourts have to be very careful whilepassing the orders for transfer of case.

16. Where two persons filed suitagainst each other in different Courts on thesame cause of action, it was held desirablethat suits should be tried by one and the sameCourt. (G.M. Rajulu Vs. Rao Bahadur M.Govindan Nair, (1938) 2 MLJ 249; Mt.Zabida Khatoon vs. Mohammad Hayat Khanand Ors., AIR 1933 Lahore 635; and ManjariSen vs. Nirupam Sen, AIR 1975 Delhi 42).

17. Similarly, if two suits indifferent Courts are filed raising commonquestions of fact and law, and thedecisions are independent, it is desirablethat they should be tried by same judge soas to avoid multiplicity of litigation andconflict in decision. (Purna ChandraMahanty and Ors. vs. SamantaRadhaprasana Das, AIR 1953 Orissa 46).

18. If the fact of suits sought to betried together are intertwined with causeof action in each suit, transfer of suit maynot be refused provided the parties andsubject matter of suits are one and thesame. (Rosamma Joseph vs. P.C.Sebastian, AIR 1996 Kerala 113)

19. An order of transfer can also bemade to prevent abuse of process of Courtas said in State Bank of India vs. SakowIndustries Faridabad (Pvt.) Ltd., NewDelhi, AIR 1976 P & H 321.

20. In Amardeep and others Vs.District Judge, Lalitpur and others, 2007(3)

AWC 3119 the applicant put forward hisclaim on the basis of a Will before CivilJudge (Senior Division). The respondentfiled a suit before Civil Judge (JuniorDivision) for cancellation of Will. It washeld that claims of both parties were basedon execution and non-execution of allegedWill, therefore, it would be in the interest ofjustice that both cases must be decided inthe same Court. The expression "sameCourt" does not mean same Judge, rather itmeans the same Civil Court and as such theorder of transferring proceeding from theCourt of Civil Judge (Junior Division) to theCourt of Civil Judge (Senior Division) washeld proper.

21. The mere observations ofPresiding Officer of the Court whilehearing a case does not mean that he hasmade up his mind in a particular mannerso as to justify an allegation of biasagainst such Presiding Officer and thiswould not justify transfer of case fromone Court to another. A Judge is notexpected to remain silent during course ofhearing and not to express any opinion. Asphinx like attitude is not expected from aPresiding Officer. There has to be aneffective discussion and effective attemptto conciliate or to clarify themisunderstanding or to get the issuesclear, so that the issues can be settled or ajust and proper decision can be arrived at.If in that process the Presiding Officerwould make a statement it should not bemisunderstood as an expression ofdecision. (Smt. Sangeetha S. Chugh vs.Ram Narayan V. and others, AIR 1995Karnataka 112 and Official Assignee,Madras vs. Inspector-General ofRegistration, Bangalore and Anr., AIR1981 Madras 54 or 24)

22. In one matter certainobservations were made by a Judge in an


earlier case. When a subsequent mattercame up before him this was sought to bea ground for transfer but declined by theCourt in G. Lakshmi Ammal vs. ElumalaiChettiar and Ors, AIR 1981 Madras 24.

23. The allegations of bias ofPresiding Officer, if made the basis fortransfer of case, before exercising powerunder Section 24 C.P.C., the Court mustbe satisfied that the apprehension of biasor prejudice is bona fide and reasonable.The expression of apprehension, must beproved proved/ substantiated bycircumstances and material placed bysuch applicant before the Court. It cannotbe taken as granted that mere allegationwould be sufficient to justify transfer. InSmt. Sudha Sharma (supra) the Courtobserved that it is the duty of learnedcounsel to draft the application and madeallegations with utmost care and caution.Hon'ble B.M. Lal, J. (as His Lordshipthen was), said:

"9. ......a foremost duty casts uponthe counsel concerned while drafting andmaking allegations in the transfer petitionagainst the Judge concerned with utmostcare and caution, particularly in makingwild allegations against the PresidingJudge. But, it appears that now-a-days ithas become common feature to makeallegations against the Court PresidingJudge. The counsel should realise thatthey are also officers of the Court.Introducing fanciful and imaginaryallegations as grounds for transfer andharbouring apprehension such groundsthat fair and impartial justice would notbe done should always be deprecated.

10. Nonetheless, it is also importantfor all those who are engaged in the taskof administering justice to remember thatit is incumbent on them to create and

maintain such confidence and atmosphereby giving every litigant an assurance bytheir judicial conduct that fair andimpartial justice will be imparted. It isnecessary to create such a confidence inthe mind of the litigants so that their faithmay not be shaken in Courts of law."

24. Mere suspicion by the party thathe will not get justice would not justifytransfer. There must be a reasonableapprehension to that effect. A judicialorder made by a Judge legitimately cannotbe made foundation for a transfer of case.Mere presumption of possibleapprehension should not and ought not bethe basis of transfer of any case from onecase to another. It is only in very specialcircumstances, when such grounds aretaken, the Court must find reasons exist totransfer a case, not otherwise. (RajkotCancer Society vs. MunicipalCorporation, Rajkot, AIR 1988 Gujarat63; Pasupala Fakruddin and Anr. vs.Jamia Masque and Anr., AIR 2003 AP448; and, Nandini Chatterjee vs. ArupHari Chatterjee, AIR 2001 Culcutta 26)

25. Where a transfer is soughtmaking allegations regarding integrity orinfluence etc. in respect of the PresidingOfficer of the Court, this Court has to bevery careful before passing any order oftransfer.

26. In the matters where recklessfalse allegations are attempted to be madeto seek some favourable order, either in atransfer application, or otherwise, theapproach of Court must be strict andcautious to find out whether theallegations are bona fide, and, if treated tobe true on their face, in the entirety ofcircumstances, can be believed to becorrect, by any person of ordinary


prudence in those circumstances. If theallegations are apparently false, strictapproach is the call of the day so as tomaintain not only discipline in the courtsof law but also to protect judicial officersand maintain their self esteem, confidenceand above all the majesty of institution ofjustice.

27. The justice delivery system knowsno caste, religion, creed, colour etc. It is asystem following principle of black andwhite, i.e., truth and false. Whatever isunfair, that is identified and given its duetreatment and whatever is good is retained.Whoever suffers injustice is attempted to begiven justice and that is called dispensationof justice. The prevailing system ofdispensation of justice in Country,presently, has different tiers. At the groundlevel, the Courts are commonly known as"Subordinate Judiciary" and they form basisof administration of justice. Sometimes it issaid that subordinate judiciary forms verybackbone of administration of justice.Though there are various other kinds ofadjudicatory forums, like, NyayaPanchayats, Village Courts and then variouskinds of Tribunals etc. but firstly they arenot considered to be the regular Courts foradjudication of disputes, and, secondly thekind and degree of faith, people have, inregular established Courts, is yet to bedeveloped in other forums. In commonparlance, the regular Courts, known forappropriate adjudication of disputesbasically constitute subordinate judiciary,namely, the District Court; the High Courtsand the Apex Court.

28. The hierarchy gives appellate andsupervisory powers in various ways. Theadministrative control of subordinatejudiciary has been conferred upon HighCourt, which is the highest Court at

provincial level and is underconstitutional obligation to see effectivefunctioning of subordinate Courts byvirtue of power conferred by Article 235read with 227 of the Constitution. Nosuch similar power like Article 235, inrespect to High Court is exercisable byApex Court, though it is the highest Courtof land. Its judgments are binding on all.Every order and judgment of any Court orTribunal etc., in the Country, is subject tojudicial review by Apex Court. This is thepower on judicial side.

29. In Ajay Kumar Pandey,Advocate, In Re:, (1998) 7 SCC 248, theCourt said that superior Courts, i.e. HighCourt as also the Apex Court is bound toprotect the Judges of subordinate Courtsfrom being subjected to scurrilous andindecent attacks, which scandalise or havethe tendency to scandalise, or lower orhave the tendency to lower the authorityof any court as also all such actions whichinterfere or tend to interfere with the duecourse of any judicial proceedings orobstruct or tend to obstruct theadministration of justice in any othermanner. No affront to the majesty of lawcan be permitted. The fountain of justicecannot be allowed to be polluted bydisgruntled litigants. The protection isnecessary for the courts to enable them todischarge their judicial functions withoutfear.

30. If there is a deliberate attempt toscandalize a judicial Officer ofsubordinate Court, it is bound to shakeconfidence of the litigating public in thesystem and has to be tackled strictly. Thedamage is caused not only to thereputation of the concerned Judge, but,also to the fair name of judiciary. Veiledthreats, abrasive behaviour, use of


disrespectful language, and, at times,blatant condemnatory attacks, like thepresent one, are often designedlyemployed with a view to tame a Judgeinto submission to secure a desired order.The foundation of our system is based onthe independence and impartiality of themen having responsibility to impartjustice i.e. Judicial Officers. If theirconfidence, impartiality and reputation isshaken, it is bound to affect the veryindependence of judiciary. Any person, ifallowed to make disparaging andderogatory remarks against a JudicialOfficer, with impunity, is bound to resultin breaking down the majesty of justice.

31. I cannot ignore the fact thatmuch cherished judicial independenceneeds protection not only from overzealous executive or power hungrylegislature but also from those whoconstitute, and, are integral part of thesystem. Here is a case where an Advocatehas drafted a petition since the litigants,namely petitioners, hereat does not appearto understand the legal complexity much.The Advocate forgetting the higher statusconferred upon him, making him anOfficer of the Court, has chosen to malignJudicial Officer of the Subordinate Court,based on caste consideration as also thenature of his appointment over which hehimself has no control. In any case, that,by itself, has no connection with hisperformance and function as PresidingOfficer of the Court.

32. An Advocate's duty is as importantas that of a Judge. He has a largeresponsibility towards society. He isexpected to act with utmost sincerity andrespect. In all professional functions, anAdvocate should be diligent and his conductshould also be diligent. He should conform

to the requirements of law. He plays a vitalrole in preservation of society and justicesystem. He is under an obligation to upholdthe rule of law. He must ensure that thepublic justice system is enabled to function atits full potential. He, who practices law, isnot merely a lawyer, but acts as moral agent.This character, he cannot shake off, by anyother character on any professional character.He derives from the belief that he sharessentiment of all mankind. This influence ofhis morality is one of his possession, which,like all his possession, he is bound to use formoral ends. Members of the Bar, like Judges,are the officers of the Court. Advocacy is arespectable noble profession on theprinciples. An Advocate owes duty not onlyto his client, but to the Court, to the societyand, not the least, to his profession.

33. I do not intend to lay down anycode of conduct for the class of the peoplesknown as "Advocates", but certainly I haveno hesitation in observing that no Advocatehas nay business to condemn a Judge merelyon the basis of his caste, creed or religion orfor any other similar trait or attribute. If thereis something lacking on the part of a JudicialOfficer touching his integrity, Advocates,being Officers of the Court, may not remaina silent spectator, but should come forward,raising their voice in appropriate mannerbefore the proper authority, but there cannotbe a licence to any member of Bar to raisehis finger over the competency and integrityetc. of a Judicial Officer casually ornegligently or on other irrelevant grounds.Here the competence and capacity of theconcerned Judicial Officer has beenattempted to be maligned commenting uponhis integrity and honesty. It deserves to becondemned in the strongest words. No onecan justify it in any manner. Thinking ofintrusion of such thought itself sounds alert.It is a siren of something which is not only

3 All]. Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors. Vs. Aziz Ullah 1327

very serious, but imminent. A concept or anidea which should not have cropped up inanybody's mind, connected with the systemof justice, if has cropped up, deserves to benipped at earliest, else, it may spreads itstentacles to cover others and that would be adooms day for the very institution.

34. This Court also made similarobservations in Smt. Munni Devi andothers Vs. State of U.P. and others,2013(2) AWC 1546 and in para 10, said:

"10. Be that as it may, so far as thepresent case is concerned, suffice is tomention that the Constitution makers haveimposed constitutional obligation upon theHigh Court to exercise control oversubordinate judiciary. This control is bothways. No aberration shall be allowed toenter the Subordinate Judiciary so that itspurity is maintained. SimultaneouslySubordinate Judiciary can not be allowed tobe attacked or threatened to work underoutside pressure of anyone, whetherindividual or a group, so as to form a threatto objective and independent functioning ofSubordinate Judiciary."

35. Sometimes transfer of suit hasalso been justified on the ground ofconvenience to the parties or witnessesetc. but in such cases the paramount factorwhich should be considered is theconvenience of both parties. Anexception, however, to some extent, hasbeen made in matrimonial cases whereconvenience of wife has been given adominating factor than husband,particularly when she has none to escorther or of quite young age or where shehas financial constrained etc.

36. In Satyasri Fertilisers vs. E.I.D.Parry (India) Ltd., AIR 2003 AP 312 thetransfer of case was declined which was

sought only on the ground that theapplicant is a diabetic patient.

37. The observations made aboveare only illustrative to show that Court,though has wide power of transfer underSection 24 C.P.C. but it must be exercisedfor valid reasons and not in whimsical andarbitrary manner.

38. Now, this has to be seen,whether any valid reason exist in the casejustifying transfer.

39. In the light of the above expositionof law, the pleadings in the case in hand havebeen examined. The grounds taken byapplicant is vague and wholly unsubstantiated.The mere allegation is not sufficient to justifytransfer unless it is also substantiated byrelevant material, which is not the case inhand. No ground, therefore, justifying transferis made out under Section 24 C.P.C.

40. The transfer application,therefore, fails and is dismissed.

--------APPELLATE JURISDICTION


BEFORETHE HON'BLE RAKESH TIWARI, J.

THE HON'BLE MRS VIJAY LAKSHMI, J.

Special Appeal Defective No. 880 of 2014

Dakshinanchal Vidyut Vitran Nigam Ltd.Agra & Ors. Appellants

VersusAziz Ullah Opp. Party

Counsel for the Appellants:Sri Baleshwar Chaturvedi

Counsel for the Respondents:Sri Shekhar Srivastava


Constitution of India, Art.-226-Termination-on ground of forged highschool certificate-without holding enquiryas envisaged under Rule 7-in responceshow cause notice after reply-terminationorder on 14.05.12 retirement on31.07.12-when no disciplinary proceedingpending-Learned Single Judge rightlyinterfered-appeal dismissed.

Held: Para-12In view of the above, learned counsel forthe appellants has failed to point out anyrule as to whether disciplinary proceedingscould be initiated against the delinquentemployee after retirement. The order oftermination was passed on 14.5.2012merely on a show cause notice and twomonths thereafter i.e. on 31.7.2012 heretired from the service after attaining theage of superannuation. It appears that onthe date of superannuation there was noenquiry pending or contemplated againstthe respondent. The procedure as providedunder rule 7 of the Rules, 1999 was notfollowed and straight way the services ofthe respondent were terminated. The WritCourt has rightly quashed the terminationorder dated 14.5.2012 directing theappellants to pay post retirement benefitsto the respondents.

Case Law discussed:AIR 2004 SC 1469.

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

1. Heard learned counsel for theappellants on Civil Misc. DelayCondonation Application No. 344900 of2014 and perused the affidavit filed insupport of this application. Cause shown fordelay in filing the special appeal issufficient. Delay is condoned and theApplication for Condonation of Delay isallowed.

2. Heard learned counsel for theappellants on merit of the appeal also andperused the record.

3. The appellants have filed this intracourt appeal challenging the validity andcorrectness of the impugned judgment andorder dated 24.7.2014 passed by the WritCourt in Civil Misc. Writ Petition No.30714 of 2012, Aziz Ullah versusDakshinanchal Vidyut Vitran NigamLimited and others whereby the aforesaidwrit petition was allowed.

4. Brief facts giving rise to theinstant appeal are that the respondent wasinitially appointed in 1971 as Kuli onClass-IV post with Dakshinanchal VidyutVitaran Nigam Limited, Agra, andthereafter on qualifying examination, hewas promoted on Class-III post asTechnical Grade-II (TG-2). The minimumqualification for promotion is that theincumbent apart from qualifying theexamination must be a High School. On6.8.2008, appellant no.3, ExecutiveEngineer, Electricity DistributionDivision, Dakshinanchal Vidyut VitaranNigam Limited, District Banda issued ashow cause notice directing him toproduce his High School certificate.Pursuant thereto, he approached appellantno.3 along with original mark sheet aswell as certificates, However, appellantno. 3 did not examine the original marksheet and again a notice was issued on20.10.2008 calling upon the respondent tosubmit his mark sheet. Similar notice wasissued on 5.9.2009. In response thereto,the respondent submitted a detailed replyon 3.10.2009 and due to the pendency ofthe enquiry, he was not given the benefitof "Sixth Pay Commission" hence hepreferred Civil Misc. Writ Petition No.75588 of 2010 praying that the pendingenquiry be concluded and finalized whichwas dismissed vide judgment and orderdated 4.1.2011. The judgment and orderdated 4.1.2011 reads thus:-


"Heard learned counsel for theparties.

It appears that some enquiry is goingon against the petitioner with regard toauthenticity of papers submitted by thepetitioner and in pursuance thereto thepetitioner has been asked to submitcertain document vide orders dated7.4.2010 and 23.9.2010.

It is stated by the petitioner that hehas supplied all the documents but nodecision is being taken.

If that is the case, the respondentsmay complete the said enquiry within sixweeks from the date of submission of acertified copy of this order, provided thepetitioner cooperates.

Subject to the aforesaid, this petitionis dismissed. "

5. In compliance of the aforesaidjudgment and order dated 4.1.2011 of theHigh Court, inquiry was conductedagainst the respondent in which it wasfound by the Enquiry Officer that theoriginal documents submitted by therespondent-employee do not tally withHigh School Certificate of the respondent.He was found guilty in the enquiry andvide order dated 14.5.2012 his serviceswere terminated.

6. Aggrieved by the order dated14.5.2014 the respondent preferred CivilMisc. Writ Petition No. 30714 of 2012,Aziz Ullah versus Dakshinanchal VidyutVitaran Nigam Limited and others, whichwas allowed vide judgment and and orderdated 24.7.2014, hence the instant appeal.

7. The impugned judgment andorder of the Writ Court is assailed on theground that the Writ Court has failed toconsider that the respondent does notfulfill eligibility criteria for the post of

T.G.-2 and has been promoted on thebasis of forged certificate, hence he hascaused financial loss to the Nigam; thatthe enquiry was held of which propernotice and opportunity was given to therespondent to put his defence andthereafter on the basis of proper scrutinythe order dated 14.5.2012 terminating hisservices was passed, hence in view of thelaw laid down by the Apex Court in thecase of R. Vishwanath Pillai versus Stateof Kerala, AIR 2004, SC-1469, issuanceof fresh notice under the rules was notnecessary as the genuineness of thecertificate has already been examined bythe Enquiry Officer.

8. It is also submitted that the WritCourt has quashed the order dated14.5.2012 on the ground that nodisciplinary enquiry as provided underrule 7 was initiated and no charge sheetwas served upon the delinquent employee,hence it has committed an error in law bynot giving a liberty to the appellants tohold departmental enquiry in respect ofthe allegation of misconduct and takenecessary action thereafter in accordancewith law and as such the impugnedjudgment and order dated 24.7.2014passed by the Writ Court is liable to be setaside.

9. Per contra, learned counsel for therespondent submits that only a showcause notice was issued to the respondentto which he submitted his reply andthereafter the enquiry was conductedbehind his back; that opportunity wasafforded to the respondent to put hisdefence and the authority has imposedmajor penalty which is not permissibleunder the 1999 Rules; that the Writ Courthas rightly allowed the writ petition,hence no interference is required by this


Court. The Writ Court appreciated thearguments and the case laws thus:-

"Enquiry commences with the issueof charge-sheet as held in the case ofUnion of India vs. K.V. Jankiraman (AIR1991 SC 2010), Union of India vs. AnilKumar Sarkar, 2013 (4) SCC 161 andState of Andhra Pradesh vs. C.H. Gandhi,2013 (5) SCC 111; Framing of thecharge-sheet is the first step taken forholding enquiry into the allegations onthe decision taken to initiate disciplinaryproceedings. Service of charge-sheet onthe Government servant follows decisionto initiate disciplinary proceedings and itdoes not precede and coincide with thatdecision (vide Delhi DevelopmentAuthority vs. H.C. Khurana 1993 (3) SCC196). Once the enquiry was not initiatedor contemplated or pending before theretirement, the same cannot be continuedafter retirement, unless there is a rule tothat effect. The learned counsel for therespondents has failed to show any ruleor circular as to whether disciplinaryproceedings could be initiated afterretirement and under what circumstances.

A Division Bench of this Court inSmt. Parmi Maurya vs. State of U.P. andothers [(2014) 2 UPLBEC 1060] held thatthe provisions of Rule 7 is mandatory andit is obligatory for the employer to framecharge/conduct disciplinary enquiry byapplying the principles of natural justiceand prove that certificates werefabricated, without adopting suchprocedure order passed terminating thedelinquent employee is illegal. Paragraph7 is as follows:-

"7. On these facts, the learned SingleJudge, in our view, was clearly in error inarrogating to the Court the task ofdetermining whether the certificate andmark sheets submitted by the appellant

were genuine or otherwise. This, withrespect, was no part of the jurisdiction ofthe writ Court under Article 226 of theConstitution. When a substantive chargeof misconduct is levied against anemployee of the State, the misconduct hasto be proved in the course of adisciplinary inquiry. This is not one ofthose cases where a departmental inquirywas dispensed with or that the ground fordispensing with such an inquiry was madeout. The U.P. Government Servants(Discipline and Appeal) Rules, 1999 laysdown a detailed procedure in Rule 7 forimposing a major penalty. Admittedly, noprocedure of that kind was followed sinceno disciplinary inquiry was convened orheld."

In Smt. Munni Devi vs. State of U.P.and others [(2014) 2 UPLBEC 974] itwas held that once an enquiry is initiatedunder Rule 7 it is mandated that theenquiry officer would conduct oralenquiry. It was held that oral enquirywould be mandatory before imposingmajor punishment. Paragraph 9 is asfollows:-

"9. The question as to whether nonholding of oral inquiry can vitiate theentire proceeding or not has also beenconsidered in detail by a Division Benchof this Court (in which I was also amember) in the case of Salahuddin AnsariVs. State of U.P. and others, 2008(3) ESC1667 and the Court clearly held that nonholding of oral inquiry is a serious flawwhich vitiates the entire disciplinaryproceeding including the order ofpunishment. This Court has said in paras10 and 11 of the judgement as under:

"10. ----------- Non holding of oralinquiry in such a case is a serious matterand goes to the root of the case.

11. A Division Bench of this Court inSubhash Chandra Sharma Vs. Managing


Director & another, 2000 (1)U.P.L.B.E.C. 541, considering thequestion as to whether holding of an oralinquiry is necessary or not, held that if nooral inquiry is held, it amounts to denialof principles of natural justice to thedelinquent employee. The aforesaid viewwas reiterated in Subhash ChandraSharma Vs. U.P. Cooperative SpinningMills & others, 2001 (2) UPLBEC 1475and Laturi Singh Vs. U.P. Public ServiceTribunal & others, Writ Petition No.12939 of 2001, decided on 06.05.2005."

The Supreme Court in Dev PrakashTewari vs. U.P. Cooperative InstitutionalService Board [LAWS (SC)-2014-6-14]was considering the case that as towhether disciplinary proceedings afterretirement of an employee could becontinued in absence of any rule to thateffect. In paragraph 6 and 7 held asfollows:-

"6. While dealing with the above case,the earlier decision in Bhagirathi Jena's case(supra) was not brought to the notice of thisCourt and no contention was raisedpertaining to the provisions under which thedisciplinary proceeding was initiated and assuch no ratio came to be laid down. In ourview the said decision cannot help therespondents herein.

Once the appellant had retired fromservice on 31.3.2009, there was noauthority vested with the respondents forcontinuing the disciplinary proceedingeven for the purpose of imposing anyreduction in the retiral benefits payable tothe appellant. In the absence of such anauthority it must be held that the enquiryhad lapsed and the appellant was entitledto get full retiral benefits.

7. The question has also been raisedin the appeal with regard to arrears ofsalary and allowances payable to the

appellant during the period of hisdismissal and upto the date ofreinstatement. Inasmuch as the inquiryhad lapsed, it is, in our opinion, obviousthat the appellant would have to get thebalance of the emoluments payable tohim."

The Full Bench judgment in case ofState of U.P. v. Jai Singh Dixit andothers, 1974 A.L.J. 862, the words'inquiry' and 'contemplated' wasconsidered.

"34. A formal departmental inquiryis invariably preceded by an informalpreliminary inquiry which itself can be intwo phases. There can be a summaryinvestigation to find out if the allegationsmade against the Government servanthave any substance. Such investigation orinquiry is followed by a detailedpreliminary or fact finding inquirywhereafter final decision is taken whetherto initiate disciplinary proceeding. Thefirst preliminary inquiry may be in theshape of secret inquiry and the other, ofan open inquiry. In the alternative, whencomplaints containing serious allegationsagainst a Government servant arereceived, the authority may peruse therecords to satisfy itself if a more detailedpreliminary inquiry be made.

37. Departmental inquiry iscontemplated when on objectiveconsideration of the material the appointingauthority considers the case as one whichwould lead to a departmental, inquiry,irrespective of whether any preliminaryinquiry, summary or detailed, has or hasnot been made or if made, is not complete.There can, therefore, be suspension pendinginquiry even before a final decision is takento initiate the disciplinary proceeding i.e.,even before the framing of the charge andthe communication thereof to theGovernment servant."


The Supreme Court in MathuraPrasad v. Union of India and others,(2007) 1 SCC (L&S) 292), held that whenan employee is sought to be deprived ofhis livelihood for alleged misconduct, theprocedure laid down under the rules arerequired to be strictly complied with:

"When an employee, by reason of analleged act of misconduct, is sought to bedeprived of his livelihood, the procedure laiddown under the sub-rules are required to bestrictly followed: It is now well settled that ajudicial review would lie even if there is anerror of law apparent on the face of therecord. If statutory authority uses its powerin the manner not provided for in the statuteor passes an order without application ofmind, judicial review would be maintainable.Even an error of fact, for sufficient reasonsmay attract the principles of judicial review."

The Division Bench of this Court in Dr.Subhash Chandra Gupta v. State of U.P. andothers, [2012(1) ESC 279 (All)(DB)] whiledealing with the provision of rule 7 and 9 ofthe Rules, held that the procedure forimposition of major penalty is mandatoryand where the statute provides to do a thingin a particular manner that thing has to bedone in that manner. Paras 15 and 16 is asfollows:-

"15. It is well settled that when thestatute provides to do a thing in a particularmanner that thing has to be done in that verymanner. We are of the considered opinionthat any punishment awarded on the basis ofan enquiry not conducted in accordance withthe enquiry rules meant for that verypurposes is unsustainable in the eye of law.We are further of the view that the procedureprescribed under the inquiry rules forimposing major penalty is mandatory innature and unless those procedures arefollowed, any out come inferred thereon willbe of no avail unless the charges are soglaring and unrefutable which does not

require any proof. The view taken by us findsupport from the judgment of the Apex Courtin State of U.P. and another v. T.P. LalSrivastava, 1997 (1) LLJ 831, as well as by aDivision bench of this Court in SubashChandra Sharma v. Managing Director andanother, 2000(1) UPLBEC 541.

16.A Division Bench decision of thisCourt in the case of Salahuddin Ansari v.State of U.P. and others, 2008(3) ESC1667 (All)(DB), held that non holding oforal inquiry is a serious flaw which canvitiate the order of disciplinaryproceedings including the order ofpunishment has observed as under:

"10..........Non holding of oral inquiryin such a case, is a serious matter andgoes to the root of the case.

11. A Division Bench of this Court inSubash Chandra Sharma v. ManagingDirector and another, 2000(1) UPLBEC541, considering the question as to whetherholding of an oral inquiry is necessary ornot, held that if no oral inquiry is held, itamounts to denial of principles of naturaljustice to the delinquent employee. Theaforesaid view was reiterated in SubashChandra Sharma v. U.P. CooperativeSpinning Mills and others, 2001(2) UPLBEC1475 and Laturi Singh v. U.P. Public ServiceTrinunal and others, Writ Petition No. 12939of 2001, decided on 6.5.2005."

10. After hearing learned counsel forthe parties and on perusal of the impugnedjudgment of the Writ Court and the record itappears that the respondent had beenworking since 1971 and had passed his highschool examination in 1990. Thereafter heappeared for the written examination forpromotion to the next higher post (TG-II).On the basis of some complaint that therespondent's high school certificates wereforged, an enquiry was initiated. At the best

3 All]. Devi Prasad Katiyar & Ors. Vs. U.P. Sahkari Gram Vikas Bank Ltd. & Anr. 1333

it could be said that it was a fact findingenquiry and on the basis of a fact findingenquiry the services of the respondent wereterminated without following the procedureas prescribed under rule 7 of the Rules. Theimpugned order of termination was passedon 14.5.2012 and he had since superannuatedon 31.7.2012.

11. The Writ Court after consideringthe following admitted facts has recordedthe findings in the impugned judgmentdated 24.7.2014 thus:-

"The facts are not in dispute betweenthe parties. It is admitted that no charge-sheet was issued to the petitioner as requiredunder rule 7 for initiating disciplinaryproceedings for imposing major penalty. Theenquiry had not commenced before thepetitioner superannuated. The learnedcounsel for the respondents failed to pointout any rule as to whether disciplinaryproceedings could be initiated against thepetitioner after retirement. Even otherwise,after retirement the petitioner cannot beimposed the penalty of termination as theemployer/employee relationship no longerexists. There is no allegation of causing lossto the corporation that is to be recovered,hence no enquiry can be initiated against thepetitioner after retirement. The impugnedorder of termination was passed on14.5.2012 merely on a show cause noticeand two months thereafter i.e. on 31.7.2012the petitioner retired on attaining the age ofsuperannuation thus on the date ofsuperannuation there was no enquirypending or contemplated, and admittedly theprocedure as contemplated under rule 7 ofthe Rules of 1999 was not followed andstraightway the petitioner's services wasterminated.

For the facts and circumstances statedherein above, the impugned order dated

14.5.2012 is quashed. The petitioner shallbe entitled to post retirement benefits. Thewrit petition is allowed with allconsequential benefits. Legal expensesassessed as Rs. 15,000/-."

12. In view of the above, learned counselfor the appellants has failed to point out anyrule as to whether disciplinary proceedingscould be initiated against the delinquentemployee after retirement. The order oftermination was passed on 14.5.2012 merelyon a show cause notice and two monthsthereafter i.e. on 31.7.2012 he retired from theservice after attaining the age ofsuperannuation. It appears that on the date ofsuperannuation there was no enquiry pendingor contemplated against the respondent. Theprocedure as provided under rule 7 of theRules, 1999 was not followed and straight waythe services of the respondent were terminated.The Writ Court has rightly quashed thetermination order dated 14.5.2012 directing theappellants to pay post retirement benefits to therespondents.

13. For the reasons stated above, thespecial appeal is dismissed. No order as tocosts.


CIVIL SIDEDATED: LUCKNOW 13.11.2014

BEFORETHE HON'BLE ADITYA NATH MITTAL, J.

AlongwithService Single No. 3140 of 2005 alongwith Service Single No. 2160 of 2005,Service Single No. 597 of 2011 and

Service Single No. 7995 of 2011

Devi Prasad Katiyar & Ors. ...PetitionersVersus

U.P. Sahkari Gram Vikas Bank Ltd. & Anr....Respondents


Counsel for the Petitioner:Sri P.K. Srivastava

Counsel for the RespondentsSri Himanshu Shekhar Awasthi, Sri BalramYadav, Sri N.N. Jaiswal

Constitution of India, Art.-226-Petitionerworking as Assistant Accountant-claimedparity of pay scale as typist-accepted byIndustrial Tribunal equated with payscale of typist-against that specialappeal as well as SLP dismissed-aftersuccessful working period of 10 yearsand 15 years-benefit of first promotionalpay given on 01.03.95 and 01.03.2000respectively-after 24 years super timescale on 15.05.2001 by subsequent order16.03.2005 all previous order quashedwithout affording any opportunity ingarb of G.O. 03.09.01-whether justified ?held-'no'-unless G.O. Providesotherwise-can not be implementedretrospectively-quashed-consequentialbenefit given.

Held: Para-21 & 2621. There is also no clause in theaforesaid Government Order dated03.09.2001 that this amendment shallapply retrospectively. If any GovernmentOrder is silent about its operation, then ithas to be treated as prospective and itcannot be applied retrospectively.Admittedly, the petitioners were grantedtime scales prior to 03.09.2001,therefore, the said Government Orderdated 30.09.2001 is not applicable to theemployees who have been grantedscales prior to it.

26. For the aforesaid reasons, I am ofthe view that the promotional pay scalegranted to the petitioners cannot betermed as promotion. The GovernmentOrder dated 03.09.2001 is theamendment and not a clarification and itis to be implemented prospectively.There has been no mistake ormisinterpretation of the GovernmentOrders while granting time scale to thepetitioners. As no opportunity was

granted to the petitioners before passingof the order dated 16.03.2005, therefore,it is liable to be set aside.

Case Law discussed:(2012) 8 Supreme Court Cases 417; 2014 (1)LBESR 561 (SC); 2007 (1) LBESR 19(SC):2006 (11) SCC 492; 2003 SCC (L& S)951; 1994 LAB I.C. 2493.

(Delivered by Hon'ble Aditya Nath Mittal, J.)

1. Heard learned counsel for thepetitioners and learned counsel appearingfor the respondents.

2. By means of theseaforementioned writ petitions, the orderdated 16.03.2005 has been challenged, bywhich the pay-scale of the petitioners hasbeen reduced and they have been put inlower scale of pay.

3. The brief facts of the case are thatpetitioners were appointed on the post ofAssistant Accountant in the then pay scaleof Rs.100-180. Along with the petitioners,certain persons were appointed on the postof Typist in the same pay-scale of Rs.100-180 and they were also equally placed withthe petitioners. The pay-scale of the Typistwas revised to the pay-scale of Rs.120-220,which was subsequently revised to Rs.150-260. The Assistant Accountants raised anindustrial dispute by means of Case Nos.37of 1997 and 01 of 1987 and by means of anaward dated 09.05.1978, the pay-scale ofthe Assistant Accountants was equatedw.e.f. 01.04.1971 and the same wasaccepted. The said award was challengedbefore Hon'ble the Apex Court, but theappeal was dismissed on 18.01.1984.Another award dated 12.12.1988 waschallenged, against which, the appeal wasalso dismissed by Hon'ble the SupremeCourt of India on 24.10.1989. Although the


petitioners were designated as Accountantsbut their pay-scales remained the same asadmissible to the Assistant Accountants andthe alleged promotions, so given, becameinfructuous. The petitioners aresubsequently placed in the higher pay-scaleon completion of 10 years and 16 of service.The petitioners were given first promotionalpay-scale of Rs.5000-8000 w.e.f.01.03.1995 and the second promotionalpay-scale of Rs.8000-13500 was sanctionedw.e.f. 01.03.2000. A person can be said tohave been promoted when there isenhancement in the pay-scale but in thepresent case, there was no enhancement inthe pay-scale. On 09.04.2001, the ManagingDirector of the Bank issued an executiveorder to the effect that the employees, whohave rendered 24 years of service, shall begiven super time scale and the authoritiesissued order on 15.05.2001, by which thepetitioners were given the time scale ofRs.8000-275-13500 w.e.f. 01.03.2000.Subsequently the Managing Director issuedorder dated 23.01.2002 and cancelled theorder dated 15.05.2001 and constituted theCommittee. The order dated 23.01.2002was passed without affording anyopportunity of hearing to the petitioners.During this period, the Typists alsocontinued on the pay-scale of Rs.8000-13500. By order dated 16.03.2005, the pay-scale of the petitioners was reduced and theorders dated 15.05.2001 to 15.01.2002 aswell as order dated 29.01.2002 werecancelled. The reduction of pay of thepetitioners has caused financial loss to them,which is arbitrary and violative of provisionsof the Constitution. Therefore the said order,by which the reduction in the pay-scale hasbeen done, is liable to be set aside.

4. In the counter affidavit, therespondents have taken plea that the orderwas passed in pursuance of the directions

contained in the Government Order dated03.09.2001, therefore, there is noillegality. It has also been mentioned inthe counter affidavit that because thepetitioners were given one promotion,therefore, they were not entitled for twotime scales. All the petitioners were givenpromotion to the post of BranchAccountant/ Senior Clerk during theperiod from 1976 to 1986. Therefore, inview of the provisions contained in sub-para-2 (Ka) of the Government Orderdated 03.09.2001, no other benefits wereadmissible to such employees.

5. Learned counsel for thepetitioners has submitted that as theGovernment Order dated 03.09.2001 isnot retrospective, therefore, it has to beinterpreted as prospective. It has also beensubmitted that petitioners were givenscale because they had completed 24years of service. It has also beensubmitted that while reducing the pay-scale, no opportunity was afforded to thepetitioners. It has also been submitted thatgrant of scale to the petitioners was not byway of mistake but it was in complianceof the Government Orders.

6. In support of his submissionlearned counsel for the petitioners hasrelied upon the case Chandi Prasad Uniyaland others vs. State of Uttarakhand andothers reported in (2012) 8 SupremeCourt Cases 417, in which the Hon'bleApex Court in paras-11, 12, 13 and 14 hasheld as under.

"11. We may in this respect refer to thejudgment of a two-Judge Bench of thisCourt in Col. B.J. Akkara case where thisCourt after referring to Shyam Babu Vermacase, Sahib Ram case (supra) and few otherdecisions held as follows:


"Such relief, restraining recoveryback of excess payment, is granted bycourts not because of any right in theemployees, but in equity, in exercise ofjudicial discretion, to relieve theemployees, from the hardship that will becaused if recovery is implemented. AGovernment servant, particularly one inthe lower rungs of service would spendwhatever emoluments he receives for theupkeep of his family. If he receives anexcess payment for a long period, hewould spend it genuinely believing that heis entitled to it. As any subsequent actionto recover the excess payment will causeundue hardship to him, relief is granted inthat behalf. But where the employee hadknowledge that the payment received wasin excess of what was due or wronglypaid, or where the error is detected orcorrected within a short time of wrongpayment, Courts will not grant reliefagainst recovery. The matter being in therealm of judicial discretion, courts mayon the facts and circumstances of anyparticular case refuse to grant such reliefagainst recovery."

12. Later, a three-Judge Bench inSyed Abdul Qadir case supra) afterreferring to Shyam Babu Verma, Col. B.J.Akkara (retd.) etc. restrained thedepartment from recovery of excessamount paid, but held as follows:

"Undoubtedly, the excess amountthat has been paid to the appellants -teachers was not because of anymisrepresentation or fraud on their partand the appellants also had no knowledgethat the amount that was being paid tothem was more than what they wereentitled to. It would not be out of place tomention here that the FinanceDepartment had, in its counter affidavit,admitted that it was a bona fide mistake

on their part. The excess payment madewas the result of wrong interpretation ofthe rule that was applicable to them, forwhich the appellants cannot be heldresponsible. Rather, the whole confusionwas because of inaction, negligence andcarelessness of the officials concerned ofthe Government of Bihar. LearnedCounsel appearing on behalf of theappellants-teachers submitted thatmajority of the beneficiaries have eitherretired or are on the verge of it. Keepingin view the peculiar facts andcircumstances of the case at hand and toavoid any hardship to the appellants-teachers, we are of the view that norecovery of the amount that has been paidin excess to the appellants-teachersshould be made.

(emphasis added)"We may point out that in Syed Abdul

Qadir case such a direction was givenkeeping in view of the peculiar facts andcircumstances of that case since thebeneficiaries had either retired or were onthe verge of retirement and so as to avoidany hardship to them.

13. We are not convinced that thisCourt in various judgments referred tohereinbefore has laid down any propositionof law that only if the State or its officialsestablish that there was misrepresentation orfraud on the part of the recipients of theexcess pay, then only the amount paid couldbe recovered. On the other hand, most of thecases referred to hereinbefore turned on thepeculiar facts and circumstances of thosecases either because the recipients had retiredor on the verge of retirement or wereoccupying lower posts in the administrativehierarchy.

14. We are concerned with theexcess payment of public money which is


often described as "tax payers money"which belongs neither to the officers whohave effected over-payment nor to therecipients. We fail to see why the conceptof fraud or misrepresentation is beingbrought in such situations. Question to beasked is whether excess money has beenpaid or not may be due to a bona fidemistake. Possibly, effecting excesspayment of public money by thegovernment officers may be due tovarious reasons like negligence,carelessness, collusion, favouritism etc.because money in such situation does notbelong to the payer or the payee.Situations may also arise where both thepayer and the payee are at fault, then themistake is mutual. Payments are beingeffected in many situations without anyauthority of law and payments have beenreceived by the recipients also withoutany authority of law. Any amountpaid/received without authority of law canalways be recovered barring fewexceptions of extreme hardships but notas a matter of right, in such situations lawimplies an obligation on the payee torepay the money, otherwise it wouldamount to unjust enrichment".

7. Learned counsel for thepetitioners has further relied upon the caseKusheswar Nath Pandey vs. State ofBihar & others reported in 2014 (1)LBESR 561 (SC), in which the Hon'bleApex Court in paras-8, 9, 10, 11 and 12has held as under:-

"8. Mr. Rai, learned Senior Counselfor the appellant points out that there wasno fraud or misrepresentation on the partof the appellant. The appellant was givena time bound promotion by the concernedDepartment. If at all the examination wasrequired to be passed, he has passed it

subsequently in 2007 much before thecancellation orders were issued in 2009.Mr. Rai relied upon two judgments of thisCourt in case of Bihar State ElectricityBoard and Anr. vs. Bijay Bhadur and Anr.reported in (2000) 10 SCC 99 andPurushottam Lal Das & Ors. vs. State ofBihar & Ors. reported in 2007 (1) LBESR19 (SC): (2006) 11 SCC 492 wherein ithas been held that recovery can bepermitted only in such cases where theemployee concerned is guilty ofproducing forged certificate for theappointment or got the benefit due tomisrepresentation.

9. The learned counsel for the Stateof Bhiar submitted that under the relevantrules passing of this examination wasnecessary. He referred us to the counteraffidavit of the respondent No. 1 whereina plea has been taken that under theparticular Government Circular dated26.12.1985 the amounts in excess arepermitted to be recovered. He relied uponClause (j) of the Government Circulardated 1st April, 1980 to the same effect.

10. Mrs. Jain, learned AdditionalSolicitor General appearing for theAccountant General drew out attention toanother judgment of this Court in ChandiPrasad Uniyal & Ors. vs. State ofUttarakhan & Ors. reported in 2012 (3)LBESR 692 (SC): JT 2012 (7) SC 460:(2012) 8 SCC 417, and particularlyparagraph 14 thereof which states thatthere could be situation where both thepayer and the payee could be at fault andwhere mistake is mutual then in that casesuch amounts could be recovered.

11. In our view, the facts of thepresent case are clearly covered under thetwo judgments referred to and relied uponby Mr. Rai. The appellant was not at all inany way at fault. It was a time boundpromotion which was given to him and


some eleven years thereafter, theAuthorities of the Bihar Governmentwoke up and according to them the timebound promotion was wrongly given andthen the relevant rules are being reliedupon and that too after appellant hadpassed the required examination.

12. In our view, this approach wastotally unjustified. The Learned SingleJude was right in the order that he haspassed. There was no reason for theDivision Bench to interfere. The appeal istherefore allowed. The judgment of theDivision Bench is set aside. The writpetition filed by the appellant will standdecreed as granted by the Learned SingleJudge. The parties will bear their owncosts".

8. Learned counsel for thepetitioners has also relied upon the caseChandra Singh vs. State of Rajasthanreported in 2003 SCC (L & S) 951, inwhich the Hon'ble Apex Court has held asunder:-

".......... It is fairly well settled thatthe legality or otherwise of an orderpassed by a statutory authority must bejudged on the face thereof as the reasonscontained therein cannot be supplementedby an affidavit (See Mohinder Singh Gillvs. Chief Election Commr.). It may be truethat mentioning of a wrong provision oromission to mention the correct provisionwould not invalidate an order so long asthe power exists under any provision oflaw, as was submitted by Mr. Rao. But thesaid principles cannot be applied in theinstant case as the said provisions operatein two different fields requiringcompliance with different prerequisite".

9. Learned counsel for therespondents has submitted that as per the

Government Order dated 02.12.2000,only two time scales were payable if therehas been no promotion. It has also beensubmitted that the previous GovernmentOrder was misinterpreted, therefore, thesubsequent Government Order is like aclarification. It has also been submittedthat because as per rules, two pay-scalescould be granted if there has been nopromotion, but in the present case, thepetitioners have been granted promotionin view of the award.

10. Learned counsel for therespondents has further submitted that asper the existing Government Orders,which have been adopted by therespondents, the petitioners were entitledeither for one promotion and one timescale or in case there has been nopromotion then two time scales. He hasfurther submitted that the time scalesgranted between 15.05.2001 to15.01.2002 and 29.01.2002 were thirdtime scale, for which, they were notentitled.

11. The whole controversy tookbirth by the Government Order dated03.09.2001, by which the previousGovernment Orders were amended. It isnot disputed that the respondents haveadopted in-toto the Government Ordersissued by Finance Department ofGovernment of U.P. Para-2 (Ka) of thesaid Government Order dated 03.09.2001has been relied upon by the respondents,which provides that if an employee hasnot got two promotions/ next pay-scale tillthe completion of 24 years of service on01.03.2000, whichever is later, the secondpromotion/ next pay-scale could begranted. The respondents, who hadadopted the Government Orders of theFinance Department, had issued the order


dated 03.10.2001 in accordance with thesaid Government Order dated 03.09.2001.Accordingly, following the GovernmentOrder as well as the order of theManaging Director, the order dated16.03.2005 was passed, by which theorders issued in between 15.05.2001 to15.01.2002 as well as order dated29.01.2002 were set aside and it was alsodirected that if the employees have drawnexcess salary then it should be adjustedfrom their dues or the future salary.

12. The main question forconsideration is whether the petitionershave been promoted as claimed by therespondents or they have been deemed tohave been promoted in compliance of theaward dated 09.05.1978.

13. For deciding this controversy,the reference to the award of Case No.37of 1977 dated 09.05.1978 is relevant. TheIndustrial Tribunal (II) U.P. has held asunder:-

"The decision becomes evenerroneous in its retrospective effect from01.04.1971, as if workmen appointed asjunior typists in the junior grade wereautomatically treated as appointed in thehigher grade of senior typists. Thedecision becomes also suspiciouslymotivated in starting the chain ofpromotion of a group with theadvancement in grade of only 13 typistswithout assigning reasons. There is noway of reversing what has been done,administratively the balance can berestored only by similar promotion 65 ofthe workmen concerned, barringSl.No.53, who were employed with theBank concerned prior to 14.07.1971which is the date of appointment of thelast promoted typists, to next higher grade

of branch accountants/ senior clerk/senior typists, and making it effectiveretrospectively from 01.04.1971, as in thecase of the promoted typists.

Accordingly, my award is asfollows:-

Workmen concerned from Sl.No.1 to52 and from Sl.No.54 to 66, who wereemployed with the bank concerned priorto 14.07.1971 shall be placed in the nexthigher grade of Branch Accountants/Senior Clerks/ Senior Typists,alternatively mentioned in Ext. E-4 asShakha Ankik/ Lekha Lipik/ PraverTankak with retrospective effect from01.04.1971. The scale applicable to theseworkmen will, of course, be Rs.280-450ex-post facto as given in column 4 againstSl.No.8 of the order of the Registrar,Cooperative Societies, U.P. Dated 25thMarch, 1974. The workmen concerned atSl. No.53, Smt. Vijya Srivastava, havingjoined the Bank on 11.12.1972 will beentitled to such promotion in her turnonly and is not covered by the above".

14. For the said award, the referencewas to the extent that whether nonrevision of pay equivalent to Typists isjustified or not. In that award, thequestion or dispute regarding promotionwas not involved but the main disputeinvolved was that the pay-scale of JuniorClerk/ Assistant Branch Accountants waslower than the pay-scale of the Typists.Learned Tribunal after considering allaspects of the matter has restored thebalance administratively and has directedthat the employees, who were employedwith the Bank prior to 14.07.1971 whichis the date of appointment of a lastpromoted Typists, the BranchAccountants/ Senior Clerks shall beplaced in the next higher grade withretrospective effect from 01.04.1971.


15. Admittedly, the said award waschallenged before Hon'ble the SupremeCourt by way of Civil Appeal No.1956 of1981, by which the appeal has beendismissed.

16. Perusal of the aforesaid order ofthe Industrial Tribunal reveals that it wasnot a promotion given to the petitionersbut their pay-scales were equated with alast promoted Typists. There is videdifference between a promotion and apromotional pay-scale. In the promotion,the scale of pay is enhanced as well as thepromotee employee is also burdened withhigher duties and responsibilities. But inthe promotional pay-scale, the scale isrevised but the duties remain the same.

17. In view of the above, I do notfind any substance in the submission oflearned counsel for the respondents thatthe petitioners shall be deemed to havebeen promoted inconsonence of the awarddated 09.05.1978. By the award dated09.05.1978, the petitioners have not beenpromoted but they have been grantedpromotional pay-scale equivalent to thelast promoted Typist as on 14.07.1971.Therefore, it cannot be said that the saidrevision of pay-scale is covered by theterm "promotion".

18. From the aforesaid discussion, Ihave come to the conclusion that the scalegranted to the petitioners in compliance ofthe award dated 09.05.1978 does notcome within the definition of promotion.Therefore, the scales granted by the orderdated 15.05.2001 to 15.01.2002 and29.01.2002 cannot be said to be the thirdtime-scale.

19. It is also not disputed that whilepassing the order dated 16.03.2005, any

opportunity of hearing was not granted tothe petitioners. In Bhagwan Shukla vs.Union of India and others reported in1994 LAB I. C. 2493 the Hon'ble ApexCourt in paras-2 and 3 has held as under:-

"2. The controversy in this appeallies in a very narrow compass. Theappellant who had joined the Railways asa Trains Clerk w.e.f. 18.12.1955 waspromoted as Guard, Grade-C w.e.f.18.12.1970 by an order dated 27.10.1970.The basic pay of the appellant was fixedat Rs.190/- p.m. w.e.f. 18.12.1970 in arunning pay-scale. By an order dated25th July, 1991, the pay-scale of theappellant, was sought to be refixed andduring the refixation his basic pay wasreduced to Rs.181/- p.m. From Rs.190/-p.m. w.e.f. 18.12.1970. The appellantquestioned the order reducing his basicpay with retrospective effect from18.12.1970 before the CentralAdministrative Tribunal, Patna Bench.The justification furnished by therespondents for reducing the basic paywas that the same had been 'wrongly'fixed initially and that the position hadcontinued due to "administrative lapses"for about twenty years, when it wasdecided to rectify the mistake. Thepetition filed by the appellant wasdismissed by the Tribunal on 17.09.1993.

3. We have heard learned counsel forthe parties. That the petitioner's basic payhad been fixed since 1970 at Rs.190/- p.m.is not disputed. There is also no disputethat the basic pay of the appellant wasreduced to Rs.181/- p.m. from Rs.190/-p.m. in 1991 retrospectively w.e.f.18.12.1970. The appellant has obviouslybeen visited with civil consequences buthe had been granted no opportunity toshow cause against the reduction of hisbasic pay. He was not even put on notice


before his pay was reduced by thedepartment and the order came to bemade behind his back without followingany procedure known to law. There, has,thus, been a flagrant violation of theprinciples of natural justice and theappellant has been made to suffer hugefinancial loss without being heard. Fairplay inaction warrants that no such orderwhich has the effect of an employeesuffering civil consequences should bepassed without putting the concernednotice and giving him a hearing in thematter. Since, that was not done, theorder (memorandum) dated 25.07.1991,which was impugned before the Tribunalcould not certainly be sustained and theCentral Administrative Tribunal fell inerror in dismissing the petition of theappellant. The order of the Tribunaldeserves to be set aside. We, accordingly,accept this, appeal and set aside the orderof the Central administrative Tribunaldated 17.09.1993 as well as the order(memorandum) impugned before theTribunal dated 25.07.1991 reducing thebasic pay of the appellant from Rs.190/-to Rs.181/- p.m. w.e.f. 18.12.1970".

20. In the aforesaid matter, theHon'ble Apex Court has set aside thereduction of pay because there wasflagrant violation of principles of naturaljustice and no opportunity of hearing wasafforded. In the present case alsoadmittedly no opportunity of hearing hasbeen given to the petitioners whilewithdrawing the previous orders.Therefore, the impugned order dated16.03.2005 suffers from illegality.

21. As pointed out earlier, the wholeof the controversy arises due to theGovernment Order dated 03.09.2001 bythe Department of Finance, Government

of U.P. The perusal of the aforesaidGovernment Order reveals that it was anamendment regarding the previousGovernment Orders. In the saidGovernment Order, it has nowhere beenmentioned that if the pay scale of any ofthe employee has been sanctioned orrevised in accordance with the previousGovernment Orders, then the same shallstand cancelled. There is also no clause inthe aforesaid Government Order dated03.09.2001 that this amendment shallapply retrospectively. If any GovernmentOrder is silent about its operation, then ithas to be treated as prospective and itcannot be applied retrospectively.Admittedly, the petitioners were grantedtime scales prior to 03.09.2001, therefore,the said Government Order dated30.09.2001 is not applicable to theemployees who have been granted scalesprior to it.

22. Learned counsel for therespondents has tried to convince thisCourt that petitioners were granted higherpay scales under mistake andmisinterpretation of the GovernmentOrder, therefore, they are not entitled forthe higher pay scales. The pay scales ofthe petitioners have been reduced by theorder dated 16.03.2005 and in the orderdated 16.03.2005, there is no mention tothe effect that petitioners have beengranted higher pay scales due to mistakeor due to misinterpretation or wronginterpretation of the previous GovernmentOrders.

23. In the present case, it has beenargued that the higher pay scales weregranted due to mistake but the same doesnot find in the order dated 16.03.2005. Inview of the law laid down by the Hon'bleApex Court in the case Chandra Singh vs.


State of Rajsthan (supra) the said mistakecannot be supplemented by an affidavit.

24. In Chandi Prasad Uniyal andothers vs. State of Uttarakhand and others(supra), the Hon'ble Apex Court consideringthe fact that as now the appellants have eitherretired or are on the verge of it, therefore, therecovery of amount what has been paid anexcess is not justified.

25. In the present case also thepetitioners have retired and even afterretirement their retiral dues with regard tothe pay scales granted from 01.03.2000,have been withheld.

26. For the aforesaid reasons, I am ofthe view that the promotional pay scalegranted to the petitioners cannot be termed aspromotion. The Government Order dated03.09.2001 is the amendment and not aclarification and it is to be implementedprospectively. There has been no mistake ormisinterpretation of the Government Orderswhile granting time scale to the petitioners.As no opportunity was granted to thepetitioners before passing of the order dated16.03.2005, therefore, it is liable to be setaside.

27. I am also of the view that theorder dated 23.01.2002 passed by theManaging Director of the respondent-bank, by which the sanction orders issuedin between 15.05.2001 to 15.01.2002have been set aside, cannot be sustained.

28. For the facts and circumstancesmentioned above, all the aforementionedwrit petitions are allowed with thefollowing directions:-

(i) The orders dated 23.01.2002 and16.03.2005, passed by the Managing

Director, U.P. Cooperative VillageDevelopment Bank Ltd., are set aside.

(ii) The respondents are directed topay the arrears of salary of the petitionersalong with annual increments and arrearsthereof treating the orders dated23.01.2002 and 16.03.2005 as nonest,within six months from today.

(iii) The respondents are alsodirected to release the amount of gratuityand other retiral dues, within six monthsfrom today, failing which, they shall beliable for interest at the rate of 6% perannum from today to the date of actualpayment, (if actual payment is madebeyond six months from today).

29. Accordingly, the orders dated30.07.2010 and 06.04.2010 and09.11.2009 regarding the petitioner RajKumar Mehrotra of Writ Petition No.597(S/S) of 2011, are also quashed.

30. It is made clear that the abovedirections shall be applicable in thosematter of the petitioners who have beengranted higher pay-scales prior to the dateof issuance of Government Order dated03.09.2001.


CRIMINAL SIDEDATED: LUCKNOW 07.11.2014

BEFORETHE HON'BLE VISHNU CHANDRA GUPTA, J.

U/S 482/378/407 No. 4153 of 2013 along with

W.P. No. 5058 of 2013

Arjun Singh @ Natthu Singh Yadav...Applicant

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

Counsel for the Applicant:Sri Jai Pal Singh

3 All]. Arjun Singh @ Natthu Singh Yadav Vs. The State of U.P. & Anr. 1343

Counsel for the RespondentsGovt. Advocate, Sri Srees KumarSrivastava

Cr.P.C. Section 482-Quashing of complaintcase-offence u/s 323, 452, 504, 506 IPC-on plea of alibi, malafidy-held-in absenceof public document-plea of alibi can not beaccepted-except on Trail-none of thecontingencies contained of guidelines ofApex Court in Rajiv Thapper case-nointerference called for-keeping in view ofArt. 20 & 21-with certain direction-application disposed of.

Held: Para-15So far as question of absence ofpetitioner Amar Singh Yadav andShailendra Yadav is concerned, thoughthey filed documents in respect of alibi.These documents are not publicdocuments and do not fall within thecategory of step one as mentioned inRajiv Thapar's case (Supra). Unless theplea of alibi is established by cogentevidence, no inference could be drawnon the basis of those documents to thiseffect that present proceedings areabuse of process of court.

Case Law discussed:(2013) 3 SCC 330; 2009 (3) 322 (SC)

(Delivered by Hon'ble Vishnu ChandraGupta, J.)

1. Both these petitions under section482 Code of Criminal Procedure (forshort ''Cr.P.C.') have been filed forquashing the proceedings of ComplaintCase No. 858 of 2013 Santosh Pandey Vs.Rajneesh Yadav and others and also theorder dated 29.6.2013 passed by A.M.M.-III, Unnao, whereby petitioners RajneeshYadav alias Bajrangi , Sonu Yadav, AmarSingh Yadav and Arjun singh alias NatthuSingh Yadav have been summoned toface trial under sections 323, 452,504,506 IPC

2. Since both these petitions arearising out of same proceedings, they arebeing disposed of by a common order.

3. Brief facts for deciding thesepetitions are that a criminal complaint hasbeen filed by opposite party no. 2, Smt.Santosh Pandey against the petitionershaving Case No. 858 of 2013 allegingtherein that petitioner Rajneesh Yadav aliasBajrangi in (Criminal Misc. Case No. 5058of 2013 (U/s 482 Cr.P.C.), the son ofpetitioner Amar Singh Yadav is Gunda. On11.4.2013 at about 5.30 p.m., somealtercation took place in between RajneeshYadav alias Bajrangi and Rishi Pandey, theson of opposite party no. 2. Rajneesh Yadavalias Bajrangi extended threats to life toRishi Pandey. A complaint of it was madeto the police. The police came, but RajneeshYadav alias Bajrnagi escaped. On 12.4.2013at about 6.45 p.m. Rishi Pandey wasstanding on his door. The petitioners camealongwith sticks on their hands, abusedRishi Pandey. Rajneesh Yadav aliasBajrangi asked what you have achieved bymaking complaint with the police. RishiPandey entered into his house. All the fourpetitioners also entered into the house andbeat Rishi Pandey with sticks. Whenopposite party no. 2 came to rescue her son,she was also beaten by kicks and fists andalso by stick. Rishi Pandey was badlyinjured and became unconscious. Theincident was witnessed by Pradeep Awasthi,Ashok Tiwari and several other persons,who came on spot after hearing cries. RishiPandey was medically examined on15.4.2013. When police did not take action,complaint was filed.

4. In Criminal Misc. Case No. 4153of 2013 (U/s 482 Cr.P.C.) relating toArjun Singh alias Natthu Singh Yadav aCo-ordinate Bench of this Court vide


order dated 19.9.2013 called for reportfrom the Circle Officer In-charge ofpolice station Gangaghat, District Unnaowith regard to presence of petitionerArjun Singh @ Natthu Singh Yadav onthe date of occurrence. The policesubmitted report that Arjun Singh @Natthu Singh Yadav was on official dutyat District Mahrajganj on 12.4.2013though he was not posted there.

5. In both these cases under section482 Cr.P.C the ground to challenge thesummoning order and continuance of theproceedings is that petitioners ArjunSingh alias Natthu Singh Yadav, AmarSingh Yadav and Shailendra Yadav aliasSonu were at their work places at the timeof alleged incident i.e. 12.4.2013.

6. The second ground of attack isthat daughter of opposite party no. 2 waskidnapped by one Deepu Yadav, who wasclosely related to the petitioners' familyand, therefore, the petitioners have beenfalsely implicated in the complaint case.The case of kidnapping the daughter ofopposite party no. 2 is still pendingagainst Deepu Yadav.

7. The petitioners have filed certaindocuments to demonstrate that they wereon their work places at the time of allegedincident. The plea which has been takenfor quashing the proceedings with regardto absence of petitioners Arjun Singh aliasNatthu Singh Yadav, Amar Singh Yadavand Sonu Yadav is based on plea of alibi,which is plea of defence and ought tohave been proved by the accused personsby adducing cogent evidence.

8. So far as second ground of attackis concerned which relates to kidnappingof daughter of opposite party no. 2 by

Deepu Yadav is concerned, it is not indispute.

9. Heard learned counsel for theparties and perused the record.

10. It has been contended by thelearned counsel for the petitioners thatpolice did not found any material againstaccused petitioner Amar Singh Yadav andhis son Sonu Yadav, who have beenfalsely implicated in this case and in thatregard extract of police report dated27.9.2005 has been brought on record asAnnexure no. 7 to this petition.

11. After considering the aforesaidfacts, it cannot be said that after lapse ofmore than 8 years, a false case can becooked up against the petitioners. Thefacts which are based on some evidence,ought to have been appreciated by thetrial court and not by this Court whileexercising jurisdiction under section 482Cr.P.C

12. The Apex Court in Rajiv ThaparVs. Madan Lal Kapoor (2013) 3 SCC 330had an occasion to rule what documentson material could be considered whileexercising jurisdiction under section 482Cr.P.C. to quash the proceedings afterrejecting and discarding the accusationslevelled by the complaint, without thenecessity of recording any evidence. TheApex Court in paras 29,30 and 31observed as follows:

29. The issue being examined in theinstant case is the jurisdiction of the HighCourt under Section 482 CrPC, if itchooses to quash the initiation of theprosecution against an accused at thestage of issuing process, or at the stage ofcommittal, or even at the stage of framing

3 All]. Arjun Singh @ Natthu Singh Yadav Vs. The State of U.P. & Anr. 1345

of charges. These are all stages before thecommencement of the actual trial. Thesame parameters would naturally beavailable for later stages as well. Thepower vested in the High Court underSection 482 CrPC, at the stages referredto hereinabove, would have far-reachingconsequences inasmuch as it wouldnegate the prosecution's/complainant'scase without allowing theprosecution/complainant to lead evidence.Such a determination must always berendered with caution, care andcircumspection. To invoke its inherentjurisdiction under Section 482 CrPC theHigh Court has to be fully satisfied thatthe material produced by the accused issuch that would lead to the conclusionthat his/their defence is based on sound,reasonable, and indubitable facts; thematerial produced is such as would ruleout and displace the assertions containedin the charges levelled against theaccused; and the material produced issuch as would clearly reject and overrulethe veracity of the allegations contained inthe accusations levelled by theprosecution/complainant. It should besufficient to rule out, reject and discardthe accusations levelled by theprosecution/complainant, without thenecessity of recording any evidence. Forthis the material relied upon by thedefence should not have been refuted, oralternatively, cannot be justifiably refuted,being material of sterling and impeccablequality. The material relied upon by theaccused should be such as would persuadea reasonable person to dismiss andcondemn the actual basis of theaccusations as false. In such a situation,the judicial conscience of the High Courtwould persuade it to exercise its powerunder Section 482 CrPC to quash suchcriminal proceedings, for that would

prevent abuse of process of the court, andsecure the ends of justice.

30. Based on the factors canvassed inthe foregoing paragraphs, we woulddelineate the following steps to determinethe veracity of a prayer for quashmentraised by an accused by invoking thepower vested in the High Court underSection 482 CrPC:

30.1. Step one: whether the materialrelied upon by the accused is sound,reasonable, and indubitable i.e. thematerial is of sterling and impeccablequality?

30.2. Step two: whether the materialrelied upon by the accused would rule outthe assertions contained in the chargeslevelled against the accused i.e. thematerial is sufficient to reject and overrulethe factual assertions contained in thecomplaint i.e. the material is such aswould persuade a reasonable person todismiss and condemn the factual basis ofthe accusations as false?

30.3. Step three: whether the materialrelied upon by the accused has not beenrefuted by the prosecution/complainant;and/or the material is such that it cannotbe justifiably refuted by theprosecution/complainant?

30.4. Step four: whether proceedingwith the trial would result in an abuse ofprocess of the court, and would not servethe ends of justice?

30.5.If the answer to all the steps isin the affirmative, the judicial conscienceof the High Court should persuade it toquash such criminal proceedings inexercise of power vested in it underSection 482 CrPC. Such exercise ofpower, besides doing justice to theaccused, would save precious court time,which would otherwise be wasted inholding such a trial (as well asproceedings arising therefrom) specially


when it is clear that the same would notconclude in the conviction of the accused.

13. In light of the aforesaid ratiopropounded and directions issued thiscase has to be judged on touch stone ofthe aforesaid guidelines issued in RajivThapar's case (Supra). So far as the reportsubmitted by the police in this court isconcerned, no doubt it mentions thatpetitioner Arjun Singh alias Natthu SinghYadav was present on 12.4.2013 atMahrajganj on his official duty.

14. As report has been submitted inpursuance of the order passed by the Co-ordinate Bench of this Court, it cannot beignored by this Court. But at the sametime, the report which was submitted bythe C.O., Unnao is based on statement andrecord which ought to have been testedwith cross examination during trial.

15. So far as question of absence ofpetitioner Amar Singh Yadav andShailendra Yadav is concerned, thoughthey filed documents in respect of alibi.These documents are not publicdocuments and do not fall within thecategory of step one as mentioned inRajiv Thapar's case (Supra). Unless theplea of alibi is established by cogentevidence, no inference could be drawn onthe basis of those documents to this effectthat present proceedings are abuse ofprocess of court.

16. So far as petitioner RajneeshYadav alias Bajrangi is concerned, he hasnot pleaded his absence. So far as theevidence of medical examination causinginjury to Rishi Pandey is concerned, it ison record coupled with evidence ofinjured. Therefore, at this stage, it cannotbe said that present proceedings are abuse

of process of court unless plea of alibitaken by the petitioners is established bycogent evidence.

17. As Co-ordinate Bench of thisCourt has asked for report in respect ofpetitioner Arjun Singh alias Natthu SinghYadav, this Court is of the view that inthese circumstances, if this petition isfinally disposed of with followingdirections, it would serve the ends ofjustice and the principle of fair trialenshrined under Articles 20 and 21 of theConstitution of India would be advised.

Directions

1.That in case the petitioners appearbefore trial court within four weeks fromtoday and move application for bail, thesame shall be considered and disposed ofexpeditiously in accordance with law andalso keeping in view the directionscontained in the judgment delivered bythe Apex court reported in 2009 (3) ADJ322 (SC) Lal Kamlendra Pratap Singh Vs.State of U.P.). If bail application of thepetitioners is not disposed of on same dayby the court concerned , the petitionersshall be released on interim bail till thefinal order passed thereon.

18. For four weeks or till the date ofsurrender, whichever is earlier, nocoercive steps shall be taken against thepetitioners.

2.That after appearing in the trialcourt, the petitioners shall moveappropriate application before trial court.The trial court shall proceed to decide theplea of defence in the form of alibi beforefurther proceeding with trial. Thepetitioners may be allowed to adduceevidence in respect of plea taken by them

3 All]. C/M Vikas Madhyamik Vidyalay Tindola Vs. State of U.P. & Anr. 1347

as plea of alibi and the trial court aftergiving opportunity to adduce evidence tothe prosecution will decide the plea ofalibi taken by the petitioners Arjun Singhalias Natthu Singh Yadav, Amar SinghYadav, Shailendra Yadav and SonuYadav. In case the plea of alibi fails thenthe trial shall proceed against them inaccordance with law.

3.That trial court will decide thedefence plea of alibi taken by theaforesaid petitioners within four monthsfrom the date of communication of thisorder.

19. Interim order granted by thiscourt in both these petitions standvacated.

20. In view of the above, these twopetition are disposed of finally.


CIVIL SIDEDATED: LUCKNOW 24.11.2014

BEFORETHE HON'BLE MANOJ KUMAR GUPTA, J.

Service Single No. 6488 of 2014

C/M Vikas Madhyamik Vidyalay Tindola...Petitioner

VersusState of U.P. & Anr. ...Respondents

Counsel for the Petitioner:Sri G.C. Verma, Sri Arvind Kumar Mishra

Counsel for the RespondentsC.S.C., Sri Rahul Shukla

U.P. Basic Education Act 1972-Section3(2), 14, 15(5)-Ban imposed onappointment of class IV employee by G.O.06.01.2011-in recognized institutions-held-arbitrary,discriminatory exploitativein nature-taking away provision of

appointment contrary to statutoryprovisions-and engagement outsourcingnothing but a system of supply of workforce through contractor-already quashedbeing violative of Art. 14 and 16 ofConstitution-same being adopted in BasicEducation also-order impugned quashed-with follow up direction.

Held: Para-8 & 138. Thus, considering the scheme relatingto appointment on Class IV posts in aJunior High School, I am of the opinionthat the reasoning given in the judgmentrendered in the case of C/M Lal BabuBaijal Memorial Inter college (supra),would also apply to the institutionsgoverned by the Uttar Pradesh BasicEducation Act, 1972. The Management isunder mandate of law to fill vacancieswithin two months of its occurrence andin accordance with the procedureprescribed under the Rules, which doesnot permit employing services of ClassIV employees by 'outsourcing'.

13. In view of above discussion, this writpetition is allowed. The order dated27.9.2014 passed by the District BasicEducation Officer, Barabanki is quashed.The Management shall be free toadvertise the vacancies. However, it isprovided that the Management shallspecifically mention in the advertisementthat the selection would be held subjectto decision of this Court in special appealNo.1023 of 2012 pending against thejudgment of this Court dated 21.3.2012.The District Basic Education Officer,Barabanki is further directed to act inaccordance with law and nominate aspecialist in case any such request ismade by the Management, afterfollowing the procedure prescribed foradvertising the vacancies. These,directions are without prejudice to thepower of the District Basic EducationOfficer to examine the validity of theselection at the stage of grant ofapproval under Rule 15 (5).

Case Law discussed:W.P. No. 11760 of 2011


(Delivered by Hon'ble Manoj KumarGupta, J.)

1. Heard counsel for the petitioner,learned Additional Chief StandingCounsel Sri Devendra Upadhyay onbehalf of respondent no.1 and Sri RahulShukla on behalf of respondent no.2. Withtheir consent, this writ petition is beingdisposed of finally, as the respondentsstate that they have already obtainedinstructions in the matter and do not wishto file formal counter affidavit.

2. The petitioner is the Committee ofManagement of a recognised Junior HighSchool receiving grant-in-aid from theState Government. The provisions of theUttar Pradesh Junior High Schools(Payment of Salaries of Teachers andother Employees) Act, 1978 and the UttarPradesh Recognised Basic Schools(Junior High Schools) (Recruitment andConditions of Service of Ministerial Staffand Group 'D' Employees) Rules, 1984(hereinafter referred to as '1984 Rules')are applicable to it. The petitioner isaggrieved by order dated 27.9.2014passed by District Basic EducationOfficer, Barabanki-respondent no.2,whereby, he had refused to accordpermission to the Management toadvertise two vacant Class IV posts. Thereasoning given in the order is that underGovernment Order dated 6.1.2011 there isa ban on appointment against Class IVposts. These posts, according torespondent no.2, would automaticallycome to an end after the retirement ofincumbents working against these posts.

3. Learned counsel for the petitionercontended that the Government Orderdated 6.1.2011 has been struck down asillegal, arbitrary and violative of Articles

14 and 16 of the Constitution videjudgment dated 21.3.2012 rendered in abunch of writ petitions, leading case beingWrit Petition No.11760 of 2011 C/M LalBabu Baijal Memorial Inter college andanother Vs. State of U.P. and others. It issubmitted that against the said judgment,the State preferred Special Appeal(Defective) No.1023 of 2012, which isstill pending and no interim order hasbeen passed therein. Thus, according tohim, the judgment dated 21.3.2012 in thecase of C/M Lal Babu Baijal MemorialInter college (supra) is binding onrespondent no.2. It is further contendedthat in fact District Basic EducationOfficer was not authorised to withholdapproval for advertising the posts, as nosuch power is conferred in his favourunder Rules 1984, which governs theappointment on Class IV posts.

4. On the other hand, learnedAdditional Chief Standing Counsel andSri Rahul Shukla appearing on behalf ofthe respondents contended that judgmentin the case of C/M Lal Babu BaijalMemorial Inter college (supra) isapplicable only in relation to theIntermediate Colleges and would notapply to the colleges governed by theUttar Pradesh Basic Education Act, 1972.However, it is not disputed by them thatthe judgment rendered therein dated21.3.2012 has not been stayed/set aside byany court. Sri Rahul Shukla further statesthat, infact, no permission was requiredby the Management from District BasicEducation Officer, Barabanki for issuingthe advertisement and they were onlyrequired to intimate the vacancies.

5. I have considered the submissionsmade by learned counsel for the partiesand perused the record.

3 All]. C/M Vikas Madhyamik Vidyalay Tindola Vs. State of U.P. & Anr. 1349

6. The Government Order dated6.1.2011 places prohibition onappointment against Class IV posts invarious educational institutions, receivinggrant-in-aid.. It is provided that such postsin future shall be filled by 'outsourcing'.The Court, in the case of C/M Lal BabuBaijal Memorial Inter college (supra),examined the provisions of theIntermediate Education Act, 1921, theRegulations framed thereunder, andthereafter, came to the conclusion thatClass IV posts are integral part of anyeducational institution and introduction ofthe scheme of appointment byoutsourcing, is violative of Articles 14and 16 of the Constitution of India.Relevant findings, in this regard, in thesaid judgment are as under:-

"61. Moreover, in the context ofwhat it has permitted to be done byeducational institutions, there also I am ofthe view that this order is palpablyarbitrary, discriminatory, exploitative innature and, therefore, suffers the voice ofcontravening constitution provision underArticle 14 and 16. It is not a case whererequirement of Class-IV staffs ineducational institutions has been doneaway. The existing sanctioned posts ofClass-IV have not been abolished. It isnobody's case that henceforth educationalinstitutions shall not require any Class-IVstaffs in its functioning. What it suggestsand try to endeavour is that theeducational institutions shall not employClass-IV staff directly on their own so asto function and discharge the duties ofClass-IV staff under the administrativeand otherwise control of institution, but,the work supposed to be performed byClass-IV staff would be required to bedone through the staff made available byan outside agency and by that agency's

staffs. In true sense though it is termed"outsourcing", but it does not satisfy therequirement of term "outsourcing", asdiscussed above.

62. The normal functions of Class-IVstaff in a secondary educational institutionis ringing of bell, opening of class rooms,cleaning, providing stationary etc. fromoffice to class teachers, taking files andother documents like examination copiesetc. from one place to other and similarother menial job. All this work of Class-IV has to be performed by a personpresent in educational institution itself. Itcannot be performed sitting outside theeducational institution. Therefore, whatthe G.O. suggests is that for performingmenial job of Class-IV, the workers shallbe made available by a third party, bywhatever name it may be called, may be alabour supplier, may be a ServiceProvider or else but in effect it amounts tointroduction of a "middleman" forarranging Class-IV employees to performthe job of Class-IV in educationalinstitutions for which the institutions shallpay the service charges which wouldinclude wages/salary of such person(Class-IV) and also the service charges ofthird party. This is nothing but a kind ofcontract labour arrangement.

63. Introduction of a middlemenwhere the requirement is perennial,continuous and permanent has beendeprecated time and again and manystatutes enacted with an objective toexclude middleman have been held to bein public interest. This is really strangethat herein the State Government intend tointroduce a system of middleman when itis not already there. Learned AdditionalAdvocate General also could not explainthat besides wages/salary of the personwho would be available to educationalinstitution for performing the job of


Class-IV employee, the service charges tothird party would also be paid and in thesecircumstances how it can be anarrangement for saving the cost. To thisquery he could not reply at all.

64. In my view, therefore, though theconcept of making available the staff toperform Class-IV job by outside agencythough termed "Outsourcing" but it isnothing but a system of supply of workforce through a contractor or a personwho satisfy the term "contractor" for allpurposes though termed as "outsourcing".Hence the system as contemplated in Para2 of impugned G.O. is evidentlyexploitative, arbitrary, unreasonable,irrational, illogical, hence violative ofArticle 14 and 16 of the Constitution.

7. Under the Rules 1984 framedunder sub-section (1) of Section 19 of theUttar Pradesh Basic Education Act, 1972,a wholesome procedure is prescribed forfilling up Class IV posts. Rule 3(2)prescribes that if any vacancy occursduring an academic session, it shall befilled within two months from the date ofoccurrence of vacancy. Rule 13 providesthat no vacancy shall be filled, exceptafter its advertisement in at least onenewspaper having adequate circulation inthe locality and after intimation of suchvacancy to the District Basic EducationOfficer. Under Rule 14, SelectionCommittee comprises of Manager,Headmaster of the recognised school inwhich the appointment is to be made anda specialist nominated by the DistrictBasic Education Officer. The SelectionCommittee, after interviewing thecandidates, forwards the list to theManagement, who is enjoined with theduty to place the same before the DistrictBasic Education Officer within one week.Thereafter, the District Basic Education

Officer is conferred with power to accordapproval to the recommendation made bythe Selection Committee. Rule 15 (5) (iii)further states that in case the District BasicEducation Officer does not communicatehis decision within one month from the dateof receipt of the papers under clause (4), heshall be deemed to have accorded approvalto the recommendations made by theSelection Committee. Under Rule 16, theManagement is authorised to issueappointment letter on receipt of approval oron expiry of period of one month providedunder Clause (iii) of the Sub-Rule 5 of Rule15.

8. Thus, considering the schemerelating to appointment on Class IV postsin a Junior High School, I am of theopinion that the reasoning given in thejudgment rendered in the case of C/M LalBabu Baijal Memorial Inter college(supra), would also apply to theinstitutions governed by the Uttar PradeshBasic Education Act, 1972. TheManagement is under mandate of law tofill vacancies within two months of itsoccurrence and in accordance with theprocedure prescribed under the Rules,which does not permit employing servicesof Class IV employees by 'outsourcing'.

9. As regards the contention of therespondents that special appeal is pendingagainst the aforesaid judgment, it isadmitted to both the parties that there isno stay in the special appeal and thus, thesaid judgment still holds the field andwould be binding on the authorities. Thisis, however, subject to any contrarydecision in special appeal, which is statedto be pending.

10. In view of the above, I am of theopinion that District Basic Education

3 All]. Phool Singh Vs. State of U.P. & Ors. 1351

Officer, Barabanki was not justified inrestraining the Management fromadvertising the posts.

11. There is another aspect of thematter. Under Rule 13, the Managementis only required to intimate the vacancy toDistrict Basic Education Officer and itsapproval for advertising the same in thenewspaper was not required. The grant ofapproval to the selection made on ClassIV post by the Management comes at alater stage under sub rule (5) of Rule 15.In view of this, there was no justificationon part of District Basic EducationOfficer to pass the impugned order,refusing to accord approval foradvertising the post. Sri Rahul Shuklaappearing on behalf of Basic EducationOfficer also supported the submissionmade by the petitioner, in this regard.

12. Learned counsel for thepetitioner submitted that there isapprehension that District BasicEducation Officer, who has passed theimpugned order, would not nominate thespecialist in the Selection Committee andwould thereby, scuttle the selectionprocess. The aforesaid apprehension ofthe petitioner can be taken care of byproviding that District Basic EducationOfficer shall nominate the specialist incase request is made to him by thepetitioner, after due advertisement of thevacancies. However, after the SelectionCommittee makes recommendation, theDistrict Basic Education Officer shall beempowered to take decision on its ownmerits, regarding grant of approval tosuch appointment.

13. In view of above discussion, thiswrit petition is allowed. The order dated27.9.2014 passed by the District Basic

Education Officer, Barabanki is quashed.The Management shall be free toadvertise the vacancies. However, it isprovided that the Management shallspecifically mention in the advertisementthat the selection would be held subject todecision of this Court in special appealNo.1023 of 2012 pending against thejudgment of this Court dated 21.3.2012.The District Basic Education Officer,Barabanki is further directed to act inaccordance with law and nominate aspecialist in case any such request is madeby the Management, after following theprocedure prescribed for advertising thevacancies. These, directions are withoutprejudice to the power of the DistrictBasic Education Officer to examine thevalidity of the selection at the stage ofgrant of approval under Rule 15 (5).

14. Subject to aforesaidobservations/directions, writ petitionstands allowed.




Civil Misc. Writ Petition No. 36130 of 2014

Phool Singh ...PetitionerVersus

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

Counsel for the Petitioner:Sri A.C. Tiwari

Counsel for the RespondentsC.S.C., Sri Jagdish Pathak, Sri Anil Tiwari

(A) U.P. Municipalities Act 1916, readwith U.P. Municipal Board Servants(Inquiry Punishment and Termination of


Services) Rules 1960-Rule 74-Suspensionof permanent servant of non centralizedservices-challenged being withoutjurisdiction-as appointing authority ismunicipality and not the President-held-municipality means an institution of Selfgovernment as per provisions of Section77-competent authority is the presidentand not the Board-can not be saidwithout jurisdiction.

Held: Para-16 & 1716. A bare perusal of the provisions of theAct and 1960 Rules, the petitioner a clerk,is permanent superior staff within themeaning of Section 74 belonging to thenon-centralized service, can be appointedand dismissed by the President, Section 77read with 1960 Rules the authoritycompetent to pass an order of suspensionis the President not the Board, Section 77-B read with rule 8(i) refers to 'competentauthority' and not the Board, thus, thecompetent authority for punishment ofsuperior staff is the President.

17. Thus, it is evident from theprovisions of the Act and the rules,stated herein above, the competentauthority to place the petitioner undersuspension is the President and not theBoard.

(B) U.P. Municipal Board Servants (InquiryPunishment & Termination of Service)Rules 1960-Rule-4 (iv) and Rule 8 (1)-Suspension-whether punishment or not?-explained-when during contemplatedenquiry suspension order passed is nopunishment-under Rule 4(iv) suspension-held-punishment.

Held: Para-26 & 2726. In the 1960 Rules, suspension isprovided both as a punishment, as well as,pending enquiry or contemplation ofenquiry (rule 4(4)(iv) and rule 8(1) of1960 Rules). Suspension pending enquiryor contemplation of enquiry providedunder rule 8(1), is not a punishment. It isnot the case of the respondents thatsuspension by way of punishment wasimposed upon the petitioner.

27. The petitioner was placed undersuspension on 29.05.2014, the momentthe President accepted the proposal ofExecutive Officer to place the petitionerunder suspension pending enquiry. Theorder dated 02.06.2014 is merelycommunication of the suspension orderpending euquiry, it is not an order ofpunishment.

Case Law discussed:2001 (3) UPLBEC 2057; 1995 AIR 600; 1998(1) AWC 282; [1999 (2) E.S.C. 1009 (S.C.)];AIR (SC) 1959-0-1342; (1968) 2 SCR 577; AIR1952 SC 362; AIR 1961 SC 276; AIR 1964 SC787; (2006) 2 SCC 269; (1970) 1 SCC 362;AIR 1996 SC 1313; (1969) 3 SCC 28; (2006) 2SCC 269; (1960) 1 SCR 476; AIR 1961 SC 276;AIR 1964 SC 787; (1970) 1 SCC 362; AIR 1968SC 800.


1. The petitioner is class IIIemployee working as a clerk with theNagar Palika Parishad, Bijnor, serviceconditions are governed under the UttarPradesh Municipalities Act 1916 readwith U.P. Municipal Board Servants(Inquiry, Punishment and Termination ofServices) Rules, 1960 (hereinafterreferred to as '1960 Rules')

2. By means of this writ petition, thepetitioner has challenged the complaintdated 27.05.2014 made by the respondentno. 3/4, Executive Officer, Nagar PalikaParishad, Bijnor, approval dated29.05.2014 granted by the President,Nagar Palika Parishad and theconsequential order of suspension dated02.06.2014 passed by respondent no. 3.

3. Submission of learned counsel forthe petitioner is that the suspension orderis a malafide exercise of power in order topunish the petitioner, is wholly withoutjurisdiction as the appointing authority of


the petitioner is the Municipality and notthe President, the order is withoutapplication of mind as the President hasmerely countersigned the complaintlodged by the Executive Officer againstthe petitioner. The order nowhere statesthat enquiry is either pending orcontemplated, and finally the allegations,if accepted as correct, are not serious towarrant the imposition of major penalty.

4. Learned counsel for the petitionerin support of his submission has reliedupon the following judgments:

Smt. Meera Tiwari Versus TheChief Medical Officer and others1, OmPrakash Gupta Versus The State ofU.P.2, Ram Dular Tripathi VersusState of U.P. and other3 and Capt. M.Paul Anthony Versus Bharat GoldMines Ltd. and another4.

5. Per contra, Sri Anil Tiwari,learned counsel for the Parishad wouldsubmit that the order dated 02.06.2014 isnot the order of suspension, but merelycommunication of the order, suspensionwas passed vide order dated 29.05.2014by the President. The allegations againstthe petitioner, are very serious, as isreflected in the complaint made by theExecutive Officer recommending thesuspension and initiation of disciplinaryproceedings which was duly approvedand endorsed by the President on29.05.2014.

6. It is alleged that the petitioner,being a clerk, had disobeyed the order ofthe Commissioner and has been indulgingin illegal activities which was not in theinterest of the Nagar Palika Parishad.Petitioner has removed important recordsfrom the Nagar Palika, as well as, the

service book is in the custody of thepetitioner, questions was raised in theAssembly regarding Nagar Palika, Bijnor,but proper reply could not be sent to theAssembly as the files and records were inthe custody of the petitioner which wasnot handed over to the Nagar Palika, on20.06.2014 the Executive Officer wasthreatened, by some persons, at the behestof the petitioner to withdraw thesuspension order, respondent no. 3 lodgedFirst Information Report on 20.06.2014,thus, the order of suspension pendingenquiry is legal and lawful order.

7. Learned counsel for therespondents in support of his submissionhas relied upon the following judgments:

Management Hotel Imperial, NewDelhi Vs Hotel Workers Union5,Balvantray Ratilal Patel Versus Stateof Maharash6, Shrimati Hira Devi andothers Versus District Board,Shahjahanpur through the Collector7,T. Cajee Versus U. Jormanik Siem andanother8, R.P. Kapur Versus Union ofIndia and another9, L.K. Verma Vs.HMT Ltd. and another10 and V.P.Gidroniya Vs. State of MadhyaPradesh and another11.

Rival submissions fall forconsideration.

8. The submission of learnedcounsel for the petitioner is two fold,firstly that the order of suspension iswithout jurisdiction as the competentauthority mentioned under the 1960 Rulesis the Municipality and not the President.Secondly, it is argued that the suspensionorder dated 02.06.2014 does not refer toany allegation nor does it state thatenquiry is either contemplated or pending,by merely endorsing the complaint of the


executive officer would not mean that theorder of suspension was passed by thePresident, finally there is allegation ofmalafides against the respondent no. 4,the Executive Officer.

9. It is further contended that thepetitioner is a clerk, a class III employeebelonging to the non centralized serviceof the Nagar Palika Parishad. Section 74of the U.P. Municipalities Act 1916(hereinafter referred to as 'Act') provides,servants on posts in non-centralisedservice, carrying scale of pay equal to orhigher than the lowest scale of payadmissible to the clerical staff, shall beappointed and may be dismissed, removedor otherwise punished, or the services of aprobationer may be terminated, by thePresident, subject to the right of appeal.Proviso to section 74 refers the certainposts including Tax and Sectional HeadClerks whose appointments on such postsshall be subject to the approval of theMunicipality. Section 74 is as follows:-

"74. Appointment and dismissal ofpermanent superior staff.-Subject to theprovision of Sections 57 to 73, servants onposts in the non-centralised services,carrying scale of pay equal to or higher thanthe lowest scale of pay admissible to theclerical staff, shall be appointed and may bedismissed, removed or otherwise punished,or the services of a probationer may be,terminated, by the President subject to theright of appeal, except in the case of thetermination of the service of a probationer,to such authority within such time and insuch manner as may be prescribed.

Provided that appointment on theposts of Tax Superintendent, AssistantTax Superintendent, Inspectors, HeadClerks, Sectional Head Clerks, SectionalAccountants, Doctors, Vaids, Hakim and

Municipal Fire Station Officers, shall besubject to the approval of the[Municipality].

10. Section 75 provides forappointment of permanent inferior staffand the power is vested with theExecutive Officer. The servants referredto as the inferior staff would meanservants carrying scales of pay lower thanthe lowest scale of pay referred to insection 74, and section 76 confers powerof punishment and dismissal of permanentinferior staff upon the Executive Officerand when there is no Executive Officer onthe President. Section 76 and 77 are asfollows:-

76. Punishment and dismissal ofpermanent inferior staff.- Except asotherwise provided, the ExecutiveOfficer, and where that is no ExecutiveOfficer, the President may dismiss,remove or otherwise punish servants ofthe [Municipality], or terminate theservices of probationers, [referred to inSection 75], subject to their right ofappeal, except in the case of terminationof the service of a probationer, to suchauthority within such time and in suchmanner as may be prescribed.]

77. Limitation of powers conferredby Sections 71 to 76.-(1) the provisions ofSections 71, 73, 74, 75 and 76, shall besubject to the provisions of,-

(a)..........(b).........(2) The provisions of Sections 74, 75

and 76 shall also be subject to theprovisions of any regulation raising anymaximum or minimum monthly salaryprescribed in those sections withreference to the respect powers of the[Municipality], the [President] and theExecutive Officer over the staff."


11. The powers conferred underSection 74, 75 and 76 is subject to theprovisions of section 78 and any rulepertaining to suspension or dismissal[removal or other punishment or discharge ortermination of service] of such persons soappointed. The power of suspension iscovered under Section 77-B. Section 77-B,sub-clause 1 and sub-clause 5, is as follows:-

77-B. Power of suspension.-(1) Theauthority competent to punish an officeror servant of the [Municipality] may placehim under suspension,-

(a) where a disciplinary proceedingsagainst him is contemplated or pending;or

(b) where a criminal case against himin respect of an offence involving moralturpitude is under investigation, enquiryor trial.

(2)................(3)................(4)................(5) [Municipality] shall act under this

section by a special resolution supportedby not less than two-thirds of themembers constituting the Board.

12. Sub-clause 9 of section 2 defines"Municipality" means an institution ofself-Government [referred to in clause (e)of Article 243-P] and sub-section (22) ofsection 2 defines "servant of the[Municipality]" means any person in thepay and service of the [Municipality].

13. Section 9 provides for theComposition of Municipality which shallconsist by a President who shall be itsChairman, elected members, Ex officiomembers and nominated member.

14. The Service conditions of theservants belonging to the non-centralized

servants is governed under 1960 Rules."Servants" in the Rules has been defined,meaning servant of the Municipality andcompetent authority means the authorityor Board (Municipality) competent underthe law to take such action. Rule 4provides for the penalties which can beimposed by the Board for sufficientreasons. Sub-clause of rule 4 is asfollows:-

"4. Subject to the provisions of theserules and any law governing a MunicipalBoard, the following penalties may, forgood and sufficient reasons, be imposedupon a servant by the competentauthority, namely

(i) Censure,(ii) With holding of increments,

including stoppage at an efficiency bar.(iii) Reduction to a lower post or a

time-scale, or to a lower stage in a time-scale.

(iv) Suspension"

15. Rule 8(i) provides forsuspension of servant of Municipalityduring enquiry or contemplation ofenquiry. Rule 8(i) is as follows:-

"8(1) Subject the provisions of anylaw governing the municipal board, aservant against whose conduct an inquiryis contemplated or is proceeding, may inthe discretion of the competent authoritybe placed under suspension pending theconclusion of the enquiry."

16. A bare perusal of the provisionsof the Act and 1960 Rules, the petitioner aclerk, is permanent superior staff withinthe meaning of Section 74 belonging tothe non-centralized service, can beappointed and dismissed by the President,Section 77 read with 1960 Rules the


authority competent to pass an order ofsuspension is the President not the Board,Section 77-B read with rule 8(i) refers to'competent authority' and not the Board,thus, the competent authority forpunishment of superior staff is thePresident.

17. Thus, it is evident from theprovisions of the Act and the rules, statedherein above, the competent authority toplace the petitioner under suspension isthe President and not the Board.

18. As regards, the secondsubmission, as to whether the order of theChairman dated 29.05.2014 endorsing thecomplaint of the Executive Officerrecommending suspension pendingenquiry or contemplation of enquiry is anorder of suspension or not, requires closereading of the complaint. The executiveofficer complained on 27.05.2014alleging that the petitioner had scannedhis signature and issued contract, thepetitioner did not attend the Tehsil Diwasin spite of the directions of theCommissioner, Moradabad Division,Moradabad, as such, the petitioner wasremoved as Lekha Lipik and was madethe pairokar to pursue the cases of theNagar Palika Parishad. The petitioner didnot inform the Executive Officer of theimportant cases, as a result, the NagarPalika Parishad lost certain importantcases thus resulting in loss to the NagarPalika; in spite of the directions beingissued to the petitioner, appeal was notfiled before the High Court, as such, thePalika lost several crores, there areallegations of the petitioner connivingwith the opposite party against the interestof the Palika; keeping in custody of theservice book; filing of proxy complaints,thus the Executive Officer recommended

that the petitioner be placed undersuspension pending enquiry, which wasduly approved and endorsed by thePresident on 29.05.2014, the petitionerwas thereafter communicated the order ofsuspension on 02.06.2014 by theExecutive Officer.

19. The contention of learned counselfor the petitioner that endorsement of thePresident dated 29.05.2014 is not thesuspension order, the order dated02.06.2014 communicating that thepetitioner has been placed under suspensionis the order of suspension, cannot beaccepted for the simple reason that thepetitioner was placed under suspension on29.05.2014 i.e. the moment Presidentapproved the proposal. It would be wrong tosay that the President did not apply hismind. The complaint made by the executiveofficer alleges serious allegation against thepetitioner, which if true, would followimposition of major penalty, the Presidentby merely endorsing the complaint anddirecting to proceed, as proposed wouldmean that the petitioner was placed undersuspension with immediate effect pendingenquiry. Merely because thecommunication order dated 02.06.2014,passed pursuant to the endorsement dated29.05.2014, does not refer or mention thatthe petitioner was placed under suspensionpending enquiry, is not correct, as thesuspension and enquiry was alreadyproposed which was approved and acceptedby the President. It is settled principle oflaw that the suspension order comes intoeffect the date it is passed and not from thedate of communication, unlike terminationor dismissal order.

20. An order passed by a competentauthority dismissing a government servantfrom services requires communication


thereof vide State of Punjab Versus AmarSingh Harika12, but an order placing agovernment servant on suspension does notrequire communication of that order videState of Punjab Versus Khemi Ram13.What is, therefore, necessary to be borne inmind is the knowledge leading to themaking of the order. An order of suspensionordinarily would be presumed to have beenmade when it is signed.

21. The contention on behalf of thepetitioner is that the order is not onlymalafide exercise of power but the orderof suspension is a punishment order underrule 4(4)(iv), hence opportunity shouldhave been given to the petitioner beforepassing the order.

22. Suspension in servicejurisprudence is of different kinds, viz aspunishment if provided under the servicerules, inherent power of the employer tosuspend and thirdly, rules providing forsuspension during pending enquiry orcontemplation of enquiry.

23. In L.K. Verma Versus HMT Ltd.and another14, the Supreme court held asfollows:-

"17. Suspension is of three kinds. Anorder of suspension may be passed byway of punishment in terms of theconduct rules. An order of suspension canalso be passed by the employer inexercise of its inherent power in the sensethat it may not take any work from thedelinquent officer but in that event, theentire salary is required to be paid. Onorder of suspension can also be passed, ifsuch a provision exists in the rule layingdown that in place of the full salary, thedelinquent officer shall be paid only thesubsistence allowance specified therein."

[Refer: Management of HotelImperial V. Hotel Workers' Union15, T.Cajee Versus U. Jormanik Siem andanother16 and R.P. Kapoor Versus Unionof India and another17,]

24. In V.P. Gidroniya Versus Stateof Madhya Pradesh and another18, theConstitution Bench of the Supreme Courtheld as under:-

"8..............The general principle isthat an employer can suspend anemployee of his pending an enquiry intohis misconduct and the only question thatcan arise in such a suspension will relateto the payment of his wages during theperiod of such suspension. It is now wellsettled that the power to suspend, in thesense of a right to forbid an employee towork, is not an implied terms in anordinary contract. Between master andservant, and that such a power can only bethe creature either of a statute governingthe contract or of an express term in thecontract itself. Ordinarily, therefore, theabsence of such a power either as anexpress term in the contract or in the rulesframed under some statute would meanthat an employer would have no power tosuspend an employee of his and even if hedoes so in the sense that he forbids theemployee to work, he will have to pay theemployee's wages during the period ofsuspension. Where, however, there ispower to suspend either in the contract ofemployment or in the statute or the rulesframed thereunder, the order of suspensionhas the effect of temporarily suspending therelationship of master and servant with theconsequence that the servant is not bound torender service and the master is not boundto pay. It is equally well-settled that anorder of interim suspension can be passedagainst the employee while an enquiry is


pending into his conduct even thoughthere is no such term in the contract ofemployment or in the rules, but in such acase the employee would be entitled to hisremuneration for the period of suspensionif there is no statute or rule under which,it could be withheld. The distinctionbetween suspending the contract of aservice of a servant and suspending himfrom performing the duties of his officeon the basis that the contract is subsistingis important. The suspension in the lattercase is always an implied term in everycontract of service. When an employee issuspended in this sense, it means that theemployer merely issues a direction to himthat he should not to the service requiredof him during a particular period. In otherwords the employer is regarded as issuingan order to the employee which becausethe contract is subsisting, the employeemust today."

25. Suspension as punishment canbe imposed after holding departmentalenquiry. The Supreme Court inBalvantray Ratilal Patel Versus State ofMaharashtra19, observed as follows:-

"...........On general principlestherefore the government like any otheremployer, would have a right to suspend apublic servant in one of two ways. It maysuspend any public servant pendingdepartmental enquiry or pending criminalproceedings; this may be called interimsuspension. The Government may alsoproceed to hold a departmental enquiryand after his being found guilty ordersuspension as a punishment if the rules sopermit. This will be suspension as apenalty."

26. In the 1960 Rules, suspension isprovided both as a punishment, as well as,

pending enquiry or contemplation ofenquiry (rule 4(4)(iv) and rule 8(1) of1960 Rules). Suspension pending enquiryor contemplation of enquiry providedunder rule 8(1), is not a punishment. It isnot the case of the respondents thatsuspension by way of punishment wasimposed upon the petitioner.

27. The petitioner was placed undersuspension on 29.05.2014, the momentthe President accepted the proposal ofExecutive Officer to place the petitionerunder suspension pending enquiry. Theorder dated 02.06.2014 is merelycommunication of the suspension orderpending euquiry, it is not an order ofpunishment.

28. In my opinion, there is noillegality or infirmity in the impugnedorders.

29. For the reasons and law statedherein above, the writ petition fails and isaccordingly dismissed.

30. No order as to costs.--------



BEFORETHE HON'BLE ASHWANI KUMAR MISHRA, J.


Ankit Tiwari & Ors. PetitionersVersus


Counsel for the Petitioners:Sri Ashok Khare, Sri V.D. Shukla

Counsel for the RespondentsC.S.C., Sri Neeraj Tiwari, Sri R.K. Ojha

3 All]. Ankit Tiwari & Ors. Vs. State of U.P. & Ors. 1359

Constitution of India, Art.-226-cancellationof entire entrance examination for jointpara-medical and nursing entranceexamination 2014-on certain objection atresidence of Hon'ble Chief Minister-beinginfluenced previous examination canceled-but no specific date of subsequentexamination disclosed-held onceexamination held properly-cancellation offirst examination without any valid reason-subsequent examination-immaterial-quashed-direction to hold counseling asper merit of OMR sheet of firstexamination.

Held: Para-37-In view of the discussions andconsideration made above, this Courtfinds the impugned action of therespondent institute, in cancelling theexamination dated 13.7.2014 to bewithout any basis, lacking bona fide, andbased upon non existed material, and assuch, it cannot be sustained. Theimpugned order dated 17.7.2014,cancelling the examination held on13.7.2014 is, therefore, quashed. Adirection is further issued to therespondents to forthwith process theOMR sheets of the examination held on13.7.2014, which are lying in the safecustody of the institute itself, and basedupon the results thereof, the counsellingand admission to Para Medical andNursing course be offered, in accordancewith law.

Case Law discussed:1986(1) SCC 133; 2004 (4) SCC 666; 1991 (3)SCC 47; 1993 (1) SCC 154; 2002 (5) SCC 533;2012 (2) ADJ 561; 2009 (9) ADJ 316.

(Deliverd by Hon'ble Ashwani KumarMishra, J.)

1. U.P. Rural Institute of MedicalSciences and Research, Saifai, District-Etawah, is an institute of ParamedicalScience established by the StateGovernment, which is affiliated toChhatrapati Shahu Ji Maharaj University,

Kanpur. The institute was assigned theresponsibility of conducting entranceexamination for Joint Paramedical andNursing Entrance Examination, 2014, andthereafter to conduct counselling. Theinstitute published notice on 2nd May,2014, whereunder registration forappearing in the entrance test was tocommence from 5th May, 2014 with thelast date for submission of onlineregistration being 6.6.2014 and the date ofexamination was notified as 13th July,2014. The petitioners, who are three innumber, were desirous of appearing in theentrance examination, duly applied forappearing in the entrance test, and wereissued admission ticket and they actuallyappeared in the entrance test held on 13thJuly, 2014. However, the petitioners learntthrough a press release that the examinationconducted on 13th July, 2014, had beencancelled allegedly for unavoidable reasons,vide order dated 17th July, 2014 and thedate of next examination was to be notifiedthrough newspapers. It is this press releasedated 17th July, 2014, which has beenchallenged by filing the present writpetition. A further prayer has been made tocommand the respondents to publish theresult of the entrance examinationconducted on 13th July, 2014 and grantadmission, on the basis thereof, to thepetitioners.

2. The writ petition was entertainedand following orders were passed on6.8.2014:-

"Learned Standing Counsel prays forand is allowed one week time to seekinstruction as to what was the reason forcancelling the examination, which tookplace on 13th July, 2014.

Put up/list on 18th August, 2014."


3. Again on 19.8.2014, further timewas granted to learned Standing Counselto seek instructions and bring on recordreasons for cancellation of theexamination already conducted on 13thJuly, 2014. The order dated 19.8.2014 isreproduced:-

"The instant petition has been filedchallenging the order dated 17th July,2014 cancelling the examinations alreadyheld without assigning any reason.

On 6th August, 2014, learnedStanding Counsel was granted time toseek instructions. Learned StandingCounsel prays for further time to seekinstruction.

Learned counsel for the petitionersinformed the Court that now, by anadvertisement, 14th September, 2014 hasbeen notified for fresh examination. It hasbeen submitted that in absence of anyvalid reason for cancelling the earlierexamination, the holding of subsequentexamination on 14th September, 2014does not appear to be justified.

In view of the above, let this matterbe listed on 1st September, 2014. In themeantime, learned Standing Counsel shallfile counter affidavit detailing the reasonsfor which the earlier examination wascancelled and a decision to take freshexamination was taken."

4. A counter affidavit was filed bythe institute on 1st September, 2014. Thematter thereafter was heard on 8.9.2014,wherein following orders were passed:-

"Sri Neeraj Tiwari, who appears onbehalf of respondents 2 and 3, has sentillness slip.

Learned counsel for the petitionerssubmitted that in the counter affidavitfiled by Sri Neeraj Tiwari on behalf of

respondents 2 and 3, in paragraphs 5, 6and 7 thereof, allegations have been madeagainst the conduct of respondent no.4.

As per the endorsement in the writpetition, the learned Standing Counselhas accepted notice on behalf ofrespondents 1 to 4, but now learnedStanding Counsel states that he appearsonly for respondent no.1 and that due tomistake the said endorsement has beenmade in the writ petition.

In view of the above, let notice beissued to the respondent no.4 throughRegistered Speed Post returnable withinthree weeks. Steps to serve the respondentno.4 may be taken within three days.

List this petition on 7th October,2014 by which date the respondent no.4may file counter affidavit."

5. Notices, accordingly, were issuedto respondent no.4, who filed his counteraffidavit on 7.10.2014 and the followingorders were passed:-

"Rejoinder affidavit filed on behalf ofthe petitioners is taken on record.

A counter affidavit has been filed onbehalf of respondent no.4, which is takenon record and a copy whereof is alsosupplied to Sri Neeraj Tiwari, learnedcounsel appearing for respondent no.2and 3.

Learned counsel for the petitionersstate that the counselling is to start foradmission to Para Medical NursingCourse from tomorrow, which fact is notdisputed by Sri Neeraj Tiwari, learnedcounsel for respondent no.2 and 3.

On the request made by learnedcounsel for the parties, let the matter onceagain appear tomorrow in the additionalcause list, by which time, furtheraffidavits, if any, may be exchanged."


6. The matter was heard on8.10.2014 and while passing an interimorder, case was fixed for delivery oforders on 13.10.2014. The order passedon 8.10.2014 was to the following effect:-

"Heard Sri Ashok Khare, SeniorAdvocate, assisted by Sri V.D. Shukla,appearing for the petitioner, learnedStanding Counsel for the respondent no.1,Sri Neeraj Tiwari, learned counsel for therespondent no.2 & 3, and Sri R.K. Ojha,Senior Advocate, assisted by Sri AshishKumar Ojha, appearing for therespondent no.4.

Sri Ashok Khare, Senior Advocate,has challenged the decision taken by therespondent institute contained in thecommunication dated 17.7.2014, wherebythe entrance examination conducted on13.7.2014 for admission to Para Medicaland Nursing Courses in the State of U.P.for the year 2014 has been cancelled, onaccount of alleged unavoidablecircumstances. The submission advancedis that no reasons have been assigned insupport of the decision, nor any reasonsactually exist on record, and that theimpugned decision is arbitrary and isunsustainable in law.

A counter affidavit has been filed bythe respondent institute, wherein it hasbeen stated that after the examination wasconducted, certain complaints werereceived by the office of the ChiefMinister and the attempt of the institute tocontact the Examination Controller couldnot succeed. According to the respondentinstitute, it apprehended that theexamination has not been conductedfairly, and therefore, the decision hasbeen taken to cancel the examination.Thereafter, a show cause notice has alsobeen issued to the respondent no.4 on23.7.2014. Sri Neeraj Tiwari also submits

that fresh examination has beenconducted thereafter, although parties areat issue on it and the date of suchsubsequent examination is also disputed.

Sri R.K. Ojha, Senior Advocate,appearing for the respondent no.4, statesthat the facts stated in the counteraffidavit of the respondent no.2 & 3 areabsolutely incorrect, inasmuch as theinstitute had already taken a decision tohave entrance examination conducted inthe manner as has been done. TheDirector of the Institute had alreadypassed an order on 18.6.2014, wherebyrespondent no.4 was authorized to havethe possession of all examinationmaterials and OMR sheets etc., after theexamination were concluded, so thattransparency in holding of theexamination is maintained. The attentionof the Court has also been invited to thedecision of the institute, whereby theoutside agency had been appointed for thepurposes of evaluation of the OMRanswer sheets and the rates etc. had allbeen settled by the Director. Theargument, therefore, is that there is noinfirmity in holding of the examinationand it has also been contended that afterthe examination were conducted, theOMR sheets were retained in the custodyof respondent no.4, as per the decisionalready taken by the Director on18.6.2014 and respondent no.4 left forLucknow along with OMR sheets andother relevant records for being deliveredto the agency, after obtaining permissionfrom the Director, which document hasalso brought on record along withcounter affidavit.

Prima facie, the contention of thepetitioner that cancellation ofexamination conducted on 13.7.2014 wasnot for valid reason appears to havesubstance. Since the hearing in the matter


has been concluded and sometime may beconsumed in delivering judgment in thematter, and the counselling is tocommence from today itself, therefore, asan interim measure it is provided that tilldelivery of judgment, the counselling,which is proposed to be undertaken by therespondent no.4 institute from today, shallremain stayed.

This order has been passed in thepresence of Sri Neeraj Tiwari, learnedcounsel for the respondent no.2 and 3,who shall inform the authoritiesconcerned about passing of this order forits compliance.

List this matter for delivery ofjudgment on 13.10.2014."

7. On 13.10.2014, the matter wasagain adjourned, after noticing theprevious orders passed in the matter, inorder to give one further opportunity tothe respondents to reply to the affidavit ofrespondent no.4 and also produce therecords, on the basis of which, theimpugned action has been taken. Theorder dated 13.10.2014, which alsorecords previous orders passed, isreproduced:-

"Hearing in the matter wasconcluded on 8.10.2014 and the matterwas fixed for today i.e. 13.10.2014 fordelivery of judgment. However, from thematerials available on record, this Courtis of the opinion that one opportunity isliable to be further granted to therespondents, before the matter is decidedfinally, for the reasons disclosedhereinafter.

The record of the writ petition showsthat while entertaining the writ petitionfollowing orders were passed on6.8.2014:-

"Learned Standing Counsel prays forand is allowed one week time to seekinstruction as to what was the reason forcancelling the examination, which tookplace on 13th July, 2014. Put up/list on18th August, 2014."

The matter was thereafter was takenup on 19.8.2014 and the following orderswere passed:-

"The instant petition has been filedchallenging the order dated 17th July,2014 cancelling the examinations alreadyheld without assigning any reason.

On 6th August, 2014, learnedStanding Counsel was granted time toseek instructions.

Learned Standing Counsel prays forfurther time to seek instruction.

Learned counsel for the petitionersinformed the Court that now, by anadvertisement, 14th September, 2014 hasbeen notified for fresh examination. It hasbeen submitted that in absence of anyvalid reason for cancelling the earlierexamination, the holding of subsequentexamination on 14th September, 2014does not appear to be justified.

In view of the above, let this matterbe listed on 1st September, 2014. In themeantime, learned Standing Counsel shallfile counter affidavit detailing the reasonsfor which the earlier examination wascancelled and a decision to take freshexamination was taken."

A counter affidavit was filed onbehalf of respondent no.2 and 3, whereinallegations were made against theconduct of Examination Controller i.e.respondent no.4. Accordingly, noticeswere issued to respondent no.4.

A counter affidavit has been filed byrespondent no.4 in the matter on7.10.2014, copy whereof was madeavailable to Sri Neeraj Tiwari, learnedcounsel appearing for the respondent no.2


and 3. The matter was adjourned to8.10.2014, by which time, learned counselfor the parties were granted opportunityto file further affidavits, if any. Hearing inthe matter was concluded on 8.10.2014.

Learned counsel appearing for therespondent no.2 and 3, on the basis of thereport of the Officiating Director dated18.7.2014, had stated that after theExamination Controller had left,complaints regarding bungling inexamination were received on 15.7.2014from the office of the Chief Minister andthe Principal Secretary, Department ofMedical Education, which ultimately ledto cancellation of the examination, norecord in support of the report, however,has been annexed. In response to thequery of the Court, learned counsel forthe respondent no.2 and 3 stated that theonly material available on record was thereport of Officiating Director dated18.7.2014.

In the counter affidavit filed byrespondent no.4, materials have beenbrought on record to show that he hadacted in accordance with the directionsissued by the department. In suchcircumstances, as the reply of respondentno.4 was filed on 7.10.2014 and thehearing was concluded on 8.10.2014, assuch, it would be appropriate in theinterest of justice that a furtheropportunity be granted to respondents tofile reply to the affidavit of respondentno.4. They may also bring on recordmaterials in support of the report of theOfficiating Director dated 18.7.2014, ifany, which prompted them to take theimpugned action or any other materialexisting on record. The respondents mayalso produce relevant records, in thisregard.

Since counselling has been stayed bythis Court, the matter is required to be

adjudicated at the earliest. Let matteronce again appear, as a case in theadditional cause list, on 16.10.2014, bywhich time, the required affidavit be filedin the matter."

8. On 16th October, 2014, anaffidavit was filed on behalf of therespondent nos.2 and 3 and, therefore, thematter was adjourned to 17th October,2014. Following orders thereafter werepassed on 17th October, 2014:-

"Heard learned counsel for thepetitioners and learned AdvocateGeneral, assisted by the learned ChiefStanding Counsel, who has appeared forrespondent nos. 2 and 3, at some length.However, It has been stated by the ChiefStanding Counsel that records relating tothe matter, are not available and willhave to be obtained from the office atLucknow, therefore, the matter may bedeffered.

On the request made by the learnedAdvocate General, the hearing of thematter is deffered to 27.10.2014, on whichdate relevant record shall be producedbefore the Court."

9. On 27th October, 2014, when thehearing in the matter was resumed, learnedcounsel appearing for the respondents madea statement, which was noted and thehearing commenced. The order dated 27thOctober, 2014 is reproduced:-

"Sri Ramesh Upadhyay, learnedChief Standing Counsel, states that he hasinstructions from Sri Arindam Chatterjee,Special Secretary of the State of U.P. thatthere exists no written complaint onrecord of the State Government, which ledto cancellation of examination inquestion.


Learned Advocate General, who ispresent in Court, states that the Courtmay proceed to adjudicate the matter onmerits in light of the aforesaid fact, on thebasis of pleadings and material, whichexist on record.

Argument of Sri Ashok Khare,learned Senior Counsel appearing for thepetitioners and Sri V.B. Singh, learnedAdvocate General for the State, have beenconcluded.

Submission of Sri R.K. Ojha, learnedSenior Counsel appearing for therespondent no.4 remains inconclusive.

Put up tomorrow i.e. on 28.10.2014."

10. In view of the stand so taken bythe learned Advocate General, this Courtproceeds to adjudicate the writ petition,on the basis of pleadings and materialsavailable on record of the writ petition,after noticing that there exists no recordof any written complaint etc. on record ofthe State Government, against theexamination held on 13th July, 2014.

11. A counter affidavit on behalf ofthe respondent nos.2 and 3 was initiallyfiled by the Director of the institute.Paragraph nos. 5, 6, 7 and 9 of theaffidavit are reproduced:-

"5. That it is further stated whileleaving the Institute neither he has takenany approval for arrangement ofevaluation nor he has given anyinformation to the Director of Institute.To maintain the transparency ofExamination it is necessarily required tocarry out OMR sheet and otherdocuments out of institute with thepermission of Director and further OMRsheet should be evaluated before a Teamwas constituted for that purpose and notby one individual person.

6. That in this reference complaintswere filed before Principal Secretary,Medical Education as well as ChiefMinister of the State and direction wasissued to carry out the enquiry on15.7.2014. Immediately thereafterInstitute has tried to contact theController of Examination but his allknown mobile numbers were foundswitched off. Thereafter Institute has triedto contact him by other means then at8.45 PM he has informed that he is inseriously and unable to have any talk. Atthis stage at 9.45PM after having contactwith him, he was directed to come backInstitute without any evaluation of OMRsheet but he has informed that he issuffering with heart disease and it is notpossible to him to come back. Againaround 12.00 night he has informed theDirector that he is admitted in ICU andhe will take at least 4-5 days in comingback to Institute.

7. That on 17.7.2014 Controller ofExamination again first time informed hislocation on telephone that he is admittedin ICU in Military Hospital, Lucknow andprior to that he has never informed abouthis location. Whole conduct of Controllerof Examination is very objectionable andwhich creates serious doubt about therelativity of examinations result. Underthese circumstances a meeting of officerswas held on 17.7.2014 and it was decidedin the meeting to cancel the earlierentrance examination held on 13.7.2014and taken fresh examination on14.9.2014. In this reference a detailreport was also submitted vide letterdated 18.7.2014 to Principal Secretary,Medical Education, Lucknow. Aphotocopy of letter dated 18.7.2014 isbeing filed as Annexure CA-1 to thisaffidavit.


9. That thereafter the institute hasdecided to take fresh examination and itwas decided to hold the same on 14.9.2014.For that purpose a press release dated8.8.2014 was issued and new date was alsouploaded on the website Institute."

12. Respondent no.4, pursuant to thenotices issued by this Court, appeared inthe matter and filed his counter affidavitalong with annexures. The stand taken bythe respondent no.4 was that the mannerof holding of examination had beendecided in the meeting of the institutedated 26th March, 2014, pursuant towhich, the then Director passed an orderon 18th June, 2014 appointing respondentno.4 as Coordinator and ExaminationController for the examination to be heldon 13th July, 2014. The order dated18.6.2014 provided as under:-

"izks0 ds0,e0 'kqDyk dks ijh{kkvksa ls lEcfU/krleLr vfHkys[k] lhy vkfn ds j[kj[kko] iz'u&i=

,oa mRrj&iqLrdkvksa vkfn dks viuh vfHkj{kkesa j[kus gsrq vf/kdr fd;k tkrk gSA MkW0 'kqDykijh{kkvksa ds ldq'ky lEiknu ds lkFk ijh{kk esami;ksx esa yk;s tkus okys iz'u&i= ,oa vU;vfHkys[kksa dh xksiuh;rk ,oa lqj{kk Hkh j[ksaxsA

mDr dk;Z gsrq og funs'kd ds fu;a=.k esa jgrsgq, ijh{kkvksa dk lapkyu djus ,oa fofHkUu ijh{kkvksads vk;kstu gsrq vko';d lHkh izcU/k lqfuf'prdjsaxs ,oa ijh{kk lEcU/kh leLr izfdz;kvksa ds lE;dfu"iknu gsrq mRrjnk;h gksaxsA"

It was also stated that the agency forevaluating the answer sheets as well asrates payable to it, were all approved andsettled by the Director himself.Respondent no.4 further brought onrecord a confidential letter addressed tothe Director, upon which the permissionwas granted by the Director for petitionersto leave the institute on 15.7.2014 inconnection with confidential examinationwork, which reads as under:-

"iSjkesfMdy ,oa uflZx egkfo|ky; ds 'kSf{kdl= 2014 ds fofHkUu ikB~;dzeksa esa izos'k gsrq fnukad13 tqykbZ] 2014 dks vk;ksftr ijh{kk ls lacaf/krxksiuh;@vfr vko';d dk;ksZ gsrq v/kksgLrk{kjhfnukad 15 tqykbZ] 2004 ls laLFkku ls ckgj izLFkkudj jgk gSA

di;k mDr dk;Z gsrq LVs'ku NksM+us dhvuqefr iznku djsaA v/kksgLrk{kjh dh vuqifLFkfr esaladk;k/;{k ds dk;ksZa dk fuokZg izks0 vHk; dqekj]foHkkxk/;{k bZ0,u0Vh0 }kjk fd;k tk,xkA"

It is the case of respondent no.4 thatpursuant to the permission granted by theDirector, he proceeded to take the OMRsheets and got them delivered to theagency, selected for evaluation of OMRsheets by the Director. The Controlleralso stated that after he had delivered theOMR sheets to the agency, selected forthe purposes, at Lucknow, he sufferedserious heart ailment, and therefore, wasadmitted to Army Command Hospital atLucknow, where he remained hospitalizedand ultimately got discharged on 20thJuly, 2014. The certificates and medicalprescription etc. have been brought onrecord as

Annexure No.6 to the affidavit.

13. Pursuant to the liberty grantedby this Court, an affidavit in rebuttal tothe affidavit of respondent no.4 was filedby the Registrar of the institute. Paragraphnos. 04 to 16 of the affidavit, whichelaborates the stand of institute, arereproduced:-

"4. That entrance examination forParamedical Science and Nursing Coursewas held on 13th July, 2014simultaneously in 13 centres in Etawah.The examination was based on objectivetype of questions to be answered on OMRsheets. About ten thousand candidateshad participated in the examination for


about 610 seats. The OMR sheets (Answersheets) were kept in about 10 boxes,which itself is a bulky baggage. For thepurposes of its transportation from U.P.Rural Institute of Medical Sciences andResearch (U.P.R.I.M.S.) to Lucknow atS.R. Net Computer Services Pvt. Ltd., itwas necessary to have additionalhands/officials, security men to ensure itssafety and safe transportation.

5. That from the records it transpiresthat respondent no.4 all alone withouttaking security guards or without takingany additional hands undertook thejourney himself to Lucknow, S.R. NetComputers. Before leaving or beforetaking the permission for visitingLucknow he did not indicate or disclosethat he would be carrying OMR sheets forits evaluation to Lucknow. Entire traveland journey was kept a closely guardedsecret. Before taking permission heshould have requested for security guardsand further would have disclosed that hewould be moving with OMR sheets andspecific disclosure should have beenmade to the Director of Institute that hewas going to Lucknow for gettingevaluation of OMR sheets.

6. That with a plan and design Dr.Shukla appears to have completed aformality of by obtaining a permission toleave the station (Safai) from the Directorof Institute but did not disclose whichplace/city he was visiting or that he wouldbe carrying valuable OMR sheets northere is any whisper that he requiredsecurity. It can be appreciated thatcarrying 10 or 9 boxes all alone whichcontain the answer sheets of near about10,000 candidate was itself a risky affairand could not have been handled by oneindividual all alone. There was aninherent risk of tampering loss,manipulations etc.

7. That it is pertinent to submit thatthis the second year when the Institutehad conducted examination in theprevious year that is year 2013-14 eventhe then Director Dr. J. B. Singh waspresent in Lucknow at the time ofevaluation of OMR sheet had taken place.But this time Dr. Shukla all alone bymaintaining opaque secrecy took up theentire task by himself. The Institute triedto contact Dr. Shukla about his movementand whereabouts on phone but he couldbe contacted only at night on 15th July,2014 at about 8.45 PM, who disclosedthat he was ill. He was also instructed bythe Director on phone to return backimmediately with all the papers and OMRsheets but he expressed his inability anddisclosed he had a heart trouble andcannot come back to Institute. Later on atabout 12 in the midnight Dr. Shukla suo-moto informed that he is being admittedin ICU without disclosing the name of thehospital or the city.

8. That on 17th July, 2014 for thefirst time respondent no.4 Dr. Shuklainformed that he has been admitted inLucknow hospital. Only on 17th thelocation of the city and the hospital couldbe known to the Director.

9. That it is the settled practice thatthe movement of the answer sheets (OMRsheets) for the purpose of its safety,security, due precaution is taken andmore than one individual/officials withsecurity personnels should accompany.One official is not burdened with suchserious responsibility as there may bechances of its tampering and may beinjurious to ensure the fairness ofexamination system.

10. That the way Dr. Shukla acted inthis matter coupled with many complaintsreceived even in the government seriousdoubts and suspicion about the sanctity of


the examination are being raised. TheInstitute to maintain fairness of thecompetitive examination and to ensureabsolute fairness in the selection processtook a decision for re-examination whichhas already been held and counsellinghad also commenced. It is also significantto notice that only 3 candidates out of10,000 candidates who had appeared inthe examination have filed this writpetition out of which one petitionernamely Pooja Shukla has also appearedin the second examination. The Institute isconducting the exercise of secondexamination at its own expenses and hasgiven a chance without charging freshexamination fee to all the 10,000candidates to appear in the examinationto maintain purity, fairness ofexamination process.

11. That the Director of Institute wasin dark and was not made aware byrespondent no.4 that he was carryingbulky baggage containing OMR sheets toLucknow for the purpose of its evaluationwhereas respondent no.4 beingsubordinate to Director and was underhis control should have taken precautionof disclosing in brief details about hismovement and that of the answer sheets.

12. That the complaints were floodedin the office of Principal Secretary,Medical Education as well as office of theChief Minister, the direction was issuedfor holding an enquiry in the entire matterby the order dated 18th July, 2014. Truecopy of the letter is being filed asANNEXURE No.1 to this affidavit.

13. That the Institute of theanswering respondent startingfunctioning from the academic session2012-13. In the first year admissions wereheld on the basis of merit determined bythe marks obtained by the students in theHigh School and Intermediate

Examination. From the academic session2013-14 admission are being made on thebasis of entrance examination conductedby the Institute itself. Last year alsorespondent no.4 was the controller of theexamination and the entire process ofexamination, evaluation of answer sheets,declaration of results, and admission ofstudents was done in the supervision andcontrol of the Director of the Institute.This year however, respondent no.4 choseto transport the OMR sheets all by himselfwithout informing the Director andwithout taking any other officer orauthority of the Institute along with him.Movement of the answer sheet only in thesole custody of respondent no.4 withoutthere being any other officer or authorityof the Institute, without information to theDirector in this regard and without eventaking the security personnel itself casts adoubt as to whether or not any tamperingmay have been done in the OMR sheets.The conduct of the respondent no.4 itselfreinforces the complaints made todifferent authorities.

14. That upto 17.7.2014 the Institutewas not aware about the location ofrespondent no.4 as such the Director ofthe Institute requested the AdditionalDirector (Administration) to carry out anenquiry and submit the report.

15. That the matter was placedbefore the examination committee of theInstitute which came to the conclusionthat the sanctity of the examination hadbecome doubtful. Looking into the entireaspect of the matter the examinationcommittee recommended for thecancellation of the examination and afresh examination has already beenconducted. A copy of the report of theAdditional Director along with the reportof the Committee is being filed herewithas ANNEXURE NO.2 to this affidavit.


16. That continuous absence ofrespondent no.4 and unavailability of hislocation for substantially long period withthe answer sheets created a doubt in themind of the examination committee andonly with a view to maintain the sanctityof the examination the Institute has takena decision for cancellation of examinationin question and for re-holding theexamination for the purposes ofadmission of students."

14. The aforesaid affidavit of theRegistrar has been replied by respondentno.4 by filing a fresh affidavit, in which,following averments have been made inparagraph no.4:-

"4. That in reply to the contents ofparagraph nos.4 and 5 of the counteraffidavit filed on behalf of the RespondentNos.2 and 3, it is submitted that it is theOMR Sheets which were kept in 9 boxes,having total weight of 10 Kg. and in orderto avoid any doubt or dispute over theissue the deponent has taken away thoseboxes in a small vehicle with thepermission of the Director and wentLucknow and got those documentsreceived on 15.7.2014 itself. It is furtherrelevant to mention that deponent hasbeen given those responsibilities by thethen Director with the direction that hewill maintain all transparency andsecrecy over the issue, however, thedeponent has got certain direction/threaton telephone from the certain higherofficials, whether said direction givenfrom the office of the Chief Minister ornot for that the deponent is not clear butthe deponent has received telephone fromthe office of the Chief Minister directingthat deponent has to be selected 3 personsnamely (1) Neeraj Kumar, having RollNo. 300413, (2) Diksha, having Roll No.

110649 and (3) Priti Yadav, having RollNo. 215112. The deponent has alsomaintained a C.D. by dubbing voicewhich deponent has received on hisMobile number from the Mobile No.9411020906. The deponent is ready toproduce CD which was prepared by him,at the time of hearing, whereas, for kindperusal of this Hon'ble Court thedeponent is annexing copy of the versionwhich was made on 10.7.2014 and13.7.2014 on the Mobile phone of thedeponent by the Mobile No. 9411020906is being filed herewith and marked asAnnexure CA-1 to this affidavit. Due tothe aforesaid reason and also as perdirection given by the then Director thedeponent has no option but to maintainnecessary secrecy for the aforesaidpurposes."

It has also been alleged that theexamination process was conducted withdue diligence and sanctity of the processwas maintained by him. It has been statedthat he had acted in the best interest oftransparency and fairness of examinationprocess itself and disclosure ofunnecessary details had been avoided soas to ward of extraneous influences beingexercised upon him. It is also stated thathis movements in connection with theaffairs of the examination was with dueintimation and permission of the Director,and it was only on account of extraneousinfluence that the examination process hasbeen scuttled, as he has refused to honourinfluences unauthorizedly exercised in thematter. In the affidavit, the details of thecalls received by him and the contents ofthe talks and the messages received havebeen annexed. Yet another affidavit hasbeen filed by the respondent no.4explaining the circumstances and themanner, in which he had carried the OMR


sheets from institute at Saifai, Etawah toLucknow. It is also stated that anyassociation of security guards and thestaff of the institute would haveobstructed the secrecy of the examinationprocess itself under the peculiar facts andcircumstances of the present case. Thepetitioners have also filed a rejoinderaffidavit.

15. I have heard Sri Ashok Khare,learned Senior Counsel assisted by SriV.D. Shukla for the petitioners, Sri VijayBahadur Singh, learned Advocate Generalassisted by Sri Ramesh Upadhyay,learned Chief Standing Counsel on behalfof the respondent nos.1, 2 and 3 alongwith Sri Neeraj Tiwari, who also appearedfor respondent no.2 & 3 and Sri R.K.Ojha, learned Senior Counsel assisted bySri A.K. Ojha for the respondent no.4 andhave considered the materials available onrecord.

16. Learned counsel for thepetitioner submits that the entranceexamination in question had beenconducted in absolutely fair andtransparent manner and there was nomaterial to support any allegation ofirregularity in the examination process,and therefore, the cancellation of entranceexamination was wholly unjustified.

17. Sri R.K. Ojha, learned SeniorAdvocate, appearing for the respondentno.4, has submitted that holding of theexamination was strictly, in accordancewith the decision already taken for thepurposes by the Director, and sanctity ofthe process had been maintained. Theargument advanced is that the extraneousinfluence exercised to secure admissionfor some of the candidates since had notbeen honoured by him, therefore, for

oblique and ulterior motive theexamination itself was scuttled. It hasbeen stated that there is absolutely nomaterial available on record to show thatany illegality or infirmity was caused inholding of the examination and the OMRsheets based on the examination of13.7.2014 are still in the safe custody ofthe respondent institute itself and nodiscrepancy therein had been reported tillnow, and in such circumstances, thecancellation of the examination itself wasarbitrary.

18. Learned Advocate General, onthe other hand, defended the action of therespondent institute. According to him,the decision to cancel the examinationwas taken in order to ensure sanctity ofthe process of examination itself, whichcannot be said to be arbitrary. He alsosubmitted that even otherwise, merelyholding of examination does not createright in favour of any one and it is alwaysthe concern of the institute to assesswhether the examination has beenconducted in a fair and transparentmanner and if any bonafide doubt iscreated in the process, the decision tocancel it can always be taken. He alsosubmitted that once the institute hasexercised such a course and subsequentexaminations have been conducted, inwhich one of the petitioner has alsoparticipated, it would not be appropriatefor this Court to interfere in the matter.

19. From the materials brought onrecord of the writ petition, as well as thesubmissions advanced, the factualscenario emerges that the respondent no.3institute was to conduct Para Medical andNursing Entrance Examination- 2014.The institute proceeded to consider themodalities in its meeting dated 26.3.2014,


wherein respondent no.4 Dr. K.M. Shuklawas appointed as examination controller.The Director by his order dated 18.6.2014specifically appointed respondent no.4 toact as coordinator and examinationcontroller for the examination to be heldon 13.7.2014. The agency, which was tocarry out evaluation of OMR sheets wasalso selected by the examinationcontroller on 30.4.2014, which decisionwas approved by the Director on the sameday and the rates were also approved forbeing paid to the agency on 1.5.2014 bythe Director. The respondent no.4 wasauthorized to keep in his possession allrecords, seal, question paper and answerbooks. In his capacity, as examinationcontroller and coordinator Dr. Shukla,was also held responsible for secrecy andconfidentiality of the examinationrecords. He was to function under thesupervision of the Director and undertakeall steps required for the smooth conductof the examination itself. The entranceexamination was conducted at differentcentres on 13.7.2014 and the OMR sheets(answer sheets) were specifically kept inthe custody of respondent no.4, as per thedecision already taken by the Director. Itis also apparent from the record that therespondent no.4, as per the decisionalready taken, proceeded in connectionwith the confidential examination workfrom the institute on 15.7.2014 with thepermission of the Director.

20. The first counter affidavit filedon behalf of the institute states that thecomplaints were filed before the PrincipalSecretary, Department of MedicalEducation, as well as the Chief Ministerof the State, on the basis of which adirection was issued to conduct anenquiry on 15.7.2014. The report of theOfficiating Director dated 18.7.2014 has

been annexed along with first counteraffidavit, which clearly refers to letterissued by the Director on 18.6.2014,according to which, the entireexamination was to be conducted underthe supervision of the Director by thecontroller Dr. Shukla, who wasresponsible to ensure entire process ofexamination. The report of the OfficiatingDirector states that after Dr. Shukla leftthe institute, a communication wasreceived from the office of the ChiefMinister and from the office of PrincipalSecretary, Department of MedicalEducation, to the effect that complaints,regarding widespread irregularities havebeen received, and therefore, animmediate enquiry in the matter be gotconducted. It is after receiving of suchinstructions from the office of the ChiefMinister and Principal Secretary, that theOfficiating Director proceeded to maketelephonic contact with Dr. Shukla, but itis stated that all his known mobilenumbers were found switched off. Thereport further states that attempts tocontact him from other sources fructifiedonly at 8.45 PM, when Dr. Shuklainformed that he has fallen ill and he isnot in a position to talk. The Director inhis report, which is Annexure-1 to thecounter affidavit dated 26.8.2014, statesthat when contact could be again made at9.45 PM, Dr. Shukla was asked toimmediately return, but Dr. Shuklaresponded by saying that he is sick andhaving heart trouble, and therefore, he isbeing hospitalized and it is not possible toimmediately return. The report furtherstates that at about 12.00 night Dr. Shuklainformed that he is hospitalized in ICUand he will take 4-5 days to return. TheOfficiating Director in his report hasstated that no permission was obtained byDr. Shukla before proceeding from the


institute and generally OMR sheets areopened before a committee, whereafter itshould get assessed by computer, but Dr.Shukla has not got any committeeconstituted from the Director nor anyofficer has gone with him, and therefore,the results of the entrance examination areentirely dependent upon Dr. Shukla andthe agency. The Director, therefore, statesthat the results of the examination have nolonger remained reliable and it is only on17.7.2014 that Dr. Shukla has informedthe Officiating Director that he is actuallyadmitted in the Military Hospital, Cantt.,Lucknow, in ICU and prior to it, he hasnever disclosed his location. The reportalso stated that Dr. Shukla has notdisclosed the name of the agency withwhom, the OMR sheets were kept atLucknow, and therefore, the sanctity ofthe examination process itself is in doubt.Therefore, the decision has been taken tocancel the examination and to hold freshexamination.

21. Learned Advocate General hasalso referred to another report dated17.7.2014, which is Annexure-2 to thecounter affidavit of the Registrar of theinstitute, which is signed by five persons,wherein also the contents of the report ofOfficiating Director have been reiterated.It has been stated that after theexamination process was complete, it wasfound that OMR sheets have been takenby Dr. K.M. Shukla to unknown location,which is indicated at some place at Delhiand as neither security personnel nor anyother officer was with Dr. Shukla,therefore, the process itself, as held, lostits sanctity. Learned Advocate General,on the basis of these reports, hassubmitted that decision to cancel theexamination was taken bonafidely,inasmuch as the attempt on part of the

officials of the institute to contactrespondent no.4 repeatedly failed, andtherefore, the responsible officialsbecome suspicious about the processadopted by the respondent no.4, andtherefore, the decision to cancel theexamination was taken and that the Courtshould not interfere in suchcircumstances.

22. It is not in dispute that sanctityof the examination process must bemaintained and the decision of theinstitute for the purposes is entitled togreat weight. It is also not disputed that abona fide exercise of power by theinstitute for the purposes, if is based uponsome material, is not liable to beinterfered with. However, the facts, whichemerges on record, are rather disturbingand the Court is not satisfied that a bonafide decision was taken to cancel theexamination.

23. The order of the Director dated18.6.2014 clearly authorized respondentno.4 to be responsible for the custody,safety and holding of fair entranceexamination. It is also not disputed thatthe custody of OMR sheets was withrespondent no.4. It is also not disputedthat respondent no.4 did proceed from theinstitute with a specific permissionobtained from the Director on 15.7.2014.The Director or for that matter any otherauthority of the institute found no fault inthe conduct of examination or themovement of respondent no.4 from theinstitute itself.

24. The sudden anxiety on part ofthe institute to locate whereabouts of Dr.Shukla or to doubt the examinationprocess itself was a direct consequence ofthe communication received from the


office of the Chief Minister and thePrincipal Secretary, Department ofMedical Education about complaints ofwidespread illegalities in holding of theexamination. This Court ever sinceentertaining of the writ petition and inalmost all subsequent orders directed theState to bring on record the allegedcomplaints, which are said to have beenreceived by the office of the ChiefMinister or the Principal Secretary,Department of Medical Education, but nota single complaint of any kind, has beenbrought on record. The proceedings of thewrit petition were deferred from time totime in order to enable the respondents toproduce the alleged complaints whichprompted the office of Chief Minister orthe Principal Secretary of the Departmentto intervene and direct the institute to holdan enquiry or monitor the whereabouts ofDr. Shukla, but no such material has beenbrought before the Court. Theproceedings were specifically deferred onthe request of learned Advocate Generalassisted by Chief Standing Counsel toproduce the material in this regard.However, learned Advocate General hasfairly stated that there exists no complainton record of the State, which led tocancellation of the examination itself. Healso stated that no complaint of any kindexits on record. The thrust of argument oflearned Advocate General is that theinstitute is comparatively new and it isonly the second occasion when it hasconducted such examination and as itfound that respondent no.4 was nottraceable, despite repeated attempts,therefore, suspicion got generated in thematter. He further contends thatrespondent no.4 had no authority to takethe OMR sheets without permission of theDirector and since he went all alone,without any security guard, driver or any

other officer, therefore, this in itself issufficient to indicate that the conduct ofrespondent no.4 was strange in the matterand the decision to cancel the examinationcannot be said to be without any basis.

25. Learned counsel for therespondent no.4 submitted that respondentno.4 was being pressurized to ensureinduction of certain candidates in theexamination by any means.

26. The respondent no.4 in hissubsequent affidavit has brought onrecord details of the telephone calls,which he had received allegedly at theinstance of somebody from ChiefMinister's residence at Saifai instructinghim to ensure inclusion of certaincandidates in the entrance examination.The details of the telephone number andthe contents of the talks have beenenclosed. This court is not going into themerits of such details offered byrespondent no.4, as it can be a matter ofinvestigation by appropriate agency, butthe materials brought on record byrespondent no.4, particularly in para 4therein does constitute sufficient materialfor any prudent person to be apprehensiveof extraneous interference being exercisedin the matter of holding of examination,and therefore, maintaining of completesecrecy by the officer concerned cannotbe said to be wholly unjustified. Thisopinion of the Court gets support from thefact that while the office of Chief Ministerhad intervened in the matter, on thepretext of receiving of complaints,whereas it is admitted before this Courtthat no such complaint actually exists onrecord.

27. It is not in dispute that OMRsheets were required to be in the safe


custody of the respondent no.4. It is alsonot in dispute that no order had beenpassed by the Director which authorizedother persons to have custody of the OMRsheets and the record of the respondentsitself proves that it was only on 7.8.2014that a committee for the purpose wasconstituted. The records of therespondents also clearly shows that theOMR sheets of the examinationconducted on 13.7.2014 had beenreceived by the institute from respondentno.4, pursuant to order of the Director on19.7.2014. Learned Advocate General hasfairly stated that all such OMR sheets arelying in the safe custody of the instituteitself.

28. The Director of the institute hadalready granted permission to respondentno.4 to proceed from the institute on15.7.2014 in connection with theconfidential examination work. Thepermission, however, does notspecifically refer to taking of OMR sheetsby respondent no.4 along with him andthis issue has been highlighted by learnedAdvocate General. In the opinion of theCourt, once the permission had beengranted to respondent no.4 to proceedfrom the institute in connection with theconfidential examination work, it was notessential for him to have mentioned thetaking of OMR sheets with him. TheCourt finds substance in the submission ofSri R.K. Ojha, Senior Advocate that theapplications seeking permission to leavefor examination work are typed by thesubordinate staff and considering the factthat holding of examination was aconfidential matter, requiring utmostsecrecy, it was a bonafide exercise ofrestraint on his part in not mentioning thetaking of OMR sheets, particularly inlight of the bona fide apprehension of

alleged interference at the instance ofsomebody claiming from the residence ofChief Minister itself. Even otherwise oncethe Director was granting permission torespondent no.4 to proceed withconfidential work of examination, it canbe safely assumed that the purposes ofsuch movement was within theknowledge of the Director and noexception can be taken to non mentioningof OMR sheets in the letter of respondentno.4 seeking permission to leave from theinstitute. This Court also finds thatDirector at his level had no doubts aboutthe purpose of movement of respondentno.4 and the situation changed only onaccount of the intervention by the officeof Chief Minister.

29. The Director had authorized theexamination controller and holding of theexamination was specifically as per hisinstructions. The movement of theexamination controller on 15.7.2014 waswith his permission for the confidentialexamination purpose. If the Directorsensed any irregularity, he could haveverified the matter or taken any action inthe matter. The Director, however, foundno infirmity in the conduct of entranceexamination or movement of controllerwith the OMR sheets and even otherwiseno tempering or manipulation of any kindin the OMR sheets has been reported evenafter the records containing OMR sheetswere received by the institute. It is onlythe alleged complaint received in theoffice of the Chief Minister regardingwidespread illegality in the examinationthat the entire process was initiated tolocate the whereabouts of respondentno.4. No such complaint or materialsuggesting any irregularity in theexamination till date has been brought onrecord despite repeated opportunity


granted to the State, in suchcircumstances the alleged suspicion whichis cause of cancellation of examination iswithout any material or basis. If the veryinitiation of the action is not in good faithand is based on no material the exercise ofpower itself is vitiated. The observationsmade by the Apex Court in its judgmentin 1986 (1) SCC 133: ExpressNewspapers Pvt. Ltd. & others vs. Uninoof India & others as contained in para 119to 121, are clearly relevant for the presentpurposes and are therefore reproduced:-

"119. Fraud on power voids theorder if it is not exercised bona fide forthe end design. There is a distinctionbetween exercise of power in good faithand misuse in bad faith. The former ariseswhen an authority misuses its power inbreach of law, say, by taking into accountbona fide, and with best of intentions,some extraneous matters or by ignoringrelevant matters. That would render theimpugned act or order ultra vires. Itwould be a case of fraud on powers. Themisuse in bad faith arises when the poweris exercised for an improper motive, say,to satisfy a private or personal grudge orfor wreaking vengeance of a Minister asin S. Pratap Singh v. State of Punjab. Apower is exercised maliciously if itsrepository is motivated by personalanimosity towards those who are directlyaffected by its exercise. Use of a powerfor an "alien" purpose other than the onefor which the power is conferred is malafide use of that power. Same is theposition when an order is made for apurpose other than that which finds placein the order. The ulterior or alien purposeclearly speaks of the misuse of the powerand it was observed as early as in 1904by Lord Lindley in General Assembly ofFree Church of Scotland v. Overtown

"that there is a condition implied in thisas well as in other instruments whichcreate powers, namely, that the powersshall be used bona fide for the purpose forwhich they are conferred". It was said byWarrington, C.J. in Short v. Poole Corpn.that:

"No public body can be regarded ashaving statutory authority to act in badfaith or from corrupt motives, and anyaction purporting to be of that body, butproved to be committed in bad faith orfrom corrupt motives, would certainly beheld to be inoperative."

In Lazarus Estates Ltd. v. BeasleyLord Denning, L.J. said:

"No judgment of a court, no order ofa Minister, can be allowed to stand if ithas been obtained by fraud. Fraudunravels everything."

See also, in Lazarus case at p. 722per Lord Parker, C.J.:

"Fraud' vitiates all transactionsknown to the law of however high adegree of solemnity."

All these three English decisionshave been cited with approval by thisCourt in Pratap Singh case.

120. In Ram Manohar Lohia v. Stateof Bihar it was laid down that the courtshad always acted to restrain a misuse ofstatutory power and more readily whenimproper motives underlie it. Exercise ofpower for collateral purpose has similarlybeen held to be a sufficient reason tostrike down the action. In State of Punjabv. Ramjilal it was held that it was notnecessary that any named officer wasresponsible for the act where the validityof action taken by a Government waschallenged as mala fide as it may not beknown to a private person as to whatmatters were considered and placedbefore the final authority and who hadacted on behalf of the Government in


passing the order. This does not meanthat vague allegations of mala fide areenough to dislodge the burden resting onthe person who makes the same thoughwhat is required in this connection is nota proof to the hilt, as held in BariumChemicals Ltd. v. Company Law Boardthe abuse of authority must appear to bereasonably probable.

121. In the present case, thepetitioners have alleged several factsimputing improper motives which havenot been specifically denied and there isonly a bare denial with the assertion thatthe facts are not relevant. Mere denial ofallegations does not debar the courts frominquiring into the allegations. In answerto the rule nisi, the respondents here andin particular Respondent 1, the Union ofIndia, Ministry of Works & Housingdisdained from filing a counter-affidavitand left it to Respondent 2, Lt. Governorof Delhi to controvert as best as he couldthe specific allegations made by thepetitioners that the impugned action waswholly mala fide and politically motivatedi.e. that there was malice in fact as wellas malice in law which actuated theauthorities in issuing the impugnednotices. Respondent 2 did not controvertthese allegations but asserted that theallegations were "wholly irrelevant" tothe matter in issue. He disclaimed allresponsibility for the issue of theimpugned notices and instead tried tojustify all his actions throughout the affairas the Lt. Governor. As the hearingprogressed, on being put wise on the legalissues, Respondent 2 filed an additionalaffidavit trying to refute the allegations ofpersonal bias and animosity on his part.As already stated, Respondent 1 put in asupplementary affidavit of M.K.Mukherjee, Secretary, Ministry of Works& Housing which instead of meeting the

specific allegations made by thepetitioners, avers that they were "whollyirrelevant" and that the Union of Indiaadopts the counter-affidavit filed byRespondent 2. The submissions advancedat the Bar by learned counsel appearingfor the Union of India were whollyinconsistent with the stand taken by therespondents in their counter-affidavits.The learned counsel made no attempt torefute the charge that the impugnednotices were wholly mala fide andpolitically motivated."

30. The aforesaid observation hasbeen reiterated in 2004 (4) SCC 666:Vijay Shekhar & another vs. Union ofIndia & others.

31. In the absence of any complaintor material to suggest irregularity inholding of the examination or violation ofany instructions issued in connection withholding of the examination no fault can befound with the process of examinationitself. Serious doubts arise upon the bonafide of the decision itself, when nomaterial or complaint is actually availableon record of the State indicating evenallegation of alleged widespreadillegality. In the backdrop of the standtaken by the respondent no.4 that he hadreceived direction allegedly by someonefrom the residence of the Chief Ministerto ensure induction of certain candidates,the holding of enquiry on account ofreceiving of such non existed complaintraises serious doubts on the entire actionof the respondent itself.

32. Learned Advocate General hasalso relied upon the judgment of the ApexCourt in Shankarasan Dash v. Union ofIndia: 1991 (3) SCC 47, which has beenfollowed in Union Territory of


Chandigarh vs. Dilbagh Singh and others:1993 (1) SCC 154 and in the judgment inB. Ramanjini and others vs. State of A.P.and others: 2002 (5) SCC 533 to contendthat mere selection in examination doesnot constitute any indefeasible right toclaim appointment and the scope ofjudicial review in cancellation ofexamination by government is extremelylimited. The proposition laid down by theaforesaid judgments are the law of theland but have no application to the factsof the present case, inasmuch as thejudgment in Shankarasan Dash (supra)also holds the action of the State to bevalid when taken for bona fide and validreasons and is not taken arbitrarily. In thepresent case, since the entire action iswholly without any material, and has beentaken on the basis of non existencematerial, such exercise of powerapparently lacks bona fide and even thelimited extent of judicial review doespermit the Court to interfere with theaction, as it is based on no material andlacks bona fide.

33. Sri Ashok Khare, learned SeniorAdvocate, appearing for the petitioner hasreferred to a division bench judgment ofthis Court in Ram Babu Sahu vs. State ofU.P. & others: 2012 (2) ADJ 561 which inturn relied upon a decision rendered inWrit Petition No.11394 of 2008 dated 2ndMarch, 2009, Ram Prakash Singh vs.State of U.P. reported in 2009 (9) ADJ316 wherein the judgment in ShankarasanDash (supra) has also been considered.Para 15, 16, 17, 22 & 23 of the judgmentin Ram Prakash Singh (supra) arereproduced:-

"15. Having heard learned Counselfor the parties and perusing the records, Ifind that any of the seven reasons or all of

them taken together could not be the basisof the decision to cancel the entireelection. There are no allegations onrecord that the selections for backlogvacancies were not widely advertised orthat the selected persons did not belong tothe categories for which the vacancieswere existing. Further, there is nocomplaint that merit list in the descendingorder of the 1600 candidates was notprepared strictly in accordance with themarks awarded to them in theireducational qualifications. The membersof the selection committee observed thatwherever the marks were found to beerroneously entered in the list themistakes were immediately corrected.They did not report, that they did not haveopportunity or did not award marks forinterviews or that the marks awarded bythem were not properly shown in the list.The Government order dated 20.7.2002for award of marks for achievements onsports was superseded by the U.P.Procedure for Director Recruitment forGroup-C posts (Outside the Purview ofthe U.P. Public Service Commission)Rules, 2002, which clearly provided inRule 5 (3)(c) the number of marks to beawarded for achievement in sports. Themembers of the Committee did not agreeon any common method of awardingmarks in the interviews. They did notdecide to award any minimum ormaximum marks to the candidates andthus it was open to each of the membersto award marks on their own assessments.The enquiry committee has found thevariance of marks only in case of twocandidates namely Kamal Pati and SwetaKumari. In fact there are no allegations ofmala fides or any undue favours raisedagainst the District Panchayat RajOfficer, except in stating that he hadawarded lesser marks to two candidates


in interviews and had not corrected themarks for achievements in sports.Further, it is stated that he hadmaintained undue secrecy in preparingthe final results by typing out theappointment letters and their dispatch.

16. No exception could be taken northere were any directions given to theDistrict Panchayat Raj Officer forkeeping the records of selection only inhis office. His concern in keeping therecords of selections at safer place, couldnot be a ground to cancel the selection.Further, there is no allegation that theappointment letters were typed out at aprivate place. The District Panchayat RajAdhikari used the computer of DeputyDirector of his department for typing theappointment letters and thereafterdeleting the entires on the computer tomaintain secrecy. Thereafter he ensuredthat the establishment clerk of his officewas engaged in dispatching theappointment letters. Purchase of stampsand the posting of the appointment lettersby Railway Mail Service cannot be said tobe an illegality. If the appointment letterswere posted by a clerk other than theclerk, who was routinely doingdispatches, on the dates, when she did notaffect the validity of the selections.

17. The Court finds that the DistrictPanchayat Raj Officer took all reasonablecare to avoid unfairness in selections. Hewas unnecessarily victimized bysuspending him and thereafter in lodgingan F.I.R. against him and clerks of hisoffice. The Court prima facie finds thatthe entire action taken against the DistrictPanchayat Raj officer and the clerks inhis office, at the instance of some personsin the State Government, who have notbeen named, appear to be taken on theirfrustration in failing to break the secrecy.The members of the Selection Committee

and the Enquiry Committee have notfound any such illegality, which vitiatesthe selection or the selection of anycandidate. They have failed to point outany violation of the Rules of 2002, whichmay have affected the final result. It isthus apparent that the District Magistratewas acting either at the behest of theMinister of the Direct Panchayati Raj,who did not succeed in getting theircandidates appointed.

22. In Inder Preet Singh Kahloon v.State of Punjab, 2006 2 SCC 356, theSupreme Court held that sufficientmaterials should be collected to begathered through investigation in fair andtransparent manner, and that theillegalities must go to the root of thematter vitiating the entire selectionprocess, and the appointees in majoritymust be found to be part of the fraudulentpurpose or may themselves must be foundto be corrupt, to cancel the selections.The Supreme Court observed that HighCourt should also consider theconsequence of en masse cancellation ofselection. It carries a big stigmaparticularly, when the cancellation ofselection is directed on the seriouscharges of corruption. For the misdeedsof some candidates, honest and goodcandidates should not suffer in en massecancellation. In the interest of allconcerned and particularly in the interestof honest candidates the State should haveundertaken the taks of finding out theillegalities in respect of each selections.The unscrupulous candidates should notbe allowed to damage the entire system insuch a manner, where innocent peoplealso suffer great ignominy and stigma.The State also must not leave any stoneunturned to bring the guilty to book. Ifthere is any stigma, no officer howsoeverhigh should be spared.


23.In the same report the SupremeCourt observed in paras 71 to 73 that adecision to cancel the selection en masseshould not be taken in undue haste. It wasfound that a note containing 90 pages wassent to the Chief Secretary of Punjab on22.5.2002 and that service of all theofficers were terminated on the next day.The undue haste was beyond anticipatedapprehension. It was necessary for theState to show as to how records moved soas to satisfy the conscience of the Courtthat there had been proper and dueapplication of mind on the part ofauthorities concerned. An action taken inundue haste may be held to be mala fidevide Bahadur Singh Lakhubhai Gohil v.Jagdish Bhai M. Kamalia 2004 2 SCC 65.The basic principle underlying the rule isthat justice not only be done but must alsoappear to be done. This rule is notconfined to the cases, where judicial poweris exercised. It is appropriately extended toall the cases, where an independent mindhas to be applied to arrive at a just andfair decision between rival claims of theparties vide Ashok Kmar Yadav v. State ofHaryana 1985 4 SCC 417. It was held inthis case, that justice i3 not function of theCourts alone; it is also the duty of allthose; who are expected to decide fairlybetween contending party. The strictstandards applied to authorities exercisingjudicial powers are being increasinglyapplied to administrative bodies, and it isvital to maintain rule of law in welfare ofthe State, where the jurisdiction ofadministrative bodies is increasing at arapid pace that the instrumentality of theState should discharge their functions in afair and just manner."

34. The division bench also observedas under in para 18, 19 & 20 in Ram BabuSahu (supra):-

"18. We have considered thesubmissions, and perused the documentsannexed to the writ petition. We findconsiderable substance in the argumentadvanced by Shri Ashok Khare, that thefindings of misconduct in theirregularities in selection process weresubject matter of adjudication by the HighCourt. This Court had recorded specificfindings that the irregularities alleged inthe selection could not be a ground tocancel the entire selection. There were noallegation that the selections of backlogvacancies were not advertised or that theselected persons did not belong to thecategories in which the vacancies wereexisting. Further, there was no complaint,that the merit list in the descending orderof the 1600 candidates was not preparedstrictly in accordance with the marksawarded to them in their educationalqualifications, which was the only criteriato award marks and in which there wasno discretion given to the SelectionCommittee. Their discretion was onlyavailable in the marks awarded forinterviews. The members of the SelectionCommittee had observed that whereverthe marks were found to be erroneouslyentered in the list, the marks wereimmediately corrected. None of themembers of the Selection Committee hadcomplained that they did not haveopportunity to interview the candidates orthat the marks awarded by them were notproperly shown in the list. TheGovernment Order dated 20.7.2002 foraward of marks for achievements onsports was superseded by the UPProcedure for Direct Recruitment forGroup 'C' Posts (Outside the Purview ofUP Public Service Commission) Rules,2002, which clearly provided in Rule 5 (3)(c) the number of marks to be awarded inachievement in sports. The members of


the Committee did not agree on anycommon method of awarding marks forthe interview. They did not decide toaward any minimum or maximum marksto the candidates in interviews and thus itwas open to each of the members toaward marks on their own assessment.The enquiry committee found variation ofmarks only in case of two candidatesnamely Kamlapati and Swata Tiwari.There were no allegations of malafidesand any undue favours against DistrictPanchayat Raj Officer except in statingthat he had awarded lesser marks to thetwo candidates in the interviews, and hadnot corrected the marks for achievementsand sports.

19. The Court had also found thatthe anxiety to maintain secrecy inpreparing the final result and by typingthem out with the help of two clerks in thedepartment, and its despatches by aperson other than the despatch clerkscould not by itself be treated to be anirregularity, which vitiated the selections.

20. The Court had also recordedfindings that no exception could be takennor there were any directions given to theDistrict Panchayat Raj Officer, to keepthe records of the selection only in hisoffice. His concern for safety of therecords could not be a ground to cancelthe selections. There was no allegation,that the appointment letters were typedout at a private place. The DistrictPanchayat Raj Officer used the computerof the Deputy Director in his office fortyping out the appointment letters andthereafter deleted the entries to maintainthe secrecy. The deployment of theestablishment clerk in preparing theselect list and in despatching theappointment letters after purchasing thestamps and posting by Railway MailService cannot be said to be an illegality,

which vitiated the selections. If theappointment letters were typed and postedby a clerk other than the clerk, who wasroutinely doing such despatches, theselection cannot be held to be bad in law.The Court also recorded specific findingsthat the District Magistrate, either at thebehest of the Minister, or Director,Panchayati Raj was making an attempt tobreak the secrecy, and since he did notsucceed in getting their candidatesappointed, he prepared a report, which inany case could not dispute the validity ofthe selection. There was no complaint byany person or any candidate that theselect list was not drawn in accordancewith the categories, or that any personcould not secure appointment or sufferedon account of failure to prepare the listcategory-wise. "

35. Reliance placed on the judgmentof the Supreme Court in 1970 (1) SCC648 : The Bihar School ExaminationBoard vs. Subhas Chandra Sinha andothers, dealt with a different factualscenario where mass copying has beenresorted to, and therefore, it was held thatprinciples of natural justice would notapply. No such allegation with regard toconduct of examination has been pointedout nor does it exit on record, andtherefore, the principle laid down in thesaid decision does not help the cause ofrespondents.

36. It is also submitted that in thesubsequent examination one of thepetitioners has participated, and therefore,on this ground also the petition is notliable to be entertained. It is not in disputethat the writ petition had been entertainedby this Court and the examination processitself was undertaken during the pendencyof the writ petition and 2 out of 3


petitioners have not taken part in it. Incounter affidavit filed by the respondentState, it has been stated that freshexamination was to be held on 14.9.2014but during the course of submissions ithas been pointed out that the examinationwas actually not conducted on that daybut was conducted on 18th September orsome date thereafter. The respondentshave not brought on record any materialto show exact date of holding of secondexamination and whether the date wasintimated to all. The advertisement forholding of fresh examination mentions thedate as 14.9.2014 but the holding ofexamination on some subsequent dateafter 14.9.2014 has been claimed, whichalso creates doubt as to whether thesubsequent date was intimated to all thecandidates. Nevertheless once this Courtfinds that the cancellation of firstexamination conducted on 13.7.2014itself was without any basis and arbitrary,the holding of any subsequentexamination will not be material. Evenotherwise all the students in both theexaminations are same and once theyhave appeared in the examination on13.7.2014 and the examination processwas fair and transparent, no prejudicewould be caused if their OMR sheets areassessed.

37. In view of the discussions andconsideration made above, this Courtfinds the impugned action of therespondent institute, in cancelling theexamination dated 13.7.2014 to bewithout any basis, lacking bona fide, andbased upon non existed material, and assuch, it cannot be sustained. Theimpugned order dated 17.7.2014,cancelling the examination held on13.7.2014 is, therefore, quashed. Adirection is further issued to the

respondents to forthwith process theOMR sheets of the examination held on13.7.2014, which are lying in the safecustody of the institute itself, and basedupon the results thereof, the counsellingand admission to Para Medical andNursing course be offered, in accordancewith law.

38. Accordingly, the writ petition isallowed. No order is passed as to costs.



BEFORETHE HON'BLE DR. DHANANJAYA YESHWANT

CHANDRACHUD, C.J.THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition [PIL] No. 42084 of2014

Dr. Ravindra Shukla & Ors. ...PetitionersVersus


Counsel for the Petitioners:Sri Sushil Jaiswal, Sri Rakesh ChandraTiwari

Counsel for the Respondents:C.S.C.

Wild Life Protection Act-Section 34(3)-Grant of fire arm license without approvalof Chief Wild Life Warden-applicantsresiding withing 10 km area of sanctuary-such practice highly deappriciated-stategovernment to issue necessary direction toall the District Magistrate for strictcompliance of direction of NOC from CWLWbefore grant of fire arm license.

Held: Para-8We also issue a general direction to theeffect that hereafter, no licence underthe Arms Act, 1959 shall be granted in

3 All]. Dr. Ravindra Shukla & Ors. Vs. State of U.P. & Ors. 1381

the State of U.P. without the NOC of theChief Wild Life Warden in those areaswhich fall within the purview of Section34 of the Act of 1972. The StateGovernment shall take necessary stepsto issue directions to all the DistrictMagistrates concerned to take steps withreference to those arms licences whichhave been granted without complyingwith the provisions of Section 34 (3) inrespect of those areas which fall within aradius of ten kilometers of a sanctuary.

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

1. In a petition which has been filedin the public interest, the petitioners havehighlighted a serious issue relating to theissuance of arms licences without theprior concurrence of the Chief Wild LifeWarden, in violation of the provisions ofSection 34 (3) of the Wild Life(Protection) Act, 19721.

2. A wild life sanctuary by the nameof Hastinapur sanctuary, spread over anarea of 2073 sq km, is situated in thedistricts of Meerut, Ghaziabad, Bijnoreand Jyotiba Phule Nagar. The populationof the sanctuary includes various speciesof antelope, sambhar, cheetal, blue bull,leopard, hyena, wild cat and differenttypes of birds. It also has alligators.

3. The grievance of the petitioners isthat the District Magistrate, Jyotiba PhuleNagar (Amroha) has issued arms licenceswithout observing the requirement of theprior concurrence of the Chief Wild LifeWarden.

4. Section 34 of the Act of 1972provides as follows:

"34. Registration of certain personsin possession of arms.- (1) Within three

months from the declaration of any areaas a sanctuary, every person residing in orwithin ten kilometers of any suchsanctuary and holding a licence grantedunder the Arms Act, 1959 (54 of 1959),for the possession of arms or exemptedfrom the provisions of that Act andpossessing arms, shall apply in such form,on payment of such fee and within suchtime as may be prescribed, to the ChiefWild Life Warden or the authorisedofficer, for the registration of his name.

(2) On receipt of an applicationunder sub-section (1), the Chief Wild LifeWarden or the authorised officer shallregister the name of the applicant in suchmanner as may be prescribed.

(3) No new licences under the ArmsAct, 1959 (54 of 1959) shall be grantedwithin a radius of ten kilometers of asanctuary without the prior concurrenceof the Chief Wild Life Warden."

5. Under sub-section (1) of Section34, on the declaration of an area as asanctuary, every person residing within aradius of ten kilometers and holding alicnece under the Arms Act, 1959, andeven a person exempted from theprovisions of the that Act and possessingarms, has to apply to the Chief Wild LifeWarden for the registration of his name.Under sub-section (3), no new licencescan be granted within a radius of tenkilometers of a sanctuary without theprior concurrence of the Chief Wild LifeWarden.

6. The counter affidavit which hasbeen filed by the present DistrictMagistrate, who has taken charge on 8 June2014, states that as many as 166 armslicences were granted in 2005-06, 2006-07and 2007-08 without a No Objection


Certificate2 from the Chief Wild LifeWarden. Notices have been issued on 31May 2014 to all such arms licence holders,numbering 166. In the case of 33 armslience holders, the Chief Wild Life Wardenfound that NOC had been issued. In respectof the balance 133 arms licence holders,neither has any reply to the show causenotices been received nor have any NOCsgranted by the Chief Wild Life Wardenbeen submitted. Consequently, fresh noticeshave been issued by the Chief Wild LifeWarden on 29 August 2014 to 133 armslicence holders for cancellation of licencesas they do not have the NOC of the ChiefWild Life Warden, and hearing is to takeplace on 20 September 2014.

7. We, accordingly, direct that thecompetent authority shall take necessarysteps in accordance with law in pursuanceof notices to show cause which have beenissued on 29 August 2014 and evenearlier, in respect of those arms licenceholders who do not have the NOC of theChief Wild Life Warden under Section 34(3) of the Act of 1972.

8. We also issue a general direction tothe effect that hereafter, no licence under theArms Act, 1959 shall be granted in the Stateof U.P. without the NOC of the Chief WildLife Warden in those areas which fall withinthe purview of Section 34 of the Act of 1972.The State Government shall take necessarysteps to issue directions to all the DistrictMagistrates concerned to take steps withreference to those arms licences which havebeen granted without complying with theprovisions of Section 34 (3) in respect ofthose areas which fall within a radius of tenkilometers of a sanctuary.

9. We also clarify that since theState Government has referred to the

position of the arms licences which weregranted between 2005 to 2008, in theevent that arms licences were grantedthereafter without complying with theprovisions of Section 34 (3) of the Act of1972, necessary action shall be taken inaccordance with law.

10. The learned Standing Counselshall take steps to transmit a copy of thisorder to the Principal Secretary (Home)who shall take necessary steps forcompliance of this order by issuinginstructions to all the concerned DistrictMagistrates.

11. The writ petition is, accordingly,disposed of. There shall be no order as tocosts.




CHANDRACHUD, C.J.THE HON'BLE DILIP GUPTA, J.


Swami Brhamanand Saraswati CharitableTrust & Anr. . .Petitioners

VersusState of U.P. ...Respondent

Counsel for the Petitioners:Sri Tarun Agarwal

Counsel for the Respondent:C.S.C.

U.P. Zamindari Abolution & LandReforms Act, 1950-Section-154(2) and(3)-Petitioner a charitable society-sought permission from stategovernment to purchase more than12.50 acre land-for residence of student

3 All]. Swami Brahamanand Saraswati Charitable Trust &Anr. Vs. State of U.P. 1383

and ancillary purposes-earlier whilequashing the impugned order-considering willingness to pay the finespetition disposed again withoutconsidering the direction-without anyfinding of charitable-general publicinterest-rejection on ground more than12.50 acre land purchased-held can notbe said-no specific purpose/projectbehind acquisition-order quashed withdirection to take fresh decision-ifrequired take additional evidence-afteraffording full opportunity to petitioner.

Held: Para-11In the present case, prima facie, itcannot be held that the petitioners haveno specific project or purpose behind theacquisition of the land. The petitionershave submitted a detailed project reportto the State Government. The proposalwas recommended both by the DistrictMagistrate as well as by theCommissioner to the State Government.Having regard to this factualbackground, it was necessary for theState Government to take thoserecommendations of responsible officersof the State into consideration. In thepresent case, having considered allmaterials on record, we have come tothe conclusion that the impugned orderdoes not take into account relevant andgermane circumstances and has beenpassed without a due and properapplication of mind.


1. The first petitioner is a publiccharitable trust and the second petitioneris its authorized representative. The trustwas set up with the object to revive andresuscitate Vedic Science and promote itsstudy as a primary source of knowledge,establish the correlation of Vedic Scienceand other branches of knowledge and withthe discipline of life and to disseminatethe same amongst people. Clause 3 of the

Deed of Trust contains an exhaustiveenumeration of the objects of the trust.

2. The first petitioner applied on 10June 2000 for the grant of permission forthe purchase of land in excess of 12.50acres, in public interest for theaccomplishment of a proposed projectwhich envisaged setting up educationalinstitutions for the dissemination of Vedicknowledge, construction of residences forstudents and for ancillary purposes. Thepermission was sought in order to enablethe trust to purchase land in excess of12.50 acres, as mandated by Section 154of the Uttar Pradesh Zamindari Abolitionand Land Reforms Act, 19501. When noaction was taken, the petitioners againapplied to the Commissioner, KanpurDivision, Kanpur on 21 August 2000 forthe grant of permission under Section 154(2) for the purchase of 725.50 acres ofland spread over 21 villages on the banksof river Ganges of Kanpur Nagar. On 21October 2000, the Commissionerrecommended to the State Governmentfor the grant of permission as sought bythe first petitioner. Thereafter, there wasan exchange of correspondence regardingcertain queries being raised with thepetitioners.

3. On 14 December 2006, the StateGovernment passed an order to the effectthat since the petitioners had purchasedland admeasuring 544 acres in excess ofthe prescribed limit under Section 154 (1)without the permission of the StateGovernment, the land stood vested in theState under Section 167 of the Act. Theorder was challenged in Writ - C No.2982 of 2007 which was disposed of by aDivision Bench of this Court on 11 March2010. The Division Bench recorded thestatement of the petitioners that an


application would be filed under Section154 (3) before the State Governmentwhich was directed to pass an appropriateorder in accordance with law, afterfurnishing to the petitioners anopportunity of being heard.

4. The petitioners, thereupon, madea representation on 23 August 2010 to theCommissioner, Kanpur Division whichwas forwarded to the State Governmenton 1 September 2010. The petitionershave stated that the District Magistratehad also duly recommended to the StateGovernment the grant of an exemptionunder Section 154 (2), and that theTehsildar, in the course of an enquiry inApril 2011, had opined that the activitiesproposed by the first petitioner were inthe interest of the general public. Aseparate recommendation was made bythe District Magistrate on 2 September2011. The State Government, however,rejected the application on 25 June 2012on the ground that the purpose for whichthe land was purchased, did not qualify asa public purpose.

5. The order of the StateGovernment was challenged by thepetitioners in Writ-C No. 45114 of 2012.During the pendency of the petition, thepetitioners made an unconditionalstatement of their readiness andwillingness to deposit an amount of fineas required by the first proviso to Section154 (3). On 17 April 2013, the Court wasapprised on behalf of the State that inview of the readiness expressed by thepetitioners, a decision was expectedshortly by the State Government underSection 154 (3). On 31 May 2013, theapplication submitted by the petitionerswas once again rejected, following whichthe earlier writ petition was disposed of as

infructuous with liberty to file a fresh writpetition. Thereupon, the petitioners filed afresh writ petition, being Civil Misc WritPetition No 67058 of 2013 for challengingthe order dated 31 May 2013. TheDivision Bench allowed the petition on 9December 2013 with the followingobservations:

"Once land in question belonged toprivate land holders and petitioners haveproceeded to purchase the same forcharitable purpose, and educationalpurpose and provision for post factoratification of the said transaction, onfulfillment of terms and conditions ascontained in the first proviso to sub-section 3 of Section 154 of U.P.Zamindari Abolition and Land ReformsAct, 1950, then request made bypetitioner ought to have been consideredby reasoned order as to why petitioners'request cannot be accepted. Merelybecause mutation has been made in favourof the State Government, same cannot bemade foundation and basis for notconsidering the request of the petitioners.Mutations are made for a specificpurpose, and are always subject totransactions and proceedings that takeplace. Once there is a provision, then theclaim of petitioners should have beenconsidered on merit, instead ofproceeding to non suit the claim ofpetitioners, merely on the premises thatmutation has taken place.

6. Consequently, in view of the factstated above, order dated 31.5.2013 passedby the State Government is hereby quashedand set aside and the State Government isdirected to take a fresh decision in the matterin accordance with law, preferably withinperiod of next four months from the date ofproduction of certified copy of this order.


With these observations, writ petitionis allowed."

Following the order of remand, a freshorder has been passed by the PrincipalSecretary (Revenue) to the StateGovernment on 14 August 2014 rejectingthe representation. The Principal Secretaryhas held that the petitioners had acquiredland in excess of the prescribed limit underSection 154 (1) without the approval of theState Government and without any precisepolicy or project and, hence, it was notappropriate to grant permission.

Section 154 of the Act provides asfollows:

"154. Restriction on transfer by abhumidhar.-(1) Save as provided in sub-section (2), no bhumidhar shall have theright to transfer by sale or gift, any landother than tea garden to any person wherethe transferee shall, as a result of suchsale or gift, become entitled to land whichtogether with land, if any, held by hisfamily will in the aggregate, exceed5.0586 hectares (12.50 acres) in UttarPradesh.

Explanation.- For the removal ofdoubt it is hereby declared that in thissub-section the expression "person" shallinclude and be deemed to have includedon June 15, 1976 a "Co-operativeSociety":

Provided that where the transferee isa Co-operative Society, the land held by ithaving been pooled by its members underClause (a) of sub-section (1) of Section 77of the Uttar Pradesh Co-operativeSocieties Act, 1965 shall not be taken intoaccount in computing the 5.0586 hectares(12.50 acres) land held by it.

(2) Subject to the provisions of anyother law relating to the land tenures forthe time being in force, the StateGovernment may, by general or specialorder, authorise transfer in excess of thelimit prescribed in sub-section (1) if it isof the opinion that such transfer is infavour of a registered co-operative societyor an institution established for acharitable purpose, which does not haveland sufficient for its need or that thetransfer is in the interest of general public.

Explanation.- For the purposes ofthis section, the expression 'family' shallmean the transferee, his or her wife orhusband (as the case may be) and minorchildren and where the transferee is aminor also his or her parents.

(3) For every transfer of land inexcess of the limit prescribed under sub-section (1) prior approval of the StateGovernment shall be necessary:

Provided that where the priorapproval of the State Government is notobtained under this sub-section, the StateGovernment may on an application giveits approval afterward in such manner andon payment in such manner of an amount,as fine, equal to twenty five per cent ofthe cost of the land as may be prescribed.The cost of the land shall be such asdetermined by the Collector for stampduty.

Provided further that where the StateGovernment is satisfied that any transferhas been made in public interest, it mayexempt any such transferee from thepayment of fine under this sub-section."

7. Sub-section (1) of Section 154imposes a limit of 12.50 acres beyond


which, save as provided in sub-section(2), no bhumidhar shall have the right totransfer, by way of sale or gift, any landto any person where the transferee shall,by virtue of the sale or gift, be entitled toland which together with land, if any, heldby his family, in the aggregate, exceeds12.50 acres. However, the limit undersub-section (1) of Section 154 is expresslysubject to sub-section (2), as the openingwords of sub-section (1) would indicate.Sub-section (2) empowers the StateGovernment, either by a general orspecial order, to authorise a transfer inexcess of the prescribed limit in sub-section (1) if the State Government is ofthe opinion that such a transfer is infavour of a registered co-operative societyor an institution established for acharitable purpose, which does not haveland sufficient for its need or where thetransfer of the land is in the interest of thegeneral public. Under sub-section (3), forevery transfer in excess of the prescribedlimit under sub-section (1), prior approvalof the State Government is necessary.However, under the first proviso to sub-section (3), the State Government isempowered to grant its approval postfacto, subject to the payment of anamount equal to 25 percent of the cost ofthe land as prescribed. The secondproviso to sub-section (3) furtherempowers the State Government toexempt from the payment of fine, where itis satisfied that any transfer has beenmade in public interest.

8. In the present case, it is apparentthat the State Government has repeatedlydisabled itself from applying its mind tothe considerations relevant to the exerciseof the power under sub-section (2) or, asthe case may be, sub-section (3) ofSection 154 of the Act. As the record

before the Court would indicate, theorders passed by the State Governmenthave been interfered with in the exerciseof the writ jurisdiction under Article 226of the Constitution by directing theGovernment to apply its mind to therequirements which are contained in sub-section (2) and the provisos to sub-section(3) of Section 154 at various stages. TheState Government, in the present case, hasdeclined to exercise the discretion whichhas been conferred upon it under sub-section (3) of Section 154 on the groundthat the petitioners have acquired land inexcess of the prescribed limit and, hence,there was no reason or justification togrant approval. The second reason whichhas weighed for the rejection is that thepetitioners have proceeded to purchasethe land without any specific purpose orproject in mind.

9. We find merit in the contention ofthe learned counsel appearing on behalf ofthe petitioners, that the State Governmenthas, once again, rejected the applicationwithout considering the circumstanceswhich are relevant and germane to theexercise of the power. The fact that theholding of the petitioners would exceedthe limit prescribed under sub-section (1)cannot be a reason, in itself, to reject theapplication. As a matter of fact, sub-section (1) of Section 154 begins with anexpression that save as provided in sub-section (2), no bhumidhar shall have theright to transfer land in excess of the limitas prescribed, where the transferee shall,as a result of the sale or gift, becomeentitled to land which together with hisexisting holding exceeds 12.50 acres. Theprovisions of sub-section (2) indicate thatthe State Government is duly empowered,by general or special order, to authorise atransfer in excess of the limit prescribed,


where it is satisfied that (i) the transfer isin favour of a registered cooperativesociety; or (ii) the transfer is in favour ofan institution established for a charitablepurpose which does not have landsufficient for its need; or (iii) that thetransfer is in the interest of the generalpublic. Obviously, if the limit of 12.50acres is to be an inflexible norm whichdoes not admit of any exception, therewas no occasion for the legislature tomake a provision under sub-section (2)for transfer in excess of the limitprescribed under sub-section (1). Sub-section (3) of Section 154 mandates theprior approval of the State Government.The first proviso to sub-section (3) alsocontemplates a situation in which a postfacto permission can be granted, thediscretion being vested in the StateGovernment to do so, subject to thepayment of a fine. The second proviso tosub-section (3) further authorises the StateGovernment to dispense with the paymentof fine, where it is satisfied that thetransfer has been made in public interest.

10. In the present case, a statementwas made on behalf of the petitioners inearlier writ proceedings that they wereready and willing to deposit the fine asrequired by the first proviso to sub-section(3) of Section 154. Hence, there would beno occasion to dispense with the conditionof a fine, as is contemplated in the secondproviso, where the State Government issatisfied that the transfer is in publicinterest. But more importantly, the StateGovernment has to exercise its discretionon objective considerations and the statuteitself provides the guidelines andcircumstances in which the discretion canbe exercised. Sub-section (2) of Section154 provides the circumstances in whichthe State Government may authorise a

transfer in excess of the limit prescribedunder sub-section (1). There is absolutelyno reference in the impugned order towhether the petitioners satisfy any of theguiding factors which are stipulated in thestatutory provision. There has been noapplication of mind to whether theinstitution is established for a charitablepurpose; whether it does not have landsufficient for its need; or whether thetransfer is in the interest of the generalpublic. Merely holding that the petitionershad acquired land in excess of theprescribed limit under sub-section (1)does not, by itself, disable the StateGovernment from exercising the powersvested in it by sub-section (2) and by thefirst proviso to sub-section (3) of Section154. The infirmity in the impugned orderlies in the fact that the State Governmenthas abdicated its discretion and hasrejected the application withoutconsidering circumstances relevant andgermane to the exercise of discretionunder the statute. Where an application ismade to the State Government for theexercise of its discretion under sub-section (2) or the first proviso to sub-section (3) of Section 154, the burden lieson the institution to establish the elementof public interest or, as provided in sub-section (2), to demonstrate that theinstitution is established for a charitablepurpose. Where an institution haspurchased a tract of land in excess of theprescribed limit without the approval ofthe State Government, this judgmentshould not be construed to mean that theState Government is bound to grant itspermission without application of mind towhether the institution has a concreteproposal or project which would sub-serve its charitable purpose or which hasan element of public interest. Thepetitioners would have to duly establish


the purpose that is involved and the publicinterest that would be subserved by theproject. The prescribed limit of 12.50acres has been introduced as a part of thelegislation which subserves the widersocial policy of the State, made inpursuance of the Directive Principles ofState Policy in the Constitution.Consequently, any dispensation from theprescribed limit of 12.50 acres will haveto meet the conditions of exemptionwhich have been stipulated in the statuteand it is only subject to compliance withthose conditions that a dispensation canbe granted in the exercise of discretion bythe State.

11. In the present case, prima facie,it cannot be held that the petitioners haveno specific project or purpose behind theacquisition of the land. The petitionershave submitted a detailed project report tothe State Government. The proposal wasrecommended both by the DistrictMagistrate as well as by theCommissioner to the State Government.Having regard to this factual background,it was necessary for the State Governmentto take those recommendations ofresponsible officers of the State intoconsideration. In the present case, havingconsidered all materials on record, wehave come to the conclusion that theimpugned order does not take intoaccount relevant and germanecircumstances and has been passedwithout a due and proper application ofmind.

12. In view of the above, the petitiondeserves to be allowed and is,accordingly, allowed. The order dated 14August 2014 passed by the PrincipalSecretary (Revenue) is set aside. Thematter is remanded to the State

Government for a decision afresh, whichshall be made after furnishing to thepetitioners a reasonable opportunity ofbeing heard.

13. We grant liberty to thepetitioners to produce any additionalmaterial upon which they seek to placereliance before the State Government. Wealso leave it open to the State Governmentto direct the petitioners to produce furtherinformation and material, as may berequired by the State Government toarrive at a proper conclusion for theexercise of its discretion, in accordancewith the provisions of Section 154 (3) ofthe Act.

14. The petition is accordinglydisposed of. In the circumstances of thecase, there shall be no order as to costs.



BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI, J.THE HON'BLE VIVEK KUMAR BIRLA, J.


M/S Jupiter Information Tech. Pvt. Ltd.,Delhi ...Petitioner

VersusState of U.P. & Ors. ...Respondents

Counsel for the Petitioner:Sri V.K. Jaiswal, Sri H.R. Mishra

Counsel for the Respondents:C.S.C., Sri Shivam Yadav

Constitution of India, Art.-226-Restoration of allotment of plot -oncertain default-considering hugeinvestment-as per clause 'L' of thepolicies & Procedures for industrial

3 All]. M/S Jupiter Information Tech. Pvt. Ltd., Delhi Vs. State of U.P. & Ors. 1389

property management-subject tofulfillment of the conditions-authority toconsider and take appropriate decision-petition disposed of.

Held: Para-8Having considered the submissionsraised, we dispose of the writ petitionwith a direction to the respondent no. 2,to consider the aforesaid claim of thepetitioner and pass appropriate orderswithin two months from the date ofproduction of a certified copy of thisorder provided there is no legalimpediment or any other policy ofGovernment Order contrary to the above.

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

1. Heard Sri H.R. Mishra, learnedsenior counsel for the petitioner and SriShivam Yadav, learned counsel for therespondents no. 2, 3 and 4.

2. The petitioner had been allotted acommercial plot.

3. The contention of the respondentsappears to be that the petitioner hasdefaulted and, therefore, the plot has beencancelled as per the conditions applicable.

4. The petitioner contends that hehas made huge deposits and, therefore, theprayer is that the plot may be allowed tobe retained by the petitioner on the termsand conditions that may be applicable forthe said purpose.

5. This matter had been adjourned toenable the learned counsel for therespondent authority to inform the Courtwhether such a course is permissible or not.

6. Sri Shivam Yadav has presentedbefore the Court a document titled as

"The Policies and Procedures forIndustrial Property Management" ofOctober, 2012.

7. Sri Shivam Yadav has invited theattention of the Court to Clause L of the saidpolicy, which is extracted herein under:

Restoration of Industrial Plot/Shed

The Authority can exercisecancellation of industrial plot/shed forbreach of terms and conditions ofallotment/lease deed/Transfer deed.However, the Chief Executive Officer/orany other officer authorised by him canrestore the plot. the restoration will besubject to the following conditions:-

1. The allottee would pay restorationcharges @ 10% of the prevailingrate/reserve price. .

2. The allottee has to produce NOCof accounts department.

3. The allottee has to pay timeextension, charges as per terms ofallotment/lease.

4. The allottee will submit projectimplementation schedule in the shape ofaffidavit. The maximum time allowed isone year for plot size upto 4000 sq. mtrs.And two years for plot size above 4000 sq.mtrs.

5. The allottee has to submitperformance guarantee valid for more thanthree months period of Pis given by him andvalue of performance guarantee will be 10%of the prevailing price of the plot.

6. Transfer and/or Change InConstitution of the unit would not beallowed outside the blood relation, till the


unit is declared functional by the NOIDAthrough a written communication.

7. If there is any court case pendingbefore any court, it has to be withdrawnby the allottee. All legal expenses wouldbe borne by the allottee.

8. In case allotment has beencancelled due to commercial activities therestoration of the plot shall only beconsidered on submission of affidavit fornot carrying out the commercial activitiesin future and on inspection of the siteabout closing the commercial activities.

9. In case of restoration inprepossession cases, the allottee shall berequired to get the unit functional as perterms of the Lease Deed. In such casesthey will have to comply with the clauses1,2,5,6 & 7, as stated above.

8. Having considered the submissionsraised, we dispose of the writ petition with adirection to the respondent no. 2, to considerthe aforesaid claim of the petitioner and passappropriate orders within two months fromthe date of production of a certified copy ofthis order provided there is no legalimpediment or any other policy ofGovernment Order contrary to the above.

9. With the above directions, thewrit petition is disposed off.



BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI, J.THE HON'BLE VIVEK KUMAR BIRLA, J.


Nagar Palika Parishad, Mawana, Merrut...Petitioner

VersusState of U.P. & Ors. ...Respondents

Counsel for the Petitioner:Sri Nipun Singh

Counsel for the Respondents:C.S.C., Sri Anand Kumar

U.P. Palika (Centralized) Service Rules1966-Rule-31-Additional or temporarycharge of executive officer-by G.O. Dated24.01.2014-proposal for appointment besend to state government-DistrictMagistrate-no authority to giveadditional/temporary charge-quashed.

Held: Para-7A perusal thereof leaves no room fordoubt that any ad hoc or temporaryofficiating appointment is within thejurisdiction of the State Government andwhich stands fortified by the judgment inparagraph 29 aforesaid. The GovernmentOrder dated 24.1.2014 is also to thesame effect.

Case Law discussed:2014 (1) A.D.J. Page 368.paragraph 29.

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

1. Heard Sri Nipun Singh learnedcounsel for the petitioner, Sri Rajiv Singhlearned Standing Counsel for therespondent nos. 1 to 3 and Sri AnandKumar for the respondent no. 4.

2. The Office of the ExecutiveOfficer of the Nagar Palika, Mawana, waslying vacant and one Mr. Manoj KumarRastogi was transferred for taking overcharge as such by the State Government.However, Mr. Rastogi has not taken overcharge as yet.

3 All]. Nagar Palika Parishad, Mawana, Merrut Vs. State of U.P. & Ors. 1391

3. The District Magistrate, Meerut asan interim measure, pending taking overcharge by a regular appointee, has passedthe impugned order whereby he hasdirected the respondent no. 4 ShailendraKumar Singh, who is the ExecutiveOfficer, Hastinapur to also additionallytake charge of Nagar Palika Parishad,Mawana.

4. The petitioner is the Chairman ofthe Nagar Palika Parishad, Mawana and itis alleged that this order of the DistrictMagistrate is without jurisdiction keepingin view the ratio of the decision in thecase of Girdhari Lal Swarnkar Vs. Stateof U.P. and others reported in 2014 (1)A.D.J. page 368. Paragraph 29 of the saidjudgment is extracted hereinunder:-

"29- The U.P. Palika (Centralized)Service Rules, 1966, do not contemplateany delegation of powers by the StateGovernment in the matter of appointmentupon the District Magistrate or any otherauthority. Therefore, the GovernmentOrder impugned also suffers from the viceof excessive delegation."

5. This matter was taken up and wehad called upon the learned StandingCounsel to obtain instructions about theexercise of powers by the DistrictMagistrate in such a contingency keepingin view the aforesaid decision of theCourt.

6. Learned Standing Counsel hasinvited the attention of the Court to theGovernment Order dated 24.1.2014 tourge that the State Government hasalready issued instructions as per thejudgment in the case of Girdhari LalSwarnkar (Supra) and any such proposalfor additional or temporary charge as

provided under Rule 31 of the U.P. Palika(Centralized) Service Rules, 1966 has tobe sent to the State Government fororders. The said rule is extractedhereinunder:-

"31- Temporary Arrangments- Adhoc and temporary officiatingappointments- Notwithstanding anythingcontained in Rule 21 the StateGovernment may also make ad hocappointments or temporary officiatingarrangements for the posts falling vacantSubstantively or temporarily."

7. A perusal thereof leaves no roomfor doubt that any ad hoc or temporaryofficiating appointment is within thejurisdiction of the State Government andwhich stands fortified by the judgment inparagraph 29 aforesaid. The GovernmentOrder dated 24.1.2014 is also to the sameeffect.

8. There is no ambiguity in thesource of the power available with theState Government in this regard. Thepetitioner therefore is correct in hersubmission that the District Magistratedid not have any jurisdiction to pass anyorder with regard to such arrangment asper Rule 31 aforesaid.

9. The writ petition thereforedeserves to be allowed. The impugnedorder dated 12.8.2014 Annexure 1 to thewrit petition is quashed leaving it open tothe State Government-respondent no. 1 topass an appropriate order with regard toproposal of appointment of the ExecutiveOfficer of the Nagar Palika Parishadconcerned in accordance with law.


CIVIL SIDE



BEFORETHE HON'BLE RAJAN ROY, J.


Sanjeev Kumar & Ors. ...PetitionersVersus


Counsel for the Petitioners:Sri Shashi Nandan, Sri Santosh KumarSrivastava, Smt. Alka Srivastava

Counsel for the RespondentsC.S.C., Sri Manish Goyal, Sri G.K. SinghSri Samir Sharma

Constitution of India, Art.-226-Regularization-employees working infast tract Court-after regularization-thereconsidered as per circular issued byHigh Court-following dictum of 'UmaDevi' case-neither State Government norHigh Court ever given direction forregularization-revocation although notfaulty-but High Court not considered thecase law of Apex Court of Brij Mohan Lal-where direct or Adhoc judges of Fasttrack Court were directed to regularized-both judges and employees of fast trackcourt-being part of same scheme-shouldnot be treated differently-direction forfresh consideration of theirregularization given.

Held: Para-42Having said so, I am also of the view thatthe High Court does not appear to haveconsidered the judgment of the SupremeCourt in Brij Mohan Lal's Case (supra),specially Paragraph 207.9 thereof,whereby direct recruit ad hoc judges ofFast Track Courts were ordered to beconsidered for regularappointment/regularisation subject tothe terms and conditions mentionedtherein. As both judges and employeesof Fast Track Courts were part of thesame Scheme, in my view, there is no

reason as to why they should be treateddifferently, therefore, I am of the viewthat the respondents may consider thecase of the petitioners for grant of suchbenefits as has been extended by theSupreme Court in Brij Mohan Lal's Case(supra) to the Fast Track Courts' Judgesvide paragraph 207.9 thereof, subject tosuch variations as may be necessary,unless there are exceptional andcompelling reasons for not extendingsuch benefit to them.

Case Law discussed:2006 (4) SCC 1; 2014 (7) SCC 233; 2010 (9)SCC 247; 2014 (7) SCC 2; 2012 (6) SCC 502;2012 (11) SCC 656.

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

1. Heard Sri Shashi Nandan, learnedSenior Counsel assisted by Sri SantoshKumar Srivastava for the petitioners, SriG.K. Singh, learned Senior Counselassisted by Shri Samir Sharma for therespondents No. 2, 3 and 4 and thelearned Standing Counsel for therespondent No. 1.

2. The issue involved herein is theentitlement of the petitioners toregularization of their ad hoc servicesagainst sanctioned posts in the regularcadre of service in the District Courts andthe validity of the orders passed by theconcerned District Judge and the HighCourt, on the Administrative Side, in thisregard.

3. The scheme of Fast Track Courtswas introduced by the Union of India andfunds were allocated for the said purposeby the 11th Finance Commission. Thesaid Courts were created for shortduration, which were extended from timeto time. Ultimately, the aforesaidarrangement came to an end on 31.3.2011when the Union of India refused to extend

3 All]. Sanjeev Kumar & Ors. Vs. State of U.P. & Ors. 1393

further financial assistance for the saidCourts. Thereafter, in some States, theFast Track Courts have continued and theexpenses have been borne by theconcerned State Government, whereas inother States, the employees engaged forrunning of the said Courts have beenabsorbed in the regular Courts on suchterms and conditions as has been deemedfit.

4. An advertisement was issued bythe District Judge, Baghpat on 27.5.2003inviting applications for selection andappointment ofStenographers/Clerks/Typists and Class-IV employees for the Fast Track Courtsreferred above and in pursuance thereof aselection was held wherein the petitionersparticipated and on being found fit for thepost in question, were selected andappointed on ad hoc basis with a clearstipulation that the post in question werepurely temporary and likely to continuefor short duration unless abolished earlierand that no lien etc. will be claimed forfurther appointment on these posts.

5. The Fast Track Courts Schemecontinued till 2005 when the same waswithdrawn, however, on revival of thesaid scheme in the same year, the ex-adhoc employees, such as the petitioners,who were earlier working, were allowedto continue on the same terms andconditions but with the condition that thesalary shall be payable only from the dateof fresh joining. The earlier period was tobe counted for other purposes, exceptsalary. This was provided by the Circularof the High Court dated 24.5.2005. Theemployees of the Fast Track Courts whowere declared surplus on account ofshifting of such Courts from one judiciaryto another, were to be considered for

absorption as per the Circular dated27.7.1994.

6. On 28.8.2010, a GovernmentOrder was sent by the State Governmentto the Registrar General of the AllahabadHigh Court communicating extension ofthe Fast Track Courts w.e.f. 1.6.2010 to28.2.2011 subject to the terms andconditions mentioned therein. The saidGovernment Order also mentioned thatUnion of India vide its letter dated9.8.2010 had informed that the financialassistance provided by it for the FastTrack Courts for the period up to31.3.2011, was limited to 480 lacs peryear and any expenditure beyond it willhave to be borne by the StateGovernment, therefore, the High Courtshould consider keeping the post ofPresiding Officer vacant as and when theincumbent relinquishes the post onaccount of promotion or other such reasonand not to fill up the same and also toabsorb the supporting staff elsewhere.

7. On 18.3.2011, a Circular wasissued by the Registrar General, HighCourt, Allahabad to all the District Judgesin the State to the effect that if theywanted to make appointments in theregular establishment of Class III and IVof their judgeship, they will leave vacantor keep reserved posts for the purpose ofadjustment of the employees of the FastTrack Courts working in their judgeship.

8. On 31.3.2011, presumably,consequent to the refusal of the Union ofIndia to extend further financial assistancefor such Courts, a Government Order wassent by the State Government to theRegistrar General, Allahabad High Courtregarding creation of 780 ex-cadre postsfor speedy disposal of cases for the period


1.4.2011 to 29.3.2012 unless abolishedearlier. These posts were created subjectto the condition that as and when theregular posts in the regular cadre fallvacant, the aforesaid ex-cadre posts shallbe adjusted/absorbed against said postsand thereafter, the vacancy shall be filledup in accordance with the procedureprescribed in the Rules. On 1.4.2011, theRegistrar General communicated theGovernment Order dated 31.3.2011 to allthe District and Sessions Judges in theState of U.P. For necessary action. TheAdhoc employees of the Fast TrackCourts were continued against these ex-cadre post, albeit on Adhoc basis.

9. The records reveal that in view ofthe letter of the Registrar General dated1.4.2011 and the G.O. Dated 31.3.2011referred therein, a representation wassubmitted by the petitioners and others fortheir absorption/regularization,whereupon a Screening Committee wasconstituted by District Judge vide orderdated 12.2.2013, which recommendedtheir absorption/regularization videundated report, a copy of which isannexed as Annexure 12 to the writpetition.

10. Consequent to the reportsubmitted by the Screening/GrievanceCommittee, the District Judge, Baghpatissued an order dated 23.5.2013regularising the services of the petitionersherein allegedly against vacant posts inthe regular cadre of the judgeship.

11. Thereafter, on 26.11.2013, theGrievance Committee submitted anotherreport recommending confirmation of thepetitioners on the respective posts in theservice, which was approved by theDistrict Judge on the same date.

12. Based on another report of theGrievance Committee dated 2.2.2014, thepetitioners were granted the first financialupgradation from respective dates oncompletion of 10 years satisfactoryservice, including the ad hoc servicesrendered by them and the same wasapproved by the District Judge on2.7.2014.

13. On 30.8.2014, the Joint Registrar(Judicial) (Inspection), Allahabad HighCourt issued a letter to the District Judge,Baghpat communicating him the decisionof the High Court to the District Judgesasking them to re-visit the order ofregularization/absorption and to bring thesame in conformity with the law laiddown by the Apex Court in the case ofSecretary, State of Karnatka Vs. UmaDevi reported in 2006 (4) SCC 1 and toissue a show-cause-notice to theemployees concerned to explain as to whyorders of regularization/absorption maynot be withdrawn and after consideringtheir reply suitable orders may be passed.It was made clear that these employees ofFast Track Courts, shall not go out ofemployment because of withdrawal oforder of regularization/absorption. Theywere to be continued till regularappointments are made against the posts,on same terms and conditions as theywere working prior to the issuance of theorders of regularization/absorption.

14. In pursuance to the aforesaid, theDistrict Judge, Baghpat issued notices tothe petitioners who submitted theirreplies. It appears that a report was soughtfrom the Administrative Committee of thejudgeship, which was submitted on8.9.2014, based thereon, the impugnedorder dated 9.9.2014 was passed restoringtheir status and service, as it was, prior to


the passing of orders ofregularization/absorption on 23.5.2013and 30.8.2013 and continuing them assuch on ad hoc basis. Thus, the orderregularising their services and thosegranting consequential benefits have beenrendered inoperative.

15. Being aggrieved by this orderdated 9.9.2014, the petitioners haveapproached this Court.

16. The contention of Sri ShashiNandan, learned Senior Counsel is thatthe appointments of the petitioners wasmade after due advertisement and selectionbased on open competition, albeit, on adhoc basis, therefore, it can neither be termedas illegal nor irregular appointment. It canalso not be termed as back door entry. Hefurther contended that the genesis of thedictum of the Supreme Court in Uma Devi'scase was appointments made without anyadvertisement and selection i.e. throughback door and the observations containedtherein have to be understood in thisbackground. As, by no stretch ofimagination, the entry of the petitioners inthe service of the Fast Track Courts can betermed as back door entry, therefore, theobservations contained in Uma Devi'scase regarding dis-entitlement of suchappointees to regularization are notattracted to their case. The petitionerspossessed the requisite qualification forthe respective posts and went through aprocess of selection, which was inconsonance with the requirements ofArticle 14 and 16 of the Constitution ofIndia, therefore, the District Judge, rightlyregularized their services and absorbedthem in terms of the letter of the HighCourt dated 1.4.2011 and the GovernmentOrder dated 31.3.2011, which, accordingto him contained a decision for

absorption/regularization of suchemployees in the regular cadre of theDistrict Courts. Learned counsel alsoplaced reliance upon Paragraph 53 of thejudgement in Uma Devi's Case aselucidated further in the case State ofJharkhand Vs. Mamal Prasad reported in2014 (7) SCC 223, in support of hiscontention that the petitioners havingcompleted more than 10 years of serviceand their initial appointments neitherbeing illegal nor through back door, theirservices were rightly regularized.

17. Learned counsel contended thatthe direction of the High Court vide letterdated 30.8.2014 to the District Judge tore-visit the order of regularization andissue show-cause-notice to the concernedemployees etc. amounted to anencroachment upon the authority of theDistrict Judge to take an independentdecision in the matter thereby reducingthe entire exercise to a mechanicalformality indicative of pre-determination,on the part of the respondents, of theissue. The High Court did not give anyreason as to how there was a violation ofUma Devi's case. The consequential orderof cancellation of regularization passed bythe District Judge on 9.9.2014 is also notsustainable as he has merely mechanicallyfollowed the dictates of the High Courtwithout considering the reply submittedby the petitioners to show-cause-noticeand without considering and mentioningas to how the dictum in Uma Devi's casehas been violated in the matter of thepetitioners. The learned counselcontended that the petitioners have notonly been regularized in service but alsoconfirmed and granted the firstpromotional pay scale, therefore, theimpugned action is unjustified,unreasonable and illegal.


18. The learned Senior Counselinvited the attention of the Court to theGovernment Order dated 31.3.2011 andthe Circular of the High Court dated1.4.2011 as also the letter of the HighCourt dated 18.3.2011 by which theDistrict Judges were directed to keep theposts in the regular cadre reserved foradjustment of the employees of the FastTrack Courts working in the judgeship, aswell as various other documents whichhave already been referred tohereinabove.

19. Sri G.K. Singh, learned SeniorCounsel appearing for the Respondentnos. 2 to 4 submitted that the petitionerswere never appointed substantivelyagainst any sanctioned post in the regularcadre of the District Courts. He referred tothe advertisement annexed with the writpetition to show that the selection on thebasis of which the petitioners wereappointed, was for Fast Track Courts, thattoo, on ad hoc basis, wherein, even retiredemployees could participate. The FastTrack Courts were created for shortduration. He referred to the GovernmentOrder dated 31.3.2011, to show that thesame only spoke of absorption of ex-cadreposts against the regular vacancies in theregular cadre of the District Courts but itdoes not speak of absorption ofincumbents thereof. The petitioners weremade to work against ex cadre posts onlyon ad hoc basis and not on regular basis.No such decision was taken by the StateGovernment or by the High Court toconfer status of regular or permanentemployee upon the petitioners. TheCircular dated 1.4.2011 of the High Courtand the G.O. dated 31.3.2011 weremisconstrued and misread by the DistrictJudge, Baghpat resulting in an illegalexercise of regularization of services of

the petitioners, an error which has nowbeen rectified. There was no provision oflaw under which the District Judge couldhave passed the order of regularization ofservices of the petitioners. There was nopolicy decision of the CompetentAuthority for regularization of employeessuch as the petitioners. The District Judgeclearly exceeded his power.

20. He further contended that thereliance placed by the petitioners onParagraph 53 of the judgement of theSupreme Court in Uma Devi's case ismisplaced as the said paragraph has beenconsidered and explained by it in asubsequent judgement in M.L. Kesri'scase reported in (2010) 9 SCC 247,wherein, it has been held that period of 10years of service should have beencompleted, on the date of decision in theUma Devi's case i.e. 10.4.2006. As thepetitioners herein had not completed 10years of service on the said date they werenot entitled to be regularized even as perthe exception carved out in Para 53 of thedictum of the Supreme Court in UmaDevi's case. The reliance placed by thepetitioners upon the judgement reportedin 2014 (7) SCC 2 is also misplaced as itonly follows M.L. Kesri's case and doesnot overrule it. Both the judgements haveto be read and understood in harmony.The employees in the latter case hadcompleted 10 years of service prior to thedecision in Uma Devi's case. In nut shell,the submission was that the orders ofregularization were contrary to the dictumof the Supreme Court in Uma Devi'sCase, therefore, remedial measures havebeen taken which do not suffer from anyerror.

21. No doubt the petitioners wereappointed after Advertisement and after


going through a process of selection butindisputably, the petitioners were notappointed against regular posts in theregular cadre of the Judgeship of District,Baghpat. A perusal of the advertisementand other documents relating to theirselection and appointment leaves nodoubt that their appointment was forworking in the Fast Track Courts, whichhad been created for short duration, thattoo, purely on ad hoc basis without anyright to claim any further appointment onregular basis. The appointment was not aregular appointment nor against a regularsanctioned post in the regular Class IIIand IV cadre in the judgeship of DistrictBaghpat. The petitioners from the verydate of their entry in the service of theFast Track Courts knew the nature of theirappointment, the duration of the Schemeof Fast Track Courts and also thelimitations of the terms and conditions ofservice of such appointments, yet theychose to accept the same.

22. In this context reference may bemade to Paragraph 45 of the judgement inUma Devi's Case, which reads as under:

"While directing that appointments,temporary or casual, be regularised ormade permanent, the courts are swayedby the fact that the person concerned hasworked for some time and in some casesfor a considerable length of time. It is notas if the person who accepts anengagement either temporary or casual innature, is not aware of the nature of hisemployment. He accepts the employmentwith open eyes. It may be true that he isnot in a position to bargain-- not at arm'slength--since he might have beensearching for some employment so as toeke out his livelihood and acceptswhatever he gets. But on that ground

alone, it would not be appropriate tojettison the constitutional scheme ofappointment and to take the view that aperson who has temporarily or casuallygot employed should be directed to becontinued permanently. By doing so, itwill be creating another mode of publicappointment which is not permissible. Ifthe court were to void a contractualemployment of this nature on the groundthat the parties were not having equalbargaining power, that too would notenable the court to grant any relief to thatemployee. A total embargo on such casualor temporary employment is not possible,given the exigencies of administration andif imposed, would only mean that somepeople who at least get employment whensecuring of such employment brings atleast some succour to them. After all,innumerable citizens of our vast countryare in search of employment and one isnot compelled to accept a casual ortemporary employment if one is notinclined to go in for such an employment.It is in that context that one has toproceed on the basis that the employmentwas accepted fully knowing the nature ofit and the consequences flowing from it.In other words, even while accepting theemployment, the person concerned knowsthe nature of his employment. It is not anappointment to a post in the real sense ofthe term. The claim acquired by him inthe post in which he is temporarilyemployed or the interest in that postcannot be considered to be of such amagnitude as to enable the giving up ofthe procedure established, for makingregular appointments to available posts inthe services of the State. The argumentthat since one has been working for sometime in the post, it will not be just todiscontinue him, even though he wasaware of the nature of the employment


when he first took it up, is not (sic) onethat would enable the jettisoning of theprocedure established by law for publicemployment and would have to fail whentested on the touchstone ofconstitutionality and equality ofopportunity enshrined in Article 14 of theConstitution."

23. Paragraph 19 of the aforesaidjudgement is also relevant, which reads asunder:

"One aspect arises. Obviously, theState is also controlled by economicconsiderations and financial implicationsof any public employment. The viability ofthe department or the instrumentality ofthe project is also of equal concern for theState. The State works out the schemetaking into consideration the financialimplications and the economic aspects.Can the court impose on the State afinancial burden of this nature byinsisting on regularisation or permanencein employment, when those employedtemporarily are not needed permanentlyor regularly? As an example, we canenvisage a direction to give permanentemployment to all those who are beingtemporarily or casually employed in apublic sector undertaking. The burdenmay become so heavy by such a directionthat the undertaking itself may collapseunder its own weight. It is not as if thishad not happened. So, the court ought notto impose a financial burden on the Stateby such directions, as such directions mayturn counterproductive."

24. In paragraph 43, the ConstitutionBench held as under:

"Thus, it is clear that adherence tothe rule of equality in public employment

is a basic feature of our Constitution andsince the rule of law is the core of ourConstitution, a Court would certainly bedisabled from passing an order upholdinga violation of Article 14 or in ordering theoverlooking of the need to comply withthe requirements of Article 14 read withArticle 16 of the Constitution. Therefore,consistent with the scheme for publicemployment, this Court while laying downthe law, has necessarily to hold thatunless the appointment is in terms of therelevant rules and after a propercompetition among qualified persons, thesame would not confer any right on theappointee. If it is a contractualappointment, the appointment comes to anend at the end of the contract, if it werean engagement or appointment on dailywages or casual basis, the same wouldcome to an end when it is discontinued.Similarly, a temporary employee couldnot claim to be made permanent on theexpiry of his term of appointment. It hasalso to be clarified that merely because atemporary employee or a casual wageworker is continued for a time beyond theterm of his appointment, he would not beentitled to be absorbed in regular serviceor made permanent, merely on thestrength of such continuance, if theoriginal appointment was not made byfollowing a due process of selection asenvisaged by the relevant rules. It is notopen to the court to prevent regularrecruitment at the instance of temporaryemployees whose period of employmenthas come to an end or of ad hocemployees who by the very nature of theirappointment, do not acquire any right.High Courts acting under Article 226 ofthe Constitution of India, should notordinarily issue directions for absorption,regularization, or permanent continuanceunless the recruitment itself was made


regularly and in terms of theconstitutional scheme. Merely because, anemployee had continued under cover ofan order of Court, which we havedescribed as 'litigious employment' in theearlier part of the judgement, he wouldnot be entitled to any right to be absorbedor made permanent in the service. In fact,in such cases, the High Court may not bejustified in issuing interim directions,since, after all, if ultimately the employeeapproaching it is found entitled to relief,it may be possible for it to mould therelief in such a manner that ultimately noprejudice will be caused to him, whereasan interim direction to continue hisemployment would hold up the regularprocedure for selection or impose on theState the burden of paying an employeewho is really not required. The courtsmust be careful in ensuring that they donot interfere unduly with the economicarrangement of its affairs by the State orits instrumentalities or lend themselvesthe instruments to facilitate the bypassingof the constitutional and statutorymandates."

25. Paragraph 47 of the saidjudgement reads as under:

"47. When a person enters atemporary employment or getsengagement as a contractual or casualworker and the engagement is not basedon a proper selection as recognized by therelevant rules or procedure, he is awareof the consequences of the appointmentbeing temporary, casual or contractual innature. Such a person cannot invoke thetheory of legitimate expectation for beingconfirmed in the post when anappointment to the post could be madeonly by following a proper procedure forselection and in concerned cases, in

consultation with the Public ServiceCommission. Therefore, the theory oflegitimate expectation cannot besuccessfully advanced by temporary,contractual or casual employees. Itcannot also be held that the State has heldout any promise while engaging thesepersons either to continue them wherethey are or to make them permanent. TheState cannot constitutionally make such apromise. It is also obvious that the theorycannot be invoked to seek a positive reliefof being made permanent in the post."

26. The Constitution Bench held thatsuch employees do not have anyenforceable right of regularization of theirservices nor of being declared permanent.

27. Having said so, the SupremeCourt carved out an exception in Para 53thereby permitting, as a one time measure,the regularization of such employeesirregularly appointed (not illegallyappointed) who have completed 10 yearsor more of service without intervention ofthe order of the Courts/Tribunal and wereduly qualified persons appointed againstduly sanctioned vacant posts.

28. The Purport of Paragraph 53 hasbeen clarified by the Supreme Court in asubsequent judgement in M.L. Kesri'scase (supra) wherein Their Lordshipshave held that the period of 10 years ofcontinuous service referred in para 53 ofUma Devi's case should be before the dateof decision in Uma Devi i.e. 10.4.2006.The said Paragraph 53 has also beenconsidered in the subsequent judgementin State of Jharkhand Vs. Kamal Prasadreported in 2014 (7) SCC 223 relied uponby the petitioners and on a perusal of thesame, I find that the dictum of M.L.Kesri's case, has not been deviated from,


in any manner. Thus, on a conjointreading of both the judgements, therequirements of 10 or more years ofservice before the date of decision in UmaDevi's Case still holds good.

29. It is not out of place to mentionthat the Supreme Court had theopportunity to consider the issue ofregularization of ad hoc judges appointedin the Fast Track Courts in the case ofBrij Mohan Lal Vs. Union of India andOthers reported in 2012 (6) SCC 502,wherein their Lordships after consideringthe dictum in Uma Devi's Case (supra),held that such appointees of the FastTrack Courts did not have anyenforceable right of regularization of theirservices, however, in Para 207.9, inexercise of their powers under Article 142of the Constitution of India, they gave anopportunity to such appointees for regularappointment in the regular cadre, subjectto the terms and conditions mentionedtherein.

30. Reference may be made in thisregard to Paras 76, 172, 173, 174, 181 and207 of the said judgement, which read asunder:

"76. Upon an analysis of theabovestated Rules relating to the differentStates, the appointment letters issued tothe appointees and the methodology thatwas adopted for appointment of the FTCJudges, it becomes clear that theappointees cannot be said to have anylegal, much less an indefeasible right tothe posts in question. Firstly, the poststhemselves were temporary, as they werecreated under and within the ambit andscope of the FTC Scheme sponsored bythe Union of India, which was initiallymade only for a limited period of five

years. Now, financing of the FTC Schemehas already been stopped by the CentralGovernment with effect from 31.3.2011.No permanent posts were ever created. Inother words, their appointments weretemporary appointments againsttemporary posts.

172. The prayer for regularisation ofservice and absorption of the petitionerappointees against the vacanciesappearing in the regular cadre has beenmade not only in cases involving the caseof the State of Orissa, but even in otherStates. Absorption in service is not aright. Regularisation also is not astatutory or a legal right enforceable bythe persons appointed under differentrules to different posts. Regularisationshall depend upon the facts andcircumstances of a given case as well asthe relevant rules applicable to such classof persons.

173. As already noticed, on earlieroccasions also, this Court has declinedthe relief of regularisation of the personsand workmen who had been appointedagainst a particular scheme or project. AConstitution Bench of this Court hasclearly stated the principle that in mattersof public employment, absorption,regularisation or permanent continuanceof temporary, contractual or casual dailywage or ad hoc employees appointed andcontinued for long in such publicemployment would be dehors theconstitutional scheme of publicemployment and would be improper. Itwould also not be proper to stay theregular recruitment process for the postsconcerned. [Refer to Umadevi (3)]

174. It is not not necessary for us todeliberate on this issue all over again inview of the above discussion. Suffice it tonotice that the petitioner appointees have


no right to the posts in question as theposts themselves were temporary andwere bound to come to an end by efflux oftime. With reference to the letters of theirappointment and the Rules under whichthe same were issued, it is clear that thesepetitioners cannot claim any indefeasibleright either to regularisation orabsorption. It may also be noticed thatunder the Orissa Superior JudicialService and Judicial Service Rules, 2007,there is no provision for absorption orregularisation of ad hoc Judges.

181. The issues arising for theconsideration of this Court under thishead, though ancillary, are of significantimportance. Having held that thepetitioner appointees to FTCs do not haveany right to the post and suchappointments were temporary, ad hoc andon urgent basis for a limited period, wehave yet to examine whether thesepetitioners would at all be entitled tosome relief within the framework of law,with particular reference to certainconstitutional provisions.

207. Without any intent to interferewith the policy decision taken by theGovernment, but unmistakably, to protectthe guarantees of Article 21 of theConstitution, to improve the justicedelivery system and fortify theindependence of judiciary, while ensuringthe attainment of constitutional goals aswell as to do complete justice to the lisbefore us, in terms of Article 142 of theConstitution, we pass the following ordersand directions:

207.1. Being a policy decision whichhas already taken effect, we decline tostrike down the policy decision of theUnion of India vide Letter dated14.9.2010 not to finance the FTC Schemebeyond 31.3.2011.

207.2. All the States which havetaken a policy decision to continue theFTC Scheme beyond 31.3.2011 shalladhere to the respective dates asannounced, for example in the cases ofStates of Orissa (March 2013), Haryana(March 2016), Andhra Pradesh (March2012) and Rajasthan (February 2013).

207.3. The States which are in theprocess of taking a policy decision onwhether or not to continue the FTCScheme as a permanent feature ofadministration of justice in the respectiveStates are free to take such a decision.

207.4. It is directed that all theStates, henceforth, shall not take adecision to continue the FTC Scheme onad hoc and temporary basis. The Statesare at liberty to decide but only withregard either to bring the FTC Scheme toan end or to continue the same as apermanent feature in the State.

207.5. The Union of India and theState Government shall reallocate andutilise the funds apportioned by the 13thFinance Commission and/or makeprovisions for such additional funds toensure regularisation of the FTC Judgesin the manner indicated and/or forcreation of additional courts as directedin this judgement.

207.6. All the decisions taken andrecommendations made at the ChiefJustices and Chief Ministers' Conferenceshall be placed before the Cabinet of theCentre or the State, as the case may be,which alone shall have the authority tofinally accept, modify or decline theimplementation of such decisions and,that too, upon objective consideration andfor valid reasons. Let the minutes of theConference of 2009, at least now, beplaced before the Cabinet within threemonths from the date of pronouncement of


this judgement for its information andappropriate action.

207.7. No decision, recommendationor proposal made by the Chief Justicesand Chief Minsters' Conference shall berejected or declined or varied at anybureaucratic level, in the hierarchy of theGovernments, whether in the State or theCentre.

207.8. We hereby direct that it shallbe for the Central Government to providefunds for carrying out the directionscontained in this judgement and, ifnecessary, by re-allocation of fundsalready allocated under the 13th FinanceCommission for Judiciary. We furtherdirect that for creation of additional 10per cent posts of the existing cadre, theburden shall be equally shared by theCentre and the State Governments andfunds be provided without any unduedelay so that the courts can be establishedas per the schedule directed in thisjudgement

207.9. All the persons who have beenappointed by way of direct recruitmentfrom the Bar as Judges to preside over theFTCs under the FTC Scheme shall beentitled to be appointed to the regularcadre of the Higher Judicial Services ofthe respective State only in the followingmanner :

(a) The direct recruits to the FTCswho opt for regularization shall take awritten examination to be conducted bythe High Courts of the respective Statesfor determining their suitability forabsorption in the regular cadre ofAdditional District Judges.

(b) Thereafter, they shall besubjected to an interview by a SelectionCommittee consisting of the Chief Justiceand four senior-most Judges of that HighCourt.

(c) There shall be 150 marks for thewritten examination and 100 marks forthe interview. The qualifying marks shallbe 40 per cent aggregate for generalcandidates and 35 per cent forSC/ST/OBC candidates. The examinationand interview shall be held in accordancewith the relevant Rules enacted by theStates for direct appointment to HigherJudicial Services.

(d) Each of the appointees shall beentitled to one mark per year of service inthe FTCs, which shall form part of theinterview marks.

(e) Needless to point out that thisexamination and interview should beconducted by the respective High Courtskeeping in mind that all these applicantshave put in a number of years as FTCJudges and have served the country byadministering Justice in accordance withlaw. The written examination andinterview module, should, thus, be framedkeeping in mind the peculiar facts andcircumstances of these cases.

(f) The candidates who qualify thewritten examination and obtainconsolidated percentage as afore-indicated shall be appointed to the post ofAdditional District Judge in the regularcadre of the State.

(g) If, for any reason, vacancies arenot available in the regular cadre, wehereby direct the State Governments tocreate such additional vacancies as maybe necessary keeping in view the numberof candidates selected.

(h) All sitting and/or former FTCJudges who were directly appointed fromthe Bar and are desirous of taking theexamination and interview for regularappointment shall be given agerelaxation. No application shall berejected on the ground of age of the


applicant being in excess of theprescribed age.

207.10. The members of the Bar whohave directly been appointed but whoseservices were either dispensed with orterminated on the ground of doubtfulintegrity, unsatisfactory work or againstwhom, on any other ground, disciplinaryaction had been taken, shall not beeligible to the benefits stated in clause 5of the judgement.

207.11. Keeping in view the need ofthe hour and the Constitutional mandateto provide fair and expeditious trial to alllitigants and the citizens of the country,we direct the respective States and theCentral Government to create 10 per centof the total regular cadre of the State asadditional posts within three months fromtoday and take up the process for fillingsuch additional vacancies as per theHigher Judicial Service and JudicialServices Rules of that State, immediatelythereafter.

207.12. These directions, of course,are in addition to and not in derogation ofthe recommendations that may be madeby the Law Commission of India and anyother order which may be passed by theCourts of competent jurisdiction, in othersuch matters.

207.13. The candidates from anyState, who were promoted as FTC Judgesfrom the post of Civil Judge, SeniorDivision having requisite experience inservice, shall be entitled to be absorbedand remain promoted to the HigherJudicial Services of that State subject to :

(a) Such promotion, when effectedagainst the 25 per cent quota for out-of-turn promotion on merit, in accordancewith the judgement of this Court in thecase of All India Judges' Association

(2002) (supra), by taking and beingselected through the requisiteexamination, as contemplated for out-of-turn promotion.

(b) If the appointee has the requisiteseniority and is entitled to promotionagainst 25 per cent quota for promotionby seniority- -cum-merit, he shall bepromoted on his own turn to the HigherJudicial Services without any writtenexamination.

(c) While considering candidateseither under category (a) or (b) above,due weightage shall be given to the factthat they have already put in a number ofyears in service in the Higher JudicialServices and, of course, with reference totheir performance.

(d) All other appointees in thiscategory, in the event of discontinuationof the FTC Scheme, would revert to theirrespective posts in the appropriatecadre."

31. The aforesaid judgement hasbeen followed in the case of MaheshChandra Varma Vs. State of Jharkhand,2012 (11) SCC 656, wherein a similarissue regarding regularization of ad hocjudges of Fast Track Courts in the regularcadre of the Higher Judiciary was underconsideration.

32. The terms and conditions ofClass III employees in the District Courtsin the State of U.P. are governed by Rulesknown as The Subordinate CourtsMinisterial Establishment Rule, 1947, andthose of Class IV employees are governedby the Rules known as The U.P.Subordinate Civil Courts InferiorEstablishment Rules, 1955. The aforesaidrules do not contain any provision forregularisation nor is it mentioned as amode of recruitment therein.


33. It is not out of context to refer tothe U.P. Regularization of Ad hocAppointments (on posts outside thepurview of Public Service Commission)Rules, 1979 as amended from time totime, which contains a provision forregularization of ad hoc appointments andRule 4 thereof provides a cut off date i.e.30.6.1998, thus, only those who aredirectly appointed on ad hoc basis on orafter the said date were eligible forconsideration for regularization subject toother conditions mentioned therein.Indisputably, the petitioners herein havebeen appointed subsequent to 30.6.1998,that too, not against a post in the regularcadre, therefore, they are not covered bythe aforesaid regularization Rule, 1979.

34. The validity of the impugnedorders is to be considered against theaforesaid factual and legal background.

35. The petitioners have not beenable to place before the Court anydecision of the State Government or theHigh Court whereby such ad hocemployees of Fast Track Courts wereordered to be absorbed on regular basisagainst regularly sanctioned posts inregular cadres of the judgeship or forregularisation of their services.

36. The District Judge passed theorder dated 23.5.2013 regularising theservices of the petitioners only on thebasis of G.O. Dated 31.3.2011 and Letterof High Court dated 1.4.2011.

37. I have care fully perused theG.O. dated 31.3.11, the Circular of theHigh Court dated 1.4.2011 and 18.3.2011.None of the said orders provide forabsorption/regularization of thepetitioners in the regular cadre. In fact

G.O. dated 31.3.2011 speaks ofadjustments of the ex-cadre posts againstregular vacancies in the regular cadre andthe need to fill up the same as per theprescribed procedure (notregularization/absorption of ad hocemployees of Fast Track Courts). None ofthe said orders justify the regularization ofthe services of the petitioners in theregular cadre of the judgeship. TheDistrict Judge clearly misconstrued thesaid orders and treated them to be ordersfor regularization/absorption of suchemployees in the regular cadre anderroneously proceeded to regularize theservices of the petitioners, therefore, theorders of regularization of service of thepetitioners issued by the District Judge on23.5.2013 were bereft of any sustainablefactual and legal basis, therefore illegal.

38. There was no provision underwhich their services could have beenregularized as was done by the DistrictJudge.

39. The petitioners herein were ad hocemployees engaged for short duration in aScheme of Fast Track Courts which itselfwas temporary, therefore, in view of thedictum of the Supreme Court in Uma Devi'scase and Brij Mohan Lal's Case, as quotedhereinabove, they did not have anyenforceable right forregularization/absorption of their services.They had not completed 10 years of serviceon the date of decision in Uma Devi's casei.e. 10.4.2006, therefore, in view of thepronouncement in M.L. Kesri's case theywere also not covered by the exceptioncarved out in Paragraph 53 thereof.

40. Thus, even if, the letter of theHigh Court dated 30.8.2014 does not spellout in clear terms the violation of the dictum

3 All]. Laxman Prasad alias Nand Lal Vs. Uttar Pradesh Power Corporation, Lko & Ors. 1405

in Uma Devi's case and the decision of theDistrict Judge dated 9.9.2014 also does notdo so, but, in view of the apparent factual andlegal position and the discussion madehereinabove, as, the only possible conclusionis that the regularization of the services of thepetitioners was not permissible and it was inviolation of the dictum of the Supreme Courtin Uma Devi's case, I do not find any validground for interfering with the impugnedorders. Reference may be made in this regardto the dictum of the Supreme Court : M.C.Mehta Versus Union of India (1999) 6 SCC237, wherein their Lordships have observedas under:

" .......If the High Court had quashedthe said order, it would have restored anillegal order - it would have given theHealth Centre to a village contrary to thevalid resolutions passed by the PanchayatSamithi..........................................

The above case is a clear authorityfor the proposition that it is not alwaysnecessary for the Court to strike down anorder merely because the order has beenpassed against the petitioner in breach ofnatural justice. The Court can underArticle 32 or Article 226 refuse toexercise its discretion of striking down theorder if such striking down will result inrestoration of another order passed earlierin favour of the petitioner and against theopposite party, in violation of theprinciples of natural justice or isotherwise not in accordance with law."

41. In the aforesaid background, theHigh Court cannot be faulted for havingissued the letter dated 30.8.2014 to theDistrict Judge, Baghpat for takingremedial measures in conformity with thedictum of the Supreme Court. The DistrictJudge can also not be faulted for having

acted in conformity thereof nor forcancelling orders of regularization afterissuing show-cause-notice to them.

42. Having said so, I am also of theview that the High Court does not appear tohave considered the judgment of theSupreme Court in Brij Mohan Lal's Case(supra), specially Paragraph 207.9 thereof,whereby direct recruit ad hoc judges of FastTrack Courts were ordered to be consideredfor regular appointment/regularisationsubject to the terms and conditionsmentioned therein. As both judges andemployees of Fast Track Courts were part ofthe same Scheme, in my view, there is noreason as to why they should be treateddifferently, therefore, I am of the view thatthe respondents may consider the case of thepetitioners for grant of such benefits as hasbeen extended by the Supreme Court in BrijMohan Lal's Case (supra) to the Fast TrackCourts' Judges vide paragraph 207.9 thereof,subject to such variations as may benecessary, unless there are exceptional andcompelling reasons for not extending suchbenefit to them.

43. Subject to the above, the writpetition is dismissed.




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

BHAGHEL, J.


Laxman Prasad alias Nand Lal .PetitionerVersus

Uttar Pradesh Power Corporation Lko &Ors. ...Respondents


Counsel for the Petitioner:Deepali Srivastava, Sri Amit Kumar Sinha

Counsel for the RespondentsC.S.C., Sri Mahboob Ahmad

Police Liability Insurance Act, 1991-Section6(2), 3 (c)-compensation-death caused dueto electrician deceased 24 years young boy-snapped of high tension electric cable-claimed 5 lac compensation along with12% interest-District Magistrate under nofault liability awarded 1 lac after adjustingamount already paid-held-as per Section2(e) of Environment (Protection) Act 1896-electricity would fall within expression'hazardous substance'-nature of accident-undisputed-District Magistrate to pass freshorder within period of 3 month-petitiondisposed of.

Held: Para-10The provisions of Section 7(1) of the Actempower the Collector to determine theamount of relief which appears to him tobe just. Under sub-section (4) of Section 7of the Act the Collector is empowered tofollow such summary procedure as hethinks fit, subject to any rule made in thatbehalf. Under sub-section (5) the Collectorhas been vested with the powers of a CivilCourt for certain specific purposes. Theaward of compensation under Section 6 isnot in the nature of an ex gratia. The Actrecognises a statutory entitlement andimposes a corresponding statutoryobligation. An Undertaking, which engagesitself in the supply and distribution ofelectricity, cannot be unmindful of theserious hazard to life and property thatmay result as a consequence of itsactivities. The award of compensationunder the Act has, therefore, to beconstrued to be in recognition of the rightto life under Article 21 of the Constitution.The Collector ought to have furnished areasoned justification in quantifying theaward of compensation following the wellsettled principles in that regard.

Case Law discussed:

AIR 2010 Allahabad 117; AIR 1998 Allahabad1: 1998 All LJ 1.


1. In these proceedings the petitionerhas called into question the legality of anorder dated 2 January 2014 passed by theCollector and District Magistrate,Allahabad on an application which wasmoved under Section 6 of the PublicLiability Insurance Act, 19911. TheCollector has, taking due note of the factthat an amount of Rs. 20,000/- was paidover to the petitioner on account of anaccidental death of his son caused due toelectrocution, directed the payment of afurther sum of Rs.80,000/-. The petitionerseeks to challenge the order and claims anenhancement of the compensation to anamount of Rs. 5 lacs, on which interesthas been claimed at the rate of 12% perannum.

2. The residential house of thepetitioner is situated in MohallaRamkiyan Gandhi Nagar, NagarPanchayat Sirsa, Allahabad. A hightension electric overhead cable passes inclose proximity. On 8 August 2004, thehigh tension electric cable snapped, as aresult of which the petitioner's son RajKumar, who was about 24 years of age,came into contact with the wire andsustained grievous injury. The petitioner'sson succumbed to the injuries. A report ofthe incident was lodged by the petitionerat Police Station Meja, District Allahabadon 9 August 2004. The police prepared aninquest report and sent the dead body forpost-mortem. The cause of the death wasascertained in the post-mortem report tobe due to shock as a result of passage ofelectricity in the body. The petitioner's


son was, at the material time, a student ofIInd year of the B.A. Degree course. Thepetitioner moved the U.P. PowerCorporation for the grant ofcompensation. A detailed enquiry wasconducted by the Joint Director. Since nofurther steps were taken for the disbursalof the compensation, the petitioner movedproceedings2 before this Court. In thesaid proceedings, an order was passed on29 October 2010 by a Division Bench ofthis Court by which a direction was issuedto the effect that if the petitioner furnishedall the relevant documentary material tothe Executive Engineer, his claim for thegrant of compensation shall be decided inaccordance with law. In compliance withthe order, the petitioner submitted a copyof the first information report, post-mortem report and succession certificateto the Executive Engineer in theElectricity Distribution Division of thefirst respondent. Since no action wasinitiated, the petitioner filed anapplication before the District Magistrate,Allahabad under Section 6 of the Act. Atthat stage, on 11 September 2013, the firstrespondent awarded an amount ofRs.20,000/- to the petitioner by way ofcompensation. The District Magistrate byan order dated 2 January 2014 partlyallowed the claim and directed thepayment of compensation quantified asRs.1 lac after giving due credit for theamount of Rs.20,000/-, which has alreadybeen paid. The petitioner is aggrieved bythe quantum of compensation that hasbeen awarded.

3. The Public Liability InsuranceAct, 1991 was enacted by Parliament toprovide for public liability insurance forthe purpose of providing immediate reliefto persons affected by accidents occurringwhile handling any hazardous substance.

Section 2(a) of the Act defines theexpression 'accident', as follows:

"(a) "accident" means an accidentinvolving a fortuitous or sudden orunintended occurrence while handling anyhazardous substance resulting incontinuous or intermittent or repeatedexposure to death of, or injury to, anyperson or damage to any property butdoes not include an accident by reasononly of war or radio-activity;"

4. The expression 'handling' isdefined in Section 2(c), thus:

"(c) "handling", in relation to anyhazardous substance, means themanufacture, processing, treatment,package, storage, transportation byvehicle, use, collection, destruction,conversion, offering for sale, transfer orthe like of such hazardous substance;"

5. Section 3 of the Act provides forthe payment of no fault compensation inthe following terms:

"3. Liability to give relief in certaincases on principle of no fault

(1) Where death or injury to anyperson (other than a workman) or damageto any property has resulted from anaccident, the owner shall be liable to givesuch relief as is specified in the Schedulefor such death, injury or damage.

(2) In any claim for relief under sub-section (1) (hereinafter referred to in thisAct as claim for relief), the claimant shallnot be required to plead and establish thatthe death, injury or damage in respect ofwhich the claim has been made was dueto any wrongful act, neglect or default ofany person.


Explanation: For the purpose of thissection--

(i) "workman" has the meaningassigned to it in the Workmen'sCompensation Act, 1923 (8 of 1923);

(ii) "injury" includes permanent totalor permanent partial disability or sicknessresulting out of an accident."

6. Section 6 of the Act provides forthe making of an application for a claimfor relief. Section 6 is in the followingterms:

"6. Application for claim for relief(1) An application for claim for relief

may for made--(a) by the person who has sustained

the injury;(b) by the owner of the property to

which the damage has been caused;(c) where death has resulted from the

accident, by all or any of the legalrepresentatives of the deceased; or

(d) by any agent duly authorised bysuch person or owner of such property orall or any of the legal representatives ofthe deceased, as the case may be:

PROVIDED that where all the legalrepresentatives of the deceased have notjoined in any such application for relief,the application shall be made on behalf ofor for the benefit of all the legalrepresentatives of the deceased and thelegal representatives who have not sojoined shall be impleaded as respondentsto the application.

(2) Every application under sub-section (1) shall be made to the Collectorand shall be in such form, contain suchparticulars and shall be accompanied bysuch documents as may be prescribed.

(3) No application for relief shall beentertained unless it is made within fiveyears of the occurrence of the accident."

7. Under Section 7(1) of the Act, onthe receipt of an application under Section6(1), the Collector is empowered to holdan enquiry consistent with the principlesof natural justice, into the claim and tomake an award determining the amount ofrelief which appears to him to be just andspecifying the person or persons to whomsuch amount of relief shall be paid. Undersub-section (4) of Section 7 of the Act,the Collector is empowered to follow suchsummary procedure as he thinks fit forholding the enquiry. Under sub-section(5) of Section 7, the Collector has all thepowers of a Civil Court inter alia fortaking the evidence on oath and forenforcing the attendance of witnesses andfor compelling the discovery andproduction of documents and materialobjects as well as for such other purposes,as may be prescribed. Section 8(1) of theAct makes it clear that the right to claimrelief under sub-section (1) of Section 3 inrespect of death or injury to any person ordamage to any property shall be inaddition to any other right to claimcompensation in respect thereof under anyother law for the time being in force.

8. Under Section 3(1) of the Act thecompensation is based on the no faultliability principle where death or injuryhas been caused to any person, other thana workman, or damage to any propertyhas resulted from an accident. Theexpression 'accident' is defined to meanan accident involving a fortuitous orsudden or unintended occurrence whilehandling any hazardous substanceresulting in continuous or intermittent orrepeated exposure to death, among other


things. The expression 'handling' inSection 2(c) of the Act in relation to ahazardous substance includes use, transferor the like of such hazardous substance.'Hazardous substance' is defined underSection 2(d) of the Act to have the samemeaning as under the Environment(Protection) Act, 1896. Section 2(e) of theEnvironment (Protection) Act, 1986defines the expression 'hazardoussubstance' as follows:

"(e) "hazardous substance" meansany substance or preparation which, byreason of its chemical or physico-chemical properties or handling is liableto cause harm to human beings, otherliving creatures, plants, micro-organism,property or the environment;"

9. Electricity is clearly a hazardoussubstance covered by the definitioncontained in Section 2(e) of theEnvironment (Protection) Act, 1986. Alearned Single Judge of this Court in UttarPradesh Power Corporation Ltd. and anr.v. Kaleemullah and ors.3, following anearlier decision in U.P. Electricity Boardand another v. District Magistrate,Dehradun and others4, held that theelectricity would fall within theexpression 'hazardous substance'.

10. In the present case, anapplication was moved by the petitionerto the Collector and District Magistrateunder the provisions of Section 6 of theAct. The facts, which have been pleadedby the petitioner, are not in dispute. Thereis no challenge on the part of the firstrespondent to the legality of the orderpassed by the Collector awardingcompensation under the Act and, as wehave noted, the challenge of the petitioneris to the quantum of compensation. In this

regard, the order which has been passedby the Collector is completely bereft ofany reason or justification for the awardof compensation in the amount which theCollector found to be just and proper. Theprovisions of Section 7(1) of the Actempower the Collector to determine theamount of relief which appears to him tobe just. Under sub-section (4) of Section 7of the Act the Collector is empowered tofollow such summary procedure as hethinks fit, subject to any rule made in thatbehalf. Under sub-section (5) theCollector has been vested with the powersof a Civil Court for certain specificpurposes. The award of compensationunder Section 6 is not in the nature of anex gratia. The Act recognises a statutoryentitlement and imposes a correspondingstatutory obligation. An Undertaking,which engages itself in the supply anddistribution of electricity, cannot beunmindful of the serious hazard to lifeand property that may result as aconsequence of its activities. The awardof compensation under the Act has,therefore, to be construed to be inrecognition of the right to life underArticle 21 of the Constitution. TheCollector ought to have furnished areasoned justification in quantifying theaward of compensation following the wellsettled principles in that regard.

11. In this view of the matter, we areinclined to allow the petition and to remitthe proceedings back to the Collector fora fresh assessment of the quantum ofcompensation payable under theprovisions of Section 6(1) of the Act. Weclarify that we have not set aside thefindings of fact which are contained in theorder of the Collector in regard to thenature of the incident and in regard to theliability to pay the compensation since


there is no challenge before the Court tobe considered at the behest of the firstrespondent. On remand, the Collectorshall duly hear both the petitioner and thefirst respondent and pass an appropriateorder in accordance with law quantifyingthe amount of compensation. Thisexercise shall be completed within aperiod of three months of the receipt of acertified copy of this order. In themeantime, we direct that any paymentwhich has been made in compliance withthe impugned order of the Collector, shallnecessarily abide by the final result of theproceedings.

12. The petition is, accordingly,disposed of. There shall be no order as tocosts.



BEFORETHE HON'BLE MAHESH CHANDRA TRIPATHI, J.


Smt. Sudha & Anr. ...PetitionersVersus

Motor Accident Claims Tribunal/D.J. Etah& Ors. ...Respondents

Counsel for the Petitioner:Sri Upendra Upadhyay

Counsel for the RespondentsC.S.C.

Constitution of India, Art.-226-Releaseclaimed amount-deposited by Insurancecompany towards accidentcompensation-claimant being poorilliterate widow of deceased-applicationto release Rs. 2 lacs for repairing ofdilapidated house-rejection by Tribunal-misinterpreting the guidelines of Apex

Court-held-not proper-quashed-directionfor immediate release with interestgiven.

Held: Para-8Learned counsel for the petitionerssubmits that in the instant case, in view ofthe above, this Court finds that theTribunal has taken a very rigid stand andhad mechanically passed the order withoutunderstanding and without appreciatingthe distinction drawn by the SupremeCourt. The guidelines, which have nowbeen incorporated in the Rules was only tosafeguard the interest of the claimantsparticularly the minors and the illiterates.In the instant case the Court finds that theapplication was meant for the release ofthe money so that the petitioner's can gether house repair by making boundary walland plaster, but the Tribunal has failed tounderstand the need and urgency in thematter and has mechanically passed theorder while rejecting the application.

Case Law discussed:2014 (1) T.A.C. 630 (All.).

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

1. Heard learned counsel for thepetitioners and learned Standing Counselfor the respondents.

2. By means of present writ petition,the petitioners has challenged theimpugned order dated 24.03.2014 passedby the the Motor Accident ClaimsTribunal / District Judge, Etah.in Misc.Case No. 18 of 2014 in M.A.C.P. No. 14of 2012 (Smt. Sudha and another Vs.Kamrujjama and others).

3. Learned counsel for thepetitioners submits that petitioners hasfiled the Motor Accident Claims PetitionNo. 14 of 2012 (Smt. Sudha and another'sVs. Kamrujjama and others) for

3 All]. Smt. Sudha & Anr. Vs. Motor Accident Claims Tribunal/D.J. Etah & Ors. 1411

compensation of the death of her husbandSubodh Kumar who died on account ofinjuries sustained in the accident, whichwas occurred on 13.12.2011.

4. The award was passed on17.10.2013 and compensation of Rs.3,99,000/- alongwith 7% per annuminterest was awarded by the MotorAccident Claims Tribunal, Etah.

5. Learned counsel for thepetitioners submits that it is admittedposition that entire amount of the awardwas deposited by the Insurance Company.As per the directions given in the award,Rs. 50,000/- was deposited in fixeddeposit scheme in the name of petitionerno.2, Rishav Kumar Minor son of lateSubodh Kumar and Rs. 2,00,000/- wasdeposited in fixed deposit in the name ofpetitioner no.1, Smt. Sudha wife of lateSubodh Kumar and remaining amount ofthe award of Rs. 1,49,000/- was releasedin favour of petitioner no.1.

6. Learned counsel for thepetitioners submits that at presentpetitioners is suffering great hardship dueto dilapidated position of her house. Shehad moved Misc. Application No. 18 of2014 before the respondent no.1 to releaseof Rs. 2,00,000/- which was kept in fixeddeposit scheme, so that she may constructboundary wall and plastered of her house,but said application has been rejected bythe respondent no.1 and same wasassailed by means of present writ petition.

7. Learned counsel for thepetitioners has relied the judgment passedin Civil Misc. Writ Petition No. 36701 of2013 (Smt. Farmoodi Vs. AdditionalDistrict Judge, Court No.9,Muzaffarnagar and Others), reported in

2014 (1) T.A.C. 630 (All.). The relevantportion of the said judgment is reproducedherein below:-

"5. The purpose of keeping theamount in a fixed deposit is for a specificpurpose. The Supreme Court in the caseof General Manager, Kerala State RoadTransport Corporation Vs. SushammaThomas & Others, 1994 (1) TAC 323issued certain guidelines to the ClaimsTribunal while awarding compensation.The said guidelines are extracted below:-

"(i).The claims Tribunal should, inthe case of minors, invariably orderamount of compensation awarded to theminor invested in long term fixeddeposited at least till the date of the minorattaining majority. The expenses incurredby the guardian or next friend mayhowever, be allowed to be withdrawn.

(ii). In the case of illiterate claimantsalso the Claims Tribunal should followthe procedure set out in (i) above, but iflump sum payment is required foreffecting purchases of any movable orimmovable property such as agriculturalimplements, rickshaw, etc. to earn a livingthe Tribunal may consider such a requestafter making sure that the amount isactually spent for the purpose and thedemand is not a ruse to withdraw money.

(iii). In the case of semi-literatepersons the Tribunal should ordinarilyresort to the procedure set out in (i) aboveunless it is satisfied for reasons to bestated in writing, that the whole or part ofthe amount is required for expending anyexisting business or for purchasing someproperty as mentioned in (ii) above forearning his livelihood in which case theTribunal will ensure that the amount isinvested for the purpose for which it isdemanded and paid.


(iv). In the case of literate personsalso the Tribunal may resort to theprocedure indicated in (i) above subjectto the realization set out in (ii) and (iii)above, if having regard to the age, fiscalbackground and strata of society to whichthe claimant belongs and such otherconsiderations, the Tribunal in the largerinterest of the claimant and with a view toensuring the safety of the compensationawarded to him thinks it necessary to soorder.

(v). In the case of widows the claimsTribunal should invariably follow theprocedure set out in (i) above.

(vi). In personal injury cases, iffurther treatment is necessary the ClaimsTribunal on being satisfied about thesame, which shall be recorded in writing,permit withdrawal of such amount as isnecessary for incurring the expenses forsuch treatment.

(vii). In all cases in which investmentin long term fixed deposits is made itshould be an condition that the bank willnot permit any loan or advance on thefixed deposit and interest on the amountinvested is paid monthly directly to theclaimant or his guardian, as the case maybe.

(viii). In all cases Tribunal shouldgrant to the claimants liberty to apply forwithdrawal in case of an emergency. Tomeet with such a contingency if theamount awarded is substantial the ClaimsTribunal may invest it in more than onefixed deposit so that if need be one suchF.D.R. can be liquidated."

6. These guidelines have now beenincorporated by the legislature and Rule220-B of the U.P. Motor Vehicle Rules,1998 have been inserted in the Rules.

9. The Supreme Court held that theseguidelines were issued to keep the amountin a fixed deposit for a period of time wasmandatory only in the case of minors,illiterate claimants and widows."

8. Learned counsel for thepetitioners submits that in the instant case,in view of the above, this Court finds thatthe Tribunal has taken a very rigid standand had mechanically passed the orderwithout understanding and withoutappreciating the distinction drawn by theSupreme Court. The guidelines, whichhave now been incorporated in the Ruleswas only to safeguard the interest of theclaimants particularly the minors and theilliterates. In the instant case the Courtfinds that the application was meant forthe release of the money so that thepetitioner's can get her house repair bymaking boundary wall and plaster, but theTribunal has failed to understand the needand urgency in the matter and hasmechanically passed the order whilerejecting the application.

9. Learned counsel for thepetitioners submits that petitioner no.1 isa literate widow. On the other hand, agenuine reason has been given for therelease of the balance amount.

10. Consequently, without furtheradverting on this issue, the Court is of theopinion that the impugned order cannot besustained and is quashed.

11. The writ petition is allowed.

12. The petitioner is entitled for therelease of the amount as prayed by her.The Tribunal is directed to release theamount along with the interest so accrued

3 All]. Rajendri Devi & Ors. Vs. State of U.P. & Ors. 1413

immediately upon the receipt of thecertified copy of this order.



BEFORETHE HON'BLE ARUN TANDON, J.

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


Rajendri Devi & Ors. ...PetitionersVersus


Counsel for the Petitioner:Sri Gopal Srivastava

Counsel for the RespondentsC.S.C., Suresh Singh

Constitution of India, Art.-226-Releaseof land-acquired under Land AcquisitionAct-without disclosing particular of dateof notification u/s 4 and 6 of Act-withoutdisclosing the date on whichcompensation received-claim based uponletter dated 24.04.2014 by PrincipleSecretary Industrial development-held-can not be ground of release undersection 48 without denotification ofgovernment-where no possession taken-where compensation given andpossession taken-can not be releasedpursuant to letter referred above-petition dismissed.

Held: Para-6 & 76. We are of the considered opinion thatsuch Government Orders/Letters of thePrincipal Secretary cannot be made atool to reopen the settled acquisitionproceedings specifically where the landholder has accepted the compensationwithout protest.

7. The State Government has to keep inmind the provisions of Section 48 of theLand Acquisition Act which confers a

right upon the State Government towithdraw from the acquisition any land,possession whereof has not been taken,meaning thereby that where thepossession of the acquired land has beentaken, there cannot be a withdrawal ofany land from the acquisitionproceedings covered by Sections 4 and 6of the Land Acquisition Act.

Case Law discussed:2008 (1) AWC 399

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

1. Heard learned counsel for thepetitioner, learned counsel for respondentno.4 and learned Standing Counsel for theState-respondents.

2. It is admitted on record that theland of the petitioners was acquired underthe provisions of Land Acquisition Act,1894. It is also admitted on record that thepetitioners have taken compensation forthe land, which had been so acquired.

3. What is missing from the writpetition is as to on what date thenotifications under Sections 4 and 6 of theLand Acquisition Act, 1894 were madeand on what date petitioners had actuallyreceived the entire compensation.

4. Learned counsel for thepetitioners refers to the letter of thePrincipal Secretary, IndustrialDevelopment Department, Government ofU.P. at Lucknow dated 24th April, 2010enclosed as Annexure-2 to the writpetition for the reliefs prayed for in thepresent writ petition i.e. for the acquiredland being leased in his favour.

5. We have gone through the letterof the Principal Secretary dated 24thApril, 2014 and we find that in the letter it


has been recorded that in exceptionalcircumstances i.e. where there is a disputewith regard to the acquired land beingAbadi, where there is public agitationagainst acquisition or law and ordersituation has arisen, the Noida, GreaterNoida and Yamuna Express-wayIndustrial Development Authorities, whilerecommending de-notification of theacquisition, may examine the leasing outof property in favour of the person whoseland has been so acquired.

6. We are of the considered opinionthat such Government Orders/Letters ofthe Principal Secretary cannot be made atool to reopen the settled acquisitionproceedings specifically where the landholder has accepted the compensationwithout protest.

7. The State Government has to keepin mind the provisions of Section 48 ofthe Land Acquisition Act which confers aright upon the State Government towithdraw from the acquisition any land,possession whereof has not been taken,meaning thereby that where thepossession of the acquired land has beentaken, there cannot be a withdrawal of anyland from the acquisition proceedingscovered by Sections 4 and 6 of the LandAcquisition Act.

8. We may record that a DivisionBench of this Court in the case of AbdulSalam alias Babu versus State of U.P. &Others, reported in 2008 (1) AWC 399,has specifically held that once the landhas been acquired under the provisions ofthe Land Acquisition Act and possessionhas been taken, no application for releaseof the acquired land from the acquisitionproceedings can be made before the StateGovernment.

9. What logically follows is that theletter of the Principal Secretary dated 24thApril, 2010 can be read to mean thatpower to de-notify the land would beavailable to the State Government onlywhere the possession of the land has notbeen taken under the Land AcquisitionAct. Where the possession has been taken,the letter of the Principal Secretary dated24th April, 2010 will have no application.

10. Therefore, there cannot be anymandamus as prayed for in the facts of thecase.

11. In view of the aforesaid, thepresent writ petition is dismissed.



BEFORETHE HON'BLE RAJAN ROY, J.


Dharmendra Singh Rathor ..PetitionerVersus

Hon'ble Chief Justice Hon. High CourtJudicature at Alld. & Ors.

...Respondents

Counsel for the Petitioner:Sri Anil Tiwari

Counsel for the RespondentsSri Samir Sharma, Sri Ashish MishraSri Manish Goyal, S.C.

Constitution of India, Art.-226-Petitionerseeking benefit Division Bench judgment-denied-while all other 7 personsappointed as Routine Grade Clerk-alongwith petitioner-got extended samebenefits-held-once it is found that postof RGC abolished and merged to ARO-petitioner and 7 others representationst

3 All]. Dharmendra Singh Rathore Vs. Hon’ble Chief Justice Hon. High Court Judicature at Alld. & Ors. 1415

being appointed by the Chief Justice-cannot be termed illegal one-petitionerentitled for every consequential benefitof judgment in special appeal-even maynot be party-committee earred treatingdifferently having no rational basis-impugned order quashed-consequentialdirections given.

Held: Para-34On a perusal of the decision dated31.05.2012 taken by the High Court onthe administrative side pursuant to thejudgment dated 20.09.2011 reveals thatthe High Court did not at all consider andfailed to appreciate that the remainingseven persons including the petitionerwere similarly situated to the seven'representationists', referred therein, nordid it draw any distinction on the groundthat the remaining seven were notentitled to the benefit of the judgmentas they were not parties to the saidproceedings. The Committee simplytreated these seven persons differentlywithout considering as to whether theywere similarly situated and entitled tosame benefit. I am of the view that iterred in doing so.

Case Law discussed:2006 (4) SCC 1; 1978 (1) SCC 405; 1983 (1)LCD 201.

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

1. Heard Sri Anil Tiwari, learnedcounsel for the petitioner and Sri SamirSharma, learned counsel for therespondents.

2. The petitioner herein wasappointed as routine grade clerk in theHigh Court along with 13 other personsvide orders of the Registrar General dated01.09.2004 on the same terms andconditions. The appointment was on adhoc basis with the condition that he waspermitted to appear in the examination/test to be held for direct recruitment of

routine grade clerks and his appointmentwould be regularised and confirmed onlyif he was selected in that examination/test. This condition existed in theappointment orders of all the 14 persons.Six other persons were appointed onvarious dates, whose appointment orderdid not mention the word 'Ad Hoc'.

3. Prior to such appointment, anadvertisement was issued for selection onthe same post in March, 2004.

4. One Devendra Kumar Pandey,who claimed to be eligible forconsideration as per the aforesaidadvertisement filed a writ petition beforethis court being Civil Misc. Writ PetitionNo.45922 of 2004 praying for a writ ofcertiorari for quashing the appointmentsof respondents No.3 to 14 therein, videorders dated 26.07.2004, 01.09.2004 and02.09.2004 (Annexures No.2, 3, 4, 5 & 6to the writ petition) and other similarlysituated employees, if any. His claim wasthat the respondents should hold therecruitment as per the advertisementissued in March, 2004.

5. The memo of the said writpetition is annexed with the writ petition,which shows that the respondents No.3 to14 were those who were appointed alongwith the petitioner on 01.09.2004 and fourothers, whose order of appointment didnot mention the word ad hoc.

6. The petitioner was not impleadedas respondent, but the fact is that in therelief clause, relief had been sought forquashing the appointment of 'othersimilarly situated employees, if any'.

7. Ultimately, the advertisementreferred above was cancelled.


8. The aforesaid writ petition cameup for hearing and the same was decidedvide judgment dated 27.07.2007. Thiscourt observed that once theadvertisement had been cancelled and thewrit petition had not been amended, thecause of action in favour of the petitionertherein did not survive any further. Thecourt also took note of the fact that a freshadvertisement had been issued on31.07.2006, but the petitioner therein hadnot applied pursuant thereto. The serviceRules had also undergone a change,according to which, the requisitequalifications had also undergone achange. In fact, the cadre of routine gradeclerk was declared as a dead cadre and itsemployees were merged in the new cadreof Assistant Review Officer, for whichnew Rules prescribing new qualificationshad been prescribed. For the aforesaidreasons, this court held that the petitionertherein was not entitled to any relief,however, referring to the ConstitutionBench judgment of the Supreme Courtreported in Secretary, State of Karnatkaand others Vs. Uma Devi (3) and others,2006 (4) SCC 1 held that appointmentsmade by Hon'ble Chief Justice in exerciseof his powers under Rules 41 & 45 of theAllahabad High Court Officers and Staff(Condition of Service and Conduct)Rules, 1976, i.e. the respondents beforethe court, will be subject to regularselection by direct recruitment inaccordance with Rule 8 of the ServiceRules and these appointees will not beconfirmed and regularised.

9. Being aggrieved the respondentstherein, who were similarly situated to thepetitioner herein filed special appealbefore a Division Bench of this courtchallenging the aforesaid judgment dated27.07.2007. The High Court on the

administrative side also felt aggrieved andalso filed a special appeal against the saidjudgment. Both the aforesaid appealswere clubbed together and allowed videjudgment dated 20.09.2011.

10. A Division Bench of this courtheld that the appointments in questionwere validly made, therefore, theobservations in Uma Devi's case were notattracted. It also held that once the cadreof routine grade clerks had been declareda dead cadre and a new cadre had beencreated, for which new Rules had beenframed, the conditions mentioned in theappointment order of the appointees dated01.09.2004 etc. became redundant. TheDivision Bench was of the view that oncethe learned Single Judge had held that thepetitioner therein was not entitled to anyrelief in view of the change incircumstances and his failure to amendthe writ petition, the same should havebeen dismissed, and that, it erred inproceeding to make the observations inthe operative portion of the judgmentbased upon the Constitution BenchJudgment in Uma Devi's case.

11. The Division Bench consideredthe scope of the powers of Hon'ble theChief Justice under Rules 41 & 45 of theRules of 1976 in the light of variousdecisions and held that the Chief Justicewas empowered to make suchappointments and as the same had beenmade as per the relevant Rules, therefore,they were not illegal nor irregular.Accordingly, the directions given by thelearned Single Judge in para-21 of theimpugned judgment dated 27.07.2007following the observations of theSupreme Court in Uma Devi's case wereset aside. The writ petition was treated tobe dismissed on the basis of the


observations of the learned Single Judgehimself in the earlier paragraphs of theimpugned judgment. Registrar General ofthis court was directed to take appropriatesteps with regard to confirmation/regularisation and consequential relief tothe employees.

12. A review petition was filed bythe High Court, which was dismissed on08.11.2012, inter alia, with theobservation that the judgment in questionhad already been given effect to and allthe concerned employees had beenconfirmed/ regularised and givenconsequential reliefs by way of promotionetc. vide various orders.

13. Pursuant to the judgment of theDivision Bench dated 20.09.2011, ameeting of the concerned Committee ofthe High Court on the administrative sidewas held on 31.05.2012, wherein, out ofthe 14 persons referred hereinabove,seven who were respondents before thewrit court and appellants in appeal weregiven benefit of regularisation/confirmation etc., whereas, the remainingseven persons were treated differently. Inrespect to them, it was stated that as norule had been framed by the High Courtfor regularisation of ad hoc employees,therefore, as per sub-clause (2) of Rule 40of the High Court Rules, theRegularisation Rules applicable to theState Government employees wereapplicable and, as, the High Court had notissued any order of modification,variation and exception, therefore, thesame were applicable without anymodification and since the said sevenpersons including the petitioner did notfall within the date mentioned therein, i.e.30.06.1998, therefore, they cannot begiven benefit of regularisation. The four

respondents before the writ court whowere not even appellants in the appeal asreferred hereinabove were also treatedsimilarly to the seven appellants referredto hereinabove.

14. The petitioner herein submitted arepresentation to the High Court on theadministrative side dated 19.09.2012seeking confirmation on the post ofroutine grade clerk with all consequentialbenefits including promotion from thedate of promotion of his juniors as hasbeen done in the case of similarly situatedpersons. In the representation, thepetitioner referred to the benefit given tothe seven other persons, who weresimilarly appointed vide order dated01.09.2004 and were respondents in thewrit petition filed by Devendra KumarPandey and were appellants before theDivision Bench, as already referredhereinabove. The representation alsoreferred to the similar treatment havingbeen given to six other persons, who wereappointed without there being anystipulation in their appointment abouttheir appointment being ad hoc. Hereferred to the judgments of the learnedSingle Judge dated 27.07.2007 and thejudgment of the Division Bench dated20.09.2011 and sought similar reliefs.

15. On receipt of the decision of theCommittee dated 31.05.2012, the Hon'bleChief Justice passed an order on01.06.2012 referring the matter of all suchemployees, who could not get benefit ofthe said judgment dated 20.09.2013,including that of the petitioner to theRules Revision Committee which, on27.05.2013, took a decision as quoted inparagraph-12 of the counter affidavit ofthe respondents and pursuant thereto, theimpugned order was passed indicating the


last three lines thereof, which stated that'Committee recommends that those havebecome over-age be given relaxation inage in the next examination provided theypossess minimum qualification forappointment'. The relevant extract of thedecision of the Committee dated27.05.2013 as quoted in paragraph-12shows that the Committee had taken intoconsideration the conditions mentioned inthe appointment order regardingappearance in examination and also thefact that the Regularisation Rules forclass-III employees provided for a cut offdate, i.e. 20.12.2001, but the petitionerand others, who had represented likewisedid not fall within the said cut off date.

16. Being aggrieved, the petitionerhas filed this writ petition.

17. The court was informed duringthe course of argument that six otherpersons, who had also represented andwhose representations had been rejectedlikewise had approached this High Courtsitting at Lucknow and their writ petitionsare still pending. Learned counsel for thepetitioner also informed the court that, as,fresh advertisement was issued by therespondents on 19.07.2014 for filling upthe vacant posts in question, therefore, awrit petition being W.P. No.5288 (S/S) of2013 was filed at Lucknow, wherein, aninterim order had been passed on25.08.2014 to the effect that though theselection for the post of routine gradeclerk, pursuant to the advertisement dated19.07.2014, may go on, but, the result ofthe same shall not be declared. A copy ofthe said order was placed before the court.

18. The contention of Sri Tiwari,learned counsel for the petitioner is thatthe petitioners were similarly situated to

the seven persons who have been giventhe benefit of confirmation and furtherpromotion in pursuance to the judgmentof the Division Bench dated 20.09.2011,therefore, there is no reason as to why thepetitioner should be treated differently.Learned counsel invited the attention ofthe court to one of the appointment ordersof the other persons, which is annexed aspart of Annexure-3 and the appointmentorder of the petitioner, which is alsoannexed with the writ petition, to showthat except for the difference in the name,all the orders were verbatim similar, withthe same terms and conditions.

19. He invited the attention of thecourt to the decision of the Committeepursuant to the judgment of the Divisiondated 20.09.2011 to impress upon that thecommittee decided to treat the seven'representationists', who were respondentsin the writ petition and appellants in thespecial appeal, referred above, as, onprobation for one year from the date oftheir initial appointment and as confirmedon the expiry of the said period, the sixpersons, whose appointment orders didnot contain words 'ad hoc' and who didnot prefer any appeal against thejudgment of the learned Single Judgedated 27.07.2007 were given similarbenefits. However, the remaining sevenpersons including the petitioner weredealt with differently.

20. The contention is that the HighCourt completely failed to appreciate thatthe seven persons including the petitioner,who were not parties in the writ petitionand were not appellants in the specialappeal were similarly situated to thosewho were parties therein and once theDivision Bench upheld the appointmentof others as being legal entitling them to


confirmation/ regularisation, then thesame benefit was required to be extendedto these persons also, and there was norational distinction for treating themdifferently as has been done by theCommittee, vide decision dated31.05.2012.

21. Learned counsel furthersubmitted that out of the six persons, whowere not similarly situated to the 14persons, referred to hereinabove, onlyfour were respondents in the writ petitionand none of them filed special appealagainst the judgment dated 27.07.2007,yet, all the six of them were extended thesame benefits by treating them as onprobation for a period of one year fromthe date of their initial appointment and asconfirmed on completion of the aforesaidprobation, under Rule 33. The contentionis that the petitioner was entitled tosimilar treatment under Rule 33.

22. On the other hand, Sri SamirSharma, learned counsel for the HighCourt submits that a perusal of theDivision Bench judgment dated20.09.2011 will show that the same wasapplicable only to the employees whowere parties thereto, as is evident from theuse of the word 'employees hereunder' inthe last line of the said judgment. In thiscontext, he also invited the attention ofthe court to the judgment dated08.11.2012 passed in the review petitionfiled by the High Court, wherein, thiscourt had taken notice of the fact that thejudgment had been given effect to and allthe concerned employees had beenconfirmed/ regularised. Based thereon itwas contended that this court clearlymeant that the said judgment dated20.09.2011 was only confined to theparties therein and not others.

23. The learned counsel invited theattention of the court to paragraphs-8, 9,10, 11 & 12 of the counter affidavit filedby the respondents in support of hiscontentions. The contention of the learnedcounsel is that as the petitioner did not fileany special appeal against the judgment ofthe Single Judge dated 27.07.2007,therefore, the benefits under the judgmentpassed in special appeal were not liable tobe extended to him and the decisions ofthe respective committees in this regarddid not suffer from any error.Consequently, the impugned order passedpursuant to the same does not warrant anyinterference.

24. In rejoinder, Sri Tiwarisubmitted that the reliance being placedby the learned counsel for the respondentupon the words 'employees hereunder'mentioned in the judgment of the appellatecourt, as also mentioned in the counteraffidavit, does not find any mention in theearlier decision of the Committee dated31.05.2012 nor in the subsequent decisiondated 27.05.2013, therefore, the same is byway of an afterthought, as suchimpermissible. He further submitted thateven out of the six persons, whoseappointment order did not mention thewords 'ad hoc', only four were respondentsin the writ petition and none filed specialappeal against the judgment dated27.07.2007, yet, the respondents haveextended the benefit of the said judgment toall the six persons. The petitioner hereinwas similarly situated to the sevenrepresentationists referred in the decision ofthe Committee of the High Court dated31.05.2012 and there was no reason fortreating him differently.

25. He further submitted that as theHigh Court had also filed a special appeal


against the judgment dated 27.07.2007,therefore, there was no need for thepetitioner to file such an appeal as hisinterest was being looked after andprotected by the High Court itself,therefore, the contention to the contraryon behalf of the respondents is notacceptable. He contended that the seven'representationists' have not only beenconfirmed but have been promoted to thenext higher post of Review Officer andthe petitioner is also entitled to the samebenefit.

26. There is no doubt about the factthat the petitioner herein and the sevenrepresentationists, as referred in thedecision dated 31.05.2012, who wererespondents in the writ petition filed byDevendra Kumar Pandey, were similarlyappointed by verbatim similar orders ofthe same date, on the same terms andconditions. Except for the difference inthe name, the appointment orders did notdiffer in any manner. It is also not indispute that when Devendra KumarPandey filed the Writ Petition No.45922of 2004, he sought the quashing ofappointment orders of respondents No.3to 14 dated 01.09.2004, 02.09.2004 and26.07.2004 and 'other similarly situatedemployees, if any'. For the reasons bestknown to him, he impleaded only some ofthe appointees excluding the petitionerherein but claimed relief against all ofthem.

27. In any case, the subject matter inissue in the writ petition was the validityof the appointments made by therespondents and if the court had held thatthey were illegal, then obviously thepetitioner's (herein) appointment wouldalso have been rendered illegal as it wasalso on the same terms. After the passing

of the judgment dated 27.07.2007, theaggrieved respondents (therein) filedspecial appeal. The High Court on theadministrative side also filed specialappeal. In special appeal, the DivisionBench categorically held suchappointments to be legal and valid havingbeen made as per Rules and also that theChief Justice was empowered to do so.The relevant observations of the DivisionBench are as under:

"In the instant case, High Court,which is the employer, and the employees,who have been appointed by the thenHon'ble the Chief Justice and whoseappointments were challenged in the writpetition, both are aggrieved by the sameorder of the learned Single Judge andhave preferred these appealsindependently from the same order,therefore, it can be safely construed thatthere is no conflict of interest between theHigh Court as an employer and itsemployees. Against this background, wehave to see whether passing of such orderat the instance of the respondent/writpetitioner, who had no locus, was justifiedor not. At least the ratio propounded in2001 (10) SCC 447 (Mohd. Shafi PandowVs. State of J&K and others), 2003 (8)SCC 567 (Chairman & MD, BPL Ltd. Vs.S.P. Gururaja and others), 2006 (3) SCC758 (Gurpreet Singh Bhullar and anotherVs. Union of India and others), 2008 (3)SCC 512 (K. Manjusree Vs. State ofAndhra Pradesh and another) and 2009(1) SCC 386 (Mukul Saikia and others Vs.State of Assam and others) does not sayso.

Admittedly, appointment of theappointees, who are either appellants orrespondents in these appeals, were madeon adhoc basis by the then Hon'ble theChief Justice in the year 2004 under


Rules 41 and 45 of the Rules, 1976. Rules41 and 45 of the Rules, 1976, which arerelevant for the purpose, are as follows:

"41. Residuary powers.-- Nothing inthese rules shall be deemed to affect thepower of the Chief Justice to make suchorders, from time to time, as he may deemfit in regard to all matters, incidental orancillary to these rules, not specificallyprovided for herein or in regard tomatters as have not been sufficientlyprovided for:

Provided that if any such orderrelates to salaries, allowances, leave orpension, the same shall be made with theapproval of the Governor of U.P."

"45. Notwithstanding anythingcontained in these rules, the Chief Justiceshall have the power to make such orders,as he may consider fit, in respect ofrecruitment, promotion, confirmation orany other matter."

The preamble of the Rules, 1976speaks that in exercise of the powersconferred by Clause (2) of Article 229 ofthe Constitution of India, the Chief Justiceof the High Court of Judicature atAllahabad makes the following rules withrespect to the conditions of service ofpersons serving on the staff attached tothe High Court of Judicature atAllahabad. The appointments underchallenge made on adhoc basis appear tobe on the post of Routine Grade Clerk.Source of recruitment on Class-III postsas per Rule 8(a)(i), substituted bynotification dated 27th October, 1989, isthat direct recruitment will be madethrough competitive examinationconducted by the Appointing Authority orin any manner so directed by the ChiefJustice. Therefore, the appointments ofsuch employees are as per the respectiverules.

So far as Constitution Benchjudgement of the Supreme Court in UmaDevi (supra) is concerned, it criticisedpassing of orders by the Courtsregularising the services through backdoor process making burden on the Unionof India or the State only out of sympathyfor the continuance of service ignoringthe process of appointment. In this caseemployer and employees are not indispute. Even the Supreme Court in UmaDevi (supra) has eliminated irregularappointments under certaincircumstances from illegal appointmentswith the intervention of orders of theCourts or of tribunals.

Moreover, by an order of the thenChief Justice dated 19th October, 2005the cadre of Routine Grade Clerk wasdeclared as dead cadre as per Rule 40 (3)of the Rules, 1976 and merged with thecadre of Assistant Review Officer (LowerDivision Assistant in the pattern of civilsecretariat). As a result whereof, thecondition stipulated in the appointmentletters of all the incumbents working asRoutine Grade Clerk looses force. Adeponent on the part of the Registry of theHigh Court has stated that by virtue ofmerger of the posts of Routine GradeClerk with the Assistant Review Officerand the advertisement as made on 17thApril, 2004 for 79 posts of Routine GradeClerks having been cancelled, norecruitment can be made to such postsand accordingly, holding of any regularselection by direct recruitment to the postof Routine Grade Clerk does not arise. Ithas been contended by the appellants thatthe adhoc appointments as made in thecase herein are neither temporary norcontractual nor casual, as was in the caseof Uma Devi (supra). Moreover, suchappointments are neither illegal norirregular but in accordance with the


relevant Rules and powers of the ChiefJustice of a High Court. Such power issovereign and plenary in nature, whichcan not be questioned with the referenceof Uma Devi (supra). Learned Counselappearing for the respondent-writpetitioner has only contended that he hasnothing to say with regard to availabilityof power of the Chief Justice but withregard to use of such power of the ChiefJustice.

Upon hearing the parties, it can beconstrued that when the Chief Justice isempowered to appoint a person under theRules framed in exercise of powersconferred under Article 229 (2) of theConstitution of India, the appointment ofthe person can not be said to be illegal orirregular. .................................

Thus, in totality, both the appealssucceed and are allowed. The directiongiven by the learned Single Judge inParagraph-21 of the impugned judgementdated 27th July, 2007 following theobservations of the Supreme Courtjudgement in Uma Devi (supra) stands setaside. The writ petition is treated to bedismissed on the basis of the observationsof the learned Single Judge himself in theearlier paragraphs of the impugnedjudgement. Registrar General of thisCourt is hereby directed to takeappropriate steps with regard toconfirmation/ regularisation andconsequential relief of the employeeshereunder.

However, no order is passed as tocosts."

28. This court is not in any doubtthat the observations of the DivisionBench, referred hereinabove, regarding

the validity of the appointments and theentitlement of such appointees toconfirmation/ regularisation is applicableto all such appointees, and there is norational basis for making any distinctionin this regard.

29. So far as the use of the words'employees hereunder' in the last line ofthe said judgment is concerned, I haveperused the decision of the Committeedated 31.05.2012 taken pursuant to theaforesaid judgment dated 20.09.2011 andI do not find any distinction having beendrawn by the Committee based on theaforesaid ground. Thus, it is clearly anafterthought, a post facto attempt tojustify a prior action, which isimpermissible. The validity of an actionimpugned is to be judged on the basis ofthe reasons mentioned in the impugnedorder/ decision, which cannot be allowedto be supplemented by means of a counteraffidavit, therefore, this plea is not opento the respondents. Reference may bemade in this regard to the judgment of theSupreme Court in the case of MohinderSingh Gill Vs. The Chief ElectionCommissioner, 1978 (1) SCC 405, para-8of which is quoted hereinbelow:

"The second equally relevant matteris that when a statutory functionary makesan order based on certain grounds, itsvalidity must be judged by the reasons somentioned and cannot be supplementedby fresh reasons in the shape of affidavitor otherwise. Otherwise, an order bad inthe beginning may, by the time it comes tocourt on account of a challenge, getvalidated by additional grounds laterbrought out. We may here draw attentionto the observations of Bose J. inGordhandas Bhanji (1) "Public orders,publicly made, in exercise of a statutory


authority cannot be construed in the lightof explanations subsequently given by theofficer making the order of what hemeant, or of what was in his mind, orwhat he intended to do. Public ordersmade by public authorities are meant tohave public effect and are intended toaffect the actings and conduct of those towhom they are addressed and must beconstrued objectively with reference tothe language used in the order itself."

Orders are not like old winebecoming better as they grow older: "

30. Mere use of the words'employees hereunder' does not meanothers similarly situated are to bedeprived of similar benefits.

31. It is trite that judgments of thecourt are not to be read as statutes. Beforethe Division Bench, it was not an issue as towhether the benefit of regularisation/confirmation etc. is to be confined to onlythose who were parties in the writ petitionand the appeal or it was to be extended toothers also, therefore, the said judgment cannot be read or understood to mean that thebenefits therein were to be confined to theparties therein. It is the ratio of thejudgment, which is to be read andunderstood. The issue before the DivisionBench was the validity of the appointments,which was upheld. It is also trite that oncethe legal position has been settled by theHigh Court in a writ petition at the behest ofsome persons, then other similarly situatedshould be extended the same benefit insteadof being compelled to approach the courtfor the same relief. Reference may be madein this regard to a Divison Bench judgmentof this court reported in R.N. Dixit Vs. Stateof U.P., 1983 (1) LCD 201, in para-3 ofwhich it has been held as under:

"3. A qualifying examination forpromotion of Junior Engineers, to thepost of Assistant Engineers was held in1970. The Government took a decision toallow grace marks upto 9 in respect ofcandidates of irrigation department andnot to P.W.D., whereupon five personsfiled two writ petitions nos.690 of '78 and1523 of '78 complaining ofdiscrimination. These writ petitions wereallowed on 08.04.1982 by this court andthe government was directed to considerthe case of the petitioners who belongedto the P.W.D., by allowing grace marks,such as was done in respect of officers ofthe irrigation department. The stategovernment has, accordingly, declaredthose petitioners passed after allowingtheir 9 grace marks. This order dated3.2.83 is Annexure 4 to this writ petition.Petitioner is one of the remaining officersof the P.W.D. who could have succeededif 9 grace marks were allowed. The stategovernment has, however, given thebenefit only to the persons who hadearlier approached this court and not topersons who were similarly situated andhad failed to approach this court. We findno justification for the governmentdecision to deny the benefit of thedecision in 'Madan Gopal Popli Vs. State'(Writ Petition No.1523 of 1978) topersons who were similarly situated withthe petitioners of that case. Once the legalposition is declared by this court and thesame is not challenged before the Hon'bleSupreme Court, it is obligatory on theState Government to given effect to thelaw so declared. We, therefore, allow theWrit Petition and direct that the case ofthe petitioner and also of other personssimilarly situated be dealt with afterallowing them the benefit of 9 gracemarks in respect of 1970 qualifyingexamination and to declare the result


accordingly, at an early date, being,within a month from today."

32. The petitioner was not made aparty in the writ petition filed by SriDevendra Kumar Pandey, though heclaimed relief against similarly situatedpersons. Whether petitioner herein can befaulted or made to suffer on account ofthe above. The answer is in the negative.The High Court having alreadychallenged the order of the Single Judgedated 27.07.2007, obviously the rightsand interests of the petitioner herein werebeing looked after and were protected inits special appeal.

33. It is also important to note thatout of the six persons whose appointmentorder did not mention the words 'ad hoc',only four were respondents in the writpetition and none of them filed specialappeal against the judgment dated27.07.2007, yet, the Committee extendedthe benefit of the Division Benchjudgment dated 20.09.2011 to all the sixpersons.

34. On a perusal of the decision dated31.05.2012 taken by the High Court on theadministrative side pursuant to the judgmentdated 20.09.2011 reveals that the High Courtdid not at all consider and failed to appreciatethat the remaining seven persons includingthe petitioner were similarly situated to theseven 'representationists', referred therein,nor did it draw any distinction on the groundthat the remaining seven were not entitled tothe benefit of the judgment as they were notparties to the said proceedings. TheCommittee simply treated these sevenpersons differently without considering as towhether they were similarly situated andentitled to same benefit. I am of the view thatit erred in doing so.

35. The decision of the High Courton the administrative side dated27.05.2013 also does not consider theissue of these persons being similarlysituated to the seven 'representationists',instead, it refers to the conditions ofappointment mentioned in theirappointment order, ignoring that theDivision Bench, vide its judgment dated20.09.2011, had already held that thoseconditions have lost force and theseobservations of the Division Bench areapplicable as much to the appointmentletter of the petitioner as to that of otherswho were before it. The said observationshave become final. The review petitionhad been dismissed. This court has beeninformed that no special leave petitionwas preferred.

36. In my view, what has been held bythe Division Bench in respect of the seven'representationists', is applicable to thepetitioner herein also and there is no rationalbasis for treating him differently. Therespondents have erred in treating him so.

37. In view of the above discussion,the impugned order cannot be sustained.The same is accordingly quashed. Therespondents are directed to extend thesame benefits as has been extended to theseven 'representationists' as referred bythe High Court in its decision dated31.05.2012 pursuant to the judgmentdated 27.07.2007 and the judgment dated20.09.2011. The petitioner shall also beentitled to consequential benefits as hasbeen granted to the said persons. Thisexercise shall be done within a period oftwo months from the date a certified copyof this order is produced before thecompetent authority. The writ petition isallowed in the aforesaid terms.

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3 All]. Panna Lal & Ors. Vs. The Collector, Allahabad. & Ors. 1425



BEFORETHE HON'BLE TARUN AGARWALA, J.

THE HON'BLE SHRI NARAYAN SHUKLA, J.


Panna Lal & Ors. ...PetitionersVersus

The Collector, Allahabad & Ors....Respondents

Counsel for the Petitioner:Sri Harish K. Yadav.

Counsel for the RespondentsC.S.C., Sri S.P. Srivastava, Sri S.P. Singh

Urban Land (Ceiling & Regulation) Act1976-Section 10 (b), 19 (5)-petitionerseeking direction to delete the Statefrom revenue record-claimimg in actualphysical possession-no specific denial-mere taking possession on paper withoutfollowing procedure under Section 19(5)-no possession in eye of law-directionto struck of the name of state as well asADA given-petition allowed.

Held: Para-4From the impugned order, it isapparently clear that no proceeding wasinitiated under section 10(6) of the Actand consequently, the alleged possessiontaken on paper and thereaftertransferring the same to AllahabadDevelopment Authority appears to bewholly illegal and without anyjustification.

Case Law discussed:2013 (4) SCC 280; 2014 (4) ADJ 305

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

1. Baladeen was the original tenureholder of Gata No. 139 having an area4872.94 sq. meter situate in village

Dadanpur, Tehsil Chail DistrictAllahabad. Under the Urban Land(Ceiling and Regulation) Act, 1976, thecompetent authority declared 3372.94 sq.meter as surplus land. The petitioners arethe children and grand children of lateBaladeen who have filed the present writpetition alleging that they are still inpossession of the land in question and thatthe order of the District Magistrate dated22.5.2013 rejecting their applicationshould be set aside and the name of Stateof U.P. should be deleted from therevenue records and their names shouldbe incorporated in view of the fact that allthe proceedings under the Urban Land(Ceiling and Regulation) Act, stoodrepealed by virtue of the Urban Land(Ceiling and Regulation) RepealAct,1999. This court under the earlierground of litigation had directed thepetitioner to make a representation whichhas been rejected by an order dated15.5.2013.

2. The petitioner in paragraph 10 ofthe writ petition has made a categoricalstatement that they are in actual andphysical possession. This fact has notbeen denied by the respondents inparagraph 6 of the counter affidavit.

3. From a perusal of the order of theDistrict Magistrate,the court finds that thepossession was alleged to have been takenby the delegate of the District Magistrateon 18.9.1984 pursuant to the order dated18th September, 1984 declaring the landas surplus. The order of DistrictMagistrate aforesaid further indicates thatthe land was transferred to AllahabadDevelopment Authority on 10.1.1990 andpossession of such transfer was recordedin the notice under section 10(5) of theAct. Nothing has been indicated in the


impugned order that voluntary possessionwas given by the original tenure holder orchildren or by the grand children undersection 10(5) of the Act nor anything hasbeen indicated that upon failure to givevoluntary possession under section 10(5)by the original tenure holder or by hisheirs, actual and physical possession wastaken pursuant to the proceedings initiatedunder section 10(6) of the Act.

4. From the impugned order, it isapparently clear that no proceeding wasinitiated under section 10(6) of the Actand consequently, the alleged possessiontaken on paper and thereafter transferringthe same to Allahabad DevelopmentAuthority appears to be wholly illegal andwithout any justification.

5. In State of U.P. Versus HariSingh 2013 (4) SCC 280 the SupremeCourt has held that actual physicalpossession is required to be taken by theState under section 19(5) and 10(6) of theAct otherwise the benefit of the RepealAct would have to be given to the tenureholder. Similar view was held by thisCourt in the case of Yasin and othersVersus State of U.P. and others 2014 (4)ADJ 305.

6. We also find that inspite of timebeing granted no counter affidavit hasbeen filed by the Allahabad DevelopmentAuthority nor the counsel is presentbefore the Court In the light of theaforesaid the impugned order of theDistrict Magistrate cannot be sustainedand is quashed. Writ petition is allowed.A writ of mandamus is issued directingthe respondents not to interfere in thepossession of the petitioners over the landin dispute. Further a writ of mandamus isissued commanding the State of U.P. to

remove the name of the State of U.P.and/or remove the name of the AllahabadDevelopment Authority from the revenuerecord and record the names of thepetitioners on the land in question.

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original jurisdiction civil side dated: allahabad 17.11siva rama krishna vs. nadimpalli venkata rama...

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