1 All. Govind Pratap Singh & Ors. Vs. State of U.P. & Ors. 1 All. Govind Pratap Singh & Ors. Vs. State of U.P. & Ors. 1 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 06.01.2016 BEFORE

1 All. Govind Pratap Singh & Ors. Vs. State of U.P. & Ors. 1

ORIGINAL JURISDICTIONCIVIL SIDE

DATED: LUCKNOW 06.01.2016

BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI, J.

THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No. 6 of 2016

Govind Pratap Singh & Ors. ...PetitionersVersus

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

Counsel for the Petitioners:Jitendra Singh

Counsel for the Respondents:C.S.C.

Constitution of India-Art.-226-petitionerthe pharmacists claiming-authorization toprescribed medicines-in absence of doctor-such relief can not be granted-in view ofPharmacy Practice Regulation 2015-section 2b (I) and 2 (d)-dispensing ofprescription-except preparation anddelivery of a drugs or device to a patient-nothing more-petition dismissed.

Held: Para-3At the very outset we may observe that thisis a very hazardous proposition made by thepetitioner and is directly against theinterest of public at large. The petitionersare not practitioners of medicine nor theydo hold any such qualification forprescribing medicines. Even otherwiselearned Additional Chief Standing CounselSri Abdul Moin has rightly pointed out thatthe definition clause as contained in thePharmacy Practice Regulations, 2015authorizes the Practice of Pharmacy tomean dispensing of prescriptions and notprescribing medicines. The said regulationshave been published and are contained atitem no.153 at page 260 of part III ofLucknow Law Times, 2015.

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

1. Heard Sri Jitendra Singh, learnedcounsel for the petitioners and Mr. AbdulMoin, learned Additional Chief StandingCounsel for the respondents.

2. The petitioners are admittedlypharmacists. Their prayer is that adirection should be issued to permit thepetitioners to prescribe medicines topatients in the absence of a MedicalOfficer in the hospital.

3. At the very outset we mayobserve that this is a very hazardousproposition made by the petitioner and isdirectly against the interest of public atlarge. The petitioners are not practitionersof medicine nor they do hold any suchqualification for prescribing medicines.Even otherwise learned Additional ChiefStanding Counsel Sri Abdul Moin hasrightly pointed out that the definitionclause as contained in the PharmacyPractice Regulations, 2015 authorizes thePractice of Pharmacy to mean dispensingof prescriptions and not prescribingmedicines. The said regulations have beenpublished and are contained at itemno.153 at page 260 of part III of LucknowLaw Times, 2015.

4. Having perused the same we findthat the following is the definitioncontained in Regulation 2 (b)(i) and 2(d)of the Pharmacy Practice Regulations,2015 :-

"2(b)(i) Interpretation, evaluationand implementation of medical orders;dispensing of prescriptions, drug orders;

(d) " Dispensing" means theinterpretation, evaluation, supply andimplementation of a prescription, drugorder, including the preparation anddelivery of a drug or device to a patient or

2 INDIAN LAW REPORTS ALLAHABAD SERIES

patient's agent in a suitable containerappropriately labeled for subsequentadministration to, or use by, a patient."

5. In view of the aforesaid definitionclause the judgments which have beenrelied upon by the learned counsel for thepetitioner and have been brought onrecord do not come to his aid with theenforcement of this new regulation. Thepetitioners have thus no right to prescribemedicines.

6. The writ petition is misconceivedand is accordingly dismissed.

-------ORIGINAL JURISDICTION

CIVIL SIDEDATED: LUCKNOW 28.01.2016

BEFORETHE HON'BLE AJAI LAMBA, J.

THE HON'BLE ADITYA NATH MITTAL, J.

Habeas Corpus No. 54 of 2015

Azad Vikram Singh ...PetitionerVersus

Union of India ...Respondent

Counsel for the Petitioner:R.P. Mishra

Counsel for the Respondent:Govt.Advocate, A.S.G., Ajay Kumar Singh

(A)Constitution of India, Art.-226-HabeasCorpus petition-detention on ground-petition trying for bail-while the day onwhich impugned detention order passed-bail application already rejected-henceorder passed without application of mind-other co-accused including father ofpetitioner are even in jail-no question ofclaiming parity-detention order quashed.

Held: Para-16We have taken notice of the fact that inthe impugned order dated 30.1.2015, it

has been mentioned that the petitioneris making endeavour to come out on bail.One of the grounds taken for invokingprovisions of the National Security Act isthat after dismissal of application for bailby Chief Judicial Magistrate, Gonda, theapplication for bail of the petitioner ispending adjudication in Case CrimeNo.254 of 2014 (supra) in the Court ofSessions Judge, Gonda. Admittedly, thesaid fact has been wrongly recorded inthe impugned order. Application for bailof the petitioner had been dismissed on23.1.2015. As on the date when theproceedings under the National SecurityAct were initiated, application for bail onbehalf of the petitioner in the murdercase was not even pending. Thus, a non-existent circumstance has been takeninto account for invoking the provisionsof National Security Act. It is evidentthat the order has been passed withoutapplication of mind.

The apprehension of the detainingauthority that the petitioner shall bereleased on bail appears to be withoutany cogent material and it appears tohave been passed on mere ipse dixit ofthe detaining authority. In thesecircumstances, the order of detention isnot based on sufficient material as wellas subjective satisfaction of thedetaining authority.

(B)Constitution of India, Art.-226-detentionorder-96 days unexplained delay-detentionorder lost its importance-quashed.

Held-Para-19-In view of the aforesaid discussions, weare of the view that on the date ofpassing of the detention order, there wasno subjective satisfaction of the DistrictMagistrate Gonda and there was nopossibility of being released on bailbecause on the date of passing of thedetention order, any application for bailwas not pending and even the bail of thesimilarly placed named co-accused, whois the father of the petitioner had alsonot been granted. The delay of 96 daysin passing the impugned detention order

1 All. Azad Vikram Singh Vs. Union of India 3

also looses its importance. There is noexplanation to this inordinate delay andno such evidence is there that after lapseof 96 days of arrest, the petitioner wastrying to disturb the public order againby any of his overt action. Therefore, thechain of connection between thedangerous activities relied on and thedetention order passed is snapped bythis long and unexplained delay. In thesepeculiar facts and circumstances of thiscase, the detention order dated30.01.2015 is liable to be quashed.

Case Law discussed:1970 (1) SCC 98; (1973) SCC (Cri) 16; AIR1964 SC 334; 1983 SCC (Cri) 840; 1975 SCC(Cri) 365; (1989) SCC 22; [1964 SC 334];[1983 (4) SCC 301]; [(1985) 4 SCC 232];[1986 (4) SCC 378]; [(1984) 3 SCC 14];[(1986) 4 SCC 407]; [(1986) 4 SCC 416];[(1987) 4 SCC 48]; [(1988) 1 SCC 436.

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

1. This petition in the nature of HabeasCorpus has been filed with the prayer todeclare the impugned detention order dated30.01.2015 passed under National SecurityAct, 1980 as illegal and arbitrary with thefurther prayer to quash the consequentialapproval order dated 09.02.2015.

2. The facts giving rise to the presentpetition are that on 25.10.2014 at about 7.35am, the petitioner along with his othercompanions had caused murder of one SriOm Prakash Singh at his brick kiln and hadabsconded from there. Case Crime No.254 of2014 under sections 147, 148, 149, 302, 34Indian Penal Code, Police Station Wazirganj,District Gonda and another Case at CrimeNo.255 of 2014 under section 3/25 Arms Actin the same police station were registered andthe petitioner was arrested.

3. On 26.01.2015, a report was madeby the Police Station Wazir Ganj, District

Gonda to the Superintendent of Police,Gonda stating therein that there was a seriousthreat to public law and order and thepetitioner is trying to get his release in theaforesaid offences by which the maintenanceof public law and order shall be disturbed.Therefore, the petitioner should be detainedunder Nation Security Act, 1980 (for short'NSA'). Circle Officer Incharge of PoliceStation Wazirganj, District Gonda as well asAdditional Superintendent of Police Gondarecommended to the District MagistrateGonda for invoking the provisions of 'NSA'.Upon the recommendation of the policeofficers, the District Magistrate Gonda,considering all the facts and circumstances ofthe case, passed the impugned detentionorder dated 30.01.2015 for detaining thepetitioner under section 3(2) of the NSA.

4. Learned counsel for the petitionerhas submitted that the incident of murderhad taken place on 25.10.2014 and theprovisions of 'NSA' have been invoked aftera lapse of about 96 days. Therefore, theorder is stale. It has also submitted that theapplication for bail of the petitioner wasalready rejected on 23.01.2015 and on thedate of passing of detention order i.e.30.01.2015, second application for bail wasnot pending. Therefore, there was nointention of the petitioner to come out fromJail on 30.01.2015. There was no nexusbetween the prejudicial activities in theorder of detention and the ground ofdetention was punitive. Therefore, the orderis bad in law. It has also been submitted thatthe said incident of murder was committedby so many persons but the provisions of'NSA' have been invoked only against thepetitioner and no explanation has beenfurnished as to why the provisions were notinvoked against other accused persons. Inthese circumstances, the order of detentionis illegal.


5. Per contra, Sri Ajay Kumar SinghLearned Senior Central GovernmentCounsel appearing on behalf of Union ofIndia and Sri Rishad Murtaza, learnedGovernment Advocate appearing onbehalf of respondent State has supportedthe detention order in view of the groundsmentioned in the detention order.

6. We have heard learned counselfor the parties' and perused the pleadingsof petition.

7. Hon'ble the Apex Court in thecase of Arun Ghosh vs. State of WestBengal reported at 1970 (1) SCC 98 hasheld that :

"disturbance of public order is to bedistinguished from acts directed againstindividuals which do not disturb thesociety to the extent of causing a generaldisturbance of public tranquillity. It is thedegree of disturbance and its effect uponthe life of the community in a localitywhich determines whether the disturbanceamounts only to a breach of law andorder. The question whether a man hasonly committed a breach of law and orderor has acted in a manner likely to cause adisturbance of the public order is aquestion of degree and the extent of thereach of the act upon the society. There isno formula by which one case can bedistinguished from another.

In Kanu Vishwas vs. State of WestBengal; (1973) SCC (Cri) 16, Hon'ble theApex Court has held as under:

"The question whether a man hasonly committed a breach of law and orderor has acted in a manner likely to cause adisturbance of the public order, is aquestion of degree and the extent of thereach of the act upon the society. Public

order is what the French call "orderpublique" and is something more thanordinary maintenance of law and order.The test to be adopted in determiningwhether an act affects law and order orpublic order is: Does it lead to disturbanceof the current life of the community so asto amount to a disturbance of the publicorder or does it affect merely anindividual leaving the tranquillity of thesociety undisturbed.

In Rameshwar Shaw vs. DistrictMagistrate, Burdwan and another; AIR1964 SC 334, Hon'ble the Apex Court hasheld that:

"if a person is already in jail custody, asa result of a remand order passed by acompetent authority, it cannot rationally bepostulated that if he is not detained, he wouldact in a prejudicial manner. At the point oftime when an order of detention is going tobe served on a person, it must be patent thatthe said person would act prejudicially if heis not detained and that is a considerationwhich would be absent when the authority isdealing with a person already in detention.The satisfaction that it is necessary to detaina person for the purpose of preventing himfrom acting in a prejudicial manner is thusthe basis of the order under section 3(1)(a)and is outside its purview.

Similarly in Alijan Mian vs. DistrictMagistrate, Dhanbad and others; 1983SCC (Cri.) 840, Hon'ble the Apex Courthas held as under :

"It may be pointed out at the veryoutset that the detaining authority wasalive to the fact that the petitioners werein jail custody on the date of the passingof the detention orders as will be clearfrom the following statement in thegrounds of detention:


"The subject is in jail and is likely tobe released on bail. In the circumstances Iam satisfied that if he is allowed to remainat large, he will indulge in activitiesprejudicial to the maintenance of publicorder."

The position would have beenentirely different if the petitioners were injail and had to remain in jail for a prettylong time. In such a situation there couldbe no apprehension of breach of 'publicorder' from the petitioners. But thedetaining authority was satisfied that ifthe petitioners were enlarged on bail, ofwhich there was every likelihood, it wasnecessary to prevent them from acting ina manner prejudicial to public order."

8. Learned counsel for the petitionerhas also drawn our attention towardsRabindra Kumar Ghosel @ Buli vs. Stateof West Bengal; 1975 SCC (Cri) 365 inwhich Hon'ble the Apex Court has held asunder:

"We find that the actual order ofdetention was passed only around threemonths thereafter. The whole purpose andobject of the Maintenance of InternalSecurity Act is that persons who are likelyto imperil public order are not allowed tobe free to indulge in this dangerousactivity. We cannot understand theDistrict Magistrate sleeping over thematter for well nigh three months andthen claiming that there is a real andimminent danger of prejudicial activityaffecting public order. The chain ofconnection between the dangerousactivities relied on and the detention orderpassed is snapped by this long andunexplained delay. If there were sometenable explanation for this gap we wouldhave been reluctant to interfere with thedetention order but none has been stated

in the counter affidavit filed to-day manymonths after time was taken for filing areturn. In these circumstances, we are notsatisfied that there is any justification forthe claim of subjective satisfaction putforward by the District Magistrate. Thepetition is allowed, the rule nisi confirmedand the petitioner directed to be set atliberty."

9. The petitioner Azad Vikram Singhalleged to have committed crime undersections 147, 148, 149, 302/34 Indian PenalCode on 25.10.2014 at 7.35 am regardingwhich the First Information Report at CaseCrime No.254 of 2014 was lodged on25.10.2014 at 8.30 am against the petitionerand four other companions. The petitionerwas arrested by the local police on 25.10.2014itself and upon his pointing out, a pistol is saidto have been recovered on 26.10.2014. Thedetention order has been passed on30.01.2015. It is admitted case of theprosecution also that on the date of detentionorder i.e. 30.01.2015, the second applicationfor bail was not pending before any authority.However, the second application for bail hasbeen rejected on 14.05.2015.

10. After passing of the impugnedorder dated 30.01.2015, the petitioner hadmoved his first representation to DistrictMagistrate, Gonda on 06.02.2015, whichwas rejected on 11.02.2015. Secondrepresentation has also been rejected byorder dated 15.02.2015 whilerepresentations made to Union of India on11.02.2015 and 09.02.2015, have alsobeen rejected by Union of India by orderdated 24.02.2015. The aforesaid factsmake it clear that on the date of passing ofthe impugned order dated 30.01.2015, thefirst application for bail was alreadyrejected and the second application forbail was not pending.


11. Hon'ble the Apex Court in a casereported at (1989) SCC 22 [Abdul RazakAbdul Wahab Sheikh vs. S. N. Sinha,Commissioner of Police, Ahmedabad andanother] after considering the law laiddown in Rameshwar Shaw vs. DistrictMagistrate, Burdwan and another [AIR1964 SC 334]; Alijan Mian vs. DistrictMagistrate, Dhanbad and others [1983 (4)SCC 301]; Ramesh Yadav vs. DistrictMagistrate Etah [(1985) 4 SCC 232];Suraj Pal Sahu vs. State of Maharashtra[1986 (4) SCC 378]; Vijay Narain Singhvs. State of Bihar [(1984) 3 SCC 14]; RajKumar Singh vs. State of Bihar [(1986) 4SCC 407]; Binod Singh vs. DistrictMagistrate Dhanbad [(1986) 4 SCC 416];Poonam Lata vs. M. L. Wadhawan[(1987) 4 SCC 48] ; and Smt. ShashiAggarwal vs. State of U.P. [(1988) 1 SCC436 has held as under:

"On a consideration of the aforesaiddecisions the principle that emerges is thatthere must be awareness in the mind ofthe detaining authority that the detenu isin custody at the time of service of theorder of detention on him and cogentrelevant materials and fresh facts havebeen disclosed which necessitate themaking of an order of detention. In thiscase, the detenu was in jail custody inconnection with a criminal case and theorder of detention was served on him injail. It is also evident that the applicationfor bail filed by the detenu was rejectedby the Designated Court on 13th May,1988. It is also not disputed that thereafterno application for bail was made forrelease of the detenu before the order ofdetention was served on him on 23rdMay, 1988. It appears that in the groundsof detention there is a statement that atpresent you are in jail yet "there are fullpossibilities that you may be released on

bail in this offence also." This statementclearly shows that the detaining authoritywas completely unaware of the fact that noapplication for bail was made on behalf ofthe detenu for his release before theDesignated Court and as such the possibilityof his coming out on bail is non-existent.This fact of non-awareness of the detainingauthority, in our opinion, clearly establishesthat the subjective satisfaction was notarrived at by the detaining authority onconsideration of relevant materials."

12. In the present case also, itappears that the detaining authority wascompletely unaware of the fact that anyapplication for bail was not pendingbefore any competent court and, as such,there was no possibility of coming out ofbail. It goes to show that the aforesaidsubjective satisfaction as provided inSection 3(2) of the 'NSA' was not arrivedat by the detaining authority.

13. Learned counsel for thepetitioner has also placed reliance onvarious Division Bench judgments of thisCourt in which the same view has beentaken that if there was no apprehension onthe part of the detenue to get release onbail, the factum of subjective satisfactionwas not proved and the detention orderbecomes vitiated.

14. Hon'ble the Apex Court in Smt.Sashi Agarwal vs. State of U.P.; 1988 (1)SCC 436 has further held that merepossibility of release on bail of thedetenue is not enough for preventivedetention. There must also be credibleinformation or cogent reasons apparent onthe record that the detenue, if released onbail, is likely to commit activitiesprejudicial to the maintenance of publicorder.


In the instant case, there is no othercriminal history of the petitioner exceptthe aforesaid two cases, out of which thesecond case is of recovery of countrymade pistol arising out of first case ofmurder.

15. The detention order of thepetitioner has been served upon him whenhe is already in jail. Therefore, thereshould be a real possibility of his beingbailed out provided he has moved a bailapplication, which is pending. It followslogically that if no bail application ispending, then there is no likelihood of theperson in custody being released on bailand therefore, the detention order shall beillegal. However, an exception to this ruleis that where a co-accused whose casestands on the same footing had beengranted bail, in such circumstances, thedetaining authority can reasonablyconclude that there is likelihood of thedetenue being released on bail eventhough no bail application of his, ispending since most courts normally grantbail on the ground of parity.

In the present case, the petitioner andhis father are named in the firstinformation report and three unknownpersons have been shown accompanyingthe petitioner. Admittedly, the father ofthe petitioner has also not been releasedon bail.

16. We have taken notice of the factthat in the impugned order dated30.1.2015, it has been mentioned that thepetitioner is making endeavour to comeout on bail. One of the grounds taken forinvoking provisions of the NationalSecurity Act is that after dismissal ofapplication for bail by Chief JudicialMagistrate, Gonda, the application for

bail of the petitioner is pendingadjudication in Case Crime No.254 of2014 (supra) in the Court of SessionsJudge, Gonda. Admittedly, the said facthas been wrongly recorded in theimpugned order. Application for bail ofthe petitioner had been dismissed on23.1.2015. As on the date when theproceedings under the National SecurityAct were initiated, application for bail onbehalf of the petitioner in the murder casewas not even pending. Thus, a non-existent circumstance has been taken intoaccount for invoking the provisions ofNational Security Act. It is evident thatthe order has been passed withoutapplication of mind.

The apprehension of the detainingauthority that the petitioner shall bereleased on bail appears to be without anycogent material and it appears to havebeen passed on mere ipse dixit of thedetaining authority. In thesecircumstances, the order of detention isnot based on sufficient material as well assubjective satisfaction of the detainingauthority.

17. As far as the delay in passing thedetention order is concerned, there isdelay of almost 96 days. The incidenttook place at a brick kiln, which isadmittedly situated far away from theAbadi. Therefore, there cannot be aground to invoke the provisions of 'NSA'on the ground that the shopkeepers inpanic, downed their shutters or itamounted to disturbances of public orderby such incident. At the most, there maybe temporary disturbances at the place ofincident, which is far away from thetownship. Therefore, the shorter life ofsuch disturbance would be of lowerpotential to disturb the even tempo of the


life of the society. The said incident maybe said to be related to law and orderproblem and it certainly not the publicorder. The detaining authority in exerciseof power under 'NSA' must act strictlywithin the limitations provided under theAct, so that grant of liberty is notimperilled beyond the Constitution.Individual liberty is a cherished right, oneof the most valuable fundamental rightsprovided by our Constitution to thecitizens of this country. Such right may beenvied only strictly in accordance withlaw. The authorities cannot be expected todeal with the liberty of individual in acausal manner.

As per the statement of thecomplainant recorded under section 161Code of Criminal Procedure, there wasenmity between the parties due to electionof Pradhani. Therefore, it was anindividual act on the part of the petitioner,which cannot be said to have affected thepublic order.

18. In the present case, the petitionerand his father are named in the firstinformation report but admittedly, nodetention order has been passed againstthe father of the petitioner, whichestablishes the discrimination with thepetitioner.

19. In view of the aforesaiddiscussions, we are of the view that on thedate of passing of the detention order, therewas no subjective satisfaction of the DistrictMagistrate Gonda and there was nopossibility of being released on bail becauseon the date of passing of the detention order,any application for bail was not pending andeven the bail of the similarly placed namedco-accused, who is the father of the petitionerhad also not been granted. The delay of 96

days in passing the impugned detention orderalso looses its importance. There is noexplanation to this inordinate delay and nosuch evidence is there that after lapse of 96days of arrest, the petitioner was trying todisturb the public order again by any of hisovert action. Therefore, the chain ofconnection between the dangerous activitiesrelied on and the detention order passed issnapped by this long and unexplained delay.In these peculiar facts and circumstances ofthis case, the detention order dated30.01.2015 is liable to be quashed.

20. Thus, the detention order dated30.01.2015 and the consequentialapproval order dated 09.02.2015 passedunder National Security Act, 1980 arehereby quashed.

21. The petition is allowed.-------






Subhash Chandra Vishwakarma . PetitionerVersus

Chief Information Commissioner U.P. StateInformation & Ors. ...Respondents

Counsel for the Petitioner:Siddhartha Srivastava

Counsel for the Respondents:C.S.C., Shikhar Ananad

Constitution of India, Art.-226-Petitionagainst order-by National Forum under RTIAct-petitioner being accused in criminalcase charge-sheet filed-against thatapplication for fresh investigation-upon in

1 All. Subhash Chandra Vishwakarma Vs. Chief Information Commissioner U.P. State Information & Ors. 9

action-sought information under Section ofthe Act-than in second appellate authority-order impugned-held-matter beyond Act-rightly no response given-such processamounts to complete abuse the process oflaw-petition dismissed without exemplarycost taking very lenient view.

Held: Para-10We have no hesitation to record that inactionon non-statutory applications/complaintsfiled by any person where the StateAuthorities are not obliged to take adecision would not fall within the definitionof information giving rise to a cause underSection-6 of the Act. If all such inactions areconstrued to be cognizable under the Rightto Information Act, the misuse of the Actwould become rampant and the provisionsof the Act in that view of the matter wouldresult into an abuse of the process of law.Once it is held that the application filed bythe petitioner did not fall within the scopeof information under the Right toInformation Act, the impugned orderpassed by respondent no.1 on 24.11.2015does not call for any interference and thewrit petition being devoid of merit deservesto be dismissed.

(Delivered by Hon'ble Attau RahmanMasoodi, J.)

1. This writ petition is directedagainst the order dated 24.11.2015 passedby the State Chief InformationCommissioner, U.P. whereby the appealfiled by the petitioner arising out of nonfurnishing of information in response tohis application dated 28.01.2015 filedunder Section-6 of the Right toInformation Act has been consigned torecord for not being maintainable.

2. The brief facts giving rise to thepresent writ petition are that the petitioner'sbrother viz Sri Shiv Poojan Vishvakarma isimplicated in a Criminal Case no. 1311 of2014. The investigation in respect of the said

criminal case on completion resulted intofiling of charge-sheet dated 07.01.2015before the competent court having criminaljurisdiction. It appears that subsequently on23.01.2015 an application was filed by thepetitioner under Section 173 (8) of the Codeof Criminal Procedure before respondentno.2 praying for fresh investigation in thematter on some grounds stated in theapplication which still remain available to anaggrieved person by availing the remedy ofprotest petition or otherwise in the regularcourse of enquiry and trial.

3. Soon after filing the applicationfor fresh investigation, the petitionerchose to file an application under Section6 of the Right to Information Act(hereinafter referred to as the Act) on28.01.2015 praying for information to theeffect as to what action was taken by therespondent no.2 on his representationmade on 23.01.2015. Failure on the partof Information Officer to furnish theinformation within the statutory period issaid to have given rise to first appeal filedon 05.02.2015 and the said appeal notyielding any result became the cause offiling second appeal before thecommission on 16.03.2015.

4. On a close scrutiny of the presentcase, it is seen that the petitioner'sapplication dated 28.01.2015 filed underSection 6 (1) of the Act is said to havebeen dealt with on 03.02.2015 and09.03.2015 by the Information Officerand without disclosure of this fact, thepetitioner chose to file the first andsecond appeals before the higher forums.After issuance of notices the InformationOfficer came to know about the appellateproceedings and by letter dated02.09.2015 all these facts were brought tolight.


5. We find that the information inresponse to the petitioner's representationdated 28.01.2015 was refused on theground of exemption as envisaged underSection 8 (1) (h). Section 8 (1) (h) ofRight to Information Act is extractedbelow for ready reference:--

"8.Exemption from disclosure ofinformation.-(1) Notwithstanding anythingcontained in this Act, there shall be noobligation to give any citizen,-

(h) information which would impedethe process of investigation or apprehensionor prosecution of offenders:

6. In the instant case, it is an undisputedfact that a criminal case was registered againstthe petitioner's brother wherein aftercompletion of investigation a charge-sheet hasbeen submitted before the competent court on07.01.2015. The petitioner appears to havefiled an application under Section 173(8) ofthe Code of Criminal Procedure prayingtherein for fresh investigation. Section 173(8)of the Criminal Code of Procedure, for readyreference, is also extracted below:--

"8. Nothing in this section shall bedeemed to preclude further investigation inrespect of an offence after a report under sub-section (2) has been forwarded to theMagistrate and, whereupon suchinvestigation, the officer in charge of thepolice station obtains further evidence, oral ordocumentary, he shall forward to theMagistrate a further report or reportsregarding such evidence in the formprescribed; and the provisions of sub-sections(2) to (6) shall, as far as may be,apply in relation to a report forwarded undersub-section (2). "

7. From a plain reading of the aboveprovision, it is clear that an application for

fresh investigation is not maintainable atthe instance of an accused person andrespondent no.2 even otherwise not beingthe Investigation Officer could not enterinto any investigation within the purviewof Section 173 (8) of the Code ofCriminal Procedure on any suchapplication being filed by the petitionerwho happens to be the brother of theaccused. The information to be furnishedunder Right to Information Act maybroadly fall under two categories i.e.action and inaction:

(1) Actions of the State Governmentculminating into an information are to beunderstood in the light of definitionprovided under Section 2 (f) which readsas under:-

(f)"information" means any materialin any form, including records,documents, memos, e-mails, opinions,advices, press releases, circulars, orders,logbooks, contracts, reports, papers,samples, models, data material held inany electronic form and informationrelating to any private body which can beaccessed by a public authority under anyother law for the time being in force;

8. The aforesaid provision defininginformation makes it clear that an inactionon a non-statutory representation filed byany person does not fall within the strictsense of definition of information. On aclose scrutiny of the other provisions ofdefinition clause, it is further seen thatinaction on the part of the authorities cannotbe construed to be an information unlessand until there is a statutory obligation onthe part of the competent authority to take adecision on any representation or complaintfiled by an aggrieved person and even ifsuch an inaction is noticed, therepresentation remains at the stage of

1 All. Manna Singh & Ors. Vs. State of U.P. 11

investigation and the protection of section 8(f) comes into play.

9. In the instant case, we have alreadyextracted the provision under Section 173(8)hereinabove and we are of the consideredopinion that once the charge-sheet was filedbefore the Court of competent jurisdiction,fresh investigation could not be ordered byrespondent no.2 on a mere application filedby a third party, as such the application filedby the petitioner was rightly rejected by theInformation Officer on 03.02.2015 and09.03.2015 which orders have not beenassailed in the Ist or IInd appeal. It is also notthe case of the petitioner that respondent no.2was ever entrusted with any furtherinvestigation of the case registered againsthis brother under the provisions of Section158 of the Code of Criminal Procedure,therefore, his application was maintainabledue to that reason. The application filed bythe petitioner on 23.01.2015 rather makes aprayer for fresh investigation and the saidjurisdiction as per law vests in the StateGovernment but no such application wasever filed by the accused person before theState Government either himself or inrepresentative capacity.

10. We have no hesitation to recordthat inaction on non-statutoryapplications/complaints filed by any personwhere the State Authorities are not obliged totake a decision would not fall within thedefinition of information giving rise to acause under Section-6 of the Act. If all suchinactions are construed to be cognizableunder the Right to Information Act, themisuse of the Act would become rampantand the provisions of the Act in that view ofthe matter would result into an abuse of theprocess of law. Once it is held that theapplication filed by the petitioner did not fallwithin the scope of information under the

Right to Information Act, the impugnedorder passed by respondent no.1 on24.11.2015 does not call for any interferenceand the writ petition being devoid of meritdeserves to be dismissed.

11. We may also put on record that invarious cases it is noticed that cognizance ofproceedings under Section 18 of the Act istaken without discharging the obligation toexamine the maintainability of appeals andcomplaints. Once the Information Officerseither fail to discharge their duties or there issome other grievance which is amenable tothe remedy of first appeal, the provisions ofSection 18 of the Act have to be scrupulouslyapplied so that the purpose of Section 19 ofthe Act is not frustrated but is ratherstrengthened to serve better. Needless to saythat exceptions carved out under Section-8 ofRTI Act, 2005 remain protected under theOfficial Secrets Act, 1923 or any other lawfor the time being in force.

12. The writ petition lacks merit andthe same is hereby dismissed.

-------APPELLATE JURISDICTION

CRIMINAL SIDEDATED: ALLAHABAD 06.01.2016

BEFORETHE HON'BLE HULUVADI G. RAMESH, J.

THE HON'BLE SHAMSHER BAHADURSINGH, J.

Criminal Appeal No. 213 of 1983

Manna Singh & Ors. ..AppellantsVersus

State of U.P. ...Opp. Party

Counsel for the Appellants:R.P. Singh, S.L. Singh

Counsel for the Respondents:D.G.A.


Criminal Appeal-conviction of lifeimprisonment-offence u/s 302, 34 IPC-challenged on ground of enmity with ofeye witness with appellant/accused-such statement wrongly relied by TrialCourt-held-no ground for rejection oftheir testimony.

Held: Para-20In view of above as has been discussedabove, the evidence of eye witnessesexamined by prosecution cannot bediscarded only on the ground that ChhoteSingh and other neighbour witnesses werenot examined.

Case Law discussed:(2015) 1 SCC 737; AIR 2013 SC 308; 2012 (5)SCC 777; AIR 2010 SC 1378.

(Delivered by Hon'ble Shamsher BahadurSingh, J.)

1. This appeal challenges thejudgment and order dated 14.01.1983passed by 2nd Additional Sessions Judge,Hamirpur in S.T. No.60 of 1979 (StateVs. Manna Singh and others) arising outof Case Crime No.205 of 1978, underSection 302 IPC, P.S.-Sumerpur, DistrictHamirpur, whereby the accused-appellants namely Manna Singh, GanpatSingh, Lallu Singh and Subedar Singhhave been convicted and sentenced toundergo imprisonment for life underSection 302 read with Section 34 IPC.

2. In pursuance of the order of thisCourt dated 07.05.2015, a report has beensubmitted by learned C.J.M. Hamirpur on22.05.2015, mentioning therein that theappellant no.2 Ganpat Singh and appellantno.3 Subedar Singh have died, therefore,the appeal filed on behalf of appellantnos.2 and 3 stand abated.

3. The deceased Ram Sanehi Singhson of Bhagwan Deen Singh was resident

of village Pachkhura Mahan within thejurisdiction of Police Station Sumerpur,District Hamirpur. Accused Manna Singh,Ganpat Singh @ Mihi Lal and SubedarSingh are real brothers and accused LalluSingh is their cousin and all of them areresidents of the same village.

4. The prosecution case, in brief, isthat before the date of incident thedeceased Ram Sanehi Singh hadpurchased a 'Bakhri' (house) of one JaitpalKhori, a portion of which was inpossession of accused Manna Singh. Thedispute led to a prolonged civil litigationwhich terminated in favour of thedeceased. Manna Singh was upset by thisjudicial defeat, his ego was lacerated andthe fire of revenge was smouldering in hisheart. On 09.12.1978 after mid-day mealBinda Singh, Manni Lal Shukla @ Manni,Chhote Singh and the deceased RamSanehi Singh were basking in the sun andplaying cards sitting on the eastern'chabutra' situate in front of the house ofManni Lal Shukla. At about 1.30 p.m.accused Manna Singh armed with adouble barrel gun, Ganpat Singh @Mihilal with a rifle, Lallu Singh with asingle barrel gun came there and watchedthe play for a while. In the meantime,Subedar Singh armed with a 'Lathi' alsoreached there from the western side andexhorted the other accused to eliminatethe enemy as it was a good opportunity.Thereupon, all the gun men rainedmultiple gun shots on Ram Sanehi Singh.Several shots were fired from a very closerange which grievously wounded RamSanehi Singh and he succumbed to theinjuries then and there. Manni Lal Shukla,Binda Singh and others entreated theaccused to forbear but they wereintimidated by the accused with direconsequence. After commission of the


murder all the accused escaped towardsthe west. At the time of incident RajaBhaiya Singh son of the deceased was athis door. The sound of gun shots hijackedhis attention and he along with PratapSingh and Lallu Singh rushed towards thescene of occurrence and on his waywitnessed the four accused, with theirweapons, fleeing away by the samepathway. Raja Bhaiya Singh saw thecorpse of his father lying in a pool ofblood on the 'chabutra' of Manni LalShukla. Manni Lal Shukla and othersplaying the cards narrated the details ofthe incident to him and he went back tohis house and scribed the report Ext. Ka-2and transmitted the same through SheoPrasad, Chowkidar of the village, to thereporting Chowki Surauli of the PoliceStation Sumerpur. The written report wassubmitted at 5.30 p.m. on the same day atPolice Chowki Surauli situate at adistance of about three miles from thevillage. The written report was receivedby constable Moharrair Jodha Singh whoprepared the Chik report Ext. Ka-4 andregistered the crime at serial number 9 ofthe General Diary Ext. Ka-5. Theinformation of the crime was sent to ShriBabu Singh Sengar, Station Officer,through Constable Govind Ram andConstable Moharrair Jodha Singh left forthe scene of occurrence to keep vigil overthe corpse. Information of the crime wasreceived by the Station Officer the nextday in village Terha, wherefrom heproceeded to the place of incident direct.He held inquest at 8.30 A.M. on10.12.1978 vide Ext. Ka-6, inter alia,recovered the dead body of the deceasedand two blood-stained playing cards lyingunder the corpse of the deceased, plainand blood-stained earth, tiklies ofcartridges and pellets from the spot andprepared a memo ext. Ka-7. Photo of the

dead body Ext. Ka-8 and challan of thecorpse ext. Ka-9 were prepared. Thecorpse was sealed and sent for autopsy.Statements of the witnesses were recordedand a site plan Ext. Ka-10 was prepared.Autopsy on the corpse was conducted byDr. T.D. Singh of District Hospital,Hamirpur on 11.12.1978 from 10.15 A.M.onward and the autopsy report is Ext. Ka-1.

5. The following ante morteminjuries were found on the person of thedeceased;

1. Gun shot wound of inlet withscorched margin and also blackening andtattooing of margin present 4 cm x 3 cm xc.c deep on the medial part of leftclavicle. Direction front to backwards andslightly downwards. Fracture of the leftclavicle and 1st to 4th ribs anteriorlypresent under the wound. Waddingmaterial found on the track. It severelylacerates the upper lobe of the left lung. Itcommunicates with wound no.20 (exitwound).

2. Gun shot wound of inlet 4 ½ cm x3 ½ cm x abdominal cavity deep, on theleft costal margin at 7 O'clock position, 7cms away from the left nipple. Marginscorched, blackened and tattooed.Direction left to right and slightlydownwards. An scorched area size 5 cm x3 ½ cms present above the woundcontiguous with it. Fracture of the 10thanterior rib of the left side present, underthe wound. It perforates the stomachthrough and through and extensivelylacerated the liver. Wadding pieces foundon the stomach and liver.

3. Gun shot wound of inlet 6 ½ cm x2 cm x muscle deep left side of theabdomen horizontally disposed between12 to 1 O'clock position 4 ½ cms above


the umbilicus. Margin scorched andblackened and tattooed. Direction left toright and horizontally.

4. Gun shot wound of outlet 2 cm x 1½ cm x muscle deep right side of theabdomen at 11 O'clock position 7 cmaway from the umbilicus. Edges everted.Wadding material found on the muscleplane. It communicate to injury No.3.

5. Gun shot wound of inlet 4 cm x 3cm x muscle deep. Margins scorched,blackened and tattooed right side of theabdomen lower part 3 cm above the rightiliac crest. Direction left to right andslightly upward in the muscle plane.

6. A grazed and scorched areaclosely lateral to the wound no.5.

7. Gun shot wound of exit 1 ½ cm x 1½ cm x 1 ½ cm x communicating to thewound no.5. Margin everted right side ofthe abdomen lower part. It is 3 cm awayfrom the wound no.5 lateral to it. Margineverted.

8. Gun shot wound of exit 1 cm x ½cm x communicating the wound no.5.Margins everted 4 cm lateral to injuryno.5.

9. Gun shot wound of exit 2 cm x 1 ½cm x communicates with injury no.5.Margin everted on the right lowerabdomen.

10. Gun shot wound of exit 1 cm x ½cm x communicating to the injury no.5.Margin everted. It is 10 cm lateral to theinjury no.5.

11. Gun shot wound of exit 1 cm x ½cm x communicating with injury no.5.Margin everted. It is 14 cm away andlateral to the injury no.5.

12. Gun shot wound of exit 1 ½ cm x½ cm x communicating with wound no.5.Margin everted. It is 9 ½ cm away andlateral to the injury no.5.

13. Gun shot wound of exit 1 cm x ½cm x communicating with injury no.5.

Margin everted. It is 9 cm away lateraland downwards to the injury no.5.

14. A grazed and scorched area size2 cm x 1 ½ cm at 7 O'clock position 13 cmaway from the umbilicus.

15. Two grazed and scorched spots 1cm x 1 cm on the right iliac crest. Theyare 14 cm apart.

16. A grazed, scorched spot 5 cm x 1cm right side of the thigh front aspect 14cms below right iliac crest.

17. Gun shot wound of exit 1 cm x ½cm x c.c. Deep right side of the back onthe posterior axillary line 1-8 cm belowthe right armpit.

18. Gun shot wound of exit 5 cm x 4cm x c.c. deep on the left scapula. Margineverted. Fracture of the 4th and 5thposterior ribs and scapula present. It isan exit of injury no.1.

19. Confluent gun shot wound of entryand exit (grazing) 23 cm x 5 cm x muscledeep left back lower part obliquely disposed.Margin scorched, tattooed and blackened. Ascorched and blackened area size 11 cm x 4cm is present above the wound continuouswith it. Another scorched and blackened aresize 6 cm x 3 cm present below the wound incontinuation.

20. A gun shot wound of entry 5 cm x 4cm x pelvic cavity deep on the right buttock,upper part. Direction back to front andmedially wadding material found on thetrack. Four gun shots found on the rightground and iliac crest. Right iliac crerstfractured and bladder perforated throughand through.

6. In the opinion of the doctor, thedeath occurred due to shock andhaemorrhage as a result of the firearminjuries mentioned above.

7. The first I.O. was transferred andthe remaining investigation was conducted


by the Sub-Inspector Ravendra Kumar whosubmitted the charge-sheet Ext. Ka-11.Thereafter, the case was committed to theCourt of Session on 6.04.1979. To thecharge under Section 302/34 IPC, theaccused pleaded not guilty and attributedtheir prosecution to enmity with thedeceased and with the witnesses.

8. To bring home guilt of accused,the prosecution has examined as many assix witnesses. Out of them PW 1 Dr. T.D.Singh, PW 5 Constable Moharrair JodhaSingh and PW 6 Babu Singh Senger,Station Officer are formal witnesses. PW2 Manni Lal Shukla, P.W. 4 Binda Singhare the eye witnesses and PW 3 RajaBhaiya Singh son of the deceased isscribe of the First Information Report Ext.Ka-2. He has also stated that whilecoming to the scene of occurrence hewitnessed the four armed accusedescaping by the same pathway. He hasfurther proved the motive for murder ofhis father as mentioned in the FirstInformation Report.

9. We have heard Sri R.P. Singh,learned counsel for the appellants, learnedAGA for the State and perused theevidence and material available on recordas well the impugned judgment.

10. The First Information Reportwas promptly lodged on the same day at5.30 P.M. It mentions the names of theaccused, a rifle and two guns used in thecommission of offfence, date, time andplace of occurrence, motive for the crimeand names of the witnesses present at thetime of incident. Thus, the F.I.R.corroborates the version of theprosecution. The medical evidence(statement of Dr. T.B. Singh and autopsyreport prepared by him) establishes the

fact that the deceased died of multiplegunshots injuries and his death wasneither natural nor accidental.

11. The First Information Report,the ocular evidence of eye witnesses andthe evidence of Investigating Officers,coupled with the site plan, leave no roomfor doubt that the death of the deceasedwas caused on the eastern 'chabutara'situate in front of the main door of thehouse of Manni Lal Shukla wherefrom thecorpse of the deceased Ram Sanehi Singhwas recovered. The date, time and sceneof occurrence have not been challengedby the defence.

12. According to the prosecutionversion, Manni Lal Shukla, Binda Singh,Chhote Singh and deceased Ram SanehiSingh were playing cards on the eastern'Chabutara' of Manni Lal Shukla, whenRam Sanehi Singh was done to death bythe multiple gunshots rained on him bythe three accused Manna Singh, GanpatSingh and Lallu Singh who were allarmed with firearms. PW 2 Manni LalShukla whose presence on the scene ofoccurrence cannot be doubted by anystretch of imagination, has confirmed theprosecution version. He has franklyadmitted that he is 'purohit' (family priest)of both accused Manna Singh and thedeceased Ram Sanehi Singh. MannaSingh wanted to retrieve the land alreadygiven to Manni Lal Shukla by his family.There was a prolonged litigation beforethe consolidation court between ManniLal Shukla and the accused in which RamSanehi Singh had appeared as his witness.This witness has also stated that when theaccused were aiming at Ram SanehiSingh to fire, he had entreated them withfolded hands to forbear but the accuseddid not relent, intimidated him with dire


consequence and culminated their design.The testimony of this witness is natural,convincing and devoid of anyconcealment.

13. PW 4 Binda Singh whilecorroborating the version of theprosecution has admitted that after thisincident a case under Section 107 of theCr.P.C. was instituted between hisbrothers and the accused. The element ofanimosity is also manifest in the statementof PW 2 Manni Lal Shukla who hasdeposed that Binda Singh and Parasuramare real brothers and Parasuram's daughteris married to Ram Narain Singh son ofdeceased Ram Sanehi Singh.

14. PW 3 Raja Bhaiya Singh who isson of deceased Ram Sanehi Singh hasproved the motive that impelled theaccused to eliminate the deceased. He hasspecifically stated that on hearing thesound of gun shots while he wasproceeding to the scene of occurrence hesaw all the four armed accused at the doorof Jagmohan coming from oppositedirection. He ascertained the facts fromManni Lal Shukla, Binda Singh andChhote Singh and prepared the writtenreport Ext. Ka-2. Thus, this witness hascorroborated the evidence of the eyewitnesses Manni Lal Shukla and BindaSingh regarding participation of theaccused in the commission of the offenceof murder.

15. The ocular testimony of all theabove three witnesses i.e. Manni LalShukla, Binda Singh and Raja BhaiyaSingh is natural and straightforward andthe conscience of the Court is convincedabout its veracity. The medical evidencecorroborates the ocular evidence of theeye witnesses and there is no conflict

between the medical evidence and the eyewitnesses account.

16. The eye witnesses and theaccused are sworn enemies of each otherand resident of the same village. Theincident occurred in bright sun shine, andtherefore, possibility of any mistake inidentification of accused is out ofquestion.

17. The learned counsel for theappellants has vehemently contended thatif the eye witnesses Manni Lal Shukla andBinda Singh and the deceased wereplaying cards sitting on a small 'chabutra'in close physical proximity and multiplegunshots were fired at the deceased thenthe eye witnesses examined and ChoteySingh (not examined) must have sustainedgunshot injuries and absence of any suchinjuries on the persons of above threewitnesses, renders their presence on spotat the time of occurrence very doubtful.The argument is attractive but an analysisof the eye witness account and humanconduct make it without strength. BothManni Lal Shukla and Binda Singh havemade specific mention that they tried theirbest to dissuade the accused fromassaulting Ram Sanehi Singh but theaccused threatened them with direconsequence to move away. As they wereonly fair-weather-friends and not bloodrelation of the deceased, it was verynatural for them to have left the deceasedto his fate. Moreover, the accused had nointention to harm the witnesses andtherefore they isolated the deceased andensured that the witnesses kept away.

18. The next contention on behalf ofthe appellants is that both the eyewitnesses are inimical to the accused andthey have falsely stated before the trial


court to implicate the accused. It isnoteworthy that the evidence of witnessescannot be discarded solely on this basis.The Hon'ble Apex Court in case ofDilabar Singh Vs. State of Haryana(2015) 1 SCC 737, Dhari Vs. State ofU.P., AIR 2013 SC 308, and RameshHarijan Vs. State of U.P., 2012 (5) SCC777 and Dharamveer Vs. State of U.P.,AIR 2010 SC 1378 propounded that theenmity of the witnesses with the accusedis not a ground to reject their testimonyand if on proper scrutiny, the testimony ofsuch witness is found reliable, the accusedcan be convicted. However, thepossibility of falsely involving somepersons in the crime or exaggerating therole of some of the accused by suchwitnesses should be kept in mind andascertained on the facts of each case. Ashas been enunciated above, though thereis some enmity between the accused andwitnesses prior to and after the incidentbut the evidence of eye witnesses i.e.Manni Lal Shukla and Brinda Singh isnatural, straightforward and trustworthy,and therefore, the same is fit to be reliedon for conviction. They are residents ofthe same village and their houses are inthe close proximity of the scene ofoccurrence, therefore, their presence onspot was quite probable.

19. Further in support of abovecontention, it was contended that ChhoteSingh who has no enmity with theaccused had been purposely withheld bythe prosecution apart from non-examination of Kunj Bihari, LaxmiPrasad, Guru Prasad Langra, Babu Singh,Jagmohan and others who have theirhouses in the vicinity of the place ofoccurrence. The presence of aboveneighbours at the scene of occurrence wasnatural, and their non-examination by

prosecution renders the prosecution casedoubtful. This contention has no legs tostand as most of the villagers are usuallyreluctant to get themselves involved in anoccurrence specially when the accused aredesperadoes and no blame can be laid atthe prosecution for not examining otherwitnesses. It is nor the case of prosecutionor defence that above neighbors werepresent at the scene of occurrence. So faras non-examination of independentwitnesses and its effect are concerned, theHon'ble Apex Court in the case of KripalSingh Vs. State of Haryana, AIR 2013 SC286, Sandeep Vs. State of U.P. (2012) 6SCC 107 and Mano Dutt and another Vs.State of U.P. 2012 77 ACC 2009 SCpropounded that if a witness examined inthe court is otherwise found reliable andtrustworthy, the facts sought to be provedby that witness need not be further provedthrough other witnesses though there maybe other witnesses available who couldhave been examined but were notexamined. Non-examination of materialwitness is not mathematical formula fordiscarding the weight of testimonyavailable on record however, natural,trustworthy and convincing it may be. It issettled law that non-examination of eyewitness cannot be pressed into service likea ritualistic formula for discarding theprosecution case with a stroke of pen.Court can convict an accused onstatement of sole witness even if he isrelative of deceased and non-examinationof independent witness would not be fatalto the case of prosecution.

20. In view of above as has beendiscussed above, the evidence of eyewitnesses examined by prosecutioncannot be discarded only on the groundthat Chhote Singh and other neighbourwitnesses were not examined.


21. Learned counsel for theappellants further submitted that only twoplaying cards were found on spot andthere is no trace of the remaining cardsand therefore the theory of playing cardson 'chabutra' appears to be manufacturedand concocted. There is no force in thissubmission because recovery of twoblood-stained playing cards was effectedon the next day at 8.30 A.M. from theplace of occurrence and that too frombeneath the corpse. In natural course theremaining cards could not remain in theiroriginal place as there are several agentslike children, animals and wind to disturbtheir status quo.

22. It has been further submitted thatplace of occurrence is doubtful as noempty cartridges were recovered from thespot. It is essential to mention that PW 6Babu Singh Sengar who investigated thecase, has deposed that, inter alia, herecovered pellets and ticklies from thescene of occurrence and this fact isspecified in recovery memo Ext. Ka-7.Moreover, there is no suggestion bydefence to the eye witness account thatRam Sanehi Singh was done to deathelsewhere. Therefore, contention losesstrength.

23. No other point has beenhighlighted before us nor mentionedduring the course of argument.

24. To appreciate the testimony ofeye witness, it has to be kept in mindwhether the witness is credible and hispresence on spot is probable and he hasseen the incident. In this background, thewitnesses examined by the prosecutionare consistent in their version despitesearching cross examination and there isno material contradiction or inconsistency

which may militate against theircredibility or trustworthiness. Further, theevidence of the eye witnesses isstrengthened by medical evidence onrecord. The motive for crime is alsoproved by PW 3 Raja Bhaiya Singh son ofthe deceased Ram Sanehi Singh. Theprosecution has proved its case beyondreasonable doubt and verdict ofconviction is legally and factuallyjustified by the evidence on record.

25. Being the court of first appeal,we have carefully scrutinized the casefrom every angle. The Court below hasrightly appreciated the evidence availableon record and rightly recorded the findingof conviction against the accusedappellants. We do not find anyjustification for interference in theimpugned judgment and sentence and thesame deserves to be confirmed.

26. The appeal against Manna Singhand Lallu Singh is sans merit and deserves tobe dismissed and is hereby dismissed. Theconviction and sentence awarded by trialcourt against the accused Manna Singh andLallu Singh is confirmed.

27. So far as accused Ganpat Singhand Subedar Singh are concerned, theirappeals have been abated due to theirdeath.

28. The appellants/ accused MannaSingh and Lallu Singh shall surrenderbefore the trial Court immediately toserve out the sentence awarded by thetrial Court.

29. The copy of the Judgment andentire record be transmitted back to thelearned trial court for compliance.

-------

1 All. P.N.O. 872080197 Cons. Bhupendra Singh Vs. State of U.P. & Ors. 19



BEFORETHE HON'BLE RAJAN ROY, J.

Service Single No. 560 of 2016

P.N.O. 872080197 Cons. Bhupendra Singh ...Petitioner

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

Counsel for the Petitioner:Surya Prakash Singh


U.P. Police Regulation-Regulation 525-Transfer of civil police constable-toGovernment Railway Police-challenged onground being civil police their cadre can notchanged-held-in view of Full Bench decisionGovt. Railway Police and Civil Police aresame cadre-even after dismissal of petitionby Second petition-quashing the validity oftransfer-held-barred by constructive Res-judicata-moreover can approach by review-second petition-not maintainable-dismissed.

Held: Para-4The action impugned in the present case ismerely consequential to the issuance of thetransfer order dated 07.10.2012 which waschallenged in the earlier writ petition,therefore, now for the petitioner to file asecond writ petition saying that he hasattained the age of 47 years in July, 2014,therefore, irrespective of the Full Benchdecision and in view of the circular dated03.03.2012 he is not liable to be compelledto join in the Government Railway Policedoes not appear to be sustainable in theeyes of law as the petitioner had attainedthe age of 47 years when the earlier writpetition filed by him was still pending,therefore, he ought to have raised this issuebefore this Court in the said writ petition

but not having done so, this writ petition isbarred by the principle of constructive res-judicata and res-judicata, therefore, no writof mandamus as prayed for can be issued.If at all permissible, the petitioner may seekappropriate remedy by way of review of thejudgment dated 30.07.2015 passed in hisearlier writ petition but no such relief canbe granted in this second writ petition.

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

1. Heard learned counsel for theparties.

2. The petitioner herein haschallenged an order dated 05.07.2015 bywhich the opposite party no. 3 has directedthe opposite party no. 5 to relieve thepetitioner consequent to the transfer orderpassed on 07.10.2012 transferring him fromCivil Police to Government Railway Policeas the litigation in this regard has come toan end and the legal position has beensettled by a Full Bench decision of theSupreme Court in Om Prakash Singh's case.

3. The petitioner herein had earlierfiled a writ petition bearing No. 5484(SS) of2012 challenging the aforesaid transferorder dated 07.10.2012. Initially stay orderwas passed on 09.10.2012. Subsequently, inview of the Full Bench decision in the caseof Om Prakash Singh and others Vs. Stateof U.P. and others, 2014 (3) ALJ 420 thewrit petition was dismissed and the interimorder was vacated. The judgment dated30.07.2015 passed in the Writ Petition No.5484(SS) of 2012 filed by the petitioner isquoted herein below:-

"Heard Sri Yashovardhan Swarup,Sri Desh Deepak Singh, Sri Rajesh KumarPandey, Sri Yogesh Kumar Awasthi andother counsel appearing on behalf oflearned counsel for the petitioner in other


connected writ petitions, Sri GyanandraKumar Srivastava, learned AdditionalChief Standing Counsel for oppositeparties and perused the record.

Since the common question isinvolved in the writ petitions , so the sameare being decided by a common judgment.

Facts, in brief, of the present mattersare that petitioners, who are working asConstable in Civil Police have beentransferred to Government RailwayPolice by means of impugned transferorders under challenged in the instantmatters by the petitioners on the groundthat as they are working as Constable inCivil Police for a period of more than tenyears, so they cannot be transferred fromCivil Police to Government RailwayPolice in view of the provisions asprovided under Regulation 525 of UttarPradesh Police Regulations.

Controversy involved in the presentmatters has been referred to Full Benchon the following points:-

(1) Whether a police constableworking in the civil police who hasrendered service for more than ten yearscannot be transferred to another branchin view of the provisions of Regulation525 of the Uttar Pradesh PoliceRegulations in view of the decision of theSupreme Court in Jasveer Singh Vs. Stateof U.P. & Ors. ( 2008) 1 UPLBEC 657.

(2) Whether the government railwaypolice and civil police constitute onecadre or different service cadres.

Thereafter Full Bench of this Courtin the case of Om Prakash Singh andothers Vs. State of U.P. And others, 2014

(3) ALJ 420 answered to the above saidquestions after taking into considerationthe Regulation 525 of Uttar PradeshPolice Regulations in following terms:-

(i) A police constable working in thecivil police who has rendered service formore than ten years can be transferred toanother branch, as explained above, inview of the provisions of Regulation 525of the Uttar Pradesh Police Regulations;

(ii) The government railway police isa branch of the police force and hence thetransfer of a civil police constable whohas put in more than ten years' service tothe government railway police would notbe prohibited, subject to compliance withthe norms stipulated in Regulation 525 ofthe U.P. Police Regulations.

In view of the above said fact, I donot find any illegality or infirmity in theimpugned orders rather the same are asper Regulation 525 of the Uttar PradeshPolice Regulations under challenged inthe writ petitions by which petitionershave been transferred from the post ofConstable in Civil Police to GovernmentRailway Police.

Accordingly, the writ petitions lackmerit and are dismissed.

Interim order, if any, standsdischarged."

4. The action impugned in thepresent case is merely consequential tothe issuance of the transfer order dated07.10.2012 which was challenged in theearlier writ petition, therefore, now for thepetitioner to file a second writ petitionsaying that he has attained the age of 47years in July, 2014, therefore, irrespective

1 All. Nanhi Devi (Inre 6382 S/S 2015) Vs. Dy. General Manager, Allahabad Bank & Ors. 21

of the Full Bench decision and in view ofthe circular dated 03.03.2012 he is notliable to be compelled to join in theGovernment Railway Police does notappear to be sustainable in the eyes of lawas the petitioner had attained the age of 47years when the earlier writ petition filedby him was still pending, therefore, heought to have raised this issue before thisCourt in the said writ petition but nothaving done so, this writ petition is barredby the principle of constructive res-judicata and res-judicata, therefore, nowrit of mandamus as prayed for can beissued. If at all permissible, the petitionermay seek appropriate remedy by way ofreview of the judgment dated 30.07.2015passed in his earlier writ petition but nosuch relief can be granted in this secondwrit petition.

5. Subject to the above, the writpetition is dismissed.

-------APPELLATE JURISDICTION


BEFORETHE HON'BLE AMRESHWARI PRATAP SAHI, J.THE HON'BLE ATTAU RAHMAN MASOODI, J.

Special Appeal No. 565 of 2015

Nanhi Devi (Inre 6382 S/S 2015) ...Appellant

VersusDy. General Manager, Allahabad Bank &Ors. ...Respondents

Counsel for the Appellant:Pradeep Kumar Tripathi

Counsel for the Respondents:Gopal Kumar Srivastava

Constitution of India, Art.-226-CompassionateAppointment-Allahabad Bank introduced-

scheme by circular dated 03.12.14-providing cut-off date as 05.08.2014-eitherdeath or voluntarily retirement ordisappearance etc-admittedly the employeedied on 25.10.2013-not within zone ofconsideration-in absence e of challengingcut-of date before Single Judge-can not beconsidered by Appellate court-appealdismissed-as the petitioner already availedex-gratia payment under scheme prevailingon that time.

Held: Para-6We are unable to agree because thecircular dated 03.12.2014 extractedherein above categorically clarifies theaforesaid position which was not underchallenge before the learned SingleJudge. The appellant had also acceptedthe benefit under the earlier scheme ofex-gratia payment.


1. Heard Sri Pradeep KumarTripathi, learned counsel for the appellantand Sri Gopal Kumar Srivastava learnedcounsel for the Bank.

2. The challenge raised in this appeal isto the judgment dated 04.11.2015 on theground that the learned Single Judge hascommitted an error by not considering theapplicability of this new schemepromulgated vide circular dated 03.12.2014and, therefore, denial of compassionateappointment by the respondents cannot beupheld even though the appellant hasreceived ex-gratia payment.

3. We have considered thesubmissions raised. The circular dated03.12.2014 as produced by the learnedcounsel for the bank is as follows:-

Scheme for CompassionateAppointment in Allahabad Bank


In terms of directive issued byGovernment of India, forwarded by IndianBanks' Association, advising opening ofcompassionate appointment in Public SectorBanks, a scheme for providing appointmenton compassionate grounds has beenintroduced in our Bank as per approvalaccorded by the Board of Directors in itsmeeting held on 21st November, 2014. TheScheme will be applicable from 5th August,2014 and case of an employee (i) dying whilein service on or after 05.08.2014 or (ii)retiring prematurely on medical ground afterobserving necessary formalities as per Ruleon account of incapacitation for future workbefore reaching the age of 55 years on orafter 05.08.2014 or (iii) becoming 'missing'on or after 05.08.2014 with at least twoyears of remaining service, will only begoverned by the scheme. The term 'employee'in this case will be governed by the definitioncontained in the Scheme. .

The Complete Scheme, together withformats for Application for Sponsorshipby the spouse of the ex-employee [FormNo.01], Application for CompassionateAppointment by the Candidate [Form No.02] and Affidavit to be executed by theDependent Family members of the ex-employee [Form No.03] is annexed to thisInstruction Circular as Annexure-1 forcareful noting by all concerned.

As per clarifications received from theGovernment of India, forwarded by IndianBanks' Association, all the cases for ex-gratia pending before 05.08.2014 are notaffected by the new Scheme. Accordingly,cases of compassionate benefit arsing out ofdeath of an employee while in service orpremature retirement on medical groundbefore reaching the age 55 years due toincapacitation for future work, occurring onor before 04.08.2014 will continue to be

governed by Allahabad Bank Scheme forPayment of Lumpsum Ex-Gratia Amount inlieu of Appointment on CompassionateGrounds & Appointment of Dependents ofDeceased Employees on CompassionateGrounds in Exceptional Cases' last updatedvide H.O Instruction Circular No.10203/PA/2008-09/35 dated 17.10.2008.

4. A perusal thereof demonstratesthat the scheme would apply from05.08.2014 in the case of an employeedying while in service on or after05.08.2014. In the instant case, admittedlythe death of the employee took place on25.10.2013 that is prior to theenforcement of the new circular.

5. Learned counsel for the appellanthas relied on the judgment in the case ofState Bank of India vs. Sri Raj Kumardecided on 08.02.2010 by the Apex Courtcontend that the new scheme would applyeven if the death had taken prior to theenforcement of the new scheme.

6. We are unable to agree becausethe circular dated 03.12.2014 extractedherein above categorically clarifies theaforesaid position which was not underchallenge before the learned Single Judge.The appellant had also accepted thebenefit under the earlier scheme of ex-gratia payment.

7. in such a situation, even if she hadnot disclosed the same, the same wouldnot reflect upon the merits of the case aseven otherwise the 03.12.2014clarificatory circular does not entitle thepetitioner to raise any such claim.

8. With these observations, the writpetition is dismissed.

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1 All. The State of U.P. & Ors. Vs. Mahila Mahavidyalaya Kidwai Nagar Kanpur 6389 (M/S) 2011 23

APPELLATE JURISDICTIONCIVIL SIDE




Special Appeal Defective No. 610 of 2015

The State of U.P. & Ors. ...AppellantsVersus

Mahila Mahavidyalaya Kidwai Nagar Kanpur6389 (M/S) 2011 . ...Respondent

Counsel for the Petitioner:C.S.C.

Counsel for the Respondents:Anurag Verma, Pali Anural

High Court Rules-1952-Chapter VIII Rule-5-Special Appeal -3 ½ years unexplaineddelay-Learned Single Judge consideringpure legal aspect-quashed the G.O.06.01.11 imposing ban on appointment ofclass 4th employee in Degree and PostDegree College affiliated to university-ignoring statute-meaning thereby-overriding legislation -such practice oflitigation-can not be appreciated-appealdismissed with cost of Rs. 10,000/-.

Held: Para-9We are also surprised and we do not findany explanation that once the State itselfhad implemented the judgment of thelearned Single Judge way back in the year2013 it had every opportunity to assailany such orders two years ago. As notedabove the appeal has been filed after 3 ½years, moreso when the statutes havebeen amended on 24.2.2015. The appealappears to have been prepared only tocover up the actions under theGovernment order that was sought to beenforced by the appellant and that hadoutlived itself for the reasons given by thelearned Single Judge, both on legal andfactual grounds. The aforesaid exercise offiling of the appeal by the State,

therefore, at this belated stage hasneither been validly explained on delaynor is there any plausible argument so asto find out a ray of hope on the merits ofthe claim as well. Consequently, for allthe reasons aforesaid this exercise ofdrafting and filing of the appeal does notappear to be for protecting the interest ofthe State or raising a valid challenge tothe learned Single Judge judgement onany legal grounds. The entire exercise offiling of the appeal appears to have beenraised on the asking of the legaldepartment without there being anycogent ground available to raise achallenge and without there being anyplausible explanation for the delay.


1. This highly belated appeal hasbeen filed by the State. It is reported to bebeyond time by 3 years 2 months and 17days.

2. In addition to the fact that there isan inordinate and inexcusable delay, wefurther find that the explanation set up isnot worth accepting and is an effort madeon behalf of the State to reopen an issuethat does not deserve to be reopened at allon any valid legal principle and on meritsas well.

3. The appeal had been taken up byus earlier and on 5.1.2016 a request wasmade on behalf of the State that theappeal be taken up on 6.1.2015 to enablethe learned Advocate General to appear inthe matter. Today, again an adjournmentwas being sought, but we do not find anygood reason to grant any suchaccommodation in this highly belated andincompetent appeal nor is there anyreason to entertain the same otherwise aswell.


4. A group of writ petitions weredecided together by the learned SingleJudge on 6.9.2012 after having discussedthe entire legal provisions, the case lawtouching the issue and also the standtaken by the appellant State Governmentvis-a-vis the selection and appointmentagainst class-IV sanctioned posts ininstitutions, namely, Degree collegesaffiliated and associated to any Universitygoverned by the provisions of U.P. StateUniversity Act, 1973. The learned SingleJudge found that the direction forappointment against class-IV posts byoutsourcing would not be permissible solong as the provisions of the 1973 Actremain intact, inasmuch as a governmentorder being an executive instructioncannot override legislation. The learnedSingle Judge however left it open to theState to bring about any amendment in thefirst statutes of the respective universitiesto which the petitioner colleges wereaffiliated.

5. The learned Single Judge alsofound the impugned action amounting to acomplete ban being imposed forappointment of class-IV employees interms of the government order dated6.1.2011 that was impermissible.

6. We have gone through thejudgment of the learned Single Judge aswell and the grounds that have beenraised in the present appeal.

7. Sri Srivastava, learned AdditionalChief Standing Counsel, has vehementlyargued and pressed the grounds taken inthe appeal, particularly, paragraphs no.1,2 and 3 to urge that since it was a policydecision to fill up posts by outsourcing,the government order even though in theshape of an executive instruction was

traceable to the powers under the U.P.State Universities Act, 1973 and as suchthe same could not have been struckdown. Learned counsel submits that thispolicy decision was taken after duedeliberations in order to engage skilledand semi skilled workers as ingovernment departments in order toenforce austerity measurements.

8. There are two relevant informationsthat do not appear to be disputed. Firstly thatas entailed in the judgment of the learnedSingle Judge, the statutes have beenamended on 24.2.2015. This fact hasnowhere been stated in the entire appeal. Thesecond aspect is that the impugned judgmentof the learned Single Judge has beenimplemented subject to any further ordersbeing passed in the writ petitions or anydecision taken in appeal by a higher court.The said orders dated 31.7.2013 in the caseof two institutions, namely, D.B.S. Collegeand D.A.V. College who were the petitionersbefore the learned Single Judge have beenproduced by the learned counsel for therespondent-Institutions to contend that thisfact has also not been disclosed in the appealand the appeal appears to have been filed forsome other purpose so as to invite an adversefinding somehow the other.

9. We are also surprised and we do notfind any explanation that once the State itselfhad implemented the judgment of the learnedSingle Judge way back in the year 2013 ithad every opportunity to assail any suchorders two years ago. As noted above theappeal has been filed after 3 ½ years, moresowhen the statutes have been amended on24.2.2015. The appeal appears to have beenprepared only to cover up the actions underthe Government order that was sought to beenforced by the appellant and that hadoutlived itself for the reasons given by the

1 All. Abhishek Tripathi Vs. State of U.P. & Ors. 25

learned Single Judge, both on legal andfactual grounds. The aforesaid exercise offiling of the appeal by the State, therefore, atthis belated stage has neither been validlyexplained on delay nor is there any plausibleargument so as to find out a ray of hope onthe merits of the claim as well.Consequently, for all the reasons aforesaidthis exercise of drafting and filing of theappeal does not appear to be for protectingthe interest of the State or raising a validchallenge to the learned Single Judgejudgement on any legal grounds. The entireexercise of filing of the appeal appears tohave been raised on the asking of the legaldepartment without there being any cogentground available to raise a challenge andwithout there being any plausible explanationfor the delay.

10. We cannot appreciate suchlitigations being encouraged by the Statewhen the courts are already filled with aheavy docket of pendency. Adding alitigation which cannot bear any resultsand that too even in a highly belatedmanner therefore cannot be appreciated.

11. The appeal is dismissed withRs.10,000/- as costs.



BEFORETHE HON'BLE DR. DHANANJAYA YESHWANT

CHANDRACHUD, C.J.THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No. 655 (S/S) of 2014

Abhishek Tripathi ...PetitionerVersus


Counsel for the Petitioner:

Sri Jay Krishna Shukla, Sri Rama PatiShukla, Sri HGS Parihar, Ms. MeenakshiSingh, Sri Ramesh Pandey

Counsel for the Respondents:C.S.C., Sri S.K. Yadav Warshi, Sri H.P.Srivastava

Uttar Pradesh Intermediate Education Act-1921-Section 16-E-ii-Ad-hoc appointmentof teachers-except on recommendation ofboard-no appointment can be made-afterenforcement of Act 1982-in case ofdelay-management can appoint forperiod not exceeding six months or tillend of academic session-view taken inSanjay Singh case not be upheld aslaying down correct law-overruled-butjudgment in Pradeep Kumar upheld.

Held: Para-49For these reasons, we have come to theconclusion that the view of the learnedSingle Judge in Sanjay Singh's case (supra)cannot be upheld as laying down the correctposition in law. The view of the learnedSingle Judge shall stand, accordingly,overruled. The judgment in Pradeep Kumar(supra) is upheld subject to the principleswhich, we have enunciated in this judgment.

Case Law discussed:(2013) 1 UPLBEC 758; Writ-A No. 22520 of2013(decided on 1 May 2013); 2010 (28) LCD1375; (1995) 6 SCC 749; 2015 (33) LCD 2402;(1997) 2 UPLBEC 1329; 1994 (3) UPLBEC1551; (1996) 10 SCC 62; (2008) 5 SCC 241;(2010) 11 SCC 694; (2009) 15 SCC 436;(2008) 7 SCC 153; (2008) 17 SCC 617; (2010)4 SCC 393; (2011) 10 SCC 259.

(Delivered by Hon'ble D. Y Chandrachud, C.J.)

The reference

1. The present reference before theDivision Bench has arisen from a referringorder dated 3 February 2014 of a learnedSingle Judge. Noticing a conflict between twojudgments of the learned Single Judges of this


Court, while construing the provisions of theUttar Pradesh Intermediate Education Act,19211 and the Uttar Pradesh SecondaryEducation Services Selection Board Act,19822, the learned Single Judge referred thedifference of opinion that has arisen for beingresolved by a Division Bench. The twojudgments of the learned Single Judges inwhich the difference of opinion has arisen are:

(i) Sanjay Singh Vs State of UttarPradesh & Ors.3; and

(ii) Pradeep Kumar Vs State of UttarPradesh & Ors.4

Facts

2. Briefly stated, the facts in thereferring judgment are that Lokmanya TilakInter College, Pratapgarh is a non-government recognized and aided institutiongoverned by the provisions of the Act of1921 and the Act of 1982. The College is onthe grant-in-aid list of the State Governmentand salaries are paid under the provisions ofthe Uttar Pradesh High School andIntermediate Colleges (Payment of Salariesto the teachers and other staff of the College)Act, 19715. A post of a Lecturer in Hindi fellvacant on the retirement of a substantivelyappointed teacher on 30 June 2013. On 1July 2013, the institution sent a request to theDistrict Inspector of Schools to make anappointment on the post. The Manager of theCollege, finding that no teacher was madeavailable, decided to fill up the post on atemporary or ad hoc basis invoking theprovisions of Section 16-E (11) of the Act of1921. After the vacancy was advertised bythe Committee of Management, thepetitioner was selected by a selectioncommittee and was appointed as a Lecturerin Hindi until a regularly selected candidatewas made available by the Uttar PradeshSecondary Education Services Selection

Board6. The petitioner, who is working sincethen, sought a writ of mandamus requiringthe State to allow him to continue to workand to pay his salary for the post of Lecturerin Hindi from the State exchequer until aregularly selected candidate provided by theBoard is made available.

Rival positions

3. In support of the case, the petitionerhas relied upon the judgment of a learnedSingle Judge of this Court in Sanjay Singh(supra). The issue which arose before thelearned Single Judge was in respect ofpersons who are appointed as AssistantTeachers or Lecturers against substantivevacancies or against short term vacancieswhich were subsequently converted intosubstantive vacancies in the Inter Collegesacross the State of Uttar Pradesh.

4. The contention of the State is thatafter the enforcement of the Act of 1982 inthe State of Uttar Pradesh, the Committee ofManagement had no right to select or appointcandidates against substantive vacancies inthe posts of Assistant Teachers or Lecturers.On the other hand, the case of theManagements is that since the Boardconstituted under the Act of 1982 has notbeen able to send selected candidates, theinstitutions were entitled to appoint personson an ad hoc basis until regularly selectedcandidates become available and the Statewould be liable to pay salaries to theseteachers out of the grant made available tothe institutions.

The decision in Sanjay Singh

5. The learned Single Judge inSanjay Singh (supra) accepted thesubmission which was urged on behalf ofthe Management. The learned Single


Judge observed that there was no disputeabout the legal position that after theenforcement of the Act of 1982, noCommittee of Management would havethe power to make an appointment againsta permanent vacancy. This position of lawwhich, as we shall notice is not in dispute,has been set out in the followingobservations of the learned Single Judge:

"Broadly speaking there is consensusin all the judgments that after theenactment of U.P. Secondary EducationServices Selection Board Act, 1982, thecommittee of management does not haveany power to make appointment on apermanent vacancy.

... ... ...Petitioners have taken various

contentions to prove that committee ofmanagement has power to appointteachers but since this controversy hasbeen settled by Division Bench in DayaShankar Mishra's case7 which isauthoritative on this subject; nocontention can be entertained by thisCourt. Thus, committee of managementdo not have any power to appoint as it islaw laid down by Division Bench(supra)."

(The reference to the decision of theDivision Bench in the aforesaid extract isto the judgment in Daya Shankar MishraVs District Inspector of Schools,Allahabad (supra) which arose upon areference by a learned Single Judge).However, having held that the Committeeof Management would not have the powerto make an appointment against asubstantive vacancy, the learned SingleJudge was of the view that somemodalities had to be worked out to dealwith a situation where the Board wasunable over a long period to provideselected candidates for filling up

substantive vacancies. In the view of thelearned Single Judge, no steps have beentaken by the State either to bring inlegislation or an executive direction. Thelearned Single Judge formulated the issuefor consideration before the Court in thatregard in the following terms:

"(4) Lastly, should not the Court tryto device (sic) some methodology bywhich the bleeding ignorance can bearrested in time to help 'knowledge andeducation' which are gasping for help atthe hands of careless caretakers."

6. The view which was formulatedby the learned Single Judge was asfollows:

"The question which is troubling theconscience of the Court is reflected inabove preposition (sic). The State hasmiserably failed in providing teachers tothe institutions to fill up a permanentvacancy in less than three to four years.The same State through its legislationdenies power to the committee ofmanagement to appoint qualified teachersto impart education in their institutions.Petitions are filed before the Courts forpayment of salary to the teachers who inexigency of the situation are appointed bythe committee of management as a lastresort to salvage the situation. To keep thetorch of knowledge burning lest it fadesout and merges in darkness of ignorance.The moot question remains:- what is thestep to be taken by the Court? ShouldThis Court close its eyes to the situationand once again leave the matter bydirection to the State Government toprovide remedy (this experiment of thejudiciary has failed in last ten years) orsome method should be formulated tokeep the work of education going and tosave the students from ignorance, non-


education and illiteracy. The Courtchooses the second option."

7. Accordingly, the followingconclusion was arrived at:

"The Court comes to the conclusionthat in case the Board has failed toprovide selected candidates even afterthree months of requisition and thecommittee of management has appointeda duly qualified teacher after dueadvertisement in two newspapers,evaluated by a selection committee,permanent post is available, laws ofreservation have been followed andqualification is not in doubt then salaryshould be paid to such teacher till the timeregularly selected candidate is sent by theBoard. The Court hastens to add thatappointment of such a teacher is not to bevalidated in any manner. He does notacquire any right of a regularly selectedcandidate. This order also does not allowthe committee of management to thinkthat they have been given any power ofappointment by this order. The order ofthe Court is being passed only as adesperate measure to keep the educationof the students available to them asguaranteed by the Constitution of India."

8. The District Inspector of Schoolswas directed to make the payment ofsalary to the petitioner whose ad hocappointment was to continue until aregularly selected candidate was madeavailable by the Board.

The decision in Pradeep Kumar

9. Subsequently, in a judgmentrendered on 1 May 2013 in Pradeep Kumar(supra), a writ of mandamus was sought tothe State to ensure the payment of salary to

an assistant teacher in an IntermediateCollege governed by the Act of 1921 and theAct of 1982. In that case, upon retirement ofan assistant teacher, the Management made arequisition to the Board. Since the Board didnot provide a candidate, the Managementproceeded to advertise the vacancy and madea selection which was forwarded to theDistrict Inspector of Schools for approval.Not having obtained an approval, theManagement filed a writ petition in whichreliance was placed on the decision in SanjaySingh (supra). The learned Single Judge tooknotice of the provisions of Section 16 of theAct 1982 under which, an appointment of ateacher, after the enforcement of theprovisions, can be made only on therecommendation of the Board failing whichthe appointment made would be void. In theview of the learned Single Judge, anappointment by the Committee ofManagement against a substantive vacancywas without any authority and hence, adirection for the payment of salary from thepublic exchequer could not be issued. Theconclusion of the learned Single Judge wasin the following terms:

"Appointment on substantive vacancyin a recognized intermediate college isregulated by the provisions of Act,1982.Section 16 of Act, 1982 declares thatappointment shall only be made on therecommendation of the Selection Board andany appointment otherwise would be void.The Act as on date contains no provision forany ad-hoc/temporary appointment beingmade. Consequently, so far as the Act, 1982is concerned, no selection for appointmentcan be made by the Committee ofManagement.

This Court may record that Section16-E (11) of Act, 1921 permitsappointment on temporary vacancy by theCommittee of Management only for a


period not exceeding six months or till theend of academic session, otherwise, Act,1921 does not contemplate any ad-hoc/temporary appointment.

In view of the aforesaid, there being nostatutory provision permitting suchappointment as has been made by theCommittee of Management of the institution,against the substantive vacancy. There cannotbe a direction to the State Government tomake payment of salary through publicexchequer."

10. The learned Single Judge held thatif a delay occurs in making a selection by theBoard and there is a shortage of teachers inthe institution, the Management cannot adoptits own procedure for appointment and theproper remedy available to the Managementis to approach the High Court for amandamus against the Board to make anappointment at the earliest possible.However, if the Management makes anappointment on its own accord, that wouldbe contrary to law and in the view of thelearned Single Judge, the liability forpayment of salary to such a teacher wouldfall only upon the Management. In thedecision in Pradeep Kumar (supra), thelearned Single Judge took notice of theearlier judgment in Sanjay Singh (supra), butheld that the decision does not provide whatprocedure is to be followed and what methodis to be adopted for selection nor can theHigh Court issue such a direction underArticle 226 of the Constitution. Theconclusion of the learned Single Judge wasin the following terms:

"In these circumstances, merelybecause the management has madeappointment of a person, who is qualifiedin terms of the Appendix-A, it will notmean that the said appointment is inaccordance with law. In view of Section

16 of Act, 1982, it would be a nullity. Noappointment against substantive vacancy canbe made except on the recommendation ofthe Selection Board in view of the law as itstands today. Reference Smt. PrameelaMishra vs. State of U.P. & others; 1997 (2)UPLBEC 1329 and Surendra KumarSrivastava vs. State of U.P. & others; 2007(1) ESC 118."

11. The petition was, accordingly,dismissed.

The referring judgment

12. In the referring order of 3February 2014, the learned Single Judgehas adverted to the provisions of Section16 of the Act of 1982 under which,notwithstanding anything contrarycontained in the Act of 1921, anappointment of a teacher shall be made bythe Management only on therecommendation of the Board. Thelearned Single Judge held thus:

"The law as has been evolved overthe years clearly demonstrates that thelegislature as well as the executive hasgradually taken over the appointment ofteachers both temporary/ad-hoc as well aspermanent from the Committee ofManagement and has placed it in thehands of Selection Board by providing fora detailed mechanism for selection whichmeets the test under Articles 14 and 16 ofthe Constitution of India. The burden ofsalary is upon the State Exchequer.Permitting the Committee of Managementto make appointments till the selection ofregularly selected candidates orrecommended by the Selection Boardwithout following any procedureprescribed and without the educationofficers having any control, the selections


even if temporary would be violative ofArticles 14 and 16 of the Constitution ofIndia as well as reservation laws. Purposeof Article 21-A of the Constitution can beenforced only by a procedure establishedby law and any appointment made inviolation of the provisions of the lawcannot be held to sub-serve the purpose ofArticle 21-A."

13. In the view of the learned SingleJudge, the decision in Sanjay Singh(supra) would virtually amount to re-writing legislation, which isimpermissible. On this foundation, thefollowing questions have been referredfor adjudication by the Division Bench:

"1. Which of the two cases namelySanjai Singh Versus State of U.P. andothers in Writ Petition No. 3348 of (SS)of 2012 or Pradeep Kumar Versus Stateof U.P. and others in Writ Petition No.22520 of 2013, lays down the correct law.

2. Scope of Section 16-E(11) of theIntermediate Act, 1921 read with Sections16, 22, 32 and 33-E of the U.P. SecondaryEducation Service Selection Board Act,1982."

14. The second issue is one ofinterpretation.

15. Before we turn to thesubmissions which were urged on behalfof the petitioner by learned counsel, itwould be necessary to advert to theprovisions of the relevant legislation onthe subject. In the present case, the threeenactments of the State legislature, whichhave a bearing on the subject matter, are:

(i) The Uttar Pradesh IntermediateEducation Act, 1921 ("The IntermediateEducation Act, 1921");

(ii) The Uttar Pradesh SecondaryEducation Services Selection Board Act,1982 ("Act of 1982"); and

(iii) The Uttar Pradesh High Schooland Intermediate Colleges (Payment ofSalaries to the Teachers and Other Staffof the Colleges) Act, 1971 ("Payment ofSalaries Act, 1971").

The Intermediate Education Act,1921

16. The Intermediate Education Act,1921 is inter alia intended to governrecognized Intermediate colleges, highersecondary schools or high schools. The Actconstituted the Board of High School andIntermediate Education. Section 16-Eprovides for the procedure for selection ofteachers and heads of institutions. Under sub-section (1) of Section 16-E, the head of aninstitution and teachers are to be appointedby the Committee of Management in themanner thereafter provided. Sub-section (11)provides for appointments to be made againsttemporary vacancies caused by the grant ofleave to an incumbent for a period notexceeding six months or by death,termination or otherwise. Sub-section (11) ofSection 16-E is in the following terms:

"(11) Notwithstanding anythingcontained in the foregoing sub-sections,appointments in the case of a temporaryvacancy caused by the grant of leave to anincumbent for a period not exceeding sixmonths or by death, termination orotherwise of an incumbent occurringduring an educational session, may bemade by direct recruitment or promotionwithout reference to the SelectionCommittee in such manner and subject tosuch conditions as may be prescribed:

Provided that no appointment madeunder this sub-section shall, in any case,


continue beyond the end of theeducational session during which suchappointment was made."

17. Regulations have been framedunder the Act and insofar as is material,Regulation 13 of Chapter I empowers theCommittee of Management to makeappointments, confirmations, promotionsand to decide disciplinary matters, includingremoval and dismissal of the heads ofinstitutions and teachers therein. Chapter-IIof the Regulations provides for theappointment of the heads of institutions andteachers. Regulation 9 of Chapter-II providesfor filling up a vacancy in the post of ateacher for a period exceeding six monthswhere a vacancy has arisen by grant of leaveor where a teacher is placed undersuspension duly approved in writing by theInspector and the period of suspension islikely to exceed six months from the date ofapproval. Regulation 19 of Chapter-IIprovides that where any person is appointedas, or any promotion is made on any post ofhead of the institution or teacher incontravention of the provisions of theChapter or against any post other than asanctioned post, the Inspector shall decline topay salary and other allowances, if any, tosuch person where the institution is coveredby the provisions of the Act of 1971, and inother cases shall decline to give any grant forthe salary and allowances in respect of suchperson.

Secondary Education ServicesSelection Board Act

18. In 1982, the State legislatureenacted the Uttar Pradesh SecondaryEducation Services Selection SelectionBoard Act. The Statement of Objects andReasons accompanying the introductionof the Bill in the State legislature contains

the following rationale for the enactmentof the law:

"The appointment of teachers insecondary institutions recognised by theBoard of High School and IntermediateEducation was governed by the IntermediateEducation Act, 1921 and regulations madethereunder. It was felt that the selection ofteachers under the provisions of the said Actand the regulations was some times not freeand fair. Besides, the field of selection wasalso very much restricted. This adverselyaffected the availability of suitable teachersand the standard of education. It wastherefore, considered necessary to constituteSecondary Education Service Commission atthe State level, to select Principals, Lecturers,Head-masters and L.T. Grade teachers, andSecondary Education Selection Boards at theregional level, to select and make availablesuitable candidates for comparatively lowerposts in C.T./J.T.C./B.T.C. Grade for suchinstitutions."

19. The Board came to be constitutedunder Chapter II of the Act and its powers inSection 9 include under clause (d), the powerto make recommendations regarding theappointment of selected candidates. Section16 of the Act of 1982 is in the followingterms:

"16. Appointment to be made onlyon the recommendation of the Board.--(1) Notwithstanding anything to thecontrary contained in the IntermediateEducation Act, 1921 or the regulationsmade thereunder but subject to theprovisions of Sections 12, 18, 21-B, 21-C,21-D, 21-E, 21-F, 33, 33-A, 33-B, 33-C,33-D and 33-F, every appointment of ateacher, shall on or after the date of thecommencement of the Uttar PradeshSecondary Education Services Selection


Board (Amendment) Act, 2001 be madeby the management only on therecommendation of the Board.

Provided that in respect of retrenchedemployees, the provisions of Section 16-EE of the Intermediate Education Act,1921, shall mutatis mutandis apply.

Provided further that the appointmentof a teacher by transfer from oneInstitution to another, may be made inaccordance with the regulations madeunder Clause (c) of sub-section (2) ofSection 16-D of the IntermediateEducation Act, 1921.

Provided also that the dependent, ofa teacher or other employee of anInstitution dying in harness, whopossesses the qualification prescribedunder the Intermediate Education Act,1921 may be appointed as teacher inTrained Graduate's Grade in accordancewith the regulations made under sub-section (4) of Section 9 of the said Act.

(2) Any appointment made incontravention of the provisions of sub-section (1) shall be void."

(emphasis supplied)

20. Section 16 contains a non-obstanteprovision which gives it overriding force andeffect notwithstanding anything to thecontrary contained in the IntermediateEducation Act, 1921 or the regulations madeunder it. Under the provision, on and afterthe commencement of the Amending Act2001, every appointment of a teacher mustbe made by the Management only on therecommendation of the Board. Anyappointment, which is made in contraventionof the provisions of sub-section (1) isdeclared to be void by sub-section (2).

21. In several decisions of thisCourt, the law has been settled to theeffect that the power to make an

appointment against a substantive vacancydoes not vest with the Management by andas a result of Section 16. In Daya ShankarMishra's case (supra), the Division Bench,while considering the reference made by thelearned Single Judge, placed the position inlaw beyond any doubt in the followingterms:

"We are also of the considered viewthat vacancies whether substantive or shortterm, should be filled up at the earliest tomaintain our Constitutional goal of impartingquality secondary education. However, aslong as the statutes create a bar, themanagement cannot be conferred with anypower to make ad hoc appointment againstsubstantive vacancy."

(emphasis supplied)

Payment of Salaries Act, 1971

22. It would now be necessary to turnto the provisions of the Payment of SalariesAct, 1971. Section 2 (b) of the Act definesthe expression 'institution' to mean arecognised institution for the time beingreceiving a maintenance grant from the StateGovernment. Section 2 (e) defines theexpression 'teacher' in the following terms:

"(e) 'teacher' of an institution means aPrincipal, Headmaster or other teacher inrespect of whose employment maintenancegrant is paid by the State Government to theinstitution and includes any other teacheremployed in fulfillment of the conditions ofrecognition of the institution or itsrecognition in a new subject or for a higherclass or as a result of the opening with theapproval of the Inspector of a new section inan existing class."

23. Section 3 requires the paymentof salary to a teacher or other employee to


be made on or before the stipulated datewithout any deduction of any kind excepta deduction which is authorized by theregulations or rules made under the Act,or by any other law for the time being inforce. Under Section 9, no institution shallcreate a new post of a teacher or otheremployee except with the previousapproval of the Director, or such otherofficer as may be authorized. Section 10(1) imposes a liability on the StateGovernment for the payment of salaries ofteachers and other employees of everyinstitution due in respect of any periodafter March 31, 1971.

Submissions

24. Now, it is in the background ofthese provisions that it would be necessary toconsider the submissions, which have beenurged on behalf of the petitioner by thelearned counsel. Broadly, these submissionscan be summarized thus:

(i) The posts against which theteachers have been appointed, albeitagainst substantive vacancies on an adhoc basis, are sanctioned posts in respectof which grant-in-aid has been extended;

(ii) Under Section 9 of the Payment ofSalaries Act, 1971, there is only an embargoagainst the creation of a new post by aninstitution except with the previous approvalof the Director, while under Section 10, theState Government is under a mandatory dutyand obligation to pay the salary of teachersand employees; the expression 'teacher' beingdefined in Section 2 (e). Section 16-E of theIntermediate Education Act, 1921specifically confers a power to makeappointments against temporary vacanciesunder sub-section (11).

(iii) Section 16 of the Act of 1982falls in Chapter-IV where there is a

selected teacher, since the chapter headingof the provision deals with theappointment of selected teachers. Hence,Section 16 of the Act of 1982 is not anembargo on the making of ad hocappointments against substantivevacancies;

(iv) Alternatively, if Section 16 is tobe read as placing an embargo on themanagement for making appointments ofan ad hoc nature against substantivevacancies, this embargo should be 'tackledand set aside' by the Court in a situationwhere a recommendation of duly selectedcandidates is not made by the Board;

(v) Ad hoc appointment againstsubstantive vacancies need to be protecteduntil a regularly selected candidate ismade available by the Board;

(vi) The interpretation which isplaced by the Court on the provisions ofSection 16 of the Act of 1982 must besuch as would foster the implementationof the provisions of Articles 21 and 21-Aof the Constitution;

(vii) The decision in Sanjay Singh'scase (supra) is intended to deal with asituation where the legislation hasremained silent. As a result of theamendment which was made to Section18 of the Act 1982, the provision whichexisted earlier for making of ad hocappointments of teachers has beensubstituted. As a result of this, Section 18,in its present form, does not contain anyprovision in relation to ad hocappointments. Moreover, as a result of theintroduction of Section 33-E with effectfrom 25 January 1999, the Removal ofDifficulties Orders were rescinded.Section 32 provides that the IntermediateEducation Act, 1921 and its regulations,shall continue to be in force for thepurposes inter alia of selection,appointment and promotion insofar as


they are not inconsistent with the provisionsof the Act of 1982. Consequently, the powerto make ad hoc appointments which isrecognized by Section 16-E of the Act of1921 would survive notwithstanding theprovisions of Section 16 of the Act of 1982and in consequence, the State cannot deny itsliability to pay salaries out of the publicexchequer; and

(viii) The judgment of the learnedSingle Judge in Sanjay Singh's case(supra) has provided a practical modalityfor the disbursal of the salary of teacherswho have been appointed on an ad hocbasis albeit against substantive vacanciesso as to foster the attainment of the rightto education. In these circumstances, thedecision in Sanjay Singh's case (supra)which has taken a practicable and realisticview of the matter should be affirmed aslaying down the correct position in law.

25. On the other hand, it has beenurged on behalf of the State that:

(i) The decision in Sanjay Singh's(supra) has re-written the legislation since theconsequence of the judgment is thatnotwithstanding the embargo which isimposed by Section 16 of the Act of 1982,managements have been permitted to makeappointments on ad hoc basis even againstsubstantive vacancies and to require that thesalaries of the teachers who have beenappointed should be disbursed by the Stateout of its grant-in-aid funds. This function, ithas been submitted, is clearly not open to theCourt in the exercise of the power of judicialreview since it is well settled that a writ ofmandamus cannot be issued contrary to aspecific provision contained in law;

(ii) The decision in Sanjay Singh'scase (supra) is erroneous insofar as it hasrelied upon a concurring judgment of onelearned Judge of the Supreme Court in B

C Chaturvedi Vs Union of India & Ors.8holding that though there is no provisionparallel to Article 142 of the Constitutionin relation to the High Court, that wouldnot be a ground to postulate that the HighCourt would not have a power to issuesuch directions as are necessary to docomplete justice. This observation of thelearned Judge in B C Chaturvedi (supra),which has been relied upon by the learnedSingle Judge, cannot be pressed in aidhaving due regard to the subsequentenunciation of law by the Supreme Court.The Supreme Court has held that thepower even under Article 142 itself wouldnot ordinarily be exercised contrary tostatutory provisions;

(iii) In view of the specific embargo,which is imposed upon the managementfor making an appointment of a teacherexcept on the recommendation of theBoard and overriding effect given inSection 16 of the Act of 1982 over theIntermediate Education Act, 1921 and itsregulations, the view of the learned SingleJudge in Sanjay Singh's case (supra)cannot be sustained;

(iv) The provisions of Section 16-E(11) of the Act of 1921 have been construedin the judgment of a Full Bench of this Courtin Santosh Kumar Singh Vs State of UttarPradesh and Ors.9 as conferring a power inregard to the making of an appointmentagainst a temporary vacancy caused by thegrant of leave to an incumbent for a periodnot exceeding six months or in the case ofdeath, or termination or otherwise and, eventhis appointment is not continued beyond theend of the educational session during whichthe appointment was made;

(v) In view of the judgment of a FullBench of this Court in Smt. PramilaMishra Vs Deputy Director of Education& Ors.10, it is a well settled position oflaw that an ad hoc appointment, even on a


short term vacancy, cannot continue after thevacancy has ceased to exist and a substantivevacancy has arisen in its place. In otherwords, where the management has made anad hoc appointment against a substantivevacancy of its own accord, such anappointment, being contrary to the provisionsof Section 16 of the Act of 1982, would haveto be regarded as void having regard to theprovisions of sub-section (2) and the liabilityto make payment of salary cannot be foistedon the State exchequer.

26. These submissions fall forconsideration.

Analysis

27. Under the Intermediate EducationAct, 1921, as it was enacted, the power tomake appointments of teachers of institutionswas vested in the Committee of Managementunder sub-section (1) of Section 16. Sub-section (2) and the succeeding provisions ofSection 16-E regulated the procedure formaking of appointments by stipulating theintimation of vacancies to the Inspector,advertising of vacancies, the convening of aSelection Committee, the award of qualitypoints by the inspector and the preparation ofthe select list by the Selection Committee inorder of preference. Sub-section (11) ofSection 16-E specifically deals withappointments in the case of a temporaryvacancy caused by the grant of leave to anincumbent not exceeding six months or inthe case of death, termination or otherwise,of an incumbent occurring during aneducational session. Under sub-section (11),it is stipulated that temporary vacancies ofthat nature would be filled up by directrecruitment or promotion without referenceto the Selection Committee in such mannerand subject to such conditions as may beprescribed. Under the proviso to sub-section

(11), it has been stipulated that noappointment which is made under this sub-section shall, in any case, continue beyondthe end of the educational session duringwhich the appointment was made. In otherwords, the end of the educational session ismarked under sub-section (11) as theterminal date upon which an appointmentwhich is made either by direct recruitment orby promotion against a temporary vacancy ofthe nature prescribed in sub-section (11) willcease to exist.

28. The object of enacting the Act of1982 was to deal with a situation where itwas felt by the legislature that the selectionof teachers under the provisions of theIntermediate Education Act, 1921 and itsregulations had not been free and fair. Thefield of selection was restricted which, in theview of the legislature, had adverselyaffected the availability of suitable teachersand the standards of education. Hence theSecondary Education Services SelectionBoard came to be constituted. Under theprovisions of Section 16, it came to bestipulated that notwithstanding anythingcontained in the Intermediate Education Act,1921 or the regulations made thereunder,every appointment of a teacher shall be madeonly on the recommendation of the Board bythe management. The position that anappointment made otherwise than on therecommendation of the Board cannot bepermissible is elucidated in sub-section (2)which provides that an appointment made incontravention of the provisions of sub-section (1) shall be void. Section 22 providesspecifically for punishment in respect ofappointment of teachers in contravention ofthe provisions of the Act. Section 22provides as follows:

"22. Punishment for appointment ofteachers in contravention of the provisions


of the Act. - Any person who fails to complywith the recommendations of the Board orfails to comply with the order or direction ofthe Director under section 17, or appoints ateacher in contravention of the provisions ofthis Act shall on conviction, be punishedwith imprisonment for a term which mayextend to three years or with fine which mayextend to five thousand rupees or with both."

29. Prior to 1999, the matter relating tothe selection and appointment of teachers onan ad hoc basis was provided for in variousRemoval of Difficulties Orders which wereissued by the State Government. At thatstage and particularly, in the absence of adetailed procedure for making ad hocappointments under Section 18 of the Act of1982, these Removal of Difficulties Ordersgoverned the procedure for making ad hocappointments against substantive vacanciesor short term vacancies, as the case may be,respectively. In the decision of this Court inRadha Raizada Vs Committee ofManagement, Vidyawati Darbari Girls InterCollege and Ors.11, the Full Bench held thatappointments which were made de hors theFirst and the Second Orders would be voidab initio and would not confer any right onthe appointees to claim their salary.

30. In Prabhat Kumar Sharma VsState of Uttar Pradesh12, the SupremeCourt upheld the view taken by the FullBench of this Court in Radha Raizada(supra). The Supreme Court held that anyad hoc appointment of teachers underSection 18 of the Act of 1982 pending theallotment of a teacher selected by theCommission and recommended forappointment, was required to be made inaccordance with the procedure prescribedin Paragraph 5 of the First Order of 1981and any appointment made intransgression thereof, is an illegal

appointment and being void, would conferno right on the appointees. The SupremeCourt held that:

"As seen prior to the Amendment Actof 1982 the First 1981 Order envisagesrecruitment as per the procedure prescribedin para 5 thereof. It is an inbuilt procedure toavoid manipulation and nepotism in selectionand appointment of the teachers by theManagement to any posts in an aidedinstitution. It is obvious that when the salaryis paid by the State to the government-aidedprivate educational institutions, publicinterest demands that the teachers' selectionmust be in accordance with the procedureprescribed under the Act read with the First1981 Order."

(emphasis supplied)

31. The principle which was laiddown by the Supreme Court was that anappointment which was made incontravention of the procedure prescribed,would render the appointment void andsince salary is paid by the State togovernment aided private educationalinstitutions, the public interest demandsthat the selection of teachers must bestrictly in accordance with the procedureprescribed under the Act of 1982.

32. Since the decision of the FullBench of this Court in Smt Pramila Mishra(supra), it has been a well settled principle oflaw that a clear distinction has beenmaintained between a substantive vacancyand a short term vacancy on the post of ateacher. After construing the provisions ofthe relevant Acts, rules and regulations andRemoval of Difficulties Orders, the FullBench, while emphasizing this distinction,held that the procedure to be followed inmaking appointments and the considerationsto be borne in mind in making such


appointments in the two cases are distinctand different from each other.

33. Section 18 of the Act of 1982, priorto its amendment which came into effect on30 December 2000 by U P Act 5 of 2001,laid down a detailed procedure for making adhoc appointments. Section 18 has traversed aconsiderable legislative history from theoriginally enacted provisions of the Act of1982 to the subsequent amendments whichtook place by U P Act 24 of 1992, U P Act 1of 1993, U P Act 15 of 1995, and U P Act 25of 1998. Finally, by U P Act 5 of 2001 witheffect from 30 December 2000, ad hocappointment of teachers was done awaywith. The substituted provisions of Section18, as they stand now, only provide forappointment of ad hoc Principals andHeadmasters. The effect of this provisionwas considered by a Division Bench of thisCourt in a reference which arose from alearned Single Judge's order in Daya ShankarMishra (supra). The Division Bench held thatconsequent upon the provisions of Section32 of the Act of 1982, the provisions of theIntermediate Education Act 1921 and itsrules and regulations would, inter alia,continue to be in force for the purpose ofselection, appointment and promotion insofaras they are not inconsistent. In the view ofthe Division Bench, selection, appointmentand promotion would include bothsubstantive as well as short-term vacancies.Since there is no provision under the Act of1982 for making selection and appointmentsagainst short-term vacancies, the DivisionBench held, placing reliance on theprovisions of Section 16-E, that the power ofthe management to make ad hocappointments to fill up a short term vacancyis preserved. Consequently, it was held,taking the aid of Section 32 of the Act of1982, that the power of the management totake steps to make ad hoc appointments

against temporary vacancies till the end ofthe academic session would stand preserved.

34. In a recent decision of a FullBench of this Court in Santosh KumarSingh (supra), the judgment of theDivision Bench in Daya Shankar Mishra'scase (supra) was taken note of and it washeld as follows:

"19. Sub-section (11) of Section 16-E has thus made a specific provision inregard to appointments in the case oftemporary vacancies caused by (i) thegrant of leave to an incumbent for aperiod not exceeding six months; (ii) bydeath, termination or otherwise of anincumbent occurring during aneducational session. The object of theprovision is to ensure that where atemporary vacancy arises as a result offortuitous circumstances, such as leave,death, termination or otherwise, theeducational needs of students should notbe disturbed. The purpose of making anarrangement in the case of a temporaryvacancy is to protect the interest ofeducation so that students are not left inthe lurch by the absence of a teacher inthe midst of an academic session. Theproviso to sub-section (11), however,stipulates that an appointment which ismade under the provisions of sub-section(11) shall, in no case, continue beyond theend of the educational session duringwhich the appointment was made. Theproviso is intended to ensure that thepurpose of appointment against atemporary vacancy caused due to theabsence of a teacher in the midst of anacademic session is met by continuing theappointment during and until the end ofthe academic session but not further. Thisis a provision which has been made by thestate legislature in its legislating wisdom.


The statutory provision provides both forthe circumstances in which a temporaryvacancy can be filled up and the length ofan appointment made against a temporaryvacancy. The difficulty which arises isbecause the Board, which has beenconstituted under the Act, does not fulfill itsmandate of promptly selecting teachers forregular appointment. The District Inspectorof Schools is in possession of necessaryfactual data in regard to the dates ofappointment and retirement of teachers ofaided institutions. This can be summonedby the Board even if the management doesnot comply with its duty to intimatevacancies. There can be no justification forthe Board not to discharge its duties withdispatch and expedition. This is liable toresult in a situation where the educationalneeds of students are seriously disturbeddue to the unavailability of duly selectedteachers. Ad hoc appointments in temporaryvacancies also cause a state of uncertaintyfor teachers and lay them open to graveexploitation at the hands of certainmanagements of educational institutions.Thus, considering the matter both from theperspective of the interest of education aswell as the welfare of teachers, it isnecessary that the Board must take due andproper steps well in advance of ananticipated vacancy to initiate the process ofselection. Similarly, the State Governmentwould do well to streamline the procedurefor making appointments in respect oftemporary vacancies consistent with themandate of Section 16-E (11) so that, whilethe interest of students is protected, theteachers are not exposed to exploitation."

35. While answering the reference,the Full Bench held that:

"20. (c) Under Section 16-E of theIntermediate Education Act, 1921, the

Committee of Management is empoweredto make an appointment against atemporary vacancy caused by the grant ofleave to an incumbent for a period notexceeding six months or in the case ofdeath, termination or otherwise, of anincumbent occurring during aneducational session. An appointmentmade under sub-section (11) of Section16-E as provided in the proviso theretoshall, in any case, not continue beyond theend of educational session during whichthe appointment was made...."

36. Now, it is in this background,that it would be necessary to elucidate theprovisions of the Payment of Salaries Act1971. The expression 'teacher' in Section2 (e) of the Act is defined to mean aPrincipal, Headmaster, or other teacher"in respect of whose employment" themaintenance grant is paid by the StateGovernment to the institution. In otherwords, the definition of the expression'teacher' is related to the person in respectof whose employment the maintenancegrant is paid. The definition relates not tothe post as much as the person in respectof whose employment the maintenancegrant is paid.

37. The issue before the Court iswhether a writ of mandamus can, as amatter of first principle, be issued fordirecting the payment of salary by theState to a teacher appointed withoutcomplying with mandatory legalprovisions. The principle of law whichmust govern is settled by the judgment ofthe Supreme Court in Government ofAndhra Pradesh Vs K Brahmanandam13,where it has been held that:

"14. The liability of the State to paysalary to a teacher appointed in the


recognized schools would arise provided theprovisions of the statutory rules are compliedwith, subject to just exception. The right toclaim salary must arise under a contract orunder a statute. If such a right arises under acontract between the appointee and theinstitution, only the latter would be liabletherefor. Its right in certain situation to claimreimbursement of such salary from the Statewould only arise in terms of the law as wasprevailing at the relevant time. If the State interms of the statute is not liable to pay thesalary to the teachers, no legal right accruesin favour of those who had been appointed inviolation of mandatory provisions of thestatute or statutory rules."

38. The Supreme Court observedthat where an appointment is made inviolation of a mandatory provision of astatute, it would be illegal and void andsuch an illegality cannot be ratified orregularized.

39. The same principle has beenemphasized in a later decision of theSupreme Court in State of West BengalVs Subhash Kumar Chatterjee14 in thefollowing observations:

"30. ...Neither the Government can actcontrary to the rules nor the court can directthe Government to act contrary to rules. Nomandamus lies for issuing directions to aGovernment to refrain from enforcing aprovision of law. No court can issuemandamus directing the authorities to act incontravention of the rules as it wouldamount to compelling the authorities toviolate law. Such directions may result indestruction of rule of law."

40. In Shesh Mani Shukla VsDistrict Inspector of Schools, Deoria15,the Supreme Court dealt with a claim of

equity at the behest of a person whoseappointment was not in accord with theprovisions of the First Removal ofDifficulties Order 1981. Rejecting thesubmission, based on equity, the SupremeCourt held that:

"19. It is true that the appellant hasworked for a long time. His appointment,however, being in contravention of thestatutory provision was illegal, and thus, voidab initio. If his appointment has not beengranted approval by the statutory authority,no exception can be taken only because theappellant had worked for a long time. Thesame by itself, in our opinion, cannot formthe basis for obtaining a writ of or in thenature of mandamus; as it is well known thatfor the said purpose, the writ petitioner mustestablish a legal right in himself and acorresponding legal duty in the State. (SeeFood Corpn. of India v. Ashish KumarGanguly, (2009) 7 SCC 734. Sympathy orsentiments alone, it is well settled, cannotform the basis for issuing a writ of or in thenature of mandamus. (See State of M.P. v.Sanjay Kumar Pathak, (2008) 1 SCC 456)I."

41. A similar view has been adoptedby the Supreme Court in Pramod KumarVs U P Secondary Education ServicesCommission16, where it has been heldthat:

"18. ...An appointment which iscontrary to the statute/statutory ruleswould be void in law. An illegality cannotbe regularized, particularly, when thestatute in no unmistakable term says so.Only an irregularity can be. [See Secy.,State of Karnataka v. Umadevi (3), (2006)4 SCC 1, National Fertilizers Ltd. v.Somvir Singh (2006) 5 SCC 493 and PostMaster General, Kolkata v. Tutu Das(Dutta), (2007) 5 SCC 317.]"


42. The learned Single Judge, in thecourse of the judgment in Sanjay Singh'scase (supra), has specifically held that inview of the consistent position of law laiddown in the judgments of this Court, andparticularly having regard to the judgmentof the Division Bench in Daya ShankarMishra's case (supra), the Committee ofManagement does not have any power tomake an appointment against a permanentvacancy. Moreover, it would also benecessary to note that the Act of 1982 hasundergone two important changes ofconsequence in regard to the appointment ofad hoc teachers. The first relates to thesubstitution of Section 18 by U P Act 5 of2001 with effect from 30 December 2000by which, the ambit of the Section has nowbeen confined to the appointments of ad hocPrincipals and headmasters. The secondimportant legislative development isSection 33- E as a result of which, theRemoval of Difficulties Orders came to berescinded. In consequence, and founded onthe principle, it has been laid down by theDivision Bench in Daya Shankar Mishra(supra) and by the Full Bench in SantoshKumar Singh (supra), that any appointmentto a temporary vacancy would have to meetthe requirements as spelt out in Section 16-E (11) of the Intermediate Education Act1921 and the regulations framed thereunder.There is no other source of power orprovision that would enable themanagement to make an appointment wherethe field is completely regulated by theaforesaid statutory provisions.

43. The judgment of the learned SingleJudge in Sanjay Kumar Singh's case (supra)seeks to derive sustenance for the viewwhich was taken on the hypothesis that therevests in the High Court, a power analogousto Article 142 of the Constitution for thepurpose of rendering complete justice. In

fact, as we notice from the decision of thelearned Single Judge, reliance has beenplaced on the observations in thejudgment of Hon'ble Mr Justice Hansariain B C Chaturvedi (supra). This issue isno longer res integra and has now beendealt with in several successive judgmentsof the Supreme Court, including in Stateof Jharkhand Vs Bijay Kumar17. Dealingwith the aspect of whether it is open to theHigh Court in the exercise of itsjurisdiction under Article 226 of theConstitution to issue directions analogousto those which are within the jurisdictionof the Supreme Court under Article 142of the Constitution, the Supreme Courtheld thus:

"17. The Constitution of Indiaconferred a special jurisdiction on thisCourt only. Although power of judicialreview has been conferred on the HighCourts, it had not been given any specialjurisdiction as has been done on theSupreme Court in terms of Article 142 ofthe Constitution of India. It is, therefore,very difficult to comprehend that the HighCourt could issue the impugned directionwhich, in effect and substance, would beviolative thereof.''

(emphasis supplied)

44. This was followed in thejudgment of the Supreme Court in ManishGoel Vs Rohini Goel18.

45. Finally, we may also refer to thejudgment of the Supreme Court in A BBhaskar Rao Vs Inspector of Police, CBIVishakapatnam19 where the principles oflaw were formulated. Among them, thefollowing principles have a bearing on thepresent case:

"30. ...


(f) An order, which this Court canmake in order to do complete justicebetween the parties, must not only beconsistent with the fundamental rightsguaranteed by the Constitution, but also itcannot even be inconsistent with thesubstantive provision of the relevantstatute. In other words, this Court cannotaltogether ignore the substantiveprovisions of a statute.

(g) In exercise of the power underArticle 142 of the Constitution, this Courtgenerally does not pass an order incontravention of or ignoring the statutoryprovision nor is the power exercisedmerely on sympathy.

(h) The power under Article 142 ofthe Constitution is a constitutional powerand not restricted by statutory enactments.However, this Court would not pass anyorder under Article 142 which wouldamount to supplanting the substantive lawapplicable or ignoring statutory provisionsdealing with the subject. In other words,acting under Article 142, this Courtcannot pass an order or grant relief whichis totally inconsistent or goes against thesubstantive or statutory enactmentspertaining to the case.

(i) The powers under Article 142 arenot meant to be exercised when theirexercise may come directly in conflictwith what has been expressly provided forin a statute dealing expressly with thesubject."

46. We hence, find merit in thecontention which has been urged on behalfof the State that the general considerationswhich weighed with the learned Single Judgein the decision in Sanjay Singh (supra)cannot form the foundation of a sustainabledirection in law, that the State can be issued awrit of mandamus to pay salaries from thepublic exchequer in respect of an

appointment made by the managementagainst a substantive vacancy on an ad hocbasis. The scope and ambit of the power ofthe management to fill up temporaryvacancies is clearly defined by the provisionsof Section 16-E (11) of the Act of 1921 andits regulations. The legislature in its wisdomhas enacted the Act of 1982 so as to providein Section 16 that notwithstanding anythingcontained in the Act of 1921, an appointmentshall be made by the management only onthe recommendation of the Board. Thelegislature further specified that anyappointment made in contravention of theprovisions of sub- section (1) of Section 16would be void. During the period when theRemoval of Difficulties Orders held the field,which contained a provision for making adhoc appointments, the law was well settledboth by the Supreme Court and by this Courtthat any appointment made in violation of theprovisions contained in those orders wouldbe void and that a direction for the paymentof salary could not be sustained on the basisof such an appointment. After Section 18was amended successively, a procedure wasprovided initially for making ad hocappointments but, as we have noticed,Section 18, in its present form is confinedonly to Principals and Headmasters. Theonly source of power then for makingappointments of an ad hoc nature is relatableto the provisions of Section 16-E (11) of theAct of 1921 read with regulations. Anyappointment which is de hors the provisionsof the Act of 1921 and the regulations cannotbe countenanced in law. A mandamus cannotbe issued to the State for the payment ofsalary where the appointment by its verynature is in contravention of law and void.

47. There can be no dispute aboutthe basic principle of interpretation whichwas sought to be emphasized by thepetitioner that, in the course of interpreting


a statute, it would be open to the Court toadopt an interpretation which, while beingin accord with the terms of the statute,makes the statute workable. But equally inthis process, it would not be open to theCourt to re-write statutory provisions or tomandate an act such as the payment ofsalary in respect of an appointment which ismade otherwise than in accordance with thestatutory provisions and the rules. Article21-A of the Constitution upon whichreliance has been placed by the learnedSingle Judge in Sanjay Singh's case (supra)mandates that the State shall provide freeand compulsory education to all childrenbetween ages of six to fourteen in suchmanner as the State may, by law, determine.The law undoubtedly, has to be fair, just andreasonable.

48. This Court in repeated judgmentshas drawn the attention of the State to theneed to streamline the procedures in a lineof precedent from this Court culminating inthe judgment of the Full Bench in SantoshKumar Singh (supra). The observations ofthis Court shall be taken up by the Statewith a sense of the highest priority and withall seriousness to ensure that a situationdoes not emerge where vacancies of asubstantive nature are left unfilled over along period of time to the detriment ofeducation. The State Government must takeup the matter with necessary alacrity andimmediacy.

Conclusion

49. For these reasons, we have cometo the conclusion that the view of thelearned Single Judge in Sanjay Singh'scase (supra) cannot be upheld as layingdown the correct position in law. Theview of the learned Single Judge shallstand, accordingly, overruled. The

judgment in Pradeep Kumar (supra) isupheld subject to the principles which, wehave enunciated in this judgment.

50. The second issue which has beenreferred for decision before the DivisionBench is the scope of Section 16-E (11)when read in the context of Sections 16,22, 32 and 33-E of the Act of 1982. Wehave already dealt with the interpretationof these provisions in the course of thejudgment.

51. The reference to the DivisionBench shall stand answered in theaforesaid terms. The record of theseproceedings shall now be remitted back tothe learned Single Judge, according toroster, for disposal in the light of thequestions answered.





Karta Ram ...PetitionerVersus


Counsel for the Petitioner:Ganga Prasad Srivastava, Rishi KumarTripathi


Civil Services Regulations-Regulation-468-qualifying service for pension-workcharge employees after completing to 9years 10 months 5 days regular service-retired authorities considering DivisionBench Judgment-rejected claim-sayingwork charge period shall not be counted

1 All. Karta Ram Vs. State of U.P. & Ors. 43

to qualifying service of 10 years -held-inview of Regulation 468-fractions of halfyear shall be equal to 3 month or aboveto that-entitled for pensionary benefits-direction for fresh consideration within 3months issued-petition disposed of.

Held: Para-5In the light of the said provision, as thepetitioner had put in 9 years 10 monthsand 5 days in service, fraction of a halfyear above three months is four monthsand 5 days, therefore, the case appears tobe covered by Regulation 468 and the saidperiod is liable to be treated as completeone-half year, which, if the facts as statedby the petitioner are correct, entitle thepetitioner to ten years qualifying servicefor pension, but this aspect of the matterhas not been considered while passing theimpugned order.

Case Law discussed:(2015) 8 ADJ 716



2. The petitioner herein claims to havebeen appointed on Daily Wages as Beldar onMuster Roll basis in the year 1977-73. Heclaims that on 26.06.1997 his services wereregularized in terms of the then existingRegularization Rules. He attained the age ofsuperannuation and retired from the serviceof the opposite parties on 30.04.2007. As theregular services rendered by him, whichalone have been counted for the purposes ofcalculation of the qualifying services fordetermination of pension payable, was onlynine years, ten months, five days, therefore,he has been held to be disentitled to suchpension and has not been paid the same. Asper the facts narrated by the petitioner, he fellshort of the required qualifying services of10 years only by one month and abouttwenty five days.

3. It is rather strange that suchmatters are coming up before this Courtfor consideration despite there being aspecific provision under the said ServiceRegulation i.e. Regulation 468 whichdeals with such a situation and allows aperiod of service more than three monthsto be counted as six months.

4. The concerned authority whilepassing the impugned order dated05.07.2014 has rightly stated that theservices rendered on work charged basiscan not be counted for the purposes ofcalculation of qualifying services, but hasomitted to consider the provisions ofRegulation 468 of the Civil ServiceRegulations which provides that theamount of pension that may be granted isdetermined by length of service. Incalculating the length of qualifyingservice, fractions of a half year equal tothree month and above shall be treated asa complete one-half year and reckoned asqualifying service.

5. In the light of the said provision, asthe petitioner had put in 9 years 10 monthsand 5 days in service, fraction of a half yearabove three months is four months and 5days, therefore, the case appears to becovered by Regulation 468 and the saidperiod is liable to be treated as completeone-half year, which, if the facts as statedby the petitioner are correct, entitle thepetitioner to ten years qualifying service forpension, but this aspect of the matter has notbeen considered while passing theimpugned order.

6. In view of the above, though inview of the Division Bench judgmentrendered in Special Appeal (Defective)No.23 of 2014 reported in (2015) 8 ADJ716 the services rendered by the petitioner


as a muster-roll or work-charge employeecannot be counted for the purposes ofcalculating the qualifying service forpension, nevertheless, he is entitled to beconsidered for the benefit of theprovisions contained in Regulation 468 ofthe Civil Service Regulations. The matteris remanded back to the competentauthority for taking a fresh decision interms of the observations madehereinabove within a period of six weeksfrom the date a certified copy of this orderis produced before him. Consequences asregards payment of pension and otherpost-retirement benefits shall follow asper rules based on the decision so taken.

7. It is open for the petitioner to claiminterest on the amount of pension payable ifthe delay is on account of the oppositeparties by approaching the appropriateforum as and when the cause of actionarises.

8. Considering the fact that suchpetitions are coming up before this Courteveryday, let a copy of this judgment andorder be sent to the Chief Secretary, U.P.and Principal Secretary, Karmik as also tothe Principal Secretary, Finance forensuring compliance of the said provisionat the time of calculation of qualifyingservice of government servants who aredue to retire or have retired so that theymay not be compelled to approach thisCourt unnecessarily.

9. This writ petition is disposed of inthe above terms.





Vidya Dhar Pandey ...PetitionerVersus

Lucknow University, Lucknow & Ors....Respondents

Counsel for the Petitioner:Mohd. Shameem Khan

Counsel for the Respondents:Shashi Prakash Singh

Constitution of India, Art.-226-forfeiture ofsalary-during suspension period-withoutshow cause notice-without opportunity toexplain-held-illegal-in view of O.P. Guptacase-separate show cause notice is mustorder quashed-with direction to proceed afresh-after show cause notice.

Held: Para-8As no show cause notice was issued to thepetitioner therefore, the impugned orderto this extent is set aside and liberty isgiven to the concerned authority toproceed afresh if forfeiture of remainingsalary of the suspension of petitioner isproposed by issuing a show cause noticeand thereafter take an appropriatedecision in accordance with law.

Case Law discussed:(1987) 4 SCC 328.



2. Sri Savitra Vardhan Singh has putin appearance on behalf of the LucknowUniversity.

3. The petitioner has challenged theorder dated 14.03.2014 passed by the Registrar,Lucknow University by which the salary forthe period of suspension of the petitioner hasbeen forfeited by way of punishment.

1 All. Vidya Dhar Pandey Vs. Lucknow University, Lucknow & Ors. 45

4. Inspite of the order dated20.04.2015 no counter affidavit has beenfiled by the University, therefore, the factsstated in the writ petition remainunrebutted.

5. The contention of the petitioner isthat merely on the direction of the ViceChancellor the impugned order offorfeiture of salary for the period ofsuspension has been passed withoutissuing any show cause notice.

6. A perusal of the impugned orderreveals that a charge sheet was issued tothe petitioner and he was placed undersuspension on 08.11.2013. According tothe petitioner he had filed reply to thecharge sheet. The impugned order showsthat the final decision was taken by theVice Chancellor in the matter awarding anadverse entry for the alleged misconductwith a direction to the concerned authorityto forfeit the salary of the petitioner forthe suspension period.

7. The legal position is very wellsettled by the decision of the SupremeCourt reported in (1987) 4 SCC 328 (O.P.Gupta vs. Union of India & others) thatforfeiture of remaining salary for theperiod of suspension requires issuance ofseparate show cause notice underintimation as the matter of forfeiture ofsalary has financial implications. Thepetitioner needs to be confronted as towhy the financial burden be not imposedupon him.

8. As no show cause notice wasissued to the petitioner therefore, theimpugned order to this extent is set asideand liberty is given to the concernedauthority to proceed afresh if forfeiture ofremaining salary of the suspension of

petitioner is proposed by issuing a showcause notice and thereafter take anappropriate decision in accordance withlaw.

9. The writ petition is disposed of inthe aforesaid terms


CIVIL SIDEDATED: ALLAHABAD 20.01.2016

BEFORETHE HON'BLE RAKESH SRIVASTAVA, J.

Writ-A No. 2184 of 2016

Smt. Sangeeta Singh & Anr. ...PetitionersVersus


Counsel for the Petitioners:Rajesh Kumar Singh Kaushi


U.P. Intermediate Education Act-1921-Section 16 (I), 16 E (ii)-appointment ofAssistant Teacher-against substantivevacancy-on retirement of regular teachers-appointment by management not tocontinue more than 6 months or end ofacademic session-any appointment-incontravention of Section 16 (i)-held-void-as per law laid down by Division Bench-Abhishek Tripathi case-direction forfinancial approval can not be given-petition dismissed.

Held: Para-7Though under Section 16-E of theIntermediate Education Act, 1921, theCommittee of Management has thepower to make an appointment but inexercise of the said power, anappointment can only be made against atemporary vacancy caused by the grantof leave to an incumbent for a period notexceeding six months, or in the case of


death, termination or otherwise, of anincumbent occurring during aneducational session. An appointmentmade under sub-section (11) of Section16-E, as provided in the proviso, in anycase, shall not continue beyond the endof the educational session during whichthe appointment was made.

Case Law discussed:2013 (1) UPLBEC 759; Writ -A No. 22520 of2013; W.P. No. 655 (SS) of 2014.

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

1. This writ petition has been filedpraying inter alia for the following reliefs:-

i) issue a writ, order or direction inthe nature of mandamus commanding anddirecting the respondent no.2 to grantfinancial approval to the appointment ofthe petitioners on the post of assistantteacher in the institution.

ii) issue a writ, order or direction inthe nature of mandamus directing therespondent no.2 to pass appropriate orderand release the salary of the petitioner asand when due as per the law month tomonth.

2. Rashtriya Inter College,Mehrenw, Purenw, Jaunpur (for brevity'the College') is a recognized and aidedcollege and is governed by the provisionsof Intermediate Educaiton Act, 1921 andthe Regulations framed thereunder. In theCollege two posts of Assistant Teachersfell vacant due to retirement of Sri KalkaPrasad Singh and Sri Bhola Nath Singh,who retired on 30.6.2002 and 30.6.2007respectively. A requisiton for selection isalleged to have been sent to theSecondary Education Services SelectionBoard on 26.5.2014. On 5.9.2015, theCommittee of Management of the College

issued an advertisement in dailynewspapers 'Tarun Mitra, Aaj' and'Swatantra Bharat' inviting applicationsfor appointment on two posts of AssistantTeachers in the College.

3. According to the petitioners, theyapplied for appointment on the said postsalong with other candidates and afterinterview they were selected and inpursuance of the recommendation of theSelection Committee, the Committee ofManagement of the College approved theappointment of the petitioners on theposts in question. Thereafter, on29.10.2015, the papers pertaining toselection of the petitioners wereforwarded to the DIOS (for short 'DIOS').As nothing was heard off from the DIOSin this regard, the petitioners havepreferred this writ petition.

4. Shri Rajesh Kumar Singh Kaushi,the learned counsel for the petitioners hassubmitted that the selection of thepetitioners was only till regularly selectedcandidates joined the posts. The counselrelying upon the decision of this Court inSanjay Singh & Ors. v. State of U.P. &Ors., 2013 (1) UPLBEC 759 hassubmitted that in the circumstances, therespondent no.3 was obliged to accordapproval to the appointment of thepetitioners.

5. Appointment of teacher in arecognized Intermediate College isgoverned by the provisions of the U.P.Secondary Education (Service SelectionBoard) Act, 1982 (for short '1982 Act).As per Section 16 of 1982 Act, theappointment of a teacher in theIntermediate College is to be made onlyon the recommendation of the Boardconstituted under the Act and as per sub-

1 All. Smt. Sangeeta Singh & Anr. Vs. State of U.P. & Ors. 47

section (2) of section 16 of 1982 Act anyappointment made in contravention of theprovisions of sub-section (1) of Section16 is void.

6. Admittedly, the posts of AssistantTeachers in the College fell vacant onsubstantive basis and in view of theprovisions of Section 16 of 1982 Act theappointment on the said posts could onlybe made on the recommendation of theBoard. There is no provision in the 1982Act, which may empower the Committeeof Management to make an ad hoc ortemporary appointment against asubstantive vacancy, and as such thepetitioners could not have been selectedfor appointment by the Committee ofManagement of the College.

7. Though under Section 16-E of theIntermediate Education Act, 1921, theCommittee of Management has the powerto make an appointment but in exercise ofthe said power, an appointment can onlybe made against a temporary vacancycaused by the grant of leave to anincumbent for a period not exceeding sixmonths, or in the case of death,termination or otherwise, of an incumbentoccurring during an educational session.An appointment made under sub-section(11) of Section 16-E, as provided in theproviso, in any case, shall not continuebeyond the end of the educational sessionduring which the appointment was made.

8. In Writ A No.22520 of 2013, PradeepKumar Vs. State of U.P. & 3 Ors., a LearnedSingle Judge of this Court after considering thecase of Sanjay Singh (supra) held that anappointment made by the Committee ofManagement against a substantive vacancy is anullity. Relevant portion of the said judgment isextracted below:-

"In these circumstances, merelybecause the management has madeappointment of a person, who is qualifiedin terms of the Appendix-A, it will notmean that the said appointment is inaccordance with law. In view of Section16 of Act, 1982, it would be a nullity. Noappointment against substantive vacancycan be made except on therecommendation of the Selection Board inview of the law as it stands today.Reference Smt. Prameela Mishra Vs.State of U.P. & othes; 1997 (2) UPLBEC1329 and Surendera Kumar Srivastava vs.State of U.P. & others; 2007 (1) ESC118."

9. The conflict in the opinion in thecase of Sanjay Singh (Supra) andPradeep Kumar (Supra) was resolved bya Division Bench of this Court in WritPetition No.655 (SS) of 2014, AbhishekTripathi vs. State of U.P. & Ors. whereinthe case of Sanjay Singh was overruled.Para 42 of the judgment is quotedbelow:-

"42. For these reasons, we havecome to the conclusion that the view ofthe learned Single Judge in SanjaySingh's case (supra) cannot be upheldas laying down the correct postion inlaw. The view of the learned SingleJudge shall stand, accordingly,overrulled. The judgment in PradeepKumar (supra) is upheld subject to theprinciples which, we have enunciatedin this judgment."

10. In view of the above, the reliefsprayed for cannot be granted.

11. The writ petition is devoid ofmerit and is accordingly dismissed.

-------






Smt. Vandana Mishra ...PetitionerVersus


Counsel for the Petitioner:Khaleeq Ahmad Khan

Counsel for the Respondents:C.S.C., Anil Kumar Singh Vishen

U.P. Recruitment of Dependents ofGovernment Servant Dying in HarnessRule 1974-Rule 5(3), (4), Rule-7-compassionate appointment-if there aremore than one claimant-authorities toconsider and take appropriate decisionkeeping in view of provisions of Rule5(3) and 5(4)-petition disposed of.

Held: Para-8In view of rule 7 of the Rules, 1974 asthere are rival claimants the competentauthority shall take a decision in thelight of the aforesaid Rules, 1974 withina period of two months from the date acertified copy of the order is submittedbefore him, based on the applicationalready submitted which has beendecided by the impugned order and forthis purpose the said application shallstand restored. The question ofpayment of death-cum-retiral dues shallbe dealt with in accordance with theRules within a period of next threemonths. Let a fresh decision be takenuninfluenced by the directions or orderpassed by this Court referred tohereinabove subject of course to theirentitlement under the aforesaidprovisions.



2. The petitioner herein is the wife ofdeceased Vivek Kumar Mishra who is saidto have died in harness barely two and halfmonths of the marriage with petitioner. Theopposite parties 4 to 7 are the father, motherand sister of deceased. The opposite parties4 to 7 had earlier filed a Writ Petition No.3476 (SS) of 2015 which was decided on18.06.2015 with a direction to consider thecase of petitioner no.4 therein under rule2(c)(iv) of the U.P. Recruitment ofdependents of Government Servants Dying-in-Harness Rules, 1974 (hereinafter referredto as 'the Rules, 1974') with a furtherdirection to clear the dues in favour ofpetitioners 1 to 3.

3. Apparently the said directionappears to have been issued under somemisconception as if, the deceased wasunmarried whereas on perusal of therecord of the said writ petition it isrevealed that in paragraphs 8 and 9 of thewrit petition it was specifically stated thatthe deceased had been married with thepetitioner herein namely; Smt. VandanaMishra on 18.06.2016 and within two andhalf months of the marriage, the the deathof her husband happened. Therefore, nobenefit can be derived by the oppositeparties 4 to 7 in pursuance to thedirections contained therein, in view ofadmitted factual error mentioned thereinunless the claim of all the claimant isconsidered in accordance with therelevant Rules.

4. The petitioner herein on her partfiled another Writ Petition No. 4568 (SS)of 2015 which was decided vide orderdated 07.08.2015 with a direction to theconcerned opposite party to take

1 All. Smt. Vandana Mishra Vs. State of U.P. & Ors. 49

appropriate decision on herrepresentation.

5. In neither of the writ petitions, therival parties were impleaded, therefore,both the contesting parties did notapproach this Court with clean hands andcannot derive benefit of the orders passedin their writ petitions subject to theirclaim being reconsidered afresh in thelight of the relevant Rules. The Rule 5(3)& (4) of the Rules, 1974 read as under:-

"5(3) Every appointment made undersub-rule (1) shall be subject to thecondition that the person appointed undersub-rule (1) shall maintain other membersof the family of deceased Governmentservant, who were dependent on thedeceased Government servantimmediately before his death and areunable to maintain themselves.

"5(4) Where the person appointedunder sub-rule (1) neglects or refuses tomaintain a person to whom he is liable tomaintain under sub-rule (3), his servicesmay be terminated in accordance with theUttar Pradesh Government Servant(Discipline and Appeal) Rules, 1999, asamended from time to time."

6. The said Rule enjoins upon theappointee to maintain other members ofthe family of the deceased Governmentservant, who were dependent on thedeceased Government servantimmediately before his death and areunable to maintain themselves and onfailure to do so, such an appointment isliable to be terminated in accordance withthe provisions of the U.P. GovernmentServant (Discipline and Appeal) Rules,1999. Who were the persons dependentupon the deceased immediately after his

death is a factor to be considered by theconcerned authority.

7. Rule 7 of the aforesaid Rules,1974 reads as under:-

"Rule-7. If more than one member ofthe family of the deceased Governmentservant seeks employment under theserules, the Head of Office shall decideabout the suitability of the person forgiving employment.The decision will betaken keeping in the view also the overallinterest of the welfare of the entire family,particularly the widow and the minormembers thereof."

8. In view of rule 7 of the Rules,1974 as there are rival claimants thecompetent authority shall take a decisionin the light of the aforesaid Rules, 1974within a period of two months from thedate a certified copy of the order issubmitted before him, based on theapplication already submitted which hasbeen decided by the impugned order andfor this purpose the said application shallstand restored. The question of paymentof death-cum-retiral dues shall be dealtwith in accordance with the Rules withina period of next three months. Let a freshdecision be taken uninfluenced by thedirections or order passed by this Courtreferred to hereinabove subject of courseto their entitlement under the aforesaidprovisions.

9. The writ petition is disposed of inthe aforesaid terms.



BEFORE


THE HON'BLE DR. DHANANJAYA YESHWANTCHANDRACHUD, C.J.

THE HON'BLE DILIP GUPTA, J.THE HON'BLE MANOJ KUMAR GUPTA, J.

THE HON'BLE SUNEET KUMAR, J.THE HON'BLE YASHWANT VARMA, J.

Writ-C No. 8179 of 2015

Paras Jain ...PetitionerVersus


Counsel for the Petitioner:Mr. Vivek Kumar Singh

Counsel for the Respondents:Shri C.B. Yadav, Shri Anurag Khanna, ShriNipun Singh

(A) U.P. Municipalities Act-Section 48(2)-ceasure of financial & administrativepower of Chairman-on fulfillment of any ofcontingencies of Section 48 (2)-on beingsatisfied the State Government can ceaseadministrative and financial power-noneed of formal enquiry-only on basis ofshow cause notice such powers can beceased-as per law laid down by Full Bench-in Hafiz Attaullah Ansari-held-correct law.

Held: Para-45 (I) & (II)(I) Re Question (a): The decision of theFull Bench in Hafiz Ataullah Ansari VsState of U P (supra) lays down thecorrect position in law.

(II) Re Questions (b) & (c): The cessation offinancial and administrative powers of thePresident does not necessarily followmerely upon the issuance of a notice toshow cause under the substantive part ofSection 48(2). The financial andadministrative powers of the President shallstand ceased if the State Government hasreason to believe that (i) the allegations donot appear to be groundless; and (ii) thePresident is prima facie guilty on any of thegrounds of sub-section (2) resulting in theissuance of the notice to show cause andproceedings thereunder. The President of

the municipality will, in that event, cease toexercise, perform and discharge financialand administrative powers, functions andduties from the date of the issuance of thenotice to show cause containing thecharges. For a cessation of financial andadministrative powers to take effect, therequirements of the proviso to Section48(2) must be fulfilled. Hence, proceedingsfor removal of a President of a municipalityunder Section 48(2) may take place in agiven situation though the financial andadministrative powers have not ceasedunder the terms of the proviso.

(B)U.P. Municipalities Act-Section 48 (2)-administrative and financial power ofpresident of municipality-whether requiredto pass separate order ceasing ofadministrative & financial power-held-”no”-only on satisfaction about fulfillment ofrequirements specific in proviso to Section48 (2)-power can be exercised.

Held: Para-45 (III)Re Question (d): There is no requirementunder the statute that a separate order hasto be passed under the proviso to Section48(2) when the financial and administrativepowers of the President of a municipalitycease. Such a consequence would comeinto being upon the requirements specifiedin the proviso to Section 48(2) beingfulfilled.

(C)U.P. Municipalities Act-Section 48(2)-financial and administrative power-principleof natural justice-whether required to befollowed?-held-”yes”-reason discussed.

Held: Para-45 (IV)Re Question (e): An opportunity of beingheard, consistent with the principles ofnatural justice, before there is acessation of the financial andadministrative powers of the Presidentdoes not stand excluded by theprovisions of Section 48(2). As a matterof textual interpretation, therequirement of complying with theprinciples of natural justice is an integralelement of the proviso to Section 48(2).The requirements of natural justice

1 All. Paras Jain Vs. State of U.P. & Ors. 51

would warrant the grant of anopportunity to the elected head of amunicipality to respond to the noticeissued by the State indicating the basisfor the formation of a reason to believethat the charges do not appear to begroundless and that the President isprima facie guilty on any of the groundsmentioned in sub-section (2) of Section48. The period of notice can be suitablymolded to deal with the exigencies of thesituation.

Case Law discussed:[2011 (3) ADJ 502 (FB)]; 1993 Supp (2) SCC497:AIR 1993 SC 1167; (1985) 3 SCC 72:1985SCC (Cri) 312:AIR 1985 SC 989; (1973) 3 SCC83:AIR 1972 SC 2267; (1972) 3 SCC 234:AIR1971 SC 2451; AIR 1967 SC 523; (1976) 3SCC 757:1976 SCC (Tax) 402:AIR 1976 SC1753; (1973) 3 SCC 265:1973 SCC (Tax)177:AIR 1973 SC 370; UP Act 26 of 1964; UPAct 12 of 1994; UP Act 22 of 2001; UP Act 6 of2004; (2012) 4 SCC 407; (2002) 5 SCC685:AIR 2002 SC 2158; AIR 1963 SC 395; AIR1964 SC 364; (2001) 6 SCC 260; (2010) 2 SCC319; (1993) 1 SCC 78; (2015) 8 SCC 519; AIR1967 SC 295; AIR 1967 SC 1753; (1972) 3SCC 234; (2008) 4 SCC 144.

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

The issue in controversy

1. A Division Bench of this Court,finding itself "unable to accept the law"laid down in a decision of a Full Bench inHafiz Ataullah Ansari Vs State of U P1,referred the following questions fordetermination by a larger Bench:

"(a) Whether the Full Benchjudgment in the case of Hafiz AtaullahAnsari Vs. State of U.P. (supra) laysdown the correct law;

(b) Whether in view of the languageof the proviso to Section 48(2) of the U PMunicipalities Act, there can be any

proceedings for removal of the Presidentwithout his financial and administrativepowers ceasing, under the proviso;

(c) Whether cessation of financialand administrative powers of thePresident follows automatically with theissuance of a show cause notice underSection 48 (2) calling upon him to showcause as to why he may not be removed;

(d) Whether any separate order forcessation of financial and administrativepowers of the President is required to bemade while issuing a notice under theproviso to Section 48(2) or such cessationfollows automatically; and

(e) Whether in view of the specificlanguage of Section 48(2), the question ofopportunity of hearing before cessation ofthe financial and administrative powers ofthe President stands excluded."

2. Since a decision rendered by aBench of three Judges which constitutedthe Full Bench in Hafiz Ataullah Ansarihas been doubted, the reference comesbefore this Bench of five Judges.

Removal of the President of aMunicipality

3. The issue which falls fordetermination, turns upon the provisionsof Section 48 of the Uttar PradeshMunicipalities Act, 19162. Sub-section(2) of Section 48 deals with the removalof the President of a municipality and is inthe following terms:

"48. Removal of President.- (1) ......[omitted]

(2) Where the State Government has,at any time, reason to believe that -

(a) there has been a failure on thepart of the President in performing hisduties, or


(b) the President has-(i) incurred any of the

disqualifications mentioned in Sections12-D and 43-AA; or

(ii) within the meaning of Section 82knowingly acquired or continued to have,directly or indirectly or by a partner, anyshare or interest, whether pecuniary or ofany other nature, in any contract oremployment with, by or on behalf of theMunicipality; or

(iii) knowingly acted as a Presidentor as a member in a matter other than amatter referred to in Clauses (a) to (g) ofsub-section (2) of Section 82, in which hehas, directly or indirectly, or by a partner,any share or interest whether pecuniary orof any other nature, or in which he wasprofessionally interested on behalf of aclient, principal or other person; or

(iv) being a legal practitioner actedor appeared in any suit or otherproceeding on behalf of any personagainst the Municipality or against theState Government in respect of nazul landentrusted to the management of theMunicipality or acted or appeared for oron behalf of any person against whom acriminal proceeding has been instituted byor on behalf of the Municipality; or

(v) abandoned his ordinary place ofresidence in the municipal areaconcerned; or

(vi) been guilty of misconduct in thedischarge of his duties; or

(vii) during the current or the lastpreceding term of the Municipality, actingas President or as Chairman of aCommittee, or as member or in any othercapacity whatsoever, whether before orafter the commencement of the UttarPradesh Urban Local Self-GovernmentLaws (Amendment) Act, 1976, soflagrantly abused his position, or sowillfully contravened any of the

provisions of this Act or any rule,regulation or bye-laws, or caused suchloss or damage to the fund or property ofthe Municipality as to render him unfit tocontinue to be President; or

(viii) been guilty of any othermisconduct whether committed before orafter the commencement of the UttarPradesh Urban Local Self-GovernmentLaws (Amendment) Act, 1976 whether asPresident or as member; or

(ix) caused loss or damage to anyproperty of the Municipality; or

(x) misappropriated or misusedMunicipal fund; or

(xi) acted against the interest of theMunicipality; or

(xii) contravened the provisions ofthis Act or the rules made thereunder; or

(xiii) created an obstacle in a meetingof the Municipality in such manner that itbecomes impossible for the Municipalityto conduct its business in the meeting orinstigated someone to do so; or

(xiv) willfully contravened any orderor direction of the State Governmentgiven under this Act; or

(xv) misbehaved without any lawfuljustification with the officers oremployees of the Municipality; or

(xvi) disposed of any propertybelonging to the Municipality at a priceless than its market value; or

(xvii) encroached, or assisted orinstigated any other person to encroachupon the land, building or any otherimmovable property of the Municipality;

it may call upon him to show causewithin the time to be specified in thenotice why he should not be removedfrom office.

Provided that where the StateGovernment has reason to believe that theallegations do not appear to be groundlessand the President is prima facie guilty on


any of the grounds of this sub-sectionresulting in the issuance of the show-cause notice and proceedings under thissub-section he shall, from the date ofissuance of the show-cause noticecontaining charges, cease to exercise,perform and discharge the financial andadministrative powers, functions andduties of the President until he isexonerated of the charges mentioned inthe show-cause notice issued to him underthis sub-section and finalization of theproceedings under sub-section (2-A) andthe said powers, functions and duties ofthe President during the period of suchceasing, shall be exercised, performed anddischarged by the District Magistrate oran officer nominated by him not belowthe rank of Deputy Collector."

4. Sub-section (2) of Section 48enables the State Government to issue anotice to show cause to the President of amunicipality to explain why he should notbe removed from office where the StateGovernment has "reason to believe" thatany of the provisions of clauses (a) or (b)are attracted. Broadly speaking, thereason to believe relates to any one of thebreaches specified in clause (a) or in sub-clauses (i) to (xvii) of clause (b) of sub-section (2). Each of them has a bearing onthe discharge or the failure to dischargeduties on the part of the President of amunicipality or conduct of a nature whichis proscribed therein. In the event that theState Government has reason to believethat any of those stipulations is attracted,it is empowered to call upon the Presidentto show cause why he should not beremoved from office.

5. The proviso to Section 48 (2)entails that where its conditions arefulfilled, the President of a municipality

shall cease to exercise, perform anddischarge the financial and administrativepowers, functions and duties of thePresident until he is exonerated of thecharges mentioned in the notice to showcause and the finalization of theproceedings under sub-section (2-A). Inorder that the proviso be attracted, severalstipulations have to be fulfilled. Thesestipulations are - firstly, that the StateGovernment must have reason to believethat the allegations do not appear to begroundless; secondly, the StateGovernment must have reason to believethat the President is prima facie guilty ofany of the grounds contained in the sub-section resulting in the issuance of thenotice to show cause and proceedingsthereunder; and thirdly, that the notice toshow cause must contain the chargesagainst the President of the municipality.Where these three conditions have beenfulfilled, the consequence entailed by theproviso to sub-section (2) comes intobeing and the President shall cease toexercise, perform and discharge thefinancial and administrative powers,functions and duties of the President untilexonerated of the charges mentioned inthe notice to show cause and finalizationof the proceedings under sub-section (2-A).

The judgment of the Full Bench

6. In Hafiz Ataullah Ansari, a FullBench of this Court held that Section48(2) may envisage two situations - thefirst, where the financial andadministrative powers of a President donot cease and the other, where they cease.The Full Bench held that a ceasing of thefinancial and administrative powers of thePresident can take place only where theconditions specified in the proviso to


Section 48 (2) apply. As the Full Benchheld:

"54. The intention of the legislatureis clear from the language of theprovision. It envisages two kinds ofproceedings under section 48(2) of theMunicipalities Act:

One, simpliciter where financial andadministrative powers of the President donot cease;

The other, where his financial andadministrative powers cease. This canhappen only if the conditions underproviso to section 48(2) are satisfied.

55. The proviso to Section 48(2) ismeant to apply in the serious situationwhere it is expedient to cease the financialand administrative powers of thePresident. It is not to apply in every case.It is for this reason that extra precautionshave been provided in the proviso toSection 48(2) of the Municipalities Act."

7. Dealing with the conditions whichhave been spelt out in the proviso toSection 48 (2), the Full Bench observed asfollows:

"73. The proviso to Section 48(2) ofthe Municipalities Act prescribesconditions that have to be fulfilled beforethe right of a President to exercisefinancial and administrative powers cancease. It states that:

(i) The State Government shouldhave reasons to believe that:

The allegations do not appear to begroundless; and

The President is prima facie guilty ofany of the grounds mentioned in Section48(2) of the Municipalities Act.

(ii) The State Government shouldalso issue show cause notice for removal

under Section 48(2) of the MunicipalitiesAct and it must contain charges.

74. The phrase 'reasons to believe' isoften used in statutes and has beenrepeatedly held by the Courts (for citationof the rulings see below)3 to mean thatreasons for the formation of the beliefmust have a rational connection orrelevant bearing on the formation of thebelief. Rational connection postulates thatthere must be a direct nexus or live linkbetween the material and formation of thebelief."

8. On the applicability of theprinciples of natural justice before thefinancial and administrative powers of thePresident of a municipality cease, the FullBench emphasised that such an orderenvisages civil consequences whichcannot be cured merely by a post-decisional hearing:

"In the case, where a head of a localbody is deprived to exercise financial andadministrative power, and ultimately theproceeding for removal are dropped thenin such an event his loss can never becompensated. A post decisional hearingcannot cure the harm/damage done tohim."

9. The Full Bench opined that it wasnecessary to furnish an opportunity ofsubmitting an explanation to the head ofthe local body and this would eliminate anarbitrary exercise of power, besidesbringing about fairness in procedure. Inthe view of the Full Bench:

"...The principles of natural justice orthe yardstick of fairness would be met ifthe explanation of the affected head of thelocal body or his point of view or versionis considered before recording the


satisfaction or finding of prima facie guiltbefore issuing notice and passing orderfor ceasing financial and administrativepowers."

10. The Full Bench has explainedthat such an opportunity to submit anexplanation need not be as detailed as in aregular enquiry and all that is necessary isto enable the elected head of themunicipality to have his point of view orversion considered. The conclusionswhich were arrived at by the Full Benchwere as follows:

"133. Our conclusions are as follows:(a) There can be proceeding for

removal of President under Section 48(2)of the Municipalities Act without ceasinghis financial and administrative powerunder its proviso;

(b)The following conditions must besatisfied before cessation of financial andadministrative powers of a President of aMunicipality can take place:

(i) The explanation or point of viewor the version of the affected Presidentshould be obtained regarding charges andshould be considered before recordingsatisfaction and issuing notice/order underproviso to Section 48(2) of theMunicipalities Act;

(ii) The State Government should beobjectively satisfied on the basis ofrelevant material that:

The allegations do not appear to begroundless; and

The President is prima facie guilty ofany of the grounds under Section 48(2) ofthe Municipalities Act.

(iii) The show-cause notice mustcontain the charges against the President;

(iv) The show-cause notice shouldalso indicate the material on which theobjective satisfaction for reason to believe

is based as well as the evidence by whichcharges against the President are to beproved. Though in most of the cases theymay be the same;

(c) It is not necessary to passseparate order under proviso to Section48(2) of the Municipalities Act. It couldbe included in the notice satisfying theother conditions under proviso to Section48(2). In fact it is not even necessary. Itcomes into operation by the Statute itselfon issuance of a valid notice underproviso to Section 48(2) of theMunicipalities Act.

(d) In case a notice/order ceasingfinancial and administrative powers isheld to be invalid on any ground then thisdoes not mean that the proceeding ofremoval are also invalid. They have tocontinue and taken to their logical end.The proceeding to remove can come to anend only if the charges on their face oreven taken to be proved do not make out acase for removal under Section 48(2) ofthe Municipalities Act.

(e) It is not necessary to involve thePresident with the process of collectingmaterial or give President the copies ofthe material before asking his explanationor point of view or version of thePresident to the charges."

Legislative history

11. The legislative history of Section48 has a bearing on the issue incontroversy.

12. By the Uttar PradeshMunicipalities (Amendment) Act, 19644,sub-sections (2-A) and (3) wereintroduced into Section 48. Sub-section(2-A) confers upon the State Governmentthe power to remove the President of amunicipality from his office. The proviso


to sub-section (2-A) enabled the StateGovernment to issue a warning instead ofremoving the President in stipulatedsituations. Sub-section (3) empowered theState Government to suspend a President.

13. Sub-sections (2-A) and (3), asintroduced by U P Act 26 of 1964 were inthe following terms:

"(2-A) After considering anyexplanation that may be offered by thePresident and making such enquiry as itmay consider necessary, the StateGovernment may for reasons to berecorded in writing, remove the Presidentfrom his office:

Provided that in a case where theState Government has issued notice inrespect of any ground mentioned in clause(a) or sub-clause (ii), (iii), (iv), (vi), (vii)or (viii) of clause (b) of sub-section it mayinstead of removing him give him awarning.

(3) The State Government may placeunder suspension a President who iscalled upon to show-cause in respect ofany ground mentioned in clause (a) orsub-clause (vi), (vii) or (viii) of clause (b)of sub-section (2) or against whom aprosecution for an offence which in theopinion of the State Government involvesmoral turpitude is commenced until theconclusion of the enquiry or theprosecution, as the case may be, andwhere a President has been so suspendedhe shall not, for so long as the order ofsuspension continues, be entitled-

(a) to exercise the powers or performthe duties of a President conferred orimposed upon him by or under this Act orany other enactment for the time being inforce, or

(b) to take part in any proceedings ofthe board."

14. Upon the Seventy-third andSeventy-fourth ConstitutionalAmendments being brought into force, theUttar Pradesh Urban Local Self-Government Laws (Amendment) Act,19945 was enacted. The amendinglegislation omitted Section 48(3). As aresult, the power to suspend the Presidentof a municipality during the pendency ofa proceeding for his removal was deleted.

15. Subsequently, by the UttarPradesh Municipalities (Amendment) Act,20016, sub-section (2-A) of Section 48was amended to delete the proviso thatempowered the State Government to issuea warning instead of a removal.

16. In 2004, the Uttar PradeshMunicipalities (Amendment) Act, 20047 wasenacted by the state legislature. By theAmending Act, a provision which wasnumbered as sub-section 2-A was introducedin Section 48 in the following terms:

"(2-A) Where in an inquiry held bysuch person and in such manner as may beprescribed, if a President or a Vice-Presidentis prima facie found to be guilty on any ofthe grounds referred to in sub-section (2), heshall cease to exercise, perform anddischarge the financial and administrativepowers, functions and duties of the Presidentor the Vice-President, as the case may be,which shall, until he is exonerated of thecharges mentioned in the show-cause noticeissued to him under sub-section (2), beexercised and performed by the DistrictMagistrate or by an officer nominated byhim not below the rank of the DeputyCollector."

17. The reason which led to theintroduction of sub-section (2-A) in theabove terms was spelt out in the


Statement of Objects and Reasonsaccompanying the introduction of the Billin the state legislature. The State ofObjects and Reasons provided as follows:

"Section 48 of the Uttar PradeshMunicipalities Act, 1916 (U.P. Act No. 2of 1916) provides for the removal ofPresident of a municipality.

In the said Section the State Governmentis empowered to issue show-cause notice tothe guilty President on the grounds mentionedunder Section 48, before removing him fromhis office. Most of the Presidents used to delaythe proceedings by not replying the show-cause notice in time and they continue tomisuse their financial powers. It has, therefore,been decided to amend the said Act to ceasethe financial powers of such President or aVice-Present during the pendency of theinquiry and his financial powers and functionswill be exercised and performed by theDistrict Magistrate until he is exonerated ofthe charges.

The Uttar Pradesh Municipalities(Amendment) Bill, 2004 is introducedaccordingly." (emphasis supplied)

18. The numbering of the aboveprovision as sub-section 2-A suffered froman obvious error on the part of the legislativedraftsman. That was because there wasalready in existence a provision, numbered assub-section (2-A) which had been introducedby U P Act 26 of 1964 to entrust the StateGovernment with the power of removal to beexercised after considering the explanationthat may be offered and upon making anenquiry as considered necessary and forreasons to be recorded in writing. Theexisting sub-section (2-A) which providesfor removal was not deleted. The newprovision was erroneously numbered as sub-section (2-A). This mistake was rectified bythe Uttar Pradesh Municipalities

(Amendment) Act, 20058. By the AmendingAct, sub-section 2-A, as was inserted by U PAct 6 of 2004, was omitted and, in its place,a proviso was introduced in sub-section (2).The proviso which we have analysed earliersets out the manner in which and theconditions upon which the financial andadministrative powers of the President cancease.

Part IX-A of the Constitution

19. Part IX of the Constitution containsprovisions in relation to the panchayats. PartIX-A provides for the municipalities. Theseprovisions were introduced by the Seventy-third and Seventy-fourth amendments to theConstitution. Municipalities and panchayatsas institutions of local self- government havea constitutional status. Their role and positionare defined by the Constitution as are theirpowers, duties and responsibilities. They arenot mere administrative agencies of the Statebut, as institutions of self-governance, havebeen conferred with a degree of autonomy toensure that democracy finds expression at thegrassroots of Indian society. TheConstitution seeks to attain a decentralisationof democratic governance through theseinstitutions.

20. The extent of control which theagencies of the State exercise over theseinstitutions of local self-government mustnecessarily conform to constitutionalstandards. State legislation of a regulatorynature must be interpreted in a manner thatfosters the attainment of constitutionalobjectives. The Court, consistent with thehigh constitutional purpose underlying PartsIX and IXA of the Constitution, must giveexpression to the autonomy expected to bewielded by the constitutionally recognizedlevels of local self-government. Hence, whileinterpreting state legislation, the need to


conform to constitutional parameters must beborne in mind. An interpretation of statelegislation which will dilute the autonomy ofinstitutions of local self-government must, tothe extent possible, be avoided. Similarly, aninterpretation which would result in reducingthe panchayats and municipalities to a role ofadministrative subordination must beeschewed. Consequently, where an issuearises in regard to the removal of an electedhead of a municipality, as in the present case,the procedure prescribed by the law must befollowed. The law itself must be interpretedin a manner that would render it fair, just andreasonable in its operation and effect.Moreover, in areas where the law is silent, aneffort must be made by the Court in theprocess of interpretation to ensure that theprocedure for removal is just, fair andreasonable to be consistent with the mandateof Article 14.

21. In Ravi Yashwant Bhoir VsDistrict Collector, Raigad9, the appellantwho was the President of a MunicipalCouncil was declared to be disqualifiedunder the provisions of the MaharashtraMunicipal Councils, Nagar Panchayats andIndustrial Townships Act, 1965. Among thecharges against him, was a failure to call fora general body meeting, the acceptance offresh tenders at high rates in connection withthe work of laying down a water supplypipeline and allowing unauthorizedconstruction. A writ petition filed by theelected head was dismissed by the HighCourt. In appeal, the Supreme Courtemphasized the importance ascribed by PartsIX and IXA of the Constitution to the roleand position of the elected head of a localself-governing institution in the followingobservations:

"Amendment in the Constitution byadding Parts IX and IX-A confers upon

the local self-government a completeautonomy on the basic democratic unitunshackled from official control. Thus,exercise of any power having effect ofdestroying the Constitutional institutionbesides being outrageous is dangerous to thedemocratic set-up of this country. Therefore,an elected official cannot be permitted to beremoved unceremoniously without followingthe procedure prescribed by law, in violationof the provisions of Article 21 of theConstitution, by the State by adopting acasual approach and resorting tomanipulations to achieve ulterior purpose.The Court being the custodian of law cannottolerate any attempt to thwart theinstitution."10

22. Dealing with the aspect ofobserving the principles of natural justice,the Supreme Court held that:

"There can also be no quarrel withthe settled legal proposition that removalof a duly elected member on the basis ofproved misconduct is a quasi-judicialproceeding in nature. [Vide: IndianNational Congress (I) v. Institute ofSocial Welfare11]. This view standsfurther fortified by the Constitution Benchjudgments of this Court in BachhitarSingh v. State of Punjab12 and Union ofIndia v. H. C. Goel13. Therefore, theprinciples of natural justice are required tobe given full play and strict complianceshould be ensured, even in the absence ofany provision providing for the same.Principles of natural justice require a fairopportunity of defence to such an electedoffice bearer."14 (emphasis supplied)

23. The Supreme Court observed thatan elected official is accountable to theelectorate and removal has seriousrepercussions since it takes away the right of


the electorate to be represented by acandidate who is elected. Undoubtedly, theright to hold the post is statutory and in thatsense is not absolute but removal can takeplace - it was held - only after strictlyadhering to the provisions laid down by thelegislature for removal. The requirement ofobserving the principles of natural justicewas hence held to be mandated before anorder of removal is passed:

"...the law on the issue standscrystallized to the effect that an electedmember can be removed in exceptionalcircumstances giving strict adherence to thestatutory provisions and holding the enquiry,meeting the requirement of principles ofnatural justice and giving an incumbent anopportunity to defend himself, for the reasonthat removal of an elected person castsstigma upon him and takes away his valuablestatutory right. Not only the elected office-bearer but his constituency/electoral collegeis also deprived of representation by theperson of his choice."15

24. A Bench of three learned Judgesof the Supreme Court in Tarlochan DevSharma Vs State of Punjab16 dealt withthe power of removal under Section 22 ofthe Punjab Municipal Act, 1911. TheSupreme Court emphasized that :

"In a democracy governed by rule oflaw, once elected to an office in a democraticinstitution, the incumbent is entitled to holdthe office for the term for which he has beenelected unless his election is set aside by aprescribed procedure known to law. That areturned candidate must hold and enjoy theoffice and discharge the duties relatedtherewith during the term specified by therelevant enactment is a valuable statutoryright not only of the returned candidate butalso of the constituency or the electoral

college which he represents. Removal fromsuch an office is a serious matter. It curtailsthe statutory term of the holder of the office.A stigma is cast on the holder of the office inview of certain allegations having been heldproved rendering him unworthy of holdingthe office which he held. Therefore, a case ofavailability of a ground squarely fallingwithin Section 22 of the Act must be clearlymade out. A President may be removed fromoffice by the State Government, within themeaning of Section 22, on the ground of"abuse of his powers" (of President), interalia."17

25. Interpreting the expression"abuse of powers" as a ground forremoval, it was held that this would notmean the mere use of power which mayappear to be simply unreasonable orinappropriate but implies a willful abuseor an intentional wrong.

26. In Sharda Kailash Mittal Vs Stateof Madhya Pradesh18, the Supreme Courtconstrued the power vested in regard to theremoval of the President of a Nagar Palikaunder the Madhya Pradesh MunicipalitiesAct, 1961. The Supreme Court emphasizedthat the power has to be exercised for strongand weighty reasons and not merely on thebasis of minor irregularities in the dischargeof the duties by a holder of an elected office.In that context, the Supreme Court observedthus:

"There are no sufficient guidelines inthe provisions of Section 41-A as to themanner in which the power has to beexercised, except that it requires thatreasonable opportunity of hearing has tobe afforded to the office-bearer proceededagainst. Keeping in view the nature of thepower and the consequences that flows onits exercise it has to be held that such


power can be invoked by the StateGovernment only for very strong andweighty reason. Such a power is not to beexercised for minor irregularities indischarge of duties by the holder of theelected post. The provision has to beconstrued in strict manner because theholder of office occupies it by electionand he/she is deprived of the office by anexecutive order in which the electoratehas no chance of participation."19(emphasis supplied)

27. These decisions emphasise theimportance of the role and position of electedheads of government under Part IXA of theConstitution. They represent the electorateand their removal affects the right of theelectorate to be governed by an elected headaccountable to it. Hence the power ofremoval which the State exercises underlegislative provisions has to be exercisedstrictly in accordance with the terms ofauthorizing legislation. Removal entailsconsequences of a serious and adversenature. Hence an order of removal has to bepreceded by compliance with the principlesof natural justice, whether or not there is anexpress statutory provision.

Natural justice as an incident ofprocedural fairness

28. The next aspect of the matterwhich must be emphasized is theimportance of the observance of naturaljustice as an integral element or facet ofprocedural fairness. The principles ofnatural justice in our jurisprudence are notonly a foundational basis ofadministrative law as it has evolved butconstitute an essential part of fairprocedure guaranteed by Article 14 of theConstitution. Observance of naturaljustice has progressively been extended to

areas of administrative decision makingwhere the decision is liable to result inserious consequences for those who areaffected or regulated. The line betweenwhat is judicial or quasi-judicial on onehand and what is administrative on theother, has progressively been effaced.

29. In C B Gautam Vs Union ofIndia20, the Supreme Court held that evenwhere a statutory provision - in that caseSection 269UD of the Income Tax Act1961 - does not provide specifically forcompliance of the principles of naturaljustice, adherence to those principles mustbe read into the interstices of the statute.

30. These principles have beenreiterated in a recent judgment of theSupreme Court in Dharampal SatyapalLimited Vs Deputy Commissioner ofCentral Excise, Gauhati21 where it washeld that:

"It, thus, cannot be denied that theprinciples of natural justice are groundedin procedural fairness which ensurestaking of correct decisions and proceduralfairness is fundamentally an instrumentalgood, in the sense that procedure shouldbe designed to ensure accurate orappropriate outcomes. In fact, proceduralfairness is valuable in both instrumentaland non-instrumental terms."22

31. Again, the Supreme Courtemphasized that the applicability of theprinciples of natural justice is notdependent upon an enabling statutoryprovision for, where a decision is liable toresult in an adverse consequence, naturaljustice must be observed despite theabsence of a statutory requirement to thateffect. The principle which wasformulated by the Supreme Court is thus:


"...the courts have consistently insistedthat such procedural fairness has to beadhered to before a decision is made andinfraction thereof has led to the quashing ofdecisions taken. In many statutes, provisionsare made ensuring that a notice is given to aperson against whom an order is likely to bepassed before a decision is made, but theremay be instances where though an authorityis vested with the powers to pass such orders,which affect the liberty or property of anindividual but the statute may not contain aprovision for prior hearing. But what isimportant to be noted is that the applicabilityof principles of natural justice is notdependent upon any statutory provision. Theprinciple has to be mandatorily appliedirrespective of the fact as to whether there isany such statutory provision or not."

Interpreting Section 48 (2)

32. Now, it is in this background that itwould be necessary to interpret theprovisions of Section 48(2). The substantivepart of sub-section (2) empowers the StateGovernment to issue a notice to show causeto the President of a municipality as to whyhe should not be removed from office whereit has reason to believe that the requirementsof clause (a) or clause (b) have been fulfilled.The substantive violations which areadverted to in clauses (a) and (b) of sub-section (2) cover a broad spectrum. At oneend of the spectrum is clause (a) whichpostulates that there has been a failure on thepart of the President in performing his duties.On the other hand, clause (b) covers a broadrange of violations including:

(i) incurring one of the stipulateddisqualifications;

(ii) acquisition of a share or interestin a contract or employment with themunicipality;

(iii) knowingly acting as a Presidentor as a member in a matter in whichhe/she has a direct or indirect share orinterest, whether pecuniary or otherwise;

(iv) acting as a legal practitioneragainst the municipality or the StateGovernment in respect of certain classesof proceedings or subjects;

(v) abandoning an ordinary place ofresidence in the area;

(vi) misconduct in the discharge ofduties;

(vii) flagrant abuse of position, willfulcontravention of the Act or regulations orbye-laws or causing loss or damage to theproperty or fund of the municipality duringthe current or the last preceding term whileacting as a President, Chairman of aCommittee, member or in any other capacity;

(viii) misconduct, whether as aPresident or as a member;

(ix) loss or damage to the property ofthe municipality;

(x) misappropriation or misuse ofmunicipal funds;

(xi) acting against the interest of themunicipality;

(xii) contravention of the provisionsof the Act or the rules;

(xiii) creating obstacles in the orderlyconduct of a meeting of the municipality;

(xiv) willful contravention of an order ordirection of the State Government;

(xv) misbehaviour without anylawful justification with officers oremployees of the municipality;

(xvi) disposal of the property of themunicipality at a price less than its marketvalue; and

(xvii) encroachment over the land,building or property of the municipality orinstigation of such acts.

33. The proviso to sub-section (2), itmust be noted, does not stipulate that the


mere issuance of a notice to show causeunder the substantive part of sub-section (2)would result in the President ceasing toexercise the financial and administrativepowers, functions and duties of the office.On the contrary, the proviso stipulates,firstly, that the State Government must havereason to believe that the allegations do notappear to be groundless; secondly, there mustbe a reason to believe on the part of the StateGovernment that the President is prima facieguilty on any of the grounds set out in thesub-section resulting in the issuance of theshow cause notice and proceedings there-under; and thirdly, the show cause noticemust contain the charges which have beenlevelled against the President of themunicipality. In other words, this threefoldrequirement has to be fulfilled before thecessation of financial and administrativepowers, functions and duties takes effect.

Reason to believe

34. The proviso requires the StateGovernment to have a reason to believe.Reason to believe postulates an objectivesatisfaction after an application of mind tomaterial and relevant circumstances. Theexpression "reason to believe" when used ina statute is to be distinguished from anexercise of a purely subjective satisfaction.

35. In Barium Chemicals Ltd VsCompany Law Board23, the Supreme Courtheld that the words "reason to believe" or "inthe opinion of" do not always lead to theconstruction that the process of entertaining areason to believe or the opinion is altogethera subjective process, not lending itself evento a limited scrutiny by the Court that it wasnot formed on relevant facts or withinstatutory limits. Explaining the words"reason to believe" in Section 147 of theIncome Tax Act 1961, the Supreme Court in

ITO Vs Lakhmani Mewal Das24 held thatthe reasons for the formation of belief musthave a rational connection with or a relevantbearing on the formation of the belief. Arational connection postulates that there mustbe a direct nexus or live link between thematerial coming to the notice of the IncomeTax Officer and the formation of his beliefthat there has been escapement of the incomeof the assessee from assessment on a failureto disclose fully or truly all material facts.Every material, howsoever vague, indefiniteor distant, would not warrant the formationof the belief. Moreover, the reason for theformation of the belief must not be a merepretence and must be held in good faith.

36. In Shiv Nath Singh Vs AppellateAssistant Commissioner of Income Tax,Calcutta25, the Supreme Court held thatthe expression reason to believe suggeststhat the belief must be that of an honestand reasonable person based onreasonable grounds and not merely onsuspicion. These principles werereiterated in a judgment of the SupremeCourt in Bhikhubhai Vithlabhai Patel VsState of Gujarat26.

37. The formation of a reason to believewithin the meaning of the proviso must be onobjective considerations which have a rationalconnection or link to the material before theState Government. Fairness requires that thisbe disclosed to the President of themunicipality before the consequences in theproviso ensue. The President must have anopportunity to explain.

38. The State Government is alsorequired by the proviso to be of the view thatthe President is prima facie guilty on any ofthe grounds contained in the sub-sectionwhich have resulted in the issuance of thenotice to show cause. The formulation of a


reason to believe that the allegations do notappear to be groundless and that thePresident is prima facie guilty on any of thegrounds mentioned in the sub-section wouldpostulate that before these statutoryrequirements are found to exist, a fairopportunity of being heard must be grantedto the President of the municipality. Afinding of prima facie guilt must, in ourview, be consistent with a prior fulfillment ofthe norms of natural justice, consistent withthe stage of enquiry. There is intrinsicevidence in the statutory provision whichleads to the inference that the mere issuanceof the notice to show cause does not a fortioriresult in the cessation of the financial andadministrative powers, functions and dutiesbut it is only when the conditions which arespelt out in the proviso exist, that such aconsequence will follow. If a mere issuanceof a notice to show cause was intended tonecessarily result in the consequence of thecessation of financial and administrativepowers as envisaged in the proviso, thelegislature would have made a provision tothat effect. On the contrary, the legislaturehas carefully crafted a statutory provision, inthe form of a proviso which ensures that it isonly upon the State Government having areason to believe that the allegations do notappear to be groundless and that thePresident is prima facie guilty on any of thegrounds contained in the sub-section, that thecessation of the financial and administrativepowers would follow from the date of theissuance of the notice to show causecontaining the charges.

39. The cessation of financial andadministrative powers of an elected head of amunicipality is a matter of significance and isreplete with serious consequences. The effectof the financial and administrative powers,functions and duties being ceased, has adirect impact upon the authority of the

elected head. It erodes authority and impactsupon the ability of the President toeffectively discharge the functions of theoffice by preventing the discharge offinancial and administrative authority. Bereftof financial and administrative powers,functions and duties, the office of thePresident of a municipality is reduced to acipher. In fact, the proviso envisages thatupon the powers being ceased, they shall beexercised by the District Magistrate or anofficer nominated, not below the rank of aDeputy Collector. This consequence isserious enough to warrant the Court to read acompliance with the principles of naturaljustice into the provision so as to ensure afair procedure and safeguard against anunfair recourse to its power by the StateGovernment. The principles of naturaljustice, as we have noted above, are requiredto be observed as a matter of first principlewhen a decision - administrative, quas-judicial or judicial - adversely affects therights of parties. The principle of reading intothe statutory provision a requirement ofcomplying with the principles of naturaljustice is a mandate of Article 14 because itwould be an anathema to a fair procedure forthe State Government to issue dictats thatabrogate the financial and administrativepowers of an elected head of a local self-governing institution without complyingwith the principles of natural justice. Therequirement of observing the principles ofnatural justice, as a matter of first principle,must be weighed in together with theadditional factors present in the proviso toSection 48(2) that lead to the conclusion thata decision to cease financial andadministrative powers must be preceded byadherence to a fair procedure. The first of thethree indicia in the proviso is the existence ofa reason to believe on the part of the Statethat the allegations do not appear to begroundless. The second indicia is the


requirement of the formation of the reason tobelieve that the President of a municipality isprima facie guilty on any of the groundsmentioned in the sub-section, resulting in thenotice to show cause. Arriving at adetermination in regard to the prima facieguilt of a person, as the statute mandates,must be upon due observance of theprinciples of natural justice. The third indiciais that the notice to show cause has to containthe charges against the person. Hence, eventhough the proviso to sub-section (2) ofSection 48 does not contain an explicitrequirement of observing the principles ofnatural justice, nonetheless such arequirement must necessarily be read into theprovision.

40. The rules of natural justice requirethat the person against whom action isproposed, must be made aware of thegrounds of the proposed action and musthave an opportunity to respond to the actionproposed, by setting forth an explanation.Undoubtedly, the formation of the reason tobelieve under the proviso to sub-section (2)is not final having due regard to the fact thatthe enquiry is still to be concluded and thecessation of financial and administrativepowers is to enure during the period whenthe proceedings in pursuance of the notice toshow cause are still to be concluded. Apersonal hearing is not a necessary ingredientof complying with the principles of naturaljustice at every stage. The minimumrequirement of the principle is that thePresident of a municipality should be madeaware of the grounds on which the actionagainst him is proposed in the formulation ofthe charges which are issued to him, asmandated by the proviso. The person who issought to be proceeded against must beinformed of the basis on which the StateGovernment proposes to entertain a reason tobelieve that the allegations do not appear to

be groundless and that he or she is primafacie guilty on any of the grounds of sub-section (2) resulting in the issuance of thenotice to show cause and the proceedings inthe sub-section. The period which is allowedto the elected head to explain must bereasonable: what is a reasonable period beingdependent upon the facts and circumstancesof each case. In a case involving an elementof urgency where there is a need for the Stateto take an expeditious decision, the periodduring which an explanation can besubmitted, can be suitably tailored to meetthe exigencies of the situation. No absoluterule can be laid down in the abstract on whatconstitutes a reasonable period to showcause. But the minimum requirements of fairprocedure must be fulfilled. An opportunityhas to be granted. Otherwise, the provisionwould be capable of grave misuse toderogate from the authority of an electedhead on arbitrary and whimsical grounds.

41. The learned AdditionalAdvocate General submitted that (i) thejudgment of the Full Bench in HafizAtaullah Ansari has read somethingwhich is not a part of the proviso toSection 48(2) into the statutory provision;and (ii) the requirement of complyingwith the principles of natural justice ariseswhere "there is some space for it"whereas, in the present case, no spaceexists between the issuance of a notice toshow cause and the ceasing of financialand administrative powers.

42. We are not inclined to accept thesubmission that the reading into the provisoof a requirement of complying with theprinciples of natural justice would amount tothe imposition of an alien condition notcontemplated by the legislature. For onething, it is a well settled principle of ourjurisprudence that even where a statute is


silent, compliance with or adherence tonatural justice must be read into the statute asan intrinsic element of a fair procedureconsistent with the mandate of Article 14,where an administrative or quasi judicialdecision has adverse consequences for aperson who is proceeded against. Readinginto a statute a requirement of complyingwith the principles of natural justice does notamount to rewriting the statute or engraftinga new legislative provision. Reading naturaljustice into the interstices of a statute is anexercise of an interpretation which isnecessary to render the statutory provisionconsistent with the mandate of Article 14.Otherwise if a statutory provision were to beheld to authorise the taking of adversedecisions without complying with proceduralnorms which are fair and reasonable, theprovision would itself become vulnerable toconstitutional challenge. Hence, the principlethat natural justice should be read as a matterof interpretation into a statutory provisionwhere a decision which is taken has adverseconsequences is connected with the mandateof Article 14 of the Constitution. For a Courtto read a statutory provision in a mannerwhich renders it fair, just and reasonable, isnot to re-write the statute but to make itconsistent with constitutional norms.

43. Secondly, we are not impressedwith the submission that there is no space, asthe Additional Advocate General calls it,between the issuance of a notice to showcause and the ceasing of financial andadministrative powers of the President of themunicipality. The legislature has clearly notintended that the mere issuance of a notice toshow cause under sub-section (1) shouldresult in the ceasing of financial andadministrative powers as an inexorableconsequence, as night follows day. If thelegislature so intended, it would haveprovided that upon the issuance of a notice to

show cause, the financial and administrativepowers of an elected President of themunicipality cease. The state legislature didnot do so. Instead, it imposed a statutorycondition that it was where the StateGovernment has reason to believe that theallegations do not appear to be groundlessand that the President is prima facie guilty onany of the grounds of sub-section (2)resulting in the issuance of the notice to showcause and proceedings, that he shall, from thedate of the issuance of the notice containingthe charges, cease to exercise, perform anddischarge financial and administrativepowers, functions and duties. It is only whenthese requirements of the proviso are fulfilledthat the ceasing of financial andadministrative powers takes effect byoperation of law. In other words, the ceasingof financial and administrative powers is notan automatic consequence envisaged uponthe mere issuance of a notice to show causeunder sub-section (1). For the consequence toensue as a matter of law under the proviso tosub-section (2), the requirements of theproviso must be fulfilled.

44. The referring order of the DivisionBench dated 10 February 2015 doubted thecorrectness of the view of the Full Bench byobserving that under Section 48(2), the StateGovernment is required to issue a show causenotice calling upon the President of amunicipality to show cause as to why heshould not be removed only when (i) the factswhich disclose any or all of the groundsmentioned in clause (a) or clause (b) (i) to(xvii) are brought to the knowledge of theState Government and (ii) the StateGovernment has reason to believe that theallegations are not baseless and the Presidentis prima facie guilty. In the view of theDivision Bench, once such a notice underSection 48(2) is issued, the financial andadministrative powers of the President would


stand ceased by operation of law. Withrespect, the error on the part of the DivisionBench lies in not distinguishing between therequirements of the proviso and those of thesubstantive part of Section 48 (2). Thesubstantive part of Section 48(2) envisages theState Government to issue a notice to showcause to the President of a municipality whyhe should not be removed from office where ithas reason to believe that the groundsmentioned in clause (a) or any of the groundsin clause (b) are fulfilled. The proviso,however, requires the State Government toapply its mind to certain specified aspects,including among them, whether there isreason to believe that the President is primafacie guilty on any of the grounds of the sub-section. The formation of a reason to believethat the allegations are not groundless; andthat the President is prima facie guilty are pre-conditions to the consequence envisagedunder the proviso, of the financial andadministrative powers ceasing to vest in thePresident of the municipality. The ceasing offinancial and administrative powers is not aconsequence which ensues merely upon anotice to show cause under the substantivepart of sub-section (2). The conclusion of theDivision Bench that the cessation of powerstakes place by operation of law merely withthe issuance of a notice to show cause underSection 48(2) is, with respect, not consistentwith the plain text and language of theprovision since the legislature envisages thatthe consequence would ensue only upon theconditions contained in the proviso beingfulfilled.

Conclusion

45. We accordingly proceed to answerthe reference in the following terms:

(I) Re Question (a): The decision ofthe Full Bench in Hafiz Ataullah Ansari

Vs State of U P (supra) lays down thecorrect position in law.

(II) Re Questions (b) & (c): Thecessation of financial and administrativepowers of the President does notnecessarily follow merely upon theissuance of a notice to show cause underthe substantive part of Section 48(2). Thefinancial and administrative powers of thePresident shall stand ceased if the StateGovernment has reason to believe that (i)the allegations do not appear to begroundless; and (ii) the President is primafacie guilty on any of the grounds of sub-section (2) resulting in the issuance of thenotice to show cause and proceedingsthereunder. The President of themunicipality will, in that event, cease toexercise, perform and discharge financialand administrative powers, functions andduties from the date of the issuance of thenotice to show cause containing thecharges. For a cessation of financial andadministrative powers to take effect, therequirements of the proviso to Section48(2) must be fulfilled. Hence,proceedings for removal of a President ofa municipality under Section 48(2) maytake place in a given situation though thefinancial and administrative powers havenot ceased under the terms of the proviso.

(III) Re Question (d): There is norequirement under the statute that aseparate order has to be passed under theproviso to Section 48(2) when thefinancial and administrative powers of thePresident of a municipality cease. Such aconsequence would come into being uponthe requirements specified in the provisoto Section 48(2) being fulfilled.

(IV) Re Question (e): An opportunityof being heard, consistent with the principles

1 All. Smt. Suman & Anr. Vs. State of U.P. & Ors. 67

of natural justice, before there is acessation of the financial andadministrative powers of the Presidentdoes not stand excluded by the provisionsof Section 48(2). As a matter of textualinterpretation, the requirement ofcomplying with the principles of naturaljustice is an integral element of theproviso to Section 48(2). Therequirements of natural justice wouldwarrant the grant of an opportunity to theelected head of a municipality to respondto the notice issued by the State indicatingthe basis for the formation of a reason tobelieve that the charges do not appear tobe groundless and that the President isprima facie guilty on any of the groundsmentioned in sub-section (2) of Section48. The period of notice can be suitablymolded to deal with the exigencies of thesituation.

46. The reference to the Full Benchshall accordingly stand answered. The writpetition shall now be placed before theregular Bench according to roster fordisposal in light of the questions soanswered.



BEFORETHE HON'BLE AJAI LAMBA, J.

THE HON'BLE ADITYA NATH MITTAL, J.


Smt. Suman & Anr. ...PetitionersVersus


Counsel for the Petitioners:Chandra Bhanu Singh

Counsel for the Respondents:

Govt. Advocate, B.B. Tripathi

Constitution of India, Art.-226-FIRquashing-offence under Section 363 IPC-considering statement recorded u/s 164Cr.P.C.-had jointed the company of herown will-and married with accused-coercion, inadvertent or forceful act onpart of accused not established-keepingin veiw of Bhajan Lal case as well asSahina Parveen-ingredients of Section363 IPC-not satisfied-initiating criminalproceeding would amount to abuse theprocess of court-if such cases arebrought under trail-will be burden uponjudicial system-FIR quashed.

Held: Para-11, 12 and 1411. In the considered opinion of thecourt, case of the petitioner would becovered by sub para 2 of para 108,extracted above, from the judgementrendered in Ch. Bhajan Lal's case(supra). The material that has come onrecord to which reference has beenmade hereinabove establishes thatingredients of Section 363 I.P.C. are notsatisfied. Offence has not beencommitted.

12. Criminal proceedings have beeninitiated only on account of ego.Petitioner no.1 got married against thewishes of her parents, which apparentlyhas aggrieved them in initiating criminalproceedings. In the considered opinionof the court by initiating impugnedcriminal proceedings, the process of thecourt and the law has been abused. .

14. This court also takes judicial noticeof the fact that the prosecuting agencyand the courts are heavily burdened withcases. Cases of this nature if are broughtto trial would burden the judicial system,unnecessarily.

Case Law discussed:W.P. No. 3519 (M/B) of 2015; AIR 1992 SC604

(Delivered by Hon'ble Ajai Lamba, J.)


1. This petition seeks issuance of awrit in the nature of certiorari quashingFirst Information Report lodged as CaseCrime No.239 of 2015, under Section 363I.P.C., Police Station Naseerabad, DistrictRaebareli.

2. Counter affidavit filed on behalfof prosecuting agency sworn on5.12.2015, is available on record. Counselfor respondent no.4 has not appeared toaddress arguments.

3. In judgment dated 23.7.2015,rendered by a Division Bench of this Court,of which one of us (Ajai Lamba,J) was aMember, in Writ Petition No.3519(M/B) of2015 Shaheen Parveen and another versusState of U.P. and others, the following(relevant portion) has been held :-

"6. Petitioner no.-2 is accused ofcommitting an offence under Sections363/366 of the Indian Penal Code.

7. Section 363 of the Indian PenalCode inheres that whoever kidnaps anyperson from lawful guardianship shall bepunished in terms of sentence provided inthe provision.

8. "Kidnapping from lawfulguardianship" has been defined underSection 361 of the Indian Penal Code. Theprovision when extracted reads as under:-

"Whoever takes or entices any minorunder *[sixteen] years of age if a male, orunder **[eighteen] years of age if afemale, or any person of unsound mind,out of the keeping of the lawful guardianof such minor or person of unsound mind,without the consent of such guardian, issaid to kidnap such minor or person fromlawful guardianship.

Explanation: - The words "lawfulguardian" in this section include anyperson lawfully entrusted with the care orcustody of such minor or other person.

Exception: - This section does notextend to the act of any person who ingood faith believes himself to be thefather of an illegitimate child, or who ingood faith believes himself to be entitledto the lawful custody of such child, unlesssuch act is committed for an immoral orunlawful purpose."

9. Section 366 of the Indian PenalCode inheres that whoever kidnaps orabducts any woman with intent that shemay be compelled, or knowing it to belikely that she will be compelled to marryany person against her will, or in orderthat she may be forced or seduced to illicitintercourse, shall be punished with asentence, as provided in the provision.

10. At the time of consideringwhether on admitting the allegationsmade in the F.I.R., offence has beencommitted or not, the ingredients of theoffence are required to be considered, incontext of the evidence collected duringthe course of investigation.

11. In the peculiar facts andcircumstances of this case, the Court hasminutely examined the facts that haveemerged on investigation of the case.

14. The Investigating Agency isconcluding that at the point in time whenthe victim left in the company of theaccused, she was a few months less than18 years, which is the relevant agementioned in Section 361 of the IndianPenal Code, above extracted. Clearly, theInvestigating Agency is taking ahypertechnical view of the issue. Theother relevant facts and circumstances ofthe case are being ignored.


15. The issue whether the victim waskidnapped or abducted is required to beexamined in context of the statement ofthe prosecutrix recorded under Section164 Cr.P.C.

16. If the statement of the prosecutrix,above noted, is taken into account, itbecomes evident that ingredients of theoffence under Sections 363/366 of the IndianPenal Code in regard to coercion, kidnappingor abduction allegedly committed bySarfaraj, are not satisfied. The provisions ofSection 363 of the Indian Penal Code arerequired to be considered in context ofprovisions of Section 361 of the Indian PenalCode. So as to satisfy the ingredients ofSection 361 of the Indian Penal Code, it hasto be established by the prosecuting agencythat the accused/sarfaraj took or enticed theprosecutrix out of the keeping of the lawfulguardian of the prosecutrix, without theconsent of the guardian/respondent no. 4. Inthe case in hand, it is the case of theprosecutrix herself that she of her free willwent with Sarfaraj, lived with him, wants tolive with him and is expecting his child.Element of coercion and enticement bySarfaraj is absent, although consent of theguardian had not been taken.

17. The writ court, being a court ofequity, must take into consideration allrelevant factors brought before it to deliversubstantial justice. Equity justifies bendingthe rules, where fair play is not violated, witha view to promote substantial justice. A writcourt cannot contemplate any limitation onits power to deliver substantial justice. It hasto be ensured that a consumer of justice getscomplete justice, instead of going into thenicety of law. Under the circumstances, thecourt cannot be a mere onlooker if injusticeis likely to be caused.

18. Petitioner No.1 thevictim/prosecutrix would be the bestwitness, rather the only witness of

commission of offence under Sections363/366 I.P.C. Surely, the victim will notsupport the prosecution case, as has beenmade evident by her in her statement,recorded in the course of investigationunder Section 164 Cr.P.C., and thereforethe trial would result in acquittal. Duringcourse of trial, considerable number ofman hours would be wasted inprosecution/ defending and judging thecase. No useful purpose would be servedand the entire exercise of trial would be infutility because the victim has declaredthat she was not victimised or kidnapped.

19. The facts that have emerged fromthe record make it evident that theimpugned criminal proceedings have beeninitiated because mother of theProsecutrix/victim ( respondent no.-4) hasnot accepted the marriage of her daughterwith petitioner No.2.

20. In case, despite the evidence thathas come on record, as noted above,proceedings are not quashed, petitionerno.-2 would be required to face criminalcharges and undergo the agony of a trial.

21. We have also taken into account thefact that in case the petitioner No.2 isallowed to be prosecuted, the matrimoniallife of petitioner No.1/the alleged victimwould be disrupted. Her husband would beincarcerated and there would be no one totake care of her child, who is yet-to-be-born.

22. If a minor, of her own, abandonsthe guardianship of her parents and joins aboy without any role having been playedby the boy in her abandoning theguardianship of her parents and withouther having been subjected to any kind ofpressure, inducement, etc and without anyoffer or promise from the accused, nooffence punishable under Section 363I.P.C. will be made out when the girl isaged more than 17 years and is matureenough to understand what she is doing.


Of course, if the accused induces or alluresthe girl and that influences the minor inleaving her guardian's custody and thekeeping and going with the accused, then itwould be difficult for the Court to accept thatminor had voluntarily come to the accused.In case the victim/ prosecutrix willingly, ofher own accord, accompanies the boy, thelaw does not cast a duty on the boy of takingher back to her father's house or even oftelling her not to accompany him.

23. A girl who has attained the age ofdiscretion and was on the verge of attainingmajority and is capable of knowing what wasgood and what was bad for her, cannot besaid to be a victim of inducement,particularly when the case of the victim/girlherself is that it was on her initiative and onaccount of her voluntary act that she hadgone with the boy and got married to him. Insuch circumstances, desire of the girl/victimis required to be seen. Ingredients of Section361 I.P.C. are required to be consideredaccordingly, and not in mechanical ortechnical interpretation.

24. Ingredients of Section 361 I.P.C.cannot be said to be satisfied in a casewhere the minor having attained age ofdiscretion, alleged to have been taken bythe accused person, left her guardian'sprotection knowingly (having capacity toknow the full import of what she wasdoing) and voluntarily joins the accusedperson. In such a case, it cannot be saidthat the victim had been taken away fromthe keeping of her lawful guardian.

25. So as to show an act ofcriminality on the part of the accused,some kind of inducement held out by theaccused person or an active participationby him in the formation of the intention ofthe minor to leave the house of theguardian, is required to be shown.Conclusion might be different in caseevidence is collected by the investigating

agency to establish that thoughimmediately prior to the minor leaving theguardian's protection, no active part wasplayed by the accused, he had at someearlier stage solicited or persuaded theminor to do so. (The Court in aboveregards takes a cue from the judgmentrendered by Hon'ble Supreme Court ofIndia reported in (1965)1 SCR 243 S.Varadarajan versus State of Madras).

26. When the above noted situation isconsidered in context of the facts andcircumstances of the present case, it wouldbecome evident that the victim (petitionerNo.1) was a few months short of attainingage of 18 years. The said petitioner hadattained age of discretion, however, not ageof majority. Petitioner No.1, the victim in herstatement recorded under Section 164 CrPChas clearly demonstrated that it was she whowent of her free will and accord on10.2.2014 with Mohd. Sarfaraj, without anycoercion, and stayed with him, and gotmarried to him willingly. It is a consensualact on the part of petitioner No.1 all through.Such clear stand of the victim makes itevident that Mohd. Sarfaraj respondent No.2cannot be attributed with coercing petitionerNo.1, inducing petitioner No.1 or kidnappingor abducting her in commission of offence,as alleged. Surely, a girl who has attained anage more than 17 years and who is alreadycarrying pregnancy cannot be stated to havenot attained age of discretion. In suchcircumstances, a technicality in law wouldnot be attracted. The Court has not beenshown any material which would indicatecoercion, inducement or forceful act on thepart of Sarfaraj (petitioner No.2) so as toconclude that offence has been committed byhim.

27. The writ Court consideringtotality of fact and circumstances, cannotignore or disregard the welfare of thepetitioners, particularly when the exercise


of trial is going to be in futility, asobserved hereinabove.

28. In view of the facts andcircumstances of the case noted above, theCourt is convinced that the impugnedproceedings have been initiated in abuse ofprocess of the Court and process of the law. Apersonal grudge against marriage of choice ofthe daughter is being settled by virtue ofinitiating impugned criminal proceedings,which would not be permissible in law. Suchprosecution would abrogate constitutional rightvested in the petitioners to get married as pertheir discretion, particularly when there is noevidence to indicate that the marriage is void.

30. In view of above, petitioner No.2cannot be said to have committed offenceeither under Section 363 I.P.C. read withSection 361 I.P.C. or under Section 366I.P.C.

31. In the above noted facts andcircumstances, we are of the view thatends of justice would be served if thepetition is allowed."

4. The facts and circumstances ofthis case are that allegedly petitioner no.1got married to petitioner no.2 of her ownfree will. Respondent no.4, however hasnot accepted the marriage. Under thecircumstances, impugned criminalproceedings have been initiated.

5. The investigating officer of the casehas placed on record statement of theprosecutrix/ victim of the offence, recordedunder Section 164 Cr.P.C., as AnnexureNo.SCA-1. Perusal of the statement indicatesthat father of petitioner no.1 wanted to gether married to an aged person. Petitionerno.1 refused the proposal. Petitioner no.1was given beatings. Approximately, sixmonths before the statement was given,petitioner no.1 left her house for railwaystation. Petitioner no.2 Manoj Kumar was

approached telephonically and she went withhim to Delhi. On returning back to Lucknow,the petitioners got married in Arya SamajMandir and also through court. It has beenstated clearly that petitioner no.1 wanted tolive with Manoj Kumar and she got marriedwith Manoj Kumar of her free will.

6. Perusal of Annexure SCA-2,appended with the counter affidavit ofinvestigating agency, indicates the age ofpetitioner no.1 to be about 18 years.

7. Considering the medical age ofpetitioner no.1 and her statement recordedunder Section 164 Cr.P.C., it has becomeevident that case of the petitioners iscovered by judgement rendered inShaheen Parveen's case (supra), portionwhereof has been extracted above.

8. We have also taken into account thefact that the victim of offence ofkidnapping/abduction would be petitionerno.1. Petitioner no.1 has admitted that shehas not been kidnapped or abducted, ratherhad gone of her own free will. In suchcircumstances, continuance of proceedingswould be an exercise in futility. Convictioncannot possibly be recorded in view ofstatement of victim of offence as has beendemonstrated through her statement recordedunder Section 164 Cr.P.C.

9. We have considered the law laiddown in AIR 1992 SC 604 State ofHaryana and others versus Ch. Bhajan Laland others.

10. Hon'ble Supreme Court of Indiawhile taking notice of various judgmentson the issue in Ch. Bhajan Lal'scase(supra), has summed up as follows inparagraph 108. The said para whenextracted reads as under :


"108. In the backdrop of theinterpretation of the various relevantprovisions of the Code under ChapterXIV and of the principles of lawenunciated by this Court in a series ofdecisions relating to the exercise of theextraordinary power under Article 226 orthe inherent powers under Section 482 ofthe Code which we have extracted andreproduced above, we give the followingcategories of cases by way of illustrationwherein such power could be exercisedeither to prevent abuse of the process ofany court or otherwise to secure the endsof justice, though it may not be possibleto lay down any precise, clearly definedand sufficiently channelised and inflexibleguidelines or rigid formulae and to givean exhaustive list of myriad kinds of caseswherein such powers should be exercised.

1. Where the allegations made in theFirst Information Report or the complaint,even if they are taken at their face valueand accepted in their entirety do not primafacie constitute any offence or make out acase against the accused.

2. Where the allegations in the FirstInformation Report and other materials, ifany, accompanying the F.I.R. do notdisclose a cognizable offence, justifyingan investigation by police officers underSection 156(1) of the Code except underan order of a Magistrate within thepurview of Section 155(2) of the Code.

3. Where the uncontrovertedallegations made in the FIR or complaintand the evidence collected in support ofthe same do not disclose the commissionof any offence and make out a caseagainst the accused.

4. Where, the allegations in the F.I.R.do not constitute a cognizable offence butconstitute only a non-cognizable offence,no investigation is permitted by a policeofficer without an order of a Magistrate as

contemplated under Section 155(2) of theCode.

5. Where the allegations made in theFIR or complaint are so absurd andinherently improbable on the basis ofwhich no prudent person can ever reach ajust conclusion that there is sufficientground for proceeding against theaccused.

6. Where there is an express legal barengrafted in any of the provisions of theCode or the concerned Act (under which acriminal proceeding is instituted) to theinstitution and continuance of theproceedings and/or where there is a specificprovision in the Code or the concerned Act,providing efficacious redress for thegrievance of the aggrieved party.

7. Where a criminal proceeding ismanifestly attended with mala fide and/orwhere the proceeding is maliciouslyinstituted with an ulterior motive forwreaking vengeance on the accused andwith a view to spite him due to privateand personal grudge."

(emphasised by us)

11. In the considered opinion of thecourt, case of the petitioner would becovered by sub para 2 of para 108,extracted above, from the judgementrendered in Ch. Bhajan Lal's case (supra).The material that has come on record towhich reference has been madehereinabove establishes that ingredients ofSection 363 I.P.C. are not satisfied.Offence has not been committed.

12. Criminal proceedings have beeninitiated only on account of ego.Petitioner no.1 got married against thewishes of her parents, which apparentlyhas aggrieved them in initiating criminalproceedings. In the considered opinion ofthe court by initiating impugned criminal

1 All. Vipin Verma Vs. The Collector District Lucknow & Ors. 73

proceedings, the process of the court andthe law has been abused. .

13. The court has been informed thatinvestigation had been concluded and nofurther evidence is likely to come onrecord to draw a different conclusion asdrawn above.

14. This court also takes judicialnotice of the fact that the prosecutingagency and the courts are heavilyburdened with cases. Cases of this natureif are brought to trial would burden thejudicial system, unnecessarily.

15. Considering the law, as laiddown in Ch. Bhajan Lal's case(supra) andShaheen Parveeen(supra), portion fromwhich has been extracted above, thispetition is allowed. Impugned FirstInformation Report, lodged as Case CrimeNo.239 of 2015, under Section 363 I.P.C.,Police Station Naseerabad, DistrictRaebareli, is hereby quashed.

16. Let a copy of this order beconveyed to the Court concerned as also tothe Superintendent of Police, Raebarelithrough Senior Registrar of the Court andlearned Additional Government Advocate.



BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI, J.THE HON'BLE ATTAU RAHMAN MASOODI, J.


Vipin Verma ...PetitionerVersus

The Collector District Lucknow & Ors....Respondents

Counsel for the Petitioner:Manish Mathur, Vaibhav Srivastava

Counsel for the Respondents:C.S.C., Chandra Shekhar Pandey

Constitution of India, Art.-226-Recoveryfrom amount of compensation-accidentby private vehicle-playing by U.P. StateTransport Corporation by reliance uponclause 10 of agreement-issuing citationunder Rule 236 and Section 282 ofU.P.Z.A. & L.R. Act-without being anyprovision under agreement-recovery cannot be enforced through Collector asarrears of land revenue.

Held: Para-9We are not entering into the merits ofthe claim and the counter claim relatingto the extent of liability which is nowsought to be recovered from thepetitioner but the mode of recovery inour opinion does not conform to Clause-10 of the aforesaid agreement. Therecovery from the petitioner as arrearsof land revenue on a recovery certificateissued by the UPSRTC without there-being any provision under the agreementwas, therefore, not enforceable throughthe Collector by the Tehsildar and assuch this mode of recovery cannot beapproved of.

Case Law discussed:F.A.F.O. No. 199 of 2001; 2011 Volume 8 SCCpg. 42.


1. Heard learned counsel for thepetitioner and Sri Chandra Shekhar Pandey,learned counsel for the respondent nos. 3 and4 as well the learned Standing Counsel forthe respondent nos. 1 and 2 .

2. The impugned recovery is soughtto be made from the petitioner through acitation dated 24.11.2015 issued by the


Tehsildar, , in Form No. 69 under Rule236 read with Section 282 of the U.P. Z.A& L.R. Act 1950 and the rules framethereunder.

3. Apart from the liability beingdenied by the petitioner, who is the ownerof the vehicle, the petitioner contends thatthe recovery which is sought to be madefrom him is not in accordance with lawand even otherwise it cannot be recoveredas arrears of land revenue through aprocess under which the impugnedcitation has been issued.

4. We had earlier called upon thelearned counsel for the Corporation toproduce the copy of the agreement underwhich the said recovery is being attemptedby the Corporation. Sri Chandra ShekharPandey, learned counsel for the respondentshas produced a copy of agreement andClause 10 thereof as reads as follows-:

"Pkkyd dh fdlh =qfV] vlko/kkuh nq?kZVuk ;kvU; voS/k dk;ksZa dk iw.kZ nkf;Ro f}rh; i{k dkgksxk rFkk bl lEca/k esa fdlh Hkh izfrdj ;k vU;ns; /kujkf'k ds Hkqxrku dk nkf;Ro cl Lokeh ;kvf/kfu;eksa ds vUrxZr chek dEiuh dk gksxkA fdlhHkh voLFkk es pkyd dh =qfV vlko/kkuh nq?kZVuk ;kvoS/k dk;Z dk nkf;Ro izFke i{k dk ugha gksxkA ;fnfdlh U;k;ky; vkfn ds vkns'k ds vuqikyu esa izFkei{k }kjk dksbZ Hkqxrku fd;k x;k gks rks f}rh; i{kds ns;dksa ls ;k vU; fof/k;ksa ls izFke i{kO;olkf;d nj ij C;kt olwyh djus ds fy,vf/kdr gksxkA "

5. Admittedly, the vehicle of thepetitioner under the aforesaid agreementwith the UPSRTC was plying when anaccident occurred and as a result of theMotor Accident Claim, arising therefrom,the liability was fixed which is nowsought to be recovered from the owner,keeping in view Clause 10 of theaforesaid agreement.

6. Learned counsel for the petitionerhas relied upon a Division Bench Judgmentin the case of United India InsuranceCompany Ltd. Vs U.P.S.R.T.C, Sapru Marg,Lucknow in F.A.F.O 199 of 2001 and otherconnected appeals decided on 18.09.2009, tourge that such liability cannot be fixed on thepetitioner nor recovered from him and it hasto be borne by the Corporation itself.

7. It is also urged that the saidjudgment had been taken up in Appealbefore the Apex Court and the SLP hasbeen dismissed.

8. Learned counsel for therespondents, on the other hand has reliedon the judgment in the Case ofU.P.S.R.T.C. Vs. Kulsum and Ors, 2011Volume 8 SCC pg.42 to contendotherwise.

9. We are not entering into the meritsof the claim and the counter claim relating tothe extent of liability which is now sought tobe recovered from the petitioner but themode of recovery in our opinion does notconform to Clause-10 of the aforesaidagreement.The recovery from the petitioneras arrears of land revenue on a recoverycertificate issued by the UPSRTC withoutthere-being any provision under theagreement was, therefore, not enforceablethrough the Collector by the Tehsildar and assuch this mode of recovery cannot beapproved of.

10. Consequently, we quash thecitation dated 24.11.2015 as well as therecovery proceedings which have beeninitiated as arrears of Land Revenue underthe U.P.Z.A & L.R.Act, 1950.

11. It shall be, however, open to theCorporation to take recourse to such other

1 All. Suresh Bansal & Ors. Vs. Union of India & Ors. 75

legal remedy which may be available to itunder the agreement for the said purpose.

12. With these observations, the writpetition is allowed.



BEFORETHE HON'BLE KRISHNA MURARI, J.

THE HON'BLE RAGHVENDRA KUMAR, J.

C.M.W.P. No. 30909 of 2014

Suresh Bansal & Ors. ...PetitionersVersus

Union of India & Ors. ...Respondents

Counsel for the Petitioners:M.D. Singh “Shekhar”, B.P. Verma

Counsel for the Respondents:A.S.G.I., Rajesh Tripathi, Fuzail Ahmand

Constitution of India, Art.-226-Rejection ofapplication-to sanction map withoutassigning any reason-held-unsustainable-recording reasons when necessaryexplained.

Held: Para-9No doubt, the concerns of the security ofthe country is supreme, but the petitioner,as a citizen of this country, in the least isentitled for a reasoned order, in case, hisclaim was liable to be rejected. Though, therespondent authorities have tried to justifythe rejection by setting out some reasons inthe counter affidavit, but it is well settledthat the reasons should be reflected fromthe order and no amount of reasonssupplemented in the affidavits filed duringjudicial review of the action, can justify thesame.

Case Law discussed:AIR 1952 SC 16; (1978) 1 SCC 405; (2013) 10SCC 95

(Delivered by Hon'ble Krishna Murari, J.)

1. Heard Shri B.P. Verma, learnedcounsel for the petitioners and Shri RajeshTripathi for respondent nos. 1 to 3.

2. Petitioners have approached thisCourt challenging the letter dated 15thMarch, 2014 communicated to him by theoffice of the City Magistrate, Mathurathat Military authorities have refused togrant No Objection Certificate forconstruction of multi-storied buildingadjacent to A-1 defence land.

3. Petitioners claiming to bebhoomidhar of plot nos. 228, 229, 230,231, 234 and 235 situate in GramNarhauli, Tehsil Sadar, District Mathuraafter seeking a declaration under Section143 of the U.P.Z.A. & L.R. Act, whichwas duly granted vide order dated 20thJune, 2003, started some constructionsover the said land, which was objected bythe officers of the Station Headquarter,Mathura Cantt. and they forcibly stoppedthe construction for want of No ObjectionCertificate from the army authorities.Petitioners made an application dated27.10.2011 before the City Magistrate forobtaining No Objection Certificate fromthe Station Headquarter, Mathura Cantt.in accordance with the guidelines issuedby the Government of India, Ministry ofDefence dated 18th May, 2011.

4. However, when no decision wastaken despite various communication andletters, the petitioners approached thisCourt by filing Writ Petition No. 37904 of2013, which was disposed of vide orderdated 16.07.2013 requiring the petitionerto make a fresh representation before thecompetent authority, who in turn, wasdirected to take appropriate decision with


all expedition, preferably within a period oftwo months from the date of receipt of theapplication. Still when no decision wastaken, the petitioner was compelled to file aContempt Application No. 6192 of 2013,which was also disposed of giving one moreopportunity to the authorities to take decisionin the matter. Thereafter, the petitioner wasinformed vide impugned order dated 15thMarch, 2014 addressed to the CityMagistrate that Military authorities have notagreed to grant No Objection Certificate forconstruction of multi-storied building onaccount of the fact that the land on which thebuilding was proposed to be constructed, wasadjacent to A-1 defence land.

5. Learned counsel for the petitionerscontends that the order is bad in lawinasmuch as it does not record any reason forrejecting the claim of No ObjectionCertificate to the petitioners. He furtherpoints out that it was categorically brought tothe notice of the authorities that the plot indispute over which the construction is soughtto be raised by the petitioner, is surroundedby residential colony on western side and amarket on the northern side, and on thesouthern side, there is a railway line. Hefurther points out that the authorities wereduly informed by the petitioners that they donot intend to raise any multi-storiedconstruction, but only ground and first floorare to be constructed and without consideringthese aspect of the matter, the No ObjectionCertificate has been refused.

6. A counter affidavit has been filedby the respondent-authorities stating thatthe khasra plot no. 236, which is A-1defence land, is being managed by localMilitary authorities for the purpose ofArmy, i.e., training activities, control ofvehicle movement, establishing ofcommunication, attachments alongwith

equipments and loading/unloading ofmilitary stores as a part of OrdinanceDepot Unit during operations andmobilization for war. It is further allegedthat the land is kept barren being campingground for accretion forces for Northernand Western sector in war. The counteraffidavit further refers to a policy decisiontaken by the Ministry of Defence,Government of India for issuing NoObjection Certificate.

7. A perusal of the policy enclosedas Annexure 2 to the counter affidavitgoes to show that same was issued inorder to strike a balance between thesecurity concerns of the forces and theright of public to undertake theconstruction activities on their land. Therelevant provisions of the said policy arequoted hereunder.

"(a) In places where local municipallaws require consultation with the StationCommander before a building plan isapproved, the Station Commander mayconvey its views after seeking approvalfrom next higher authority not below therank of Brigadier or equivalent withinfour months of receipt of such requests orwithin the specified period, if any,required by law. Objection/views/NOCwill be conveyed only to StateGovernment agencies or to Municipalauthorities, and under no circumstancesshall be conveyed to builders/privateparties.

(b) Where the local municipal lawsdo not so require, yet the StationCommander feels that any constructioncoming up within 100 meter (formultistorey building of more than fourstoreys the distance shall be 500 meters)radius of defence establishment can be asecurity hazard, it should refer the matter

1 All. Suresh Bansal & Ors. Vs. Union of India & Ors. 77

immediately to its next higher authority inthe chain of its command. In case the nexthigher authority is also so convinced, thenthe Station Commander may convey itsobjection/view to the local municipalityor State Government agencies. In case,the municipal authority/State Governmentdo not take cognizance of the saidobjection, then the matter may be takenup with higher authorities, if need bethrough AHQ/MoD.

(c) Objection/view/NOC shall not begiven by any authority other than StationCommander to the local municipality orState Government agencies and shall notbe given directly to privateparties/builders under any circumstances.

(d) NOC once issued will not bewithdrawn without the approval of theService Hqrs."

8. A perusal of the impugned ordergoes to show that it does not record anyreason for rejecting the No ObjectionCertificate nor there is any material toindicate that provisions of the Policyquoted hereinabove, were followed whileconsidering the application of thepetitioner for No Objection Certificate.

9. No doubt, the concerns of thesecurity of the country is supreme, but thepetitioner, as a citizen of this country, in theleast is entitled for a reasoned order, in case,his claim was liable to be rejected. Though,the respondent authorities have tried to justifythe rejection by setting out some reasons inthe counter affidavit, but it is well settled thatthe reasons should be reflected from the orderand no amount of reasons supplemented in theaffidavits filed during judicial review of theaction, can justify the same.

10. Reference may be made to thejudgment of the Hon'ble Apex Court in

the case of Commissioner of Police Vs.Gordhandas Bhanji, AIR 1952 SC 16,wherein it was held as under.

"9. ... public orders, publicly made,in exercise of a statutory authority cannotbe construed in the light of explanationssubsequently given by the officer makingthe order of what he meant, or of whatwas in his mind, or what he intended todo. Public orders made by publicauthorities are meant to have public effectand are intended to affect the actings andconduct of those to whom they areaddressed and must be construedobjectively with reference to the languageused in the order itself."

11. This proposition has been quotedwith approval in para 8 by a ConstitutionBench in Mohinder Singh Gill Vs. ChiefElection Commissioner, (1978) 1 SCC405, wherein Krishna Iyer, J. has stated asfollows:

"8. The second equally relevantmatter is that when a statutory functionarymakes an order based on certain grounds,its validity must be judged by the reasonsso mentioned and cannot be supplementedby fresh reasons in the shape of affidavitor otherwise. Otherwise, an order bad inthe beginning may, by the time it comesto court on account of a challenge, getvalidated by additional grounds laterbrought out."

12. In the case of Rashmi MetaliksLimited & Anr. Vs. Kolkata MetropolitanDevelopment Authority & Ors., (2013) 10SCC 95, the Hon'ble Apex Court held thatduring judicial review of anadministrative action, the order must beexamined with reference to the groundsset out in the order itself and not with


reference to any fresh ground brought outsubsequently and a ground not adopted orexpressed in the impugned administrativeorder, cannot be sought to be raised tojustify its validity.

13. In such view of the matter, inour considered opinion, the impugnedorder being cryptic and withoutcontaining reason on which the decision ispredicated, is not liable to be sustained.As a result, the writ petition succeeds andstands allowed.

14. The impugned order dated 15thMarch, 2014 is hereby set aside. Therespondent authorities are directed toreconsider the application of the petitionerfor grant of No Objection Certificate afreshin accordance with the provisions of thePolicy dated 18th May, 2011 by passing areasoned order expeditiously, preferablywithin a period of six weeks from the date ofproduction of a certified copy of this order.

15. However, in the facts andcircumstances, there shall be no orders asto costs.


CRIMINAL SIDEDATED: ALLAHABAD 05.01.2016

BEFORETHE HON'BLE KARUNA NAND BAJPAYEE, J.

Application U/S 482 No. 37202 of 2015

Rahul & Anr. ...ApplicantsVersus

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

Counsel for the Appellants:Anoop Trivedi

Counsel for the Opp. Parties:G.A.

Cr.P.C. Section 482-Trail Court closed theevidence-as the defence counselwithdraw himself from conducting thecase-consequently the witness-could notbe cross examined-on request to engageanother counsel- 2days adjournmentgiven-certainly a very short time for newcounsel to prepare himself to crossexamined the witness-which resultedcomplete miscarriage of justice, principleof Natural Justice and constitutionalright of fair trail stand defeated-orderquashed with necessary direction.

Held: Para-5It also does not appear to be a disputedfact that the counsel who had beenconducting the trial was no morecounsel in the case because of his ownrefusal or because of the withdrawal ofthe instructions by the applicants. Insuch a situation, the opportunity of twodays time to engage the new counsel tocross examine the witness and conductthe trial does not appear to be anadequate opportunity. It cannot be saidwith any justification that in such ashort time even if a new counsel wasengaged he could have prepared thecase and do justice with the trial ofmurder. In such circumstances, in orderto arrive at the ends of justice and inorder to meet and fulfill the vitalrequirements of equity and in order toensure a fair trial, this Court feelsinclined to direct that the trial courtshould fix some date and call theaforesaid witness to be cross examinedby the accused.

(Delivered by Hon'ble Karuna NandBajpayee, J.)

1. The application u/s 482 Cr.P.C.has been filed for setting aside the orderdated 16.12.2015 passed by the SessionsJudge, Meerut by which the ApplicationNo. 47 Kha, under Section 311 Cr.P.C.has been rejected by the court belowdenying the opportunity to the applicantsto cross examine P.W.11 Meenu.

1 All. Rahul & Anr. Vs. State of U.P. & Anr. 79

2. Heard applicants' counsel as wellas learned AGA and perused the record.

3. Submission of counsel for theapplicants is that PW-11 Meenu has beenexamined in-chief but as the counsel whowas conducting the trial has returned thebrief therefore, the applicants (accused)had to engage another counsel for thecross examination of the witnesses. It wasfurther pointed out that though theexamination-in-chief was done on8.12.2015 but when the adjournment wassought on that date because of theinability of the counsel to continue thetrial, another date 10.12.2015 was fixedfor the cross examination immediatelyafter two days. Further submission is thatthis period of adjournment was very short.As it was a murder trial the rights andliability of the applicants, who werefacing the trial as accused, must beadjudicated upon after the witnesses werecross examined. Otherwise it is bound tocast serious deleterious/prejudicial effectagainst the interest of the applicants andwould go to the extent of infringing uponthe fairness of the trial. But on the nextdate i.e. 10.12.2015 when adjournmentwas again sought the court refused togrant the same and closed the evidence. Itwas also submitted that it is not a case ora matter in which the repeatedadjournments might have been sought onbehalf of the applicants for crossexamination nor is it a case in which thecounsel can be said to have deliberatelyresorted to any delaying tactics and wasunder any false pretext or pretenceindulging in any such exercise which maybe said to be unfair or deliberate. In fact,the witness could be procured for crossexamination only after enormous effortswere done by the trial court in that regardand she could be brought to be examined

as PW-11 after ten prosecution witnesseshad already been examined. The emphasiswas laid by counsel who tried to elaborateand demonstrate that the facts andcircumstances of the case are such that theapplicants cannot be accused of any suchdelaying tactics which could have justlyimpelled the court to close the evidenceand deprive the accused from their mostvaluable right of cross examination.Counsel for the applicant has tried toshow that the adjournment was sought ina bonafide manner because the counselhimself had refused to continueconducting the trial itself. It was in thatbackground that another counsel had gotto be engaged. Submission is that in facteven if a new counsel could have beenengaged within two days then also itwould have been an insufficient period oftime for a new counsel to prepare the caseand to do justice with the trial of murder.Further submission is that in fact whetherthe accused applicants withdrew theirinstructions from the counsel or thecounsel himself refused to continue withthe trial is not of much significance in thefacts and circumstances of the case and inany view of the matter, if a new counselhad to be engaged, a sufficientopportunity should have been provided tothe accused to do justice with their cause.It was further submitted that theapplicants have absolutely no intention todelay the proceedings of the trial or toprolong the matter and if an opportunityshall be given to them to cross examinethe witness, it shall be availed on the firstdate and no further adjournment shall besought by them. It was next submitted thatif the PW-11 Meenu goes uncrossexamined, the prejudicial effect cast onthe rights of the applicants shall result incomplete miscarriage of justice andprinciples of natural justice and principles


of equity and constitutional right to have afair trial, all shall stand defeated. Thecontention is that the accused ought to begranted a reasonable opportunity to crossexamine the witness which has alreadybeen denied to them by closing theevidence after recording the examination-in-chief of the witness.

4. Ordinarily this Court would haveproceeded with the matter after issuingnotice to the opposite party no. 2 but in thatsituation the proceedings of the trial had tobe stayed. In the wake of heavy pendency ofthe cases, there is hardly any likelihood forthis matter to be taken up in any near future.Such a course would be very detrimental tothe interests of the prosecution. In such asituation, when the facts and circumstancesof the case also appear to be of such naturethat the Court feels that the matter may bedisposed off on the basis of record takingthe assistance of learned A.G.A., the Courtdeems it fit to proceed with the matter andpass order after hearing the learned A.G.A.and counsel for the applicants. The Courthas preferred to adopt this course more sobecause the hub of the controversy involvesnothing except the appreciation of the widerprinciples of fairness or to say the firstprinciples of justice.

5. It appears that PW-11 Smt.Meenu was not making herself availablein the court because she apprehendeddanger to her life and it was only aftermaking enormous efforts that the trialcourt could ensure her presence for thepurpose of cross examination in the court.The difficulty in procuring her attendanceand the delay caused because of her nonexamination seems to have castsignificant effect on the mind of the trialcourt and for prompting it to close theevidence as the court for obvious reasons

did not want to take any chance to let thewitness slip again during the trial. It alsoappears that the additional reason to takea strict view in the matter was that therewas a direction of High Court to expeditethe proceedings of the trial. Apparentlythe order passed by the court below issuch which cannot be very seriouslyassailed on the ground of any illegality orimpropriety and the view taken by thecourt below can also not be castigated forbeing perverse. But despite this fact, whenthis Court takes an over all broader viewof the matter and keeps in perspective theimperative concept of fair trial, in theview of the Court it appears necessarythat the trial should be finally decided andadjudicated upon, not on the basis ofuntested testimony of the witnesses, butafter their testimonies have been tested onthe anvil of cross examination. Such acourse would not only enable the court toevaluate the evidenciary value and itsworth more adequately but there shall alsonot be left any chance for either of theparties to assail the final verdict of thetrial court on the ground that the judgmentwas based on unscrutinized testimonieswhich were never vetted on thetouchstone of cross examination. Offcourse, it goes without saying thatwhenever the court feels that theadjournment sought by a party is notbased on reasonable grounds or is actuallyhaving an oblique motive behind the sameto delay the trial or to otherwise defeat theends of justice, it is very much within thepowers of the court not to grant theadjournment and close the evidence. Butthe present matter does not display anysuch circumstances on the basis of whichthis Court may come to the conclusionthat the adjournment was sought for anyof such reasons. The first date on whichthe witness was available was 8.12.2015

1 All. Smt. Geeta Dixit & Ors. Vs. The Secy. Govt. of U.P. & Ors. 81

and the next date was fixed as 10.12.2015.It also does not appear to be a disputed factthat the counsel who had been conductingthe trial was no more counsel in the casebecause of his own refusal or because of thewithdrawal of the instructions by theapplicants. In such a situation, theopportunity of two days time to engage thenew counsel to cross examine the witnessand conduct the trial does not appear to bean adequate opportunity. It cannot be saidwith any justification that in such a shorttime even if a new counsel was engaged hecould have prepared the case and do justicewith the trial of murder. In suchcircumstances, in order to arrive at the endsof justice and in order to meet and fulfill thevital requirements of equity and in order toensure a fair trial, this Court feels inclinedto direct that the trial court should fix somedate and call the aforesaid witness to becross examined by the accused.

6. It may be observed that wheneverthe witness appears in the Court to becross examined, no adjournment shall besought on behalf of any of the accusedand cross examination will be done onthat very date. If at all any adjournment issought by accused, the court shall be atliberty to close the evidence and proceedwith the trial in accordance with law.

7. In view of the above, theimpugned order dated 16.12.2015 standsset aside. The court below is required totake steps in order to get the witness crossexamined in the light of the directionsmade in this order.

8. The application stands allowed.

9. A copy of this order be certifiedto the lower court forthwith.

-------


DATED: ALLAHABAD 29.01.2016

BEFORETHE HON'BLE V.K. SHUKLA, J.

THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Writ -A No. 45262 OF 2015

Smt. Geeta Dixit & Ors. ...PetitionersVersus

The Secy. Govt. of U.P. & Ors....Respondents

Counsel for the Petitioner:L.C. Srivastava, Neeraj Srivastava


U.P. Absorption of Retrenched Employees ofGovernment or Public corporation inGovernment Service Rules 1991-Rule 3 (1)read with U.P. Absorption of RetrenchedEmployee of Government or PublicCorporation in Government Services(Recession) Rules 2003-Rule 3 (2)(ii)-Project officers working under non formaleducation scheme-after abolition ofscheme-Government decided to absorbthem as L.T Grade teacher in GovernmentInter College-the G.O. by which decisiontaken-High Court directed to re-considerthe feasibility of protection of status andpay-High Court considering them asretrenched employee issued direction-admittedly the petitioners not worked sinceApril 2001-after 08.04.2003 the date onenforcement of (Recession) Act 2003-theirservices automatically dispense with-noquestion of arrears of salary and otherconsequential benefits-as two wrong cannot make one right-petition dismissed.

Held: Para-23 & 2423. We are constrained to make a

mention that inspite of categorical provisionof Rule 1991 no other provisions wereavailable to the State Government for anyabsorption of incumbent, once the project


was abrogated but at no point of timeneither Rule, 1991 nor Rule, 2003 has beenlooked into. As indicated above, detailprocedure was prescribed for absorption ofretrenched employee, but no suchprocedure had ever been adopted in thematter. This is undisputed factual positionthat in the State of U.P for retrenchedemployees the State Government hasframed the Rules of 1991 and thereafter theState Government had proceeded topromulgate Recession Rules of 2003. Oncethe Rules of 1991 was rescinded by meansof Rules of 2003 and as such thereafterthere is no provision of absorption of theretrenched employees. Whereas in thepresent case undisputed factual position,which is emerging is that petitioners' claimsare not better than the retrenchedemployees. They were engaged purelyunder the project known as 'Non-FormalEducation Project' and the said project hadcome to an end itself in the year 2001.Thereafter the State Government under itswisdom has proceeded to absorb theProject Officers against L.G. Grade teachersand once the petitioners have not chosen tobe absorbed under the L.T. Grade Teachers,even though they were not the retrenchedemployees.

24. The petitioners have contendedthat their right had accrued in the past intheir favour and as such, they were entitledfor absorption according to their status butas indicated above at no point of time thepetitioners were given any certificate toindicate that they were the retrenchedemployees contrary their engagement waspurely temporary in nature and was liableto be terminated at any time without anyprior information. The petitioners areclaiming that they may be absorbedaccording to their status whereas the writjurisdiction is meant to enforce the rule oflaw and not to violate the law. Once theState Government had framed the Rules of1991, which was eventually rescinded bymeans of Rules of 2003 and admittedly thecase of petitioners did not fall under thecategory of retrenched employees, nodirective can be issued in violation to the

Rules merely because some incumbentshave been offered appointment, under thecover of the orders passed by this Court willnot improve the case of the petitioners astwo wrongs will not make a thing right, andequality in illegality, is totally against therule of fair play and demand of petitioners,if accepted would be clearly violative ofArticles 14 and 21 of Constitution of India.

Case Law discussed:(1997) 8 SCC 372; AIR 1973 SC 2641; 1996(3) ESC 622 (SC); Civil Appeal No. 5203 of2004.

(Delivered by Hon'ble M.C. Tripathi, J.)

1. Smt. Geeta Dixit and 5 others arebefore this Court for quashing Para 5 (1)of the impugned order dated 15.6.2015passed by the Secretary, Basic Education,Government of UP, Lucknow-respondentno.1 and have further prayed for directioncommanding the respondents to extend allconsequential benefits alongwith 12%interest thereon treating cadre holder postas per terms of earlier judgment dated5.4.2002.

2. Brief background of the case, as isreflected from the record, is that a Non-Formal Education Scheme was initiallyintroduced by the Central Government in theyear 1979-80 for imparting education tochildren in the age group of 6 to 14 years,who either did not attend any school or whoafter the joining left the school beforecompleting primary education. Initially theexpenses incurred towards the said schemewere shared by the State Government andCentral Government in the ratio of 50 : 50but later on, it was revised to 40% : 60%.The said scheme was implemented in theState of Uttar Pradesh under the Directorateof Education (Basic) U.P. For the smoothrunning of the scheme, certain posts,including the posts of Supervisors were


created by the State Government videGovernment Order dated 11.8.1981 tosupervise the work at various centres.Consequently appointments were made tothe post of Supervisors by the Governmenton 11.2.1982. The said scheme was purelytemporary in nature. Appointments weremade purely on temporary and adhoc basisand were liable to be terminated at any timewithout notice. It appears that subsequentlythe said scheme was modified and wasknown as 'Non-Formal Education Project'.Various posts were created by theGovernment on 30.3.1988. The said posts socreated included the post of Project Officer atproject level. It is also reflected that theproject itself was temporary in nature. TheGovernment Order clearly visualised that allthe posts would be temporary liable to beabolished at any time without any priorinformation.

3. It is also reflected that the postsother than the posts of Project Officer(Pariyojana Adhikari) had their equivalentposts in the education department under theDirector of Education, U.P. and accordinglyall the posts other than posts of PariyojanaAdhikari were filled on deputation bytransfer of officers/officials holdingequivalent posts in the regular education. TheState Government vide order dated15.7.1988 had proceeded to appoint aSelection Committee empowered to selectProject Officers. As per terms and conditionsthe persons appointed as Project Officerswould be bound to work for at least threeyears and further that on cessation of theproject, their services would automaticallycome to an end. The Non-formal EducationProject as indicated above continued till31.3.2001. Thereafter, the CentralGovernment stopped funding and abrogatedthe project. Consequently, the StateGovernment proceeded to come out with a

revised project under the name of 'EducationGuarantee Scheme and Alternative andInnovative Education' w.e.f. 1.4.2001. Thepetitioners did not hold any lien on any postsas they were initially appointed assupervisors under 'Non-Formal EducationScheme', the posts were abolished but theywere selected and re-engaged on the post ofProject Officers under the 'Non-FormalEducation Project' itself. Most of thepetitioners were issued appointment letterson 13.8.1989 and on 27.2.1991. A WritPetition being Civil Misc. Writ Petition No.42806 of 2000 came to be filed byPradeshiya Pariyojana Adhikari AnopcharikShiksha Sangh, U. P., through its GeneralSecretary and ors. v. State of U. P. and Ors.,inter-alia for the following reliefs :

"(a) A writ, order or direction of asuitable nature commanding the respondentsto treat the posts of Project Officer, Non-Formal Education as cadre post in thesubordinate education (Gazetted) servicewith all consequential benefits thereof to thepetitioners and the members of the petitionerNo. 1 Association;

(b) A writ, order or direction of asuitable nature commanding therespondents to treat the petitioners asregularly and substantively appointed onthe post of Project Officer, Non-FormalEducation and as members of SubordinateEducation (Gazetted) Service with allconsequential benefits thereof;

(c) A writ, order or direction of asuitable nature commanding therespondent No. 1 to take a Director, Non-Formal Education, U. P., Lucknow, ascontained in his communication dated4.2.1999 and 19.1.2000 (Annexures-20and 17 to the writ petition) ; within aperiod to be specified by this Hon'bleCourt and to maintain the existing statusof the petitions till such decisions ;"


4. The aforesaid writ petition wasfinally disposed of by order dated 9.10.2000with a direction to the State Government totake final decision on the representationsfiled by the petitioners therein after takinginto reckoning the recommendation made bythe Director, Non-Formal Education, U. P.,Lucknow vide letters dated 4.2.1999 and19.1.2000. The decision was required to betaken by means of a reasoned order, ifpossible, within two months from the date ofproduction of certified copy of that order.Consequent upon the said direction, the StateGovernment took up the matter butultimately rejected the representations videorder dated 23.3.2001. However, on24.3.2001 the Government issued anotherorder visualising thereby that after thecessation/revision of 'Non-Formal EducationProject' w.e.f. 31.3.2001 due to non-sanctionof funds by the Central Government, servicesof the Project Officers/ Assistant ProjectOfficers working at project level on ex-cadreposts although came to an end but it wasdecided by the Government on humanitariangrounds that such Project Officers/AssistantProject Officers, who were working on ex-cadre posts would be absorbed in theavailable posts of Assistant Teacher L.T.Grade in the pay scale of Rs. 4,500-7,000with a clear stipulation that they would notget any pay protection on account of suchabsorption. The orders dated 23.3.2001 and24.3.2001 were challenged in Writ PetitionNo.13653 of 2001. After exchange of thepleadings between the parties, the aforesaidWrit Petition alongwith 32 writ petitionswere partly allowed by a common judgmentdated 5.4.2002, being leading Writ PetitionNo.12879 of 2001 (Uma Shanker Singh andors vs. State of UP and ors) with followingobservations:-

"6. On behalf of the petitioners mainargument was advanced by Sri Ashok Khare,

Senior Advocate while on behalf of the State,Sri Vinod Swarup, Additional AdvocateGeneral appeared in these petitions. The nubof the submissions of Sri Ashok Khare is twofold : first, that the petitioners have beenillegally denied the status and pay they wereenjoying as Project Officers on erroneousview that the posts of Project Officers wereex-cadre posts ; and second, that thepetitioners have been illegally discriminatedfrom the incumbents of other posts in theproject whose status and pay have not beendisturbed after the cessation of the project,Sri Vinod Swarup on the other handsubmitted that the petitioners could notlegally claim any parity with thoseincumbents of the posts of Project Officers,who had permanent lien in the educationdepartment and who have been repatriated totheir substantive posts after abolition of theposts of Project Officers. As regards payprotection it has been submitted by thelearned Additional Advocate General thatany protection of status and pay if given tothe petitioners would result in denial ofequality of treatment to those, who have beenrepatriated to their parent department.

7. As regards the plea that thepetitioners were not appointed on deputation,we are of the view that the use of the word'deputation' in the appointment orders inrelation to the petitioners was a misnomer. InState of Punjab and ors vs. Inder Singh andors, (1997) 8 SCC 372, the Supreme Courtexplained the concept of 'deputation' in thefollowing words :

The concept of "deputation" is wellunderstood in service law and has arecognised meaning. "Deputation" has adifferent connotation in service law andthe dictionary meaning of the word"deputation" is of no help. In simplewords "deputation" means service outsidethe cadre or outside the parent


department. Deputation is deputing ortransferring an employee to a post outsidehis cadre, that is to say, to anotherdepartment on a temporary basis. Afterthe expiry of period of deputation theemployee has to come back to his parentdepartment to occupy the same positionunless in the meanwhile he has earnedpromotion in his parent department as perthe Recruitment Rules. Whether thetransfer is outside the normal field ofdeployment or not is decided by theauthority who controls the service or postfrom which the employee is transferred.There can be no deputation without theconsent of the person so deputed and hewould, therefore, know his rights andprivileges in the deputation post. The lawon deputation and repatriation is quitesettled as we have also seen in variousjudgments which we have referred toabove. There is no escape for therespondents now to go back to theirparent departments and working there asConstables or Head Constables as the casemay be."

8. Since the petitioners did not haveany lien on any of the posts and rather theywere appointed directly on the posts ofProject Officers and not on transfer from anyother department, they cannot be said to bedeputationists. The earlier report of theDirector Basic Education (Non-FormalEducation) submitted in this regard on19.1.2000, was correct and the subsequentreport justifying the use of the word"deputation" in the appointment orders of thepetitioners is unsustainable. However, sincethe posts of Project Officers were abolishedand incumbents could not claim absorptionor regularisation as of right on equivalentposts, in the absence of the statutory rules,what is now to be examined is whetherGovernment having decided to absorb thepetitioners could legally protect their status

and pay. In this connection, Sri VinodSwarup has submitted that is the status andpay of the petitioners are protected, thatwould be violative of fundamental rights ofother Project Officers, who have beenrepatriated to their substantive posts of Sub-Deputy Inspector, Inspector of Schools,Assistant Teacher L.T. Grade, Lecturer andExtension Teacher after abolition of theproject. The Government have not advertedto this aspect of the matter while deciding thepetitioners' representation and since for thereasons disclosed hereinafter, we arepersuaded to remit the matter to the StateGovernment for reconsideration. We do notconsider it necessary to express any opinionon the submission of the AdditionalAdvocate General that if status and pay ofthe petitioners are protected, that wouldresult in violation of fundamental rightsguaranteed by Articles 14 and 16 of theConstitution of other Project Officers, whohave been repatriated to their parentdepartment. It is for the Government to seewhether protection of status and pay to thepetitioners would lead to violation of Articles14 and 16 of the Constitution.

9. There is no denying fact thatcreation and abolition of posts are theattributes of the exercise of sovereign powerof the State, State of U. P. and Anr., v. Dr. P.B. L. Saxena, AIR 1969 All 449 (FB), for"every sovereign Government has within itsown jurisdiction the right and power to createwhatever public offices it may regard asnecessary to its proper functioning and itsown internal administration and to abolishsuch offices as it may deem superfluous, 42Am Jur 902 para 31 quoted in para 36 of thejudgment by R.S. Pathak, J. (as he then was)in State of V.P. And another vs. Dr. P. B. L.Saxena (supra)." The Supreme Court in N.Ramanatha v. State of Kerala, AIR 1973 SC2641. too has very clearly laid down that thepower to create, continue and abolish any


civil post is Inherent in every sovereignGovernment and the decision in this regard istaken as a matter of Government policydepending on exigencies of circumstancesand administrative necessities. In fact, thepetitioners have not questioned the abolitionof posts of Project Officers and other postscreated under the Non-Formal EducationProject. What is essentially under challengein these petitions is the denial of status andpay protection while absorbing thepetitioners after abolition of posts of ProjectOfficers. We are of the considered view thatalthough the petitioners could not claim, onabolition of posts of Project Officer createdunder Non-Formal Education in which theywere appointed as of right, their absorptionbut once it was decided by the Governmentto absorb the retrenched Project Officers, itwas obligatory for the Government to followsuch norms and conditions as may have beenlaid down from time to time for absorption ofsurplus or retrenched employees.

10. Attention of the Court wasinvited to G.O, No. 88 (l)/66 O&M datedLucknow March 2, 1967, laying down theterms and conditions of absorption ofsurplus employees. Surplus employeesaccording to the said Government ordercould broadly be placed in the followingcategories :

"(a) those rendered surplus as a resultof raising of norms of work or othereconomy measures approved byGovernment.

(b) those rendered surplus as a resultof reorganisation of a department/organisation/ office with a view toimprove efficiency or to effect economy.

(c) all other viz., who have beenrecruited for specified jobs expected tolast for a specified period or whoseservices are terminated in the normalcourse in accordance with the terms andconditions of their service such as

additional copyists, seasonal peonsattached to collection Amins, etc."

11. So far employees under category(c) above are concerned, the Governmentorder aforesaid visualised that since theywere recruited for a particular work and theyclearly knew that their term of employmentwould expire after a specified period,therefore, their services should standterminated on completion of the work or onthe expiry of the fixed period for which theywere employed in accordance with the termsand conditions of their appointments. Asregards the employees under categories (a)and (b) above, they may be either permanentor temporary. These persons are to beabsorbed on posts which may fall vacant onaccount of retirements, discharge, death, etc.or on new posts which may be created infuture to meet the requirements of publicwork, and for that purpose, the terms andconditions of their absorption as laid down inthe Government order are as under :

"A. Permanent employees will beabsorbed in posts in identical or higher scaleof pay, their pay being fixed in accordancewith the existing rules except that in case ofabsorption on a higher posts, their pay willnot be fixed at a stage next above the existingpay because such a case cannot be treated asa case of promotion and of assumption ofduties and responsibilities of higher order inthe normal course. They will also be allowedto draw their next increment on the samedate on which they would have drawn it ontheir old post. On absorption in otherdepartments, they will retain their lien ontheir permanent posts until they areconfirmed on their new posts. They will alsobe eligible for promotion in their olddepartment in clear and regular vacancies tillthey are confirmed on their new posts ; buttheir cases will not be considered forpromotion to vacancies of shorter duration asthat will mean unnecessary dislocation. The


procedure of absorption will be the same asadopted in normal course in releasingpermanent Government servants for takingup new appointments in other departmentsand they will be entitled to all such facilitiesas are admissible under normal rules exceptas provided above.

B. (i) Temporary employees, as faras possible, will be absorbed in identicalscale of pay. If such posts are notavailable they may be absorbed in posts inlower or higher scales of pay. Pay in suchcases will be fixed in accordance with thefollowing orders and they will be allowedto draw their next increment on the samedate on which they would have drawn iton their old post:

(a) In case of absorption in lower posts,pay will be fixed at the same stage at whichhe was drawing pay in his old post by takingrecourse to the provisions of FundamentalRule 27, Financial Hand Book, Vol. II, PartII subject to the condition that the pay sofixed does not exceed the maximum of thepay scale of the new post. If there is nocorresponding stage, the pay will be fixed atthe next lower stage, difference beingallowed under Fundamental Rule 19 readwith Fundamental Rule 9 (23) (b), FinancialHand Book, Vol. II, Part II as personal pay tobe absorbed in future increments. If anemployee is drawing more than themaximum of scale of pay of his new post, thedifference will be allowed as personal pay tobe absorbed in future increases of pay onaccount of promotion, if any, or for any otherreasons

(b) In case of absorption in a highestpost, the benefit of fixation of pay at thestage next above the present pay will notbe allowed and the pay will be fixed at thesame stage, or if there is no such stagethen at the" next below stage-differencebeing allowed under Fundamental Rule19 read with Fundamental Rule 9 (23) (b).

Financial Hand Book, Vol. II, Part II aspersonal pay to be absorbed in futureincrements.

(ii) To facilitate fixation of pay ofthese employees, the Governor has beenpleased to delegate to Heads ofDepartments, the power of fixation of payof such employees under FundamentalRule 27, Financial Hand Book Vols. II toIV in accordance with the aboveprinciples. The cases -not covered bythese orders should be referred toGovernment in the administrativedepartment concerned.

(iii) The procedure for absorption willbe that as soon as an alternative appointmentis available, the surplus employee shall beserved with the formal orders, to be passedby the competent authority, for terminationof the services of the employee concerned. inaccordance with his terms and conditions ofappointment and simultaneously informedabout the alternative appointment. If heagrees to join the new post within the periodallowed, he will be appointed on the newpost by the appropriate authority for the newpost, but if he fails to do so, his services shallstand terminated in accordance with theformal orders already served on him. If heJoins the new post, he will be allowed acompensatory allowance which will be equalin amount to what would have beenadmissible to him under Rule 42, FinancialHand Book, Vol. III in the event of histransfer in the Interest of Government workfrom his old to the new post. The amount sopaid will be debited to the primary unit"Allowances and Honoraria" of thedepartmental budget from which the pay ofthe new post is to be met. On absorption, thetemporary employee will be deemed to havesevered all connections with his previouspost, but he will carry forward his leaveaccount and his post service will count forpension if he is later confirmed in his new


post without interruption in service. Anybreak occurring between the relinquishmentof the charge on the old post and theassumption of the charge on the new postwhich does not exceed the rules on thesubject as standing on the date of suchrelinquishment in a case of transfer from theold to the new post will not be deemed to bean interruption within the meaning of Article420, C.S.R., but the period of such breakitself will not count as qualifying service.Inter se seniority of such an employee in thenew department or in respect of new postwill be fixed in accordance with principleswhich will be communicated separately bythe Appointment Department."

12. In Dr. Chittaranjan Sharma and orsvs. State of Himachal Pradesh and another,1996 (3) ESC 622 (SC), the appellantstherein were not regularly appointed in H.I.M. Ayurvedic Degree College, Paprola,Kangra, which was taken over by theGovernment and handed over to HimachalPradesh Health and Family WelfareDepartment and under relevant clause of theagreement, existing staff, Principal, Teachingand another employees were eligible to beabsorbed in the college on a recommendationmade by the screening committee aftertaking into consideration as to whether theyfulfilled requisite conditions. The appellantstherein were absorbed in suitableadministrative posts to which they wereeligible. They challenged their absorptionbefore the Administrative Tribunal. TheTribunal directed to maintain the scale of paywhich they were drawing on the date of thetakeover and directed their absorption in theposts of Ayurvedic Chikitsa Adhikaries, etc.The Supreme Court held :

"It is seen that since the appellant hadnot fulfilled the requisite qualifications eitherwhen they were initially appointed by thecommittee before takeover nor whenstatutory rules were made by the Governor

so as to enable for absorption. Instead ofretrenching them from service, due to non-fulfilment of the requisite qualifications, theGovernment came to absorb them in theAyurvedic Chikitsa, Adhikaries post, etc. towhich they are eligible. The Tribunal hasgiven the direction to maintain the pay scalesand to make adjustment and absorption. Inour view, directions are correct and based onequity and do not call for any interference.They may also be considered for furtherpromotion from the absorbed posts inaccordance with the rules."

13. Since the Government have notaddressed itself to factors relevant to thequestion as to protection of pay andstatus, we are of the view that the mattershould be remitted to the StateGovernment for reconsideration.

14. Accordingly, the petitions succeedand are allowed in part. The impugned orderdated 23.3.2001 is quashed. The matter isremitted to the State Government toreconsider the feasibility of protection of payand status of the petitioners after taking intoreckoning all the relevant factors stated in thisjudgment and if necessary to modify its orderdated 24.3.2001, accordingly."

5. It is also reflected from the recordthat the State Government has proceeded tochallenge the aforesaid judgement passed byDivision Bench of this Court by means ofSpecial Leave Petition No.12422 of 2002(State of UP and ors vs. Smt. Vandana Singhand ors). Hon'ble Supreme Court vide anorder dated 22.7.2002 had stayed operationof the judgement dated 5.4.2002 passed bythe Division Bench. Finally the Civil AppealNo.8658 of 2002 and other connectedappeals were dismissed on 1.12.2011 withfollowing observations:-

"Having heard learned counsel forthe parties and perused the impugned


judgment, we are of the opinion that thedirection by the High Court to theGovernment to consider the question ofprotection of pay and status of the writpetitioners in the light of the observationsmade in the impugned judgment, does notwarrant our interference with theimpugned judgment. Accordingly, theappeal is dismissed.

However, having regard to the factthat the issue is hanging fire for over 10years, we would request the authoritiesconcerned to take a final decision in thematter, as expeditiously as practicable andin any case, not later than 6 months fromthe date of receipt of a copy of this order.

In view of the order passed in theappeal, all applications for impleadmentand intervention are rendered infructuousand are disposed of accordingly.

CIVIL APPEAL NO. 631 of 2007

In light of the order passed in CivilAppeal No. 8658 of 2002 arising out ofSLP(C) No. 12422 of 2002 [@ C.M.W.P.No. 18619 of 2001], this appeal alsomerits dismissal. We order accordingly.However, insofar as the enforcement oforder dated 5th September, 2002 passedby the High Court of Uttarakhand atNainital in terms of the subsequent orderdated 8th June, 2004 passed in CivilContempt Petition No. 96 of 2003 isconcerned, it will be open to the parties topursue appropriate remedy as may beavailable to them in this behalf."

6. After the aforesaid matter attainedfinality, the opposite parties consideredthe matter and passed an order on27.09.2012, whereby the petitioners weregranted the revised pay scalecorresponding to the pay scale of post ofProject Officer/ Assistant Project Officer

after seeking approval of the financedepartment. The relevant extract of theorder dated 27.09.2012 is being quotedhereinbelow:

"2- bl laca/k esssa 'kklu }kjk ekuuh; mPpreU;k;ky; esa ;ksftr dh x;h fo'ks"k vuqKk ;kfpdkla[;k& 8658@2002] fnukad 01 fnlEcj] 2011 esafn;s x;s vkns'kksa ds dze esa iquZfopkj djrs gq;s foRrfoHkkx }kjk dh x;h fVIi.kh ds izdk'k esa fuEuorfu.kZ; fy;k x;k gS%&

"ifj;kstuk vf/kdkjh ,oa lgk;d ifj;kstukvf/kdkjh ds inksa ij in/kkjd dze'k% osrueku :06500&10500 ,oa 5000&8000 esa rSukr FksA NBs osruvk;ksx ds lanHkZ esa bu osruekuksa dk lkekU;iqujh{k.k dze'k% osru cS.M&2 :0 9300&34800 ,oaxzsM osru :0 4600 ,oa osru cS.M&2 :09300&34800 ,oa xzsM osru :0 4600 ,oa osrucS.M&2 :0 9300&34800 xszM osru :0 4200 dsinksa ij rSukrh fn;s tkus ls muds osru ,oa Lrj dklaj{k.k (protection of pay and status) gkstkrk gSA

3- bl laca/k esa eq>s dgus dks funsZ'k gqvk gSfd ,sls ifj;kstuk vf/kdkjh@ lgk;d ifj;kstukvf/kdkjh dks 'kklu ds i= la0 454@15&68&izkS0&2001&200&93@2000 fnukad 24 ekpZ] 2001 }kjk,y0Vh0xzsM ds lgk;d v/;kid ds laoxhZ; inksa ijlek;ksftr fd;k x;k FkkA rRle; 281 ifj;kstukvf/kdkjh@ lgk;d ifj;kstuk vf/kdkjh }kjkdk;ZHkkj xzg.k fd;k x;k Fkk dsoy 36 ifj;kstukvf/kdkjh@ lgk;d ifj;kstuk vf/kdkjh us,y0Vh0xzsM ds lgk;d v/;kid ds laoxhZ; inksa ijdk;ZHkkj ugha xzg.k fd;k FkkA mudh iwoZ dh lsokvksadks nf"Vxr j[krs gq;s ek0 mPpre U;k;y; dsvkns'k ds vuqikyu esa mijksDr 'klukns'k dk ykHkiznku djrs gq;s ,y0Vh0xzsM ds lgk;d v/;kid dslaoxhZ; fjDr inksa ij lek;ksftr @ rSukrh fd;stkus dh dk;Zokgh lEiUu djk;k tk; A

4- mDr vkns'k rRdky izHkko ls ykxw ekuktk;sxk A"

7. After the decision was taken bythe State Government on 27.9.2012, thepetitioners again approached to this Courtby means of Writ Petition No.61522 of2012 (Smt. Meena Manral and ors vs.State of UP and ors) and whileentertaining the writ petition an interim


order was passed on 27.11.2012 by whichthe impugned order dated 27.9.2012 wasstayed leaving it open to the StateGovernment to pass appropriate orderdealing with the issue. However, no suchdecision was taken by the StateGovernment during the pendency of thewrit petition. On 09.3.2014, after hearingthe matter at length, this court had passedthe following order:

"By means of this writ petition thepetitioners have challenged the orderdated 27.9.2012 passed by the StateGovernment in-purported compliance ofthe earlier judgment of the Apex Courtdated 1.12.2011 passed in Civil AppealNo.8658 of 2002 and connected matters.

By means of the impugned order as perthe State Government the claim of pay andstatus of the post of Project Officer/AssistantProject Officer have been granted to thepetitioners who have been absorbed as L.T.Grade Assistant Teachers. However, thegrievance of the petitioners is that under thejudgment dated 1.12.2011 their case for grantof status equivalent to the post of ProjectOfficer was required to be considered whichhas not been done by the State Government.

The contention is that in view of thesaid judgment they are entitled to beconsidered for being absorbed on the postequivalent to the post of Project Officer,namely, D.I./A.D.I/.D.I.G.S. and to begiven salary in the pay scalecorresponding to the said post which hasnot been done in the instant case.

Sri Sashi Nandan, learned seniorcounsel appearing for the petitioners in oneof the matters has invited the attention of theCourt to certain recommendations made byUnder Secretary, Education Department,Government of U.P. to the State Governmentby which he has proposed that the post ofDeputy Basic Education Officers in the pay-

scale of Rs.6000-10500/- which are vacantshould be kept vacant and the absorption ofthe petitioners should be considered againstthe said post which are equivalent to theearlier post of Project Officer.

The contention is that thisrecommendation has not been consideredand the impugned order has been passedin a mechanical manner.

Put up this matter on Tuesday next,i.e. 13.5.2014.

Learned counsel for the respectiveparties shall address the Court on the issuethat what would be the modality forabsorbing the petitioners on a post equivalentto the post of Project Officer as also thefeasibility by such an exercise keeping inview the relevant service rules applicable tothe said post and the promotionalopportunities etc. of the Feeder Cadres asalso the nature of duties to be performed."

8. The Court had considered thematter in detail on the issue of accordingstatus equivalent to the post of ProjectOfficer/ Assistant Project Officer andpartly allowed the writ petition on13.5.2014 with following observations:-

"After hearing learned counsel forthe petitioners as also the learned standingcounsel for State and after perusing thematerial on record including the affidavitsfiled, we are of the view that the State hasnot considered the matter strictly inaccordance with the observations of thiscourt made in the earlier judgment dated05.04.2002. Under some misconception, ithas arrived at the conclusion that byabsorbing the petitioners in L.T. Grade asAssistant Teachers and granting therevised pay-scale in respect of the pay-scale of the erstwhile post of ProjectOfficer, status of Project Officer/Assistant Project Officer also stood


conferred. Learned counsel for thepetitioners have contended that under thenon-formal education scheme, they werenot performing a teaching job but wereexercising supervisory functions, whereastheir absorption has been made on thepost of Assistant Teachers in L.T. Grade,which is a teaching post. Learned counselfor the petitioners have also invited theattention of the court to arecommendation dated 23.06.2010 madeby the Under Secretary, Department ofEducation to the State Government, acopy of which is annexed as Annexure-6to the writ petition. The relevant extractsof the said recommendation are as under:

"bl laca/k esa iwoZ i"B&7 ,oa 8 ij fLFkfrLi"V dh tk pqdh gSa A izdj.k esa ;g mYys[kuh; gSfd dkfeZd vuqHkkx&2 ds 'kklukns'kl[a;k&20@1@91@dk&2&2008 fnukad 9 twu2009 esa ;g uhfrxr fu.kZ; fy;k tk pqdk gS fdfoHkkxksa esa miyC/k ljIyl dkfeZdksa dk lek;kstudj fn;k tk;s vkSj buds lek;kstu gksus rd fjDrinksa dks u Hkjk tk;s A blfy, ljdkj @ foHkkxdk ;g nkf;Ro curk gS fd budk vfr'kh?kzlek;kstu dj fn;k tk;sA buds iSrd foHkkx csfldf'k{kk vUrxZr gh fujh{k.k vuqHko ds vuq:iosrueku :0 6500&10500 esa mi csfld f'k{kkvf/kdkjh ds 27 vkLFkfxr in fjDr gSA blfy,mDr fjDr inksa ds lkis{k lek;kstu fd;s tkus esadksbZ fof/kd vFkok vU; dfBukbZ ugha gSA vr% fouezvuqjks/k gS fd iz'uxr ljIyl ifj;kstuk vf/kdkfj;ksadk bUgha ds iSrd foHkkx csfld f'k{kk vUrxZr micsfld f'k{kk vf/kdkjh ds fjDr 27 vkLFkfxr inksa dslkis{k lek;kstu vkns'k fuxZr fd;s tkus ds laca/k esadi;k mPpkns'k izkIr djuk pkgsa A"

On an overall consideration of thefacts and circumstances of the case, wefind that the impugned order does notshow any consideration of theobservations made in the report of theUnder Secretary as quoted hereinabove.The relevant aspects noted by us in theorder dated 09.05.2014 have also not beenadverted to by the State Governmentwhile taking the impugned decision.

The reasons given in the impugnedorder for granting of status of AssistantTeacher in L.T. Grade does not appear tobe sound. The State has not consideredthe relevant aspects of the matter, asdirected by this court on 05.04.2002 andas has been noticed by us in the orderdated 09.05.2014.

In the aforesaid circumstances, theimpugned order, in so far as it relates tothe grant of status of Assistant Teacher inL.T. Grade to the petitioners is concerned,is not sustainable and the same isquashed, and so far as the grant of statusequivalent to the post of Project Officer/Assistant Project Officer was concerned,the same requires no interference at thisstage.

Consequently, we direct the StateGovernment to reconsider the matterpertaining to the issue of grant ofequivalent status to the petitioners asordered by this court in its judgment dated05.04.2002 by considering all the relevantaspects of the matter including therecommendation dated 23.06.2010 againstexisting post or any other equivalent post.It shall be open for the petitioners also tofile appropriate representation statingtherein their version before the StateGovernment. The State Government shalltake a decision in this regard within aperiod of three months from the date ofproduction of a certified copy of thisorder before it and in the event, the claimof the petitioners is accepted then allconsequential benefits flowing therefromshall also be granted to them. The payprotection granted under the order dated27.09.2012 shall be subject to the freshdecision to be taken as aforesaid.

The existing status of the petitionershall continue till the aforesaid decision istaken by the State Government.

The writ petition is partly allowed."


9. In pursuance of the order passedby Division Bench of this Court dated13.5.2014 in Writ Petition No.61522 of2012 the State Government on 15.6.2015had proceeded to dispose of the claim.The said order dated 15.6.2015 has beenchallenged in the present writ petition.The order dated 15.6.2015 is reproducedhereinbelow:-

" mi;ZqDr fo"k;d 'kklu ds i= la[;k%454@ 15&86&izkS0& 2001&200 ¼93½@ 2000fnukad 24 ekpZ] 2001 ,oa i= la[;k%985@79&14&2012&200 ¼93½@ 2000 Vhlh fnukad27-9-2012 ¼Nk;kizfr layXu½ dk di;k lanHkZ xzg.kdjusa] ftlds }kjk vukSipkfjd f'k{kk dh lekfIr dsi'pkr~ ifj;kstuk vf/kdkfj;ksa ds lek;kstu] LVsVl,oa vU; ykHk iznku fd;s tkus ds lEca/k esa 'kklu}kjk iwoZ esa fuEuor~ fu.kZ; fy;k x;k Fkk%&

2- Hkkjr ljdkj dh vkfFkZd lgk;rk lslapkfyr vukSipkfjd f'k{kk ;kstuk dks fnukad 31-3-2001 ls lekIr@ iqujhf{kr dj ;kstukUrxZr dksbZHkh /kujkf'k mDr frfFk ds mijkUr Hkkjr ljdkj}kjk Lohdr u fd;s tkus ds fu.kZ; ds QyLo:iifj;kstuk Lrj ij rnFkZ ,oa fu%laoxhZ; inksa ijrSukr ifj;kstuk vf/kdkfj;ksa@ lgk;d ifj;kstukvf/kdjf;ksa dh vko';drk ugh jg x;h FkhA vr%,Sls ifj;kstuk vf/kdkfj;ksa] ftudh fu;qfDr;kWIk;Zos{kd@i;Zosf{kdkvksa@izlkj f'k{kdksa esa ls rnFkZ,oa fu% laoxhZ; inksa ij bl 'krZ ds v/khu dh x;hFkh fd ifj;kstuk dh lekfIr ij budh lsok,a fcukfdlh iwoZ lwpuk ds Lor% lekIr gks tk;sxh ,oa ,Slslgk;d ifj;kstuk vf/kdkjh ¼fu%laoxhZ;½ ftudklek;kstu ifj;kstuk vf/kdkfj;ksa ds inksa dksMkmuxzsM djds lgk;d ifj;kstuk vf/kdkjh dsfu%laoxhZ; inksa ij osrueku :0 5000&8000 esafd;k x;k Fkk] ds lEca/k esa 'kklukns'k 454@15&86&izkS0& 2001&200 ¼93½@ 2000 fnukad 24ekpZ] 2001 }kjk ;g fu.kZ; fy;k x;k Fkk fd bulHkh ifj;kstuk vf/kdkfj;ksa@ lgk;d ifj;kstukvf/kdkfj;ksa dh foHkkx esa yEch lsok vof/k dks ns[krsgq, budh lsok;s lekIr u dh tk, vFkkZr ekuoh;nf"Vdks.k viukrs gq, foHkkx esa miyC/k ,y0Vh0xzsMds osrueku :0 4500&7000 esa lgk;d v/;kid dslaoxhZ; fjDr inksa ij fu;qfDr iznku dj nh tk,]fdUrq bUgs osru laj{k.k vuqeU; u gksxkA

3- mDr 'kklukns'k la[;k% 454@15&86&izkS0& 2001&200 ¼93½@ 2000 fnukad 24

ekpZ] 2001 ds vuqikyu esa rRle; 281 ifj;kstukvf/kdkfj;ksa@ lgk;d ifj;kstuk vf/kdkfj;ksa }kjkdk;ZHkkj xzg.k fd;k x;k FkkA dsoy 36 ifj;kstukvf/kdkfj;ksa@ lgk;d ifj;kstuk vf/kdkfj;ksa us,y0Vh0xzsM ds lgk;d v/;kid ds laoxhZ; inksa ijdk;ZHkkj ugh xzg.k fd;k FkkA vr% 'kklukns'k la[;k%985@79&14&2012&200 ¼93½@ 2000 Vhlh fnukad27-9-2012 }kjk mudh iwoZ dh lsokvksa dks nf"Vxrj[krs gq, ek0 mPpre U;k;ky; ds vkns'kksa dsvuqikyu esa mijksDr 'kklukns'k fnukad 27 ekpZ]2001 dk ykHk mUgsa iznku djrs gq, ,y0Vh0 xzsM dslaoxhZ; fjDr inksa ij lek;ksftr@ rSukrh fd;stkus gsrq funsZ'k fn;s x;sA

4- ifj;kstuk vf/kdkfj;ksa @ lgk;difj;kstuk vf/kdkfj;ksa ds osru ,oa Lrj dks lajf{krfd;s tkus ds lEca/k esa 'kklukns'k fnukad 27-9-2012}kjk ;g fu.kZ; fy;k x;k fd ifj;kstuk vf/kdkjh,oa lgk;d ifj;kstuk vf/kdkjh ds inksa ijin/kkjd dze'k% osrueku :0 6500& 10500 ,oa5000&8000 esa rSukr FksA NBsa osru vk;ksx ds lanHkZesa bu osruekuksa dk lkekU; iqujh{k.k dze'k% osrucS.M&2 :0 9300&34800 ,oa xzsM osru :0 4600,oa osru cS.M&2 :0 9300&34800 ,oa xzsM osru:0 4200 gksrk gSA bu in/kkjdksa dks dze'k% osrucS.M&2 9300&34800 ,oa xszM osru :0 4600 ,oaosru cs.M&2 :0 9300&34800 xszM osru :0 4200ds inksa ij rSukrh fn;s tkus ls muds osru ,oa Lrjdk laj{k.k ( Protection of Pay and Status) gkstkrk gSA

5- 'kklu ds mDr vkns'k fnukad 27-9-2012 dsfo:) iqu% dfri; ifj;kstuk vf/kdkfj;ksa }kjk ek0mPp U;k;ky; esa fjV ;kfpdk la[;k 61522@ 2012ehuk eujky o vU; cuke m0iz0 jkT; o vU;;ksftr dh x;h] ftl ij ekuuh; mPp U;k;ky;}kjk fnukad 13-5-2014 ds vuqikyu esa 'kklu }kjkdk;kZy; Kki laa[;k 142@79&14&2015&200¼93½@ 2000 Vhlh fnukad 30-4-2015 fuxZr fd;kx;k] ftldh izfrfyfi vkidks Hkh i"Bkafdr gSA bldk;kZy; Kki dh Nk;kizfr lqyHk lanHkZ gsrq iqu%layXu gS] ftlesa fuEufyf[kr fu.kZ; fy;s x;s gS%&

¼1½ f'k{kk vuqHkkx&14 ds iwoZ fuxZr 'kklukns'kfnukad 29 flrEcj] 2012 dks la'kksf/kr djrs gq,vukSipkfjd f'k{kk ;kstuk ds ifj;kstuk Lrj ijrnFkZ vkSj fu%laoxhZ; inksa ij dk;Zjr ifj;kstukvf/kdkfj;ksa ,oa lgk;d ifj;kstuk vf/kdkfj;ksa dhla[;k ds lerqY; la[;k esa leku inuke oosrueku ds fu%laoxhZ; inksa ¼ osrueku :06500&10500 ,oa :0 5000&8000½ dk ltuifj;kstuk lekfIr dh frfFk ls djrs gq, iwoZ


ifj;kstuk ds bu in/kkjdksa dk lek;kstu lekuinuke ds bu fu%laoxhZ; inksa ds lkis{k bl izfrcU/kds v/khu fd;k tkrk gS fd bu ink/kkjdksa dh lsokfuofRr vFkok vU; dkj.ksa ls fjDr gksus okys mDrfu%laoxhZ; in Lor% lekIr gks tk;sxsaA

¼2½ iwoZ fuxZr 'kklukns'k fnukad 24 ekpZ]2001 ds dze esa ftu in/kkjdksa }kjk ,y0Vh xzsMv/;kid ds in ij iwoZ esa dk;ZHkkj xzg.k dj fy;kgS mUgs ;g fodYi gksxk fd og ,y0Vh xzsMv/;kid ds :i esa dk;Zjr cus jgsa vFkok og bufu%laoxhZ; inksa ds lkis{k dk;ZHkkj xzg.k djsaA ;gfodYi mDr dk;kZy; Kki fuxZr gksus ls 30 fnudh vof/k esa fn;k tk ldsxkA

6- 'kklu ds laKku esa ;g yk;k x;k gS fdmDr dk;kZy; Kki laa[;k 142@79&14&2015&200¼93½@ 2000 Vhlh fnukad 30-4-2015 ds vuqikyudh fn'kk esa vHkh rd dksbZ ykijokgh lEikfnr ughdh x;h gS rFkk fdlh Hkh ifj;kstuk vf/kdkjh@lgk;d ifj;kstuk vf/kdkjh dks mDr dk;kZy; Kkifnukad 30-4-2015 esa nh x;h O;oLFkk ds vuqlkjdksbZ ykHk@ osru laj{k.k vkfn ugh izkIr gqvk gSA

7- vr% eq>s vkils dgus dks funsZ'k gqvk gS fddi;k 'kklu ds dk;kZy; Kki laa[;k142@79&14&2015&200 ¼93½@ 2000 Vhlh fnukad30-4-2015 dk vuqikyu vofyEc lqfuf'pr djrs gq,vius Lrj ls fuEufyf[kr dk;Zokgh rRdky lEikfnrdjkus dk d"V djsa%&

1- ifj;kstuk vf/kdkjh@ lgk;d ifj;kstukvf/kdkjh] tks 'kklukns'k fnukad 24-3-2001 ds vuqikyuesa ,y0Vh0 xzsM osrueku esa lek;ksftr gq, gS] mu lHkhdfeZ;ksa dks vukSipkfjd f'k{kk esa le;≤ ij fuxZrlqlaxr 'kklukns'kksa ds v/khu izkIr dj jgs osru dks ¼mUgs vfUre osru izek.ki= ds vk/kkj ij½ foRrh;gLrqifLrdk esa osru fu/kkZj.k gsrq fu/kkZfjr fu;eksa dsvUrxZr rRle; ,y0Vh0 xzsM esa izkIr osrueku esa osrufu/kkZfjr djus dh dk;Zokgh lqfuf'pr djk;saA

2- ftu ifj;kstuk vf/kdkfj;ksa }kjk fodYii= Hkjdj ifj;kstuk vf/kdkjh ds in ij tkus dkfodYi izLrqr fd;k x;k gS] mu lHkh fodYi i=ksadks e.Myh; la;qDr f'k{kk funs'kd ls izkIr djladfyr fodYi i=ksa dks funs'kd] lk{kjrk ,oaoSdfYid f'k{kk dks rRdky miyC/k djk;k tk;A

layXud% ;FkksDr%Hkonh;~

¼ ,p0,y0 xqIrk½lfpoA

10. Learned counsel for the petitionersubmits that the petitioners being cadre

holder became fully entitled for the benefit ofpromotion, time scale, super time scale,gratuity, pension etc. post likewise DeputyInspector of Schools (now Block EducationOfficer) and Deputy Inspector of GirlsSchools. He further makes submission thatthe judgement of this Court dated 5.4.2002,by which the post of Basic Education hasbeen held cadre post, has become final andthe petitioners became entitled for benefit ofpromotion, time scale, super time scale,gratuity, pension etc. Inspite of specificdirection of this Court as well as Hon'bleSupreme Court the respondents have nottaken any positive steps towards joining ofthe petitioners as it is clear from perusal ofPara-5 (1) the impugned order dated15.6.2015. The respondents could not justifytheir conduct by permitting to work on thepost of LT Grade Teacher. The same is inviolation to the dictum of the judgement ofthis Court dated 5.4.2002 passed in UmaShanker Singh and ors's case (supra), whichwas affirmed by Hon'ble Supreme Court on1.12.2011. The petitioners attained the age ofsuperannuation in between 31.3.2012 to30.6.2015 and despite of protection of thisCourt the respondents neither allowed thepetitioners to work nor paid the salary sinceApril, 2001 and keeping in view of the finaldecision, the petitioners are entitled to get thepost retiral benefits in corresponding payscale of Rs.6500-10500.

11. On the other hand, learnedStanding Counsel has opposed the writpetition by submitting that the petitionerscould not legally claim any parity with thoseincumbents on the post of Project Officer,who had permanent lien in the educationdepartment and who have been repatriated totheir substantive post after abolition of thepost of Project Officer and moreover underthe Scheme the appointments were madepurely on temporary and adhoc basis, liable


to be terminated at any time without noticeand subsequently the scheme in question hadalso been abrogated. In the appointmentletters the terms and conditions were given inmost categorical manner without anyambiguity that their engagement were purelyon temporary basis. Once the project itselfhas come to an end, then the petitioners hadno right to dictate the authority concerned forgiving any corresponding post. Theappointments of the petitioners were notmade against the substantive post. No ruleshave been framed and no recruitment processhad been adhered to and since the posts ofProject Officer were abolished and as such,incumbents could not claim absorption orregularization as of right on equivalent postin the absence of statutory rule.

12. Heard rival submissions andperused the record.

13. It is not disputed that thepetitioners were initially engaged as ProjectOfficer created under Non-Formal EducationScheme. The post was created including thepost of Project Officer at Project level andsince the project itself was temporary innature, all the persons who had applied andwere selected, gave an undertaking to theeffect that on being selected to the post ofProject Officers, they would continue on thepost at least for a period of three years and inthe event of project coming to an end, theirservices would automatically standterminated. It is not disputed that there wasmention in the Government Order, by whichthe posts of Project Officer were created, thatthe posts of Project Officers were ex-cadrepost. The State Government has taken stepsonly on humanitarian ground foraccommodating incumbents those, who wereworking as Project Officers and tried toabsorb them as LT Grade Teachers.Therefore, as per the appointment letter and

their discontinuation, it is not disputed thatthe petitioners were not retrenchedemployees. Their engagement was underproject and admittedly the said project hadcome to an end. While deciding the WritPetition filed by Bal Krishna Mishra and ors(supra) this Court has proceeded to quash theinitial order dated 23.3.2001 and the matterwas remitted back to the State Governmentfor reconsidering the feasibility of protectionof pay and status of the petitioners.

14. At this stage we proceed to make amention that there is Rule known as 'UttarPradesh Absorption of RetrenchedEmployees of Government or PublicCorporations in Government Service Rule,1991' ( hereinafter referred as Rule 1991),which had been framed in exercise of powersvested under the provisions of Article 309 ofConstitution of India. The State Governmentwas empowered to notify order whereby itmay provide for absorption of RetrenchedEmployees in any post or service under theGovernment and also prescribe the procedurefor such absorption including relaxation invarious terms and conditions of recruitmentin respect of such retrenched employees.Such notified order by virtue of sub- rule (1)of Rule 3 of 1991 Rules was to have overriding effect. Said rule nowhere provide forany automatic absorption of any retrenchedemployee covered under the definition of"Retrenched Employee" of 1991 Rules,unless and until a notified order has beenissued by the State Government and thematter of such Retrenched Employee iscovered by such order and the manner andthe procedure for absorption was followed inaccordance with such notified order readwith relevant service rules.

15. It is relevant to refer the judgmentdated 28.4.2006 passed by the Hon'ble ApexCourt in Civil Appeal No. 5203 of 2004


Awas Vikas Sansthan and another. Vs. AwasVikas Sansthan Engineers Association andothers, wherein it has been held that"department which was abolished orabandoned wholly or partially for want offunds, the court cannot, by a writ ofmandamus, direct the employer to continueemploying such employees as have beendislodged".

16. We would like to proceed toexamine the claim of petitioners in the lightof Rules 1991 whereas the State Governmenthas provided for absorption of the retrenchedemployees and the Rule itself had providedexhaustive procedure for deciding the claimof the retrenched employees if they claimedtheir absorption under Rules 1991. UnderRule 3 (1) of this Rules, the retrenchedemployees were given the rights to beabsorbed on any post or service under theGovernment and the procedure prescribedfor such absorption including relaxation invarious terms and conditions of recruitmentin respect of such retrenched employee.

17. It is relevant to indicate that theRules of 1991 had been tested by this Courtin Writ Petition No.17195 of 1998(Bageshwari Prasad Srivastava and othersand State of U.P. and others decided on29.4.1999 in which the Court held asfollows:-

"The purpose of retrenchmentcertificate is to enable the employee who willabsorb him to know the reason forretrenchment. It obviates the necessity to findout whether the employee was terminated forany disciplinary action etc. An employeesatisfying all the requirement ofretrenchment cannot be denied absorptiononly because he was not possessed of thecertificate. In absence of a form or manner inwhich a certificate should be issued, the

provisions should be construed or as toadvance the main objective of the rulenamely Absorption of an Employee whoseservices have come to an end as a result ofwinding up of the Company. The petitionerhad applied for retrenchment certificate tothe Managing Director. He did not refuse toissue it nor did he hold that petitioners werenot retrenched employee. Since there were323 employees of the Managing Directorinstead of issuing of individual certificatewrote a letter to the Government to absorbthem in Government Department. There isno reason as to why this letter of theManaging Director should not be construedas a retrenchment certificate. It is settled lawthat no one should fact that the petitionerapplied for retrenchment certificate.Therefore, they did whatever was possiblefor them to avail the benefit of absorption. Itthe Managing Director instead of issuingcertificate individually issued a lettergenerally for absorption then I am of theopinion that the Rule 1991 were compliedand the employee could not be deniedabsorption as they were not possessed ofretrenchment certificate. Therefore, all theimpugned order could not be upheld.

The respondent while rejecting theclaim of the petitioner held that even if aretrenched employee was found entitled toabsorption he could be given certain marks inaccordance with the order issued by theGovernment under Rule (3) but the orderdoes not refer to any specific order of theGovernment. The petitioners have filed copyof two Government Orders issued on4.5.1994 and 2.6.1994. The first order no.1974 directed that any vacancy arising infuture should be filed by retrenchedemployee and such employee should begiven preferences and priority. The orderfurther made it clear that the ban onappointment did not apply to regularappointment, promotions under Service


Rule. The second order No. 2356 directed togive priority to retrenched employee in allfuture appointment in accordance with theirqualification. These orders were issued underRule 3 of the 1991 Rules, which, providesthat the orders could be issued by theGovernment irrespective of any thingcontained in any other service rule. The subrule 2 of Rule 3 further provides that therelevant service rule shall stand modified tothe extent an order is issued by theGovernment. It is, therefore, clear that aretrenched employee is not only entitled toabsorption in accordance with theGovernment orders but he is entitled topreference and priority in Governmentservice for which he is qualified. The orderof the respondent cannot be maintained evenfor this reason.

In the result this petition succeeds and isallowed and the orders dated 28.4.1998(Annexure-18 to the writ petition) arequashed. The respondents are directed toabsorb the petitioners/employees of theBhadohi Woolens Limited in Governmentservice in accordance with their qualificationin Class 3 and 4 posts forthwith."

18. The aforesaid judgment wasupheld in Special Appeal No. 540 of 1999decided on 19.11.2001 with theobservations that the petitioners will haveno right to claim appointment on Class IIIposts which are required to be filled up onthe basis of recommendation of the U.P.Public Service Commission. The SpecialLeave to Appeal (Civil) No. 5379 of 2002against the order in Bageshwari PrasadSrivastava' case was also dismissed bySupreme Court on 18.3.2002.

19. It is relevant to indicate thatsubsequently the State Government hadpromulgated the Rules known as 'UttarPradesh Absorption of Retrenched

Employees of Government or PublicCorporations in Government Service(Rescission) Rules, 2003', which rescindedthe Rule 1991 with immediate effect i.e.8.4.2003, and clearly held that the right of theretrenched employees to be considered forabsorption accrued under 1991 Rules but theperson, who has not been absorbed till thecommencement of 2003 Rules, shall standterminated from the date of enforcement of2003 Rules. Recession Rules 1, 2 and 3 ofthe Rule of 2003, are as under:-

"1.(i) These rules may be called theUttar Pradesh Absorption of RetrenchedEmployees of Government or PublicCorporations in Government Service(Rescission) Rules, 2003.

(ii) They shall come into force atonce.

2.In these rules, unless there isanything repugnant in the subject orcontext.

(a)" Constitution" means theConstitution of India;

(b)"Governor" means the Governorof Uttar Pradesh.

3 (1) Uttar Pradesh Absorption ofRetrenched Employees of GovernmentRescission and Public Corporation inGovernment Service Rules, 1991 are herebyrescinded and as a consequence of suchrescission.

(i) the right of a retrenched employeeto be considered for absorption accruedunder the Uttar Pradesh Absorption ofRetrenched Employees of Government orPublic Corporation in Government ServiceRules, 1991 but who has not been absorbedtill the date of the commencement of theUttar Pradesh Absorption of RetrenchedEmployees of Government or PublicCorporations in Government Service(Rescission) Rules, 2003 shall standterminated from such date,


(ii) the orders of the Government issuedfrom time to time prescribing the norms ofabsorption for retrenched employees of aparticular Government department or PublicCorporation in Government Service andgranting of consequential benefits includingpay protection, shall stand abrogated fromthe date of the commencement of the UttarPradesh Absorption of RetrenchedEmployees of Government or PublicCorporations in Government Service(Rescission) Rules, 2003,

(2) Notwithstanding such rescission:-(i) the benefit of pay protection

granted to an absorbed retrenchedemployee prior to the date of thecommencement of the Uttar PradeshAbsorption of Retrenched Employees ofGovernment or Public Corporations inGovernment Service (Rescission) Rules,2003 shall not be withdrawn,

(ii) a retrenched employee covered bythe Uttar Pradesh Absorption of RetrenchedEmployees of Government or PublicCorporation in Government Service Rules,1991 prior to the date of the commencementof the Uttar Pradesh Absorption ofRetrenched Employees of Government orPublic Corporations in Government Service(Rescission) Rules, 2003, but who has notbeen absorbed till such date shall be entitledto get relaxation in upper age limit for directrecruitment to such Group "C" and Group 'D'posts which are out aside the purview of theUttar Pradesh Public Service Commission tothe extent he has rendered his continuousservices in substantive capacity in theconcerned Government Department orPublic Corporation in completed years."

20. Perusal of the aforesaid Ruleswould go to show that the Governor inexercise of his legislative power conferred bythe proviso to Article 309 of the Constitution,has been pleased to make the said rules with a

view to rescind the Rules 1991. Sub-rule (1)of Rule 3 of Recession Rules 2003 clearlydeals with consequence of such rescission bymentioning that right of the retrenchedemployee to be considered for absorptionaccrued under the Rules, 1991 but who hasnot been absorbed till the date of thecommencement of the Rules, 2003, shallstand terminated from such date. It furtherprovided that the orders of the Governmentissued from time to time prescribing thenorms of absorption for retrenched employeesof a particular Government department orPublic Corporation in Government Serviceand granting of consequential benefitsincluding pay protection, shall stand abrogatedfrom the date of the commencement of theRules, 2003. Sub-rule (2) of Rule 3 of Rule,2003, notwithstanding such rescission hassaved and extended certain benefit. Benefit ofpay protection already accorded prior tocommencement of Rules 2003 has beensaved, and further who have not beenabsorbed, qua them provision has been madefor age relaxation in upper age limit for directrecruitment to such Group 'C' and 'D' postwhich are outside the purview of U.P. PublicService Commission to the extent he hasrendered his continuous service in substantivecapacity in the concerned GovernmentDepartment or Public Corporation incompleted years Except for these protection,no other benefit has been saved or extended.

21. It is reflected from the record thatinitially the petitioners approached to thisCourt by means of Writ Petition No.42806 of2000. The said writ petition was disposed ofon 9.10.2000 with a direction to the StateGovernment to consider the representationsof the petitioners. The State Governmentvide an order dated 23.3.2001 had proceededto reject their claim but taken a very lenientview by which the petitioners i.e. ProjectOfficers, who were not having any lien


anywhere, their services were decided to beabsorbed as Assistant Teachers in L.T.Grade. Instead of terminating their servicesand in pursuance of the said decision, mostof the petitioners were adjusted against thesaid post in Government Inter Colleges in thepay scale of Rs.4500-7000 but the petitionersin their own wisdom have chosen tochallenge the orders dated 23.3.2001 and24.3.2001 and approached to this Court byfiling various writ petitions, which wereclubbed together and decided by this Courton 5.4.2002 and the order dated 23.3.2001was quashed. The main grievance of thepetitioners at that point of time was to theeffect that the State Government had notaddressed itself to factors relevant to thequestion as to protection of pay and statusand as such the Court remitted the matter tothe State Government for re-consideration.The Court had taken a prima facie view thatwhile absorbing the petitioners as AssistantTeachers in L.T. Grade, the StateGovernment had not considered the pay andstatus commensurate with the post of ProjectOfficer, which was being held by themearlier and accordingly the said direction wasissued. It is relevant to indicate that the saidorder passed by this Court was stayed byHon'ble Supreme Court in Civil AppealNo.8658 of 2002 but eventually the saidCivil Appeal filed by the State was dismissedvide an order dated 1.12.2011.

22. Now at this stage we proceed tomake a mention that the StateGovernment had taken a most lenientview while passing the order dated23.3.2001 by which the services of thepetitioners i.e. Project Officers, who werenot having any lien anywhere, weredecided to be absorbed as AssistantTeachers in L.T. Grade, instead ofterminating their services and pursuanceof the said order most of the Project

Officers have proceeded to join but thepetitioners, who are six in numbers beforethis Court, at no point of time had proceeded tojoin in pursuance of the order of the StateGovernment dated 23.3.2001 and admittedlythey have not rendered any work since then andnow at this stage they claimed that they haveevery right to get the pay and statuscommensurate with the post of Project Officer.

23. We are constrained to make amention that inspite of categoricalprovision of Rule 1991 no otherprovisions were available to the StateGovernment for any absorption ofincumbent, once the project wasabrogated but at no point of time neitherRule, 1991 nor Rule, 2003 has beenlooked into. As indicated above, detailprocedure was prescribed for absorptionof retrenched employee, but no suchprocedure had ever been adopted in thematter. This is undisputed factual positionthat in the State of U.P for retrenchedemployees the State Government hasframed the Rules of 1991 and thereafterthe State Government had proceeded topromulgate Recession Rules of 2003.Once the Rules of 1991 was rescinded bymeans of Rules of 2003 and as suchthereafter there is no provision ofabsorption of the retrenched employees.Whereas in the present case undisputedfactual position, which is emerging is thatpetitioners' claims are not better than theretrenched employees. They wereengaged purely under the project knownas 'Non-Formal Education Project' and thesaid project had come to an end itself inthe year 2001. Thereafter the StateGovernment under its wisdom hasproceeded to absorb the Project Officersagainst L.G. Grade teachers and once thepetitioners have not chosen to be absorbedunder the L.T. Grade Teachers, even

1 All. Maharashtra Shikshan Mandal Jhansi & Anr. Vs. State of U.P. & Ors. 99

though they were not the retrenchedemployees.

24. The petitioners have contendedthat their right had accrued in the past intheir favour and as such, they wereentitled for absorption according to theirstatus but as indicated above at no pointof time the petitioners were given anycertificate to indicate that they were theretrenched employees contrary theirengagement was purely temporary innature and was liable to be terminated atany time without any prior information.The petitioners are claiming that they maybe absorbed according to their statuswhereas the writ jurisdiction is meant toenforce the rule of law and not to violatethe law. Once the State Government hadframed the Rules of 1991, which waseventually rescinded by means of Rules of2003 and admittedly the case ofpetitioners did not fall under the categoryof retrenched employees, no directive canbe issued in violation to the Rules merelybecause some incumbents have beenoffered appointment, under the cover ofthe orders passed by this Court will notimprove the case of the petitioners as twowrongs will not make a thing right, andequality in illegality, is totally against therule of fair play and demand ofpetitioners, if accepted would be clearlyviolative of Articles 14 and 21 ofConstitution of India.

25. Consequently we cannot grantany relief and reprieve to the petitioners.

26. For the aforesaid reasons, thewrit petition is dismissed.



BEFORETHE HON'BLE PANKAJ MITHAL, J.

Writ-C No. 46652 of 2012

Maharashtra Shikshan Mandal Jhansi &Anr. ...Petitioners


Counsel for the Petitioners:G.K. Singh, G.K. Malviya

Counsel for the Respondents:C.S.C., Aklank Jain

Constitution of India, Art.-19(i)(c)-Inclusion of 7 persons-as member ofsociety-by Assistant Registrar-illegibilityto become member-immaterial-unlessvoluntarily accepted as member-bymanaging committee-otherwise wouldbe thrust upon society-however theelectoral roll/membership controversycan not be challenged prior election -only course upon to file civil suit whenelection over.

Held: Para-28In view of the aforesaid facts andcircumstances, the impugned order ofthe Assistant Registrar is patentlywithout jurisdiction and amounts tocompelling the Society to makemembers against its wishes or thewishes of those members who haveformed the Society or are running itwhich is not legally permissible.

Case Law discussed:(1997) 3 SCC 681; 1971 (1) SCC 678; 2010(10) ADJ 84 (DB); (1995) 2 UPLBEC 1242;2013 (10) ADJ 446; 2013 (10) ADJ 532.

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

1. The dispute in this writ petition iswith regard to membership of the SocietyMaharashtra Shikshan Mandal Jhansiwhich is registered under the Societies


Registration Act, 1860 (hereinafterreferred to as the 'Act').

2. The petitioner society through itsSecretary and its Secretary have jointlypreferred this writ petition challenging theorder dated 30.6.2012 (anneuxre 12 to thewrit petition) passed by the AssistantRegistrar, Firms Societies and Chits andthe consequential order dated 29.8.2012passed by the District Inspector ofSchools (in short DIOS) annexure 13 tothe writ petition.

3. In short, the dispute is about the 7persons (Respondents no. 4 to 10) whohave been directed to be included in thelist of members of the Society by theAssistant Registrar even though themembership of these 7 members and 8others was never accepted by the Society.

4. The society is registered and ishaving its own bye-laws. The bye-lawsprovide for ordinary membership toMarathi knowing persons aged above 18years, if they pay Rs. 2/- only annually.Any such person who pays Rs. 101/-ormore would be the life member of thesociety. In other words, a Marathiknowing person of 18 years and payingRs. 101/- and more would be the lifemember of the Society.

5. Some of the life members of thesociety died and there were large vacancies.Therefore, the society decided to enrol newmembers. The applications were invitedbetween 8.3.2010 to 18.3.2001. About 37applications were received. The saidapplications were placed before theManaging Committee of the Society in itsmeeting held on 22.3.2011. The ManagingCommittee resolved that the ordinarymembership should not be allowed to

unmarried boys and girls who are not earningand that it should be open to persons who aregraduates but no final decision on theapplications so received was taken and thematter was referred to the general body of theSociety. The Society in its meeting held on22.4.23011 considered all the 37 applicationsreceived for the membership and decided toaccept the membership of only 22 personsand no resolution was passed in respect ofthe remaining 15 applicants. These 15applicants made a complaint before theAssistant Registrar who without interferingwith the decision of the Society passed anorder on 18.2.2012 that as the term of theManaging Committee of the society is overfresh elections of its office bearers be heldunder Section 25 (2) of the Act andappointed DIOS, Jhansi for the purpose.

6. The Assistant Registrar vide letterdated 27.3.2012 addressed to the DIOSsent a list of 89 members of the Society.The said list included 7 persons whoseapplications for membership were notaccepted by the Society along with 8other applicants.

7. The DIOS in response to it sent aletter dated 11.5.2012 to the AssistantRegistrar informing him that the names ofthe above 7 persons have not beenaccepted by the Society, they are not inthe list and their drafts of membership feehave already been returned by theSociety. The Assistant Registrar onreceiving the above letter of the DIOSpassed an order dated 21.5.2012 directinghim to hold the elections of the society onthe basis of the list of 89persons/members as submitted by him.

8. The above order of the AssistantRegistrar dated 21.5.2012 and the letterdated 27.3.2012 were challenged by the


petitioners by filing writ petition no.28022 of 2012. The writ petition wasallowed by the High Court vide judgmentand order dated 30.5.2012 and the orderof the Assistant Registrar dated 21st May2012 was quashed. He was directed todecide about the legality of the enrolmentof the disputed 7 persons as members ofthe Society in the light of the objectionsof the DIOS contained in his letter dated11.5.2012.

9. It is in pursuance of the aboveorder of the High Court that the AssistantRegistrar has passed the impugned orderdated 30.6.2012. He has held that as allthe 37 applicants were eligible for themembership of the Society, they all areentitle to be enrolled as members andtheir applications were not liable to berejected and thus issued directions to givemembership to all of them.

10. I have heard Sri G.K. Singh, Seniorcounsel assisted by Sri G.K. Malaviya,learned counsel for the petitioners, learnedStanding counsel for respondents no. 1 to 3and Sri H.N. Singh, Senior counsel assistedby Sri Aklank Jain, learned counsel forrespondents no. 4 to 10.

11. The main plank of the argument oflearned counsel for the petitioners is that themembership can not be thrust upon theSociety. The Society can not be compelled tomake all persons who are eligible and haveapplied for membership, the members of theSociety. The Assistant Registrar has noauthority of law under the Act to pass anorder directing the Society to givemembership to those who have not beenaccepted as members by the Society.

12. Sri H.N.Singh on the other handcontends that the order impugned has

been passed pursuant to the directions ofthe Court. The aforesaid 7 persons fulfilsall the requisite qualifications for themembership of the Society as laid downunder the bye-laws. Any resolution of theManaging Committee laying down anyfurther condition restricting membershipis not valid. The Society has acted in anarbitrary and discriminatory manner inaccepting the membership of few personsand rejecting that of others including theaforesaid 7 persons. The AssistantRegistrar is competent to decide about thedispute of membership of the Society.

13. The bye-laws of the Society areannexure 1 to the petition. They provide thatany Marathi knowing person aged 18 yearsand above and paying Rs. 2 annually can beenrolled as ordinary member of the Societyand that any such person who pays Rs. 101/-and more would be enrolled as a lifemember. The aforesaid bye-laws have notbeen amended. It is not in dispute that inpursuance of resolution of the Societyinviting applications for enrolment of newmembers, only 37 applications were receivedin time and out of the said 37 applications,only 22 were accepted in the meeting dated22.4.2011. There was no resolution or anydecision to accept the other 15 applicationsincluding 7 in dispute as members of theSociety. No other resolution of the Society ison record which may establish that theapplications of the said 7 persons wereaccepted to enrol them as members of theSociety.

14. The right to form Associationsguaranteed under Article 19 (1) (c) of theConstitution of India though fundamentalbut does not inheres in a person a right tobecome a member of any Association inexistence by force or against the wishes ofits existing members. Thus, no person has


any vested or a fundamental right tobecome a member of a Society merely forthe reason that he fulfils the eligibilityconditions unless he is accepted to be amember by the Society itself.

15. In State of U.P. And another Vs.C.O.D. Chheoki Employees CooperativeSociety Limited and others (1997) 3 SCC681 it has been held that no citizen has afundamental right under Article 19 (1) (c)of the Constitution to become a memberof a co-operative Society even onfulfilment of the qualifications prescribedto become a member unless he is admittedto the membership.

16. The ratio of the above decisionis that mere eligibility is not sufficient tobecome a member of a Society orAssociation unless a person is admitted tothe membership by theAssociation/Society in a voluntarymanner.

17. In Smt. Damyanti Naranga Vs.Union of India and others 1971 (1) SCC 678the Constitution Bench of 5 Judges whileconsidering the right of the citizens to formassociation or Union under Article 19 (1) (c)of the Constitution held that freedom ofassociation includes right to associate withpersons of one's choice. It was held that rightto form an association, in the opinion of theCourt necessarily implies that the personswho form the association have also the rightto continue to be associated with only those,whom they voluntarily admit in theassociation.

18. In view of the above legalposition no person even if he is eligibleand qualified to be member of a Societyhas any right to be admitted as memberuntil and unless the persons forming the

association or running the samevoluntarily accepts him to be a member.The aforesaid 7 persons have not beenaccepted to be members of the Society byits Managing Committee or the generalbody. Thus, they can not be thrust uponthe Society as members.

19. The second aspect whichrequires consideration is if the AssistantRegistrar is competent to direct theSociety to give membership to the above7 persons or not.

20. Sri H.N. Singh in this connectionhas placed reliance upon the Division Benchdecision of this Court in case of JamiaRazjviya Merajul Uloom, Chilmapur,Gorakhpur and another Vs. State of U.P. andothers 2010 (10) ADJ 84 (DB). It is a caserelating to the powers of theRegistrar/Assistant Registrar in relation tothe elections of the Managing committee ofthe Society. The Court held that as the matterbefore the Registrar/Assistant Registrar isonly in connection with membership, thedispute in that regard is not referable underSection 25 of the Act to the prescribedauthority rather could be decided by theRegistrar/Assistant Registrar himself inexercise of powers vested under Section 4 ofthe Act. The Court relying upon a previousdecision of the Committee of Management,Kisan Shiksha Sadan, Banksahi, DistrictBasti and another Vs. Assistant Registrar,Firms Societies and chits, GorakhpurRegion, Gorakhpur and another (1995) 2UPLBEC 1242 held that the ratio of theaforesaid judgment is that where there is adispute of membership of person to aSociety, even the Registrar/AssistantRegistrar who maintains the list of membersunder Section 4 of the Act can apply hismind to the facts of the case and declare ifthe person is a valid member or not.


21. The aforesaid decision laysdown that under Section 4 of the Act asthe Registrar/Assistant Registrar is vestedwith the power to maintain the list ofmembers of the Society, in case anydispute of membership is raised beforehim, he can rule if a person is a validmember of the Society or not.

22. The aforesaid decision is not adecision on the point that theRegistrar/Assistant Registrar is competentand have any authority in law to issuedirections to the Society to give membershipto any person. His powers are confined onlywith regard to adjudication of the validity ofthe membership.

23. In the instant case, the validity ofthe members of the Society was not indispute rather the complaint was that the 7persons were arbitrarily left out frombeing enrolled as members of the Society.

24. The order of the High Court dated30.5.2012 passed in Writ Petition No.28022 of 2012 also does not confer anypower upon the Registrar/AssistantRegistrar to decide if the said 7 persons areentitled to be enrolled as members. It onlydirects to adjudicate about the validity of themembers of the Society. In deciding thevalidity of the membership, the AssistantRegistrar was not possessed of any power torule about the persons who were neveraccepted as members. He could have onlydecided if the existing members have beenlegally enrolled or if any of the them hasbeen illegally thrown out.

25. In Tej Pal Singh and others Vs.State of U.P. And others 2013 (10) ADJ446 his Lordship of this Court seized of asimilar controversy observed that theauthorities can not thrust upon the Society

new members against their wishes as itwould clearly be an infringement of theright possessed by the existing membersto enrol new members.

26. The Registrar/AssistantRegistrar has no jurisdiction under law oreven under Section 4 of the Act to directfor inducting any person as a memberwho has not been accepted by the Societyfor any reason even though may bequalified.

27. It was not the grievance of therespondents that membership was grantedto them but they were ousted in an illegalmanner. The membership of other personswho were enrolled was not in question.

28. In view of the aforesaid facts andcircumstances, the impugned order of theAssistant Registrar is patently withoutjurisdiction and amounts to compelling theSociety to make members against its wishesor the wishes of those members who haveformed the Society or are running it which isnot legally permissible.

29. In Committee of ManagementMaharanapratap Vidyalaya PrabandhSamiti Bhadwara, Kanpur and another Vs.State of U.P. And others 2013 (10) ADJ532 a division Bench of this courtconsidering the general propositionsrelating to the elections, in context withthe elections of the Committee ofManagement of educational institutionsheld that any grievance with regard toelectoral roll could be considered after theelections are held in accordance with lawor by filing civil suit.

30. The ratio of the above decisionis that a dispute of membership/electoralroll of any organization is not open to


challenge before the elections and ifnecessary, could be challenged after theelections are over or by filing a civil suit.The 7 persons who have been deniedmembership of the Society could havetaken recourse to the civil suit but theAssistant Registrar could not haveusurped the jurisdiction to direct theSociety for giving membership to them.Such a direction is even contrary to thebye laws of the Society.

31. In view of the above facts andcircumstances, the impugned order dated30.6.2012 passed by the Assistantregistrar is held to be without jurisdictionand is quashed. The consequential orderof the DIOS dated 29.8.2012 also falls tothe ground.

32. The writ petition stands allowedwith no orders as to costs.



BEFORETHE HON'BLE SURYA PRAKASH

KESARWANI, J.

Writ-A No. 53525 of 2011

Gram Shiksha Samiti Primary SchoolSant Kabir Nagar& Anr. ...Petitioners


Counsel for the Petitioner:Anuj Kumar, Tripathi B.G. Bhai

Counsel for the Respondents:C.S.C., Anand P. Pandey, K.S. Shukla,M.D. Mishra, Rajendra Kumar Pandey

Constitution of India, Art.-226-paymentof salary-engagement of Shiksha Mitra-

discontinued by resolution of GramShiksha Samit-after appraisal of hisperformance-direction of DistrictMagistrate contrary to that-held-notsustainable-unless-resolution of Samitchallenge-order impugned by D.M. Held-without jurisdiction.

Held: Para-10Unless the aforesaid resolution dated19.5.2007 is set aside by a competentcourt, it was not open for the DistrictMagistrate to pass the impugned orderdirecting for payment of honorarium tothe respondent no.5 and renewal of hercontract of Shiksha Mitra. Thus theimpugned order dated 24.6.2011 passedby District Magistrate, Sant Kabir Nagaris arbitrary, illegal and withoutjurisdiction and, therefore, deserves tobe set aside.

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

1. Heard Smt. Anita Tripathi, learnedcounsel for the petitioners, Sri H.C. Pathak,learned standing counsel for respondentno.1 and 3 and Sri M.D. Misra, learnedcounsel for respondent no.5.

2. No one appears for respondentnos.2 and 4.

3. This writ petition has been filedby the Gram Shiksha Samiti praying toquash the order dated 24.6.2011 passed byDistrict Magistrate, Sant Kabir Nagardirecting for payment of honorarium tothe respondent no.5.

4. Submission of learned counsel forthe petitioner is that by unanimousresolution dated 19.5.2007 theengagement of respondent no.5 (ShikshaMitra) was cancelled after following dueprocedure as provided in clause 9 of theGovernment Order No. 2604/15-5-99-

1 All. Gram Shiksha Samiti Primary School Sant Kabir Nagar & Anr. Vs. State of U.P. & Ors. 105

282-98. The said resolution has not beenset aside by any authority of Court. Underthe circumstances it was not open for theDistrict Magistrate to issue direction bythe impugned order to pay honorarium tothe respondent no.5. It is furthersubmitted that the resolution dated19.5.2007 was not challenged by thepetitioner before any court.

5. Sri M.D. Mishra, learned counsel forrespondent no.5 submits that the petitionershave illegally passed the resolution andconsequently, the respondent no.5approached the District Magistrate wholawfully several times passed the impugnedorder directing for payment of honorarium tothe respondent no.5. He submits that the writpetition is wholly misconceived and,therefore, deserves to be dismissed.

6. Learned standing counselsupports the impugned order.

7. I have carefully considered thesubmissions of the learned counsel for theparties and perused the record.

8. Clause Nos. 6,7,8 and 9 of theGovernment Order No. 2604/15-5-99-282-98 provides as follows:

6- f'k{kk feJ dk p;u& ¼d½ xzke f'k{kklfefr f'k{kk fe=@fe=ksa ds p;u gsrq cSBd vkgwrdjsxh] ftlesa lfefr ds lnL;ksa dh dqy la[;k dsnks frgkbZ lnL;ksa dh mifLFkfr vfuok;Z gksxhA

¼[k½ lfefr ds }kjk lnL;ksa ds lEeq[k miyC/kvgZ O;fDr;ksa dh lwph IkzLrqr dh tk;sxh] ;g lwphmuds }kjk gkbZLdwy rFkk b.VjehfM,V ijh{kk dsizkIr dqy vadks ds izfr'kr ds vkSlr vadksa ds vk/kkjij fufeZr dh tk;sxh rFkk lwph es vf/kd vad izkIrdjus dk uke igys j[kk tk;sxkA

¼x½ lfefr vko';drkuqlkj f'k{kk fe=kas dhla[;k dk vkadyu djsaxsA ;g la[;k 1% 40 dsvk/kkj ij f'k{kdksa dh dqy la[;k esa ls dk;Zjrf'k{kdksa dh la[;k dks ?kVkdj fudkyh tk;sxhA

rn~uqlkj 101 Nk= la[;k ij 3 rFkk blds mijkur40 Nk=ksa dh iw.kZ la[;k ij ,d vfrfjDr f'k{kd dhvko';drk dk vkdyu fd;k tk;sxkA

¼?k½ fo|ky; esa dqy j[ks tkus okys f'k{kk fe=ksaesa ls 50 izfr'kr efgyk;sa gksaxhA budk Hkh p;ufcUnq ¼[k½ esa bafxr vk/kkj ij fd;k tk;sxkA

¼³½ vuqlwfpr tkfr;ksa@vuqlwfpr tu tkfr;ksavU; fiNM+s oxksZ ,oa vU; Jsf.k;ksa es vkj{k.k gsrqizpfyr fu;eksa@funsZ'kksa dk ikyu ;Fkkor lqfuf'prfd;k tk;sxkA

¼p½ xzke f'k{kk lfefr ds lHkkifr o lfefr dsfudV laca/kh dk p;u f'k{kk fe+= ds :i esa ughafd;k tk;sxkA

7- lafonk dh vof/k& f'k{kk fe= xzke f'k{kklfefr }kjk izLrko ikfjr dj pkyw 'kSf{kd l= dsfy;s lafonk ij j[kk tk;sxkA tks ebZ ekg ds vfUrefnol dks Lor% lekIr gks tk;sxhA

8- lafonk vof/k dk ekuns;& f'k{kk fe= dkslafonk ij :0 1450@&izfrekg fu;r ekuns; ijj[kk tk;sxkA

9- lafonk lekIr djus dh izfdz;k& ¼v½ fdlhHkh f'k{kk fe= dk dk;Z larks"ktud u gksus dh n'kkesa xzke f'k{kk lfefr] ds nks frgkbZ cgqer ls fyf[krizLrko ikfjr dj lafonk lekIr dj ldrh gSA xzkef'k{kk lfefr }kjk bl laca/k esa fd;k x;k fu.kZ;vfUre gksxkA

¼c½ lEcfU/kr f'k{kk fe= dks ml ekg dkekunsg gksxk ftl ekg esa mlds fo:) xzke f'k{kklfefr }kjk lafonk lekIr djus ds vk'k; dkizLrko ikfjr dj fu.kZ; fy;k tk;sxk rFkk blizdkj gVk;s x;s f'k{kk fe= dks iqu% lsok dk voljiznku ugha fd;k tk;sxkA

9. Undisputedly, the resolution dated19.5.2007 was unanimously passed by thepetitioner, Shiksha Samiti, in which it isrecorded that directions were issued to therespondent no.5 on 1.4.2007, 16.4.2007 and27.4.2007 to make improvement in dischargeof her duties and behaviour but she did notadhere to it. She seldom used to come to theschool and whenever she came she engagedherself only in talking and did not teach thestudents. She beats the students.Consequently, there was annoyance amongstthe guardians of the students. These facts, bythe aforesaid unanimous resolution dated19.5.2007 the contract of the respondent no.5


for engagement as Shiksha Mitra wasterminated in terms of clause 9 of theaforesaid Government Order dated26.5.1999. The said resolution was notchallenged by the respondent no.5 before anyCourt. Consequently, it attained finality.

10. Unless the aforesaid resolutiondated 19.5.2007 is set aside by a competentcourt, it was not open for the DistrictMagistrate to pass the impugned orderdirecting for payment of honorarium to therespondent no.5 and renewal of her contractof Shiksha Mitra. Thus the impugned orderdated 24.6.2011 passed by DistrictMagistrate, Sant Kabir Nagar is arbitrary,illegal and without jurisdiction and,therefore, deserves to be set aside.

11. In result, the writ petitionsucceeds and is hereby allowed. Theimpugned order dated 24.6.2011 passedby District Magistrate, Sant Kabir Nagar,is set aside.



BEFORETHE HON'BLE PRADEEP KUMAR SINGH

BAGHEL, J.

Writ-A No. 58456 of 2015

Smt. Savita Gupta ...PetitionerVersus


Counsel for the Petitioner:Pankaj Kr. Srivastava, Sasmita Srivastava


Constitution of India, Art.-226-paymentof salary-officiating Principal entitled for

salary of principal-in view of full Benchdecision-order impugned contrary to that-not sustainable-quashed-consequentialdirection issued.

Held: Para-21In addition to above, the law in respectof payment of salary to officiatingprincipal is no more res integra. ThisCourt in a long line of decisions has heldthat the officiating/ad hoc principal isentitled to salary of principal's gradewhile officiating on the post of theprincipal.

Case Law discussed:1980 UPLBEC 286; 2014 (8) ADJ 617(FB);1982 UPLBEC 171; 1985 UPLBEC 113; (2014)14 SCC 388; (1996) 4 Supreme Court Cases622

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

1. The petitioner is an officiatingPrincipal of an institution, namely, AryaShyama Balika Inter College, Bharthana,District Etawah. The said institution is arecognized and is under the grant-in-aid list ofthe State Government. It is governed under theprovisions of the U.P. Intermediate EducationAct, 1921 and the U.P. High Schools andIntermediate Colleges (Payment of Salaries toTeachers and other Employees) Act, 1971.

2. In the institution a vacancy occurredin the office of the Principal. The petitioner,who was senior-most Lecturer in theinstitution was appointed as officiatingPrincipal. The appointment of the petitionerwas approved by the District Inspector ofSchools vide order dated 30.11.2007. TheDistrict Inspector of Schools approved thesaid appointment till the regular selection ofthe Principal is made by the U.P. SecondaryService Selection Board. A copy of the orderdated 30.11.2007 is on the record asAnnexure-2 to the writ petition.

1 All. Smt. Savita Gupta Vs. State of U.P. & Ors. 107

3. It is recorded in the order of theDistrict Inspector of Schools that thesignature of the petitioner has alreadybeen attested on 06.07.2007. Since thenthe petitioner is working as officiatingPrincipal in the institution. .

4. The Director of Education on02.04.2014 issued an order for recovery ofthe salary of the petitioner on the groundthat she is not entitled for salary of thePrincipal as the grade granted to her is notapplicable to ad hoc/officiating Principal.

5. The said order was challenged bythe petitioner by means of Writ PetitionNo.43095 of 2014 (Smt. Savita Gupta v.State of U.P. & others). This Court videorder dated 20.08.2014 has passed thefollowing order:

"It is contended that the petitioner whois working as officiating Principal is entitledfor the salary in view of the variousjudgements of this Court, however theDirector of Secondary Education i.e.respondent no. 2 by impugned order dated 02April 2014 has issued direction to the DistrictInspector of Schools, Etawah i.e. respondentno. 4 to recover the difference of salary andfor the fresh pay fixation in the light of hisdirections.

The respondent no. 4 has passed theconsequential order on 26 April 2014 forthe recovery of the excess amount.

Matter needs consideration.

Learned Standing Counsel is grantedsix weeks' time to file counter affidavit.Rejoinder affidavit, if any, may be filedwithin a week thereafter.

List this case in the weekcommending 27 October 2014. Till the

next date of listing no recovery for theexcess amount shall be made in pursuanceof the impugned order."

6. In spite of the said order, theDistrict Inspector of Schools in his orderdated 03.08.2015 after extracting theorder of this Court dated 20.08.2014 hasissued a direction to the Principal of theinstitution that her salary as Principalshould not be paid and the salary bill hasbeen returned to correct it. A copy of theorder dated 03.08.2015 is on the record.

7. It appears that in response to thesaid communication of the DistrictInspector of Schools the Committee ofManagement on 26.09.2015 again sent thesalary bill of the petitioner on the groundthat this Court has already granted theinterim order on 23.02.2012 in WritPetition No.9708 of 2012 (Dr. ManjuVerma v. State of U.P. & others) which isalso pending in this Court.

8. The grievance of the petitioner isthat the District Inspector of Schools inspite of the interim order passed by thisCourt is not paying the salary of thepetitioner although the interim order isstill continuing.

9. While entertaining this writpetition this Court on 13.10.2015 hasrecorded the following observation:

"I am prima facie satisfied that theDistrict Inspector of Schools has tried tooverreach the order of this Court dated20.08.2014. The said order is in his fullknowledge. He has extracted the orderhimself. The order does not assign anyreason for not paying the salary to thepetitioner as officiating Principal.Accordingly, the District Inspector of


Schools is directed to file his personalaffidavit on or before 28th October, 2015."

10. In compliance of said order theDistrict Inspector of Schools has filed hispersonal affidavit.

11. Learned Standing Counsel hasplaced the various paragraphs of thecounter affidavit filed by the DistrictInspector of Schools.

12. The District Inspector of Schoolsin his counter affidavit has reiterated thesame stand which he has taken in hisorder dated 03.08.2015. The DistrictInspector of Schools has also taken thestand that in the previous Writ PetitionNo.43095 of 2014 (Smt. Savita Gupta v.State of U.P. & others) a counter affidavithas been filed, therefore, granting thesalary of the Principal to an ad hocPrincipal would not be legal. The relevantpart of the affidavit filed by the DistrictInspector of Schools is extractedhereunder below:

"6& ;g fd izfr'kiFki= nkf[ky djus dsmijkUr izca/kd] vk;Z ';kek ckfydk b.Vj dkyst]HkjFkuk] bVkok ds }kjk ,d i= fnukad 30-12-2014 bldk;kZy; dks izsf"kr djrs gq, rnFkZ iz/kkukpk;Z dk osruiwoZ dh Hkkafr la'kksf/kr fd;s fcuk ikfjr djus dk vuqjks/kfd;k x;k FkkA ftlds mRrj esa bl dk;kZy; ds i=fnukad 19-01-2015 ds }kjk izca/kd dks ;g fy[krs gq,voxr djk;k x;k fd mDr izdj.k esa ekuuh; mPpU;k;ky; esa ;ksftr ;kfpdk la0 43095@2014 ds vkns'kfnukad 20-08-2014 ds vuqikyu esa izfr'kiFki= nkf[kyfd;k tk pqdk gSA vr% rnFkZ iz/kkukpk;kZ dks iwoZ dhHkkafr la'kks/ku fd;s fcuk osru Hkqxrku fd;k tkuk fof/klaxr ugha gSA blds mijkUr ;kph us ,d vkosnu i=fnukad 17-07-2015 dk;kZy; dks vius osru Hkqxrku dslaca/k esa izsf"kr fd;kA ftlds mRrj esa bl dk;kZy; dsi= fnukad 03-08-2015 ds }kjk ;kph dks iqu% fu;eksa dsvkyksd esa voxr djk;k x;k fd mudh ekax dksLohdk;Z djrs gq, iwoZ dh Hkkafr osru fn;k tkuk fof/klaxr ugha gSA vr% vki viuk osru la'kksf/kr djkrs gq,

osru fcy bl dk;kZy; dks 'kh?kz miyC/k djkdj ikfjrdjokuk lqfuf'pr djsa ekuuh; U;k;ky; ds voyksdukFkZvkosnu i= fnukad 17-07-2015 ,oa dk;kZy; ds i=fnukad 03-08-2015 dh Nk;kizfr dze'k% layXud lh0,004 o 05 ds :i esa layXu dh tk jgh gSA bldsmijkUr dk;kZy; Lrj ij i= fnukad 21-09-2015 o 19-10-2015 esa ;kph dks osru la'kksf/kr djkrs gq, osruns;d izLrqr djus ds funsZ'k iznku fd;s x;sA ekuuh;U;k;ky; ds voyksdukFkZ dk;kZy; ds i= fnukad 21-09-2015 o 19-10-2015 dh Nk;kizfr dze'k% layXudlh0,0&06 o 07 ds :i esa layXu dh tk jgh gSA fdUrq;kph }kjk mDr vkns'k fnukad 03-08-2015 ds fo:) iqu%,d ;kfpdk la0 58456@2015 ekuuh; mPp U;k;ky;esa ;ksftr djrs gq, vkns'k fnukad 13-10-2015 izkIr fd;kx;kA ;kph }kjk vius v/khu f'k{kdksa@ deZpkfj;ksa dkfu;fer :i ls vius fo+|ky; dk osru fcy gLrk{kjdj Lo;a izsf"kr fd;k tkrk jgk gS foHkkxh; vkns'kksa dsmijkUr Hkh ;kph osru la'kksf/kr u djkus ds dkj.k Lo;aviuh bPNk ls viuk osru la'kksf/kr djkdj izkIr ughadj jgh gSA"

13. As can be seen the DistrictInspector of Schools has tried to justifyhis order ignoring earlier interim orderpassed by this Court.

14. The learned counsel for thepetitioner contended that this Court in along line of decisions has held that adhoc/officiating principal is entitled theprincipal's grade.

15. Learned counsel for the petitionerhas also placed reliance on the judgment ofthis Court in the case of Dhaneshwar SinghChauhan v. The District Inspector ofSchools, Budaun and others, 1980 UPLBEC286, wherein the Court has taken a view thatthe teacher officiating on the post ofPrincipal shall be entitled to receive salary inPrincipal's grade. The said view has beenreiterated by a recent Full Bench of thisCourt in Dr. Jai Prakash Narayan Singh v.State of U.P. and others, 2014 (8) ADJ 617(FB), and the Division Benches of this Courtin Narbdeshwar Misra v. District Inspector of


Schools, Deoria, 1982 UPLBEC 171, andSoloman Morar Jha v. District Inspector ofSchools, Deoria, 1985 UPLBEC 113.

16. I have heard learned counsel forthe petitioner and the learned StandingCounsel.

17. A perusal of the order of theDistrict Inspector of Schools dated03.08.2015 indicate that despite the fact thathe has extracted the order of this Court, eventhen has taken the stand that granting thesalary of the officiating Principal would notbe legal, clearly indicates the adamantattitude of the District Inspector of Schools,coupled with the fact that a stand has beentaken by him in paragraph-6 of the counteraffidavit that since a counter affidavit inanother writ petition has been filed, it wouldnot be proper to pay the salary to thepetitioner.

18. From the tenor of the counteraffidavit of the District Inspector ofSchools it is evident that he is bound bythe Government Orders and not by thejudgments of this Court. In the counteraffidavit he has not expressed any regretfor taking the stand mentioned in theimpugned order dated 03.08.2015.

19. The Supreme Court in the case ofState of Uttarakhand and others v. KanhayaLal, (2014) 14 SCC 388, has considered thesomewhat similar facts where in spite of thedirection of the learned Single Judge theAdditional Director of Education, withoutinvestigating the aspect properly, hasrevisited the entire case and has virtuallyoverruled the order passed by the learnedSingle Judge. The Supreme Court, in such asituation, found that the action of theAdditional Director of Education iscontemptuous of the order of the High Court.

Paragraph-3 of the judgment, as is materialfor the present case, is quoted below:

"3. On a perusal of the SLP paper book,we are disturbed to note that pursuant to theorders of the learned Single Judge, theAdditional Director of Education, GarhwalDivision, Pohri, instead of investigating theaspect whether or not any other obstaclesexisted, has revisited the entire case and hasvirtually overruled the order passed by thelearned Single Judge. Having perused thereport/order of the Additional Director ofEducation, Pohri dated 23-5-2008, it wouldbe possible to view his action ascontemptuous of the orders of the HighCourt. The learned Single Judge had directedfor appointment to the post of AssistantTeacher (Language) LT Grade "unless therewas some other impediment in selection". Aswe have already opined, the AdditionalDirector of Education has not disclosed "anyother impediment" and instead has merelyreiterated the already articulated case of theState, which had not found favour with theHigh Court. It is palpably clear that theAdditional Director of Education, GarhwalDivision, Pauri, has contumaciously adorneditself with appellate powers over the decisionof the learned Single Judge of the HighCourt. We shall desist from making anyfurther directions, however, leaving it opento the respondent to initiate proceedings, if soadvised."

20. In the same judgment, theSupreme Court has also deprecated thepractice of the State to engage a teacher infighting futile litigation. The relevant part ofthe judgment being paragraph-5 reads asunder:

"5. ...In this case, the writ petitioneris a Teacher and it is unfair to him to berepeatedly drawn into fighting futile, if


not frivolous litigation by the State. It hasbecome the practice of the State to carryon filing appeals even where the casedoes not deserve it, knowing fully wellthat private respondents will be physicallyfatigued and economically emasculated inpursuing protracted litigation."

21. In addition to above, the law inrespect of payment of salary to officiatingprincipal is no more res integra. This Courtin a long line of decisions has held that theofficiating/ad hoc principal is entitled tosalary of principal's grade while officiatingon the post of the principal. The DivisionBench of this Court in the case ofDhaneshwar Singh Chauhan v. The DistrictInspector of Schools, Budaun and others,1980 UPLBEC 286 held as under:

"2. The petitioner is a teacher inaided and recognised institution and theliability for the prejoint his salary is onthe State Government under the U.P. HighSchool and Intermediate College(Payment of Salary of Teacher and otherEmployees) Act, 1971. The salary of ateacher in aided and recognized institutionis regulated by the regulation framedunder the U.P. Intermediate EducationAct and the order issued by the StateGovernment from time to time.Regulation 46 in Chapter III lays downthat employees of an aided andrecognized institution shall be given thepay scale sanctioned by the StateGovernment from time to time. The StateGovernment has prescribed the scales ofpay for teachers. The State Governmentissued an order on 18th January, 1974accepting the recommendations of theU.P. Pay Commission prescribing scalesof pay for teachers. Paragraph 5(2) of theGovernment order lays down that ateacher while officiating on the post

carrying higher grade is entitled toofficiating salary in the higher grade andit further prescribed procedure fordetermining the salary of officiatingteacher in the higher grade. A copy of theGovernment order was before us by thepetitioner. Respondents do not deny thepetitioner's averment that the StateGovernment issued orders sanctioningofficiating pay to a teacher in the highergrade. The petitioner's claim for salary inPrincipal's grade was sanctioned by theDistrict Inspector of Schools in pursuanceof the aforesaid Government order.Respondents have failed to show anysubsequent Government order or rulesuperceding the direction contained inGovernment order dated 24-1-74. Therespondents have further failed to placeany material before the court showing thatthe petitioner was not entitled to thesalary in the Principal's grade whileofficiating on the post of Principal. Theorder of the District Inspector of Schoolsdated 31-8-77 is therefore not sustainablein law.

3. In the result we allow the petitionand quash the order of the DistrictInspector of Schools and direct therespondents to pay salary to the petitionerin the Principal's grade for the periodduring which he has been officiating asPrincipal in accordance with the orderscontained in the letter of the DistrictInspector of Schools dated 14-4-79. Thepetitioner is entitled to his cost."

22. The same view was taken byanother Division Bench of this Court inthe cases of Narbdeshwar Mishra v. TheDistrict Inspector of Schools, Deoria andothers, 1982 UPLBEC 171 and SolomanMorar Jha v. District Inspector ofSchools, Deoria and others, 1985UPLBEC 113.


23. The same issue was referred to aFull Bench in the case of Dr. Jai PrakashNarayan Singh v. State of U.P. and others,2014 (8) ADJ 617 (FB). The relevantmaterial in the present controversy readsas under:

"29. A somewhat similar situation hadarisen under the provisions of the U.P.Secondary Education Service SelectionBoard Act, 1982. That Act was enacted toestablish a Secondary Education ServiceCommission for the selection of teachers ininstitutions recognized under theIntermediate Education Act, 1921. Theexpression 'teacher' was defined to include aprincipal. Section 16 provided that subject tothe provisions of Sections 18 and 33 andcertain other sections, every appointment of ateacher upon the commencement of the Actwould be made by the management only onthe recommendation of the Commission andan appointment made in contravention of theprovisions would be void. Section 18 dealtwith ad hoc appointments of teachers. Sincethe provisions of Section 16 were madesubject to Section 18, ad hoc appointmentscould be validly made under Section 18.However, after the enactment of U.P. Act 1of 1993, Section 16 was substituted andSection 18 of the Principal Act was sought tobe deleted. Section 33 empowered the StateGovernment to issue and notify Orders forremoving any difficulty, during such periodas may be specified in the Order, whereuponthe provisions of the Act would have effectsubject to adaptations whether by way ofmodification, addition or omission. Twonotified Orders were issued under Section 33(1). Neither of the two Orders provided forany time limit during which the orders wouldremain effective.

30. These provisions came up forconsideration before a Full Bench of thisCourt in Radha Raizada v. Committee of

Management, Vidyawati Darbari GirlsInter College, 1994 (2) ESC 345(All)(FB). Dealing with the situation, theFull Bench held as follows:

"...After enforcement of U.P. Act No.1of 1993 except Section 13 thereof the situationthat emerges is that by new Section 11 ofAmendment Act which has substitutedSection 16 of the Principal Act, has come intoforce whereas the omission of Section 18from the principal Act by Section 13 of thisamending Act has not been enforced whichmeans Section 18 still continues in thePrincipal Act. In view of this legislativedevelopment a peculiar situation has arisenthat new Section 16 which has come intoforce is no longer subject to Section 18 of theAct which means that no appointment on adhoc basis can be made under Section 18 of theAct. New Section 16 begins with a non-obstante clause which means in spite of otherprovision, no appointment shall be madeexcept on the recommendation of the Board.Where a section begins with a non-obstanteclause, it indicates that the provision shouldprevail despite anything to the contrary in theprovisions in the Act. Thus after omission ofSection 18 from Section 16 no ad hocappointment is permissible under Section 18and if made, would be void under sub-section(2) of Section 16 of the Act. It has not beenbrought to my notice that First Removal ofDifficulties Order 1981 issued by the StateGovernment has either been revoked orrescinded. On the contrary, it was asserted thatthe said Removal of Difficulties Order iscontinuing.

49. Now the question for considerationis that if no ad hoc appointment of teacher orPrincipal can be made under Section 18 ofthe Act, whether it is permissible to appoint ateacher or Principal on ad hoc basis under theFirst Removal of Difficulties Order? Aperusal of Section 16 would show thatSection 16 is still subject to Section 33 of the


Act which empowers the State Governmentto issue Removal of Difficulties Order. SinceRemoval of Difficulties Orders have beenissued under Section 33 of the Act, an ad hocappointment either by direct recruitment orby promotion under the Removal ofDifficulties Order would be a validappointment."

24. Regard being had to the fact thatrecently the Director of Education(Secondary), U.P., Lucknow on 25thAugust, 2015 issued an order to all theDistrict Inspector of Schools that anofficiating principal shall be paid in thegrade of the principal. A copy of the orderof the Director dated 25th August, 2015 isquoted here-under below:

"lwPp gS fd tuizfrfuf/k;ksa ,oa ek/;fedfo|ky;ksa ds lsok la?kksa ds izfrfuf/k;ksa }kjk ;glaKku esa yk;k x;k gS fd v'kkldh; lgk;rk izkIrek/;fed fo|ky;ksa esa ekSfyd :i ls fjDriz/kkuk/;kid@iz/kkukpk;Z ds in ij laLFkk dsT;s"Bre l-v-@T;s"Bre izoDrk ds LFkku ij dfu"Bl-v-@dfu"B izoDrk ds gLrk{kj izekf.kr fd;s tkrsgSaA

2- vki voxr gh gaS fd mRrj izns'k ek/;fedf'k{kk lsok p;u cksMZ vf/kfu;e] 1982 ¼;Fkkla'kksf/kr½ dh/kkjk&18 esa izko/kku fd;k x;k gS fd /kkjk 10 dhmi/kkjk&1 esa fd;s x;s izko/kkuqlkj cksMZ dks fjfDr dhlwpuk fn;s tkus ,oa iz/kkuk/;kid@iz/kkukpk;Z dk inokLro esa 02 ekg ls vf/kd fjDr gksus dh fLFkfr esalaLFkk ds iz/kkuk/;kid@iz/kkukpk;Z ds in ij laLFkk dsT;s"Bre l-v-@T;s"Bre izoDrk dh rnFkZ inksUufrlaLFkk izcU/kra= }kjk dh tk;sxhA mijksDr /kkjk esa ;g Hkhizko/kku fd;k x;k gS fd tgka izcU/kra+= T;s"Bre l-v-@T;s"Bre izoDrk dks rnFkZ :i ls inksUufr djus esafoQy jgs ogka fujh{kd ,sls v-v-@izoDrk dh inksUufrvkns'k Lo;a tkjh djsxk ,oa lEcfU/kr l-v-@izoDrk tcinksUufr ds ,sls vkns'k ds vuqlj.k esa in dk dk;ZHkkjxzg.k djsa] iz/kkuk/;kid@iz/kkukpk;Z ds :i esa viusosru dk gdnkj gksxkA

3- mijksDr izko/kkuksa ds vkyksd esa f'k{k.klaLFkk esa iz/kkuk/;kid@iz/kkukpk;Z dk in ekSfyd:i ls fjDr gksus dh fLFkfr esa laLFkk ds dfu"B l-v-@dfu"B izoDrk ds gLrk{kj dk;Zokgd

iz/kkuk/;kid@ dk;Zokgd ds :i esa izekf.kr fd;ktkuk lUnfHkZr vf/kfu;e ds loZFkk foijhr gSA

4- vr% vkidks funsf'kr fd;k tkrk gS fdvf/kfu;e O;oLFkkuqlkj dk;Zokgh fd;k tkuklqfuf'pr djsaA vf/kfu;e ds izko/kkuksa ds foijhrdk;Zokgh gsrq vki Lo;a mRrjnk;h gksaxs ,oa vkidkmDr vkpj.k mRrj izns'k jktdh; deZpkjhfu;ekoyh] 1956 ds vkpj.k fu;e&3 ds foijhrgksus ds vk/kkj ij vkids fo:) vuq'kklfuddk;Zokgh lafLFkr fd;s tkus gsrq 'kklu ls vuqjks/kdjus dh iz'kkldh; ck/;rk gksxhA vk'kk gS fd vki,slh v:fpdj fLFkfr mRiUu ugha gksus nsaxsA"

(emphasis supplied)

25. In view of the above, it isevident that the District Inspector ofSchools has tried to overreach the interimorder of this Court dated 20.08.2014passed in companion writ petition, Writ-ANo.43095 (Smt. Savita Gupta v. State ofU.P. & others).

26. The Supreme Court in the caseof Delhi Development Authority v.Skipper Construction Co. (P) Ltd. andanother (1996) 4 Supreme Court Cases622, has approved the decisions of theMadras and the Calcutta High Courts.Relevant part of the order reads as under:

"19. To the same effect are thedecisions of the Madras and and CalcuttaHigh Courts in Century Flour Mills Ltd. v. S.Suppiah, AIR 1975 Mad 270 : (1975) 2 MLJ54 and Sujit Pal v. Prabir Kumar Sun AIR1986 Cal 220 : (1986) 90 CWN 342. InCentury Flour Mills Ltd. AIR 1975 Mad 270: (1975) 2 MLJ 54 it was held by a FullBench of the Madras High Court that wherean act is done in violation of an order of stayor injunction, it is the duty of the court, as apolicy, to set the wrong right and not allowthe perpetuation of the wrongdoing. Theinherent power of the court, it was held, isnot only available in such a case, but it isbound to exercise it to undo the wrong in the


interest of justice. That was a case where ameeting was held contrary to an order ofinjunction. The Court refused to recognisethat the holding of the meeting is a legal one.It put back the parties in the same position asthey stood immediately prior to the service ofthe interim order.

20. In Sujit Pal AIR 1986 Cal 220 :(1986) 90 CWN 342 a Division Bench of theCalcutta High Court has taken the sameview. There, the defendant forciblydispossessed the plaintiff in violation of theorder of injunction and took possession ofthe property. The Court directed therestoration of possession to the plaintiff withthe aid of police. The Court observed that notechnicality can prevent the court from doingjustice in exercise of its inherent powers. Itheld that the object of Rule 2-A of Order 39will be fulfilled only where such mandatorydirection is given for restoration ofpossession to the aggrieved party. This wasnecessary, it observed, to prevent the abuseof process of law.

27. The adamant attitude adopted bythe District Inspector of Schools in hiscounter affidavit clearly indicates that hisorder is suffered from malice in law.

28. In Writ-A No.58665 of 2015(Ram Raseeley Pandey v. State of U.P. &others), there was similar fact. TheDistrict Inspector of Schools in the saidcase has refused to follow the law laiddown by this Court.

29. The Court in the said case foundthat the action of the District Inspector ofSchools suffered from malice in law. TheCourt held as under:

"In Kalabharati Advertising (supra) theSupreme Court has followed its earlierdecision in Punjab State Electricity Board

Ltd. v. Zora Singh and others (2005) 6 SCC776, where the malice in the legal sense hasbeen explained by the Court. Relevant partsof the judgment in Punjab State ElectricityBoard Ltd. (supra), being paragraphs- 40, 41& 42, are extracted below:

"40. Furthermore, there cannot beany doubt whatsoever that even if anorder is found to be not vitiated by reasonof malice on fact but still can be held tobe invalid if the same has been passed forunauthorised purposes, as it wouldamount to malice in law.

41. In S.R. Venkataraman v. Unionof India (1979) 2 SCC 491:1979 SCC(L&S) 216:AIR 1979 SC 49 this Courtobserved: (SCC p. 494, para 5)

"It is not therefore the case of theappellant that there was actual maliciousintention on the part of the Government inmaking the alleged wrongful order of herpremature retirement so as to amount tomalice in fact. Malice in law is, however,quite different. Viscount Haldanedescribed it as follows in Shearer v.Shields 1914 AC 808: 111 LT 297 (HL):

'A person who inflicts an injury uponanother person in contravention of the law isnot allowed to say that he did so with aninnocent mind; he is taken to know the law,and he must act within the law. He may,therefore, be guilty of malice in law,although, so far the state of his mind isconcerned, he acts ignorantly, and in thatsense innocently.'

Thus malice in its legal sense meansmalice such as may be assumed from thedoing of a wrongful act intentionally butwithout just cause or excuse, or for wantof reasonable or probable cause."


42. In State of A.P. v. GoverdhanlalPitti (2003) 4SCC 739 this Courtobserved: (SCC p. 744, paras 12-13)

"12. The legal meaning of malice is'ill-will or spite towards a party and anyindirect or improper motive in taking anaction'. This is sometimes described as'malice in fact'. 'Legal malice' or 'malicein law' means 'something done withoutlawful excuse'. In other words, 'it is an actdone wrongfully and wilfully withoutreasonable or probable cause, and notnecessarily an act done from ill feelingand spite. It is a deliberate act in disregardof the rights of others'. (See Words andPhrases Legally defined, 3rd Edn.,London Butterworths, 1989.)

13. Where malice is attributed to theState, it can never be a case of personalill-will or spite on the part of the State. Ifat all it is malice in legal sense, it can bedescribed as an act which is taken with anoblique or indirect object. Prof. Wade inhis authoritative work on AdministrativeLaw (8th Edn., at p. 414) based onEnglish decisions and in the context ofalleged illegal acquisition proceedings,explains that an action by the State can bedescribed mala fide if it seeks to 'acquireland' 'for a purpose not authorised by theAct'."

(See also Chairman & MD, BPL Ltd.v. S.P. Gururaja (2003) 8 SCC 567 and P.Anjaneyulu v. Chief Manager, A.P.Circle, Bharat Sanchar Nigam Ltd. (2001)3 An LD 313 (DB)"

On the analysis of the aboveprinciple I am of the opinion that thestand taken by the second respondent inhis counter affidavit is suffered by malicein law.

It is astonishing that the DistrictInspector of Schools, being a seniorofficial in education department, is totallyunaware about the well settled law laid

down by this Court and the order issuedby the Director of Education. It is acommon experience of the Court that theGovernment officers in general andofficials of education department inparticular disregard the well-settled law ofthis Court and try to justify their orderseven after their order is set aside by theCourt, on the pretext of some GovernmentOrder or circular of the department. TheSupreme Court has noticed this tendencyof the officials in the case of E.T. Sunupv. C.A.N.S.S. Employees Association andanother (2004) 8 SCC 683. The relevantparagraph of the judgment is as under:

"16. It has become a tendency with thegovernment officers to somehow or the othercircumvent the orders of court and try to takerecourse to one justification or other. Thisshows complete lack of grace in acceptingthe orders of the Court. This tendency ofundermining the Court's order cannot becountenanced. This Court time and again hasemphasised that in a democracy the role ofthe court cannot be subservient toadministrative fiat. The executive andlegislature have to work within theconstitutional framework and the judiciaryhas been given the role of watchdog to keepthe legislature and executive within check...."

The said judgment has been followedby the Supreme Court in the case ofManinderjit Singh Bitta v. Union of Indiaand others (2012) 1 SCC 273.

If such an official/officer is allowedto continue, his ignorance of law will beoppressive for the teaching and non-teaching staff of the institutions and willalso burden this Court by unnecessarylitigations. Public time will be wasted insuch litigations."

30. In view of the above I am of theview that the District Inspector of Schoolshas taken a wholly unjustified stand for

1 All. Smt. Vimla Srivastava Vs. State of U.P. & Anr. 115

denying the principal's grade to thepetitioner in spite of the well settled lawon this issue. He has also ignored theorder of the Director dated 25th August,2015 extracted herein above wherein aclear direction has been issued forpayment of principal's grade to theofficiating principal.

31. In the counter affidavit it has notbeen denied by the District Inspector ofSchools that the approval granted by himdated 30th November, 2007 has not beenrecalled or cancelled. Thus, in my view thepetitioner is entitled for principal's gradefrom the date of assuming the charge of theoffice of officiating principal.

32. Pertinently, now the Director ofEducation (Secondary) on 25th August,2015 has issued a direction for thepurpose of principal's grade to adhoc/officiating principal. The Director hasalso warned the concerned authorities thatif direction is not complied it shall betreated as misconduct and they will besubjected to disciplinary proceedings.

33. In view of the recent order of theDirector, there is no need to send thematter again to the District Inspector ofSchools, who appears to adamant to rejectthe claim of the petitioner.

34. Accordingly, the writ petition isallowed. The District Inspector of Schoolsis directed to pay petitioner's salary inprincipal's grade within two months fromthe date of communication of this order.

35. The petitioner shall file anaffidavit that payment received by hershall abide the result of writ petition,Writ-A No.43095 of 2014 (Smt. SavitaGupta v. State of U.P. & others).

36. No order as to costs.-------


DATED: ALLAHABAD 04.12.2015

BEFORETHE HON'BLE DR. DHANANJAYA YESHWANT

CHANDRACHUD, C.J.THE HON'BLE YASHWANT VARMA, J.

Writ-C No. 60881 of 2015. with

Writ-C No. 14853 of 2015 and Writ-C No.20204 of 2015

Smt. Vimla Srivastava ...PetitionerVersus

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

Counsel for the Petitioner:Santosh Kumar Srivastava, Nitin KumarRai, Pavan Kumar Singh


Uttar Pradesh Recruitment of Dependentsof Government Servant Dying-in-HarnessRules-1974-Rule 2(c)(iii)-definition of”Family”-ward unmarried daughter-beingindiscriminately violate by Art.-14 and 15 ofConstitution-even married daughter is thedaughter of deceased employee-henceword 'married' struck down-consequentialfollow up directions given.

Held: Para-27 & 2827. In conclusion, we hold that theexclusion of married daughters from theambit of the expression "family" in Rule2 (c) of the Dying-in-Harness Rules isillegal and unconstitutional, beingviolative of Articles 14 and 15 of theConstitution.

28. We, accordingly, strike down theword 'unmarried' in Rule 2 (c) (iii) of theDying-in-Harness Rules.

Case Law discussed:


Writ-C No. 41279 of 2014; AIR 1979 SC 1868;AIR 1987 SC 1100; (1999) 2 SCC 228; 1996 2SCC 380; (2003) 6 SCC 277; (2014) 5 SCC438; 2005 (104) FLR 271; W.P. No. 161532015, decided on 9 June 2015; W.P. No.33967 (W) of 2013, decided on 19 March2014; W.P. No. 49766 of 2015.

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

1. The Uttar Pradesh Recruitment ofDependents of Government Servants Dying-in-Harness Rules, 19741 have been framedunder the proviso to Article 309 of theConstitution and regulate the grant ofcompassionate appointment to the membersof the family of a government servant whodies in harness. The Rules define theexpression "family" to include, amongothers, "unmarried daughters and unmarriedadopted daughters". The Rules also bringsons and adopted sons within the ambit of afamily. The eligibility of a son or adoptedson is not conditioned by marital status. Thechallenge in these proceedings is to thestipulation that only an unmarried daughterfalls within the definition of the expression"family". As a consequence of the condition,a married daughter ceases to fall within thefamily of a deceased government servant forthe purpose of seeking compassionateappointment.

2. Rule 2 (c) of the Dying-in-Harness Rules defines the expression"family" in the following terms:

"2(c) "family" shall include thefollowing relations of the deceasedGovernment servant:

(i) Wife or husband;(ii) Sons/adopted sons;(iii) Unmarried daughters, unmarried

adopted daughters, widowed daughtersand widowed daughters-in-law;

(iv) Unmarried brothers, unmarriedsisters and widowed mother dependent onthe deceased Government servant, if thedeceased Government servant wasunmarried;

(v) aforementioned relations of suchmissing Government servant who hasbeen declared as "dead" by the competentCourt;

Provided that if a person belongingto any of the above mentioned relations ofthe deceased Government servant is notavailable or is found to be physically andmentally unfit and thus ineligible foremployment in Government service, thenonly in such situation the word "family"shall also include the grandsons and theunmarried granddaughters of the deceasedGovernment servant dependent on him."

3. In exploring the nature of theconstitutional challenge which has beenaddressed in these proceedings, it would atthe outset be necessary to dwell briefly onthe nature and purpose of compassionateappointment. The object and purpose ofcompassionate appointment is to provideameliorative relief to the family of agovernment servant who has died in harness.Compassionate appointment is an exceptionto the principle that there must be an equalityof opportunity in matters of publicemployment under Article 16 of theConstitution. Equality of opportunitypostulates a level playing field where alleligible persons are entitled to compete in aneffort to secure public employment. Thebasis of the exception that is carved out bythe Dying-in-Harness Rules is that the deathof a wage earner while in the service of theState imposes severe financial hardship onthe family faced with an untimely death.Compassionate appointment is intended toprovide immediate financial support to sucha family by stipulating that upon the death of


its wage earner while in harness as agovernment servant, another member of thefamily would be granted appointment.Compassionate appointment is not areservation of a post in public employmentbut is in the nature of an enabling provisionunder which a member of the family of adeceased government servant who has diedwhile in harness can seek appointment basedon financial dependency and need.

4. Rule 5 of the Dying-in-HarnessRules provides that such an appointment iscontemplated to be given to a member of thefamily of a deceased government servant whohas died in harness where the spouse of thegovernment servant is not already employedwith the Central or the State Governments or aCorporation owned by them. Moreover, amember of the family who is not alreadyemployed with the Central or StateGovernments or their Corporations can begiven suitable employment in governmentservice in relaxation of the normal recruitmentrules. Such an appointment can be granted ifthe person (i) fulfills the educationalqualifications prescribed for the post; (ii) isotherwise qualified for government service;and (iii) makes an application for employmentwithin five years from the date of the death ofthe government servant. The rationale forimposing the requirement of the applicationbeing made within five years is that the nexusbetween the grant of employment and theneed of the family is preserved. That isbecause after a lapse of time the sense of needor dependency may cease to exist bothfinancially and otherwise. However, Rule 5enables the time limit to be dispensed with orrelaxed for the purpose of dealing with a casein a just and equitable manner where unduehardship is shown. Where compassionateappointment is provided under Rule 5, there isan obligation under the rule for the personappointed to maintain the other members of

the family of the deceased governmentservant who were dependent on him/herimmediately before the death occurred andwho are unable to maintain themselves. Whenthe person appointed neglects or refuses tomaintain a person whom he or she is liable tomaintain, the services are liable to beterminated under the Conduct, Discipline andAppeal Rules.

5. The basic rationale and thefoundation for granting compassionateappointment is thus the financial need of thefamily of a deceased government servantwho has died in harness and it is with a viewto alleviate financial distress thatcompassionate appointment is granted.

6. The submission which has beenurged on behalf of the petitioners inchallenging Rule 2 (c) (iii), insofar as itconfines the zone of eligibility only tounmarried daughters, is two fold. Firstly, ithas been submitted that in matters of publicemployment, marital status cannot disqualifyan applicant and any discrimination on theground of marital status would be violativeof Articles 14 and 15 of the Constitution.Secondly, it has been urged that there can beno discrimination between a son and adaughter in the grant of compassionateappointment and any discrimination on theground of gender violates Article 15 of theConstitution.

7. A counter affidavit has been filedon behalf of the State in these proceedingsin which, it has been asserted that:

"After marriage, the daughterbecomes the family member of herhusband and the responsibility of hermaintenance solely lies upon her husband,therefore, in such circumstance there is nojustification of giving employment to the


married daughter of the deceasedemployee as the dependent of deceasedemployee.

That, it is also relevant to mention herethat the employment as a dependent ofdeceased is a compassionate appointmentwhich is not a matter of right. It is furthersubmitted that the married daughter is notcovered by definition of "family", therefore,she cannot be considered eligible for givingthe compassionate appointment. It is furthersubmitted that under the Hindu Law, amarried daughter cannot be considered asdependent of her father or dependent of jointHindu family. After the marriage, herhusband is not only her guardian but he isunder legal obligation to maintain her. Underthe Hindu Law, after the marriage, thedaughter even does not remain member ofthe family of her father and she becomesmember of her in laws family."

8. Moreover, it has been submittedthat a married daughter is not consideredas a dependent of her deceased father andis not legally entitled to getcompassionate appointment.

9. In support of the submissions whichhave been urged in the counter affidavit,learned Standing Counsel submits that Rule2 (c) has made no discrimination on groundsof gender. The submission is that the purposeof Rule 2 (c) is to enable the State to grantcompassionate appointment to a member ofthe family who was dependent on thedeceased government servant. When adaughter is married, it is asserted, theelement of dependency on the deceasedgovernment servant ceases to exist and thereason for the exclusion is not gender but theabsence of dependency.

10. While assessing the rivalsubmissions, it must be noted at the outset

that the definition of the expression"family" in Rule 2 (c) incorporates thecategories of heirs of a deceasedgovernment servant. Among them are thewife or husband, sons and adopted sons,unmarried daughters, unmarried adopteddaughters, widowed daughters andwidowed daughters-in-law. Clause (ii) ofRule 2 (c) brings a son as well as anadopted son within the purview of theexpression "family" irrespective ofmarital status. A son who is marriedcontinues to be within the ambit of theexpression "family" for the purpose ofRule 2 (c). But by the stroke of alegislative definition, a daughter who ismarried is excluded from the scope andpurview of the family of a deceasedgovernment servant unless she fallswithin the category of a widoweddaughter. The invidious discriminationthat is inherent in Rule 2 (c) lies in thefact that a daughter by reason of hermarriage is excluded from the ambit ofthe expression "family". Her exclusionoperates by reason of marriage and,whether or not she was at the time of thedeath of the deceased government servantdependent on him. Marriage does notexclude a son from the ambit of theexpression "family". But marriageexcludes a daughter. This is invidious. Amarried daughter who has separated aftermarriage and may have been dependenton the deceased would as a result of thisdiscrimination stand excluded. A divorceddaughter would similarly stand excluded.Even if she is dependent on her father, shewould not be eligible for compassionateappointment only because of the fact thatshe is not "unmarried". The only basis ofthe exclusion is marriage and but for hermarriage, a daughter would not beexcluded from the definition of theexpression "family".


11. The issue before the Court iswhether marriage is a social circumstancewhich is relevant in defining the ambit of theexpression "family" and whether the fact thata daughter is married can constitutionally bea permissible ground to deny her the benefitof compassionate appointment. The mattercan be looked at from a variety ofperspectives. Implicit in the definition whichhas been adopted by the state in Rule 2 (c) isan assumption that while a son continues tobe a member of the family and that uponmarriage, he does not cease to be a part of thefamily of his father, a daughter uponmarriage ceases to be a part of the family ofher father. It is discriminatory andconstitutionally impermissible for the Stateto make that assumption and to use marriageas a rationale for practicing an act of hostilediscrimination by denying benefits to adaughter when equivalent benefits aregranted to a son in terms of compassionateappointment. Marriage does not determinethe continuance of the relationship of a child,whether a son or a daughter, with the parents.A son continues to be a son both before andafter marriage. A daughter continues to be adaughter. This relationship is not effacedeither in fact or in law upon marriage.Marriage does not bring about a severance ofthe relationship between a father and motherand their son or between parents and theirdaughter. These relationships are notgoverned or defined by marital status. TheState has based its defence in its reply andthe foundation of the exclusion on apaternalistic notion of the role and status of awoman. These patriarchal notions mustanswer the test of the guarantee of equalityunder Article 14 and must be heldanswerable to the recognition of genderidentity under Article 15.

12. The stand which has been takenby the state in the counter affidavit

proceeds on a paternalistic notion of theposition of a woman in our society andparticularly of the position of a daughterafter marriage. The affidavit postulatesthat after marriage, a daughter becomes amember of the family of her husband andthe responsibility for her maintenancesolely lies upon her husband. The secondbasis which has been indicated in theaffidavit is that in Hindu Law, a marrieddaughter cannot be considered asdependent of her father or a dependent ofa joint Hindu family. The assumption thatafter marriage, a daughter cannot be saidto be a member of the family of her fatheror that she ceases to be dependent on herfather irrespective of social circumstancescannot be countenanced. Our society isgoverned by constitutional principles.Marriage cannot be regarded as ajustifiable ground to define and excludefrom who constitutes a member of thefamily when the state has adopted a socialwelfare policy which is grounded ondependency. The test in matters ofcompassionate appointment is a test ofdependency within defined relationships.There are situations where a son of thedeceased government servant may not bein need of compassionate appointmentbecause the economic and financialposition of the family of the deceased arenot such as to require the grant ofcompassionate appointment on apreferential basis. But the dependency ora lack of dependency is a matter which isnot determined a priori on the basis ofwhether or not the son is married.Similarly, whether or not a daughter of adeceased should be grantedcompassionate appointment has to bedefined with reference to whether, on aconsideration of all relevant facts andcircumstances, she was dependent on thedeceased government servant. Excluding


daughters purely on the ground ofmarriage would constitute animpermissible discrimination and beviolative of Articles 14 and 15 of theConstitution.

13. A variety of situations can beenvisaged where the application of therule would be invidious anddiscriminatory. The deceased governmentservant may have only surviving marrieddaughters to look after the widowedparent - father or mother. The daughtersmay be the only persons to look after afamily in distress after the death of thebread earner. Yet, under the rule, nodaughter can seek compassionateappointment only because she is married.The family of the deceased employee willnot be able to tide over the financial crisisfrom the untimely death of its wageearner who has died in harness. Thepurpose and spirit underlying the grant ofcompassionate appointment standsdefeated. In a given situation, even thoughthe deceased government employee leavesbehind a surviving son, he may not in factbe looking after the welfare of thesurviving parents. Only a daughter maybe the source of solace - emotional andfinancial, in certain cases. These are notisolated situations but social realities inIndia. A surviving son may have left thevillage, town or state in search ofemployment in a metropolitan city. Thedaughter may be the one to care for asurviving parent. Yet the rule deprives thedaughter of compassionate appointmentonly because she is married. Our law mustevolve in a robust manner toaccommodate social contexts. The grantof compassionate appointment is not justa social welfare benefit which is allowedto the person who is granted employment.The purpose of the benefit is to enable the

family of a deceased government servant,who dies in harness, to be supported bythe grant of compassionate appointmentto a member of the family. Excluding amarried daughter from the ambit of thefamily may well defeat the object of thesocial welfare benefit.

14. The living tree - the Constitution- on which the law derives legitimacy is aliberal instrument for realisingfundamental human freedoms. The lawand the Constitution must account formultiple identities. Individuals - men andwomen - have multiple identities : as aworker in the work place; as a child,parent and spouse; identities based onpreferences and orientation; those basedon language, religion and culture. Butfrom a constitutional perspective, they areprotected and subsumed in theoverarching privileges of citizenship andin the guarantee of individual freedoms.

15. In the judgment of this Court inIsha Tyagi vs. State of U.P.2, a DivisionBench considered the legality of a conditionwhich was imposed by the State Governmentwhile providing horizontal reservation todescendants of freedom fighters. Thecondition which was imposed by the Stateexcluded the children of the daughter of afreedom fighter from seeking admission tomedical colleges in the State under anaffirmative action programme. Holding thisto be unconstitutional, the Division Benchheld as follows:

"It would be anachronistic todiscriminate against married daughters byconfining the benefit of the horizontalreservation in this case only to sons (andtheir sons) and to unmarried daughters. Ifthe marital status of a son does not makeany difference in law to his entitlement or to


his eligibility as a descendant, equally in ourview, the marital status of a daughter should interms of constitutional values make nodifference. The notion that a married daughterceases to be a part of the family of her parentsupon her marriage must undergo a rethink incontemporary times. The law cannot make anassumption that married sons alone continueto be members of the family of their parents,and that a married daughter ceases to be amember of the family of her parents. Such anassumption is constitutionally impermissiblebecause it is an invidious basis to discriminateagainst married daughters and their children.A benefit which this social welfare measuregrants to a son of a freedom fighter,irrespective of marital status, cannot be deniedto a married daughter of a freedom fighter."

16. Dealing with the aspect ofmarriage, the Division Bench held asfollows:

"Marriage does not have and shouldnot have a proximate nexus with identity.The identity of a woman as a womancontinues to subsist even after andnotwithstanding her marital relationship.The time has, therefore, come for theCourt to affirmatively emphasise that it isnot open to the State, if it has to act inconformity with the fundamental principleof equality which is embodied in Articles14 and 15 of the Constitution, todiscriminate against married daughters bydepriving them of the benefit of ahorizontal reservation, which is madeavailable to a son irrespective of hismarital status."

17. The principles underlyingArticles 14 and 15 of the Constitutionhave an important bearing on genderidentity. In C.B. Muthamma vs. Union ofIndia3, the Supreme Court considered the

legality of a rule in the Indian ForeignService (Conduct and Discipline) Rulesunder which a woman member of theservice was required to obtain thepermission of the Government before hermarriage was solemnized and could berequired to resign from service after hermarriage, if the Government was satisfiedthat her family and domesticcommitments are likely to come in theway of the due and efficient discharge ofher duties as a member of the service. TheSupreme Court held that "If a marriedman has a right, a married woman, otherthings being equal, stands on no worsefooting". In the meantime the CentralGovernment had indicated that the rulewas being reconsidered and its deletionwas being gazetted.

18. In Vijaya Manohar Arbat vs.Kashirao Rajaram Sawai4, the SupremeCourt held in the context of the provisionsof Section 125 of the Code of CriminalProcedure 1973 that "a daughter after hermarriage does not cease to be a daughterof the father or mother".

19. The same principle was appliedin Githa Hariharan vs. Reserve Bank ofIndia5 while defining the ambit of theexpression "the father, and after him, themother" in Section 6(a) of the HinduSuccession Act, 1956. The SupremeCourt observed that if the word 'after' wasread to mean that a mother would bedisqualified from acting as a guardian of aminor during the lifetime of the father,this would run counter to theconstitutional mandate of gender equalityand will lead to an impermissibledifferentiation between males andfemales. Interpreting the word 'after', theSupreme Court held that it does notnecessarily mean after the death of the


father but would mean in the absence of,whether temporary or otherwise or in asituation of the apathy of the father or hisinability to maintain the child.

20. In Savita Samvedi vs. Union ofIndia6, the Supreme Court considered thevalidity of a circular of the Railway Boardby which a railway servant who is anallottee of service accommodation wasentitled to nominate, while retiring fromservice, a son or unmarried daughteramong other persons for allotment of theaccommodation on out-of-turn basis.Holding that the circular (insofar as itprecluded the nomination of a marrieddaughter for allotment of accommodation)violated Article 14, the Supreme Courtobserved as follows:

"... If he has only one marrieddaughter, who is a railway employee, andnone of his other children are, then hischoice is and has to be limited to thatrailway employee married daughter. Heshould be in an unfettered position tonominate that daughter for regularizationof railway accommodation. It is only inthe case of more than one children inRailway service that he may have toexercise a choice and we see no reasonwhy the choice be not left with theretiring official's judgment on the pointand be not respected by the railwayauthorities irrespective of the gender ofthe child. There is no occasion for therailways to be regulating or bludgeoningthe choice in favour of the son whenexisting and able to maintain his parents.The Railway Ministry's Circular in thatregard appears thus to us to be whollyunfair, gender biased and unreasonable,liable to be struck down under Article 14of the Constitution. The eligibility of amarried daughter must be placed on a par

with an unmarried daughter (for she musthave been once in that state), so as toclaim the benefit of the earlier part of theCircular, referred to in its first paragraph,above-quoted."

21. In Air India Cabin Crew Assn.vs. Yeshaswinee Merchant7, the SupremeCourt dealt with the prohibition underArticle 15(2) on discrimination on theground only of sex. Interpreting theprovisions of Articles 15 and 16, theSupreme Court held that the constitutionalmandate would be infringed where awoman would have received the sametreatment as a man but for her sex.

22. In National Legal ServicesAuthority vs. Union of India8, theSupreme Court recognized that genderidentity, is an integral part of sex withinthe meaning of Articles 15 and 16 and nocitizen can be discriminated on the groundof gender. The Supreme Court observedas follows:

"We, therefore, conclude thatdiscrimination on the basis of sexualorientation or gender identity includes anydiscrimination, exclusion, restriction orpreference, which has the effect ofnullifying or transposing equality by thelaw or the equal protection of lawsguaranteed under our Constitution, andhence we are inclined to give variousdirections to safeguard the constitutionalrights of the members of the TGcommunity."

23. Specifically in the context ofcompassionate appointments various HighCourts have taken the view that a womanwho is married cannot be denied entryinto service on compassionateappointment merely on the ground of


marriage. This view was taken by alearned Single Judge of the KarnatakaHigh Court in Manjula vs. State ofKarnataka9. The same view has beenadopted by a Division Bench of theBombay High Court in Smt. RanjanaMurlidhar Anerao vs. The State ofMaharashtra10 where it was held that theexclusion of a married daughter for thegrant of a retail kerosene license on thedeath of the license holder was notjustifiable. The Division Bench of theBombay High Court held as follows:

"This exclusion of a marrieddaughter does not appear to be based onany logic or other justifiable criteria.Marriage of a daughter who is otherwise alegal representative of a license holdercannot be held to her disadvantage in thematter of seeking transfer of license in hername on the death of the license holder.Under Article 19(1)(g) of the Constitutionof India the right of a citizen to carry onany trade or business is preserved. UnderArticle 19(6) reasonable restrictions withregard to professional or technicalqualifications necessary for carrying onany trade or business could be imposed.Similarly, gender discrimination isprohibited by Article 15 of theConstitution. The exclusion of a marrieddaughter from the purview of expression"family" in the Licensing Order of 1979 isnot only violative of Article 15 but thesame also infringes the right guaranteedby Article 19(1)(g) of the Constitution."

24. The same view has been adoptedby a learned Single Judge of the MadrasHigh Court in S Kavitha vs. The DistrictCollector11. A learned Single Judge ofthe Kolkata High Court in Purnima Dasvs. The State of West Bengal12 has heldthat while appointment on compassionate

ground cannot be claimed as a matter ofright, at the same time, it was not open tothe State to adopt a discriminatory policyby excluding a married daughter from theambit of compassionate appointment.

25. We are in respectful agreementwith the view which has been expressedon the subject by diverse judgments of theHigh Courts to which we have madereference above.

26. During the course of submissions,our attention was also drawn to the judgmentrendered by a learned Single Judge of thisCourt in Mudita vs. State of U.P.13. Thelearned Single Judge while proceeding to dealwith an identical issue of the right of a marrieddaughter to be considered under the Dying-in-Harness Rules observed that a marrieddaughter is a part of the family of her husbandand could not therefore be expected tocontinue to provide for the family of thedeceased government servant. The judgmentproceeds on the premise that marriage seversall relationships that the daughter may havehad with her parents. In any case it shuts outthe consideration of the claim of the marrieddaughter without any enquiry on the issue ofdependency. In the view that we have takenwe are unable to accept or affirm thereasoning of the learned Single Judge and areconstrained to hold that Mudita does not laydown the correct position of the law.

27. In conclusion, we hold that theexclusion of married daughters from theambit of the expression "family" in Rule 2(c) of the Dying-in-Harness Rules is illegaland unconstitutional, being violative ofArticles 14 and 15 of the Constitution.

28. We, accordingly, strike down theword 'unmarried' in Rule 2 (c) (iii) of theDying-in-Harness Rules.


29. In consequence, we direct that theclaim of the petitioners for compassionateappointment shall be reconsidered. We clarifythat the competent authority would be at libertyto consider the claim for compassionateappointment on the basis of all the relevantfacts and circumstances and the petitionersshall not be excluded from consideration onlyon the ground of their marital status.

30. The writ petitions shall,accordingly, stand allowed. There shall beno order as to costs.



BEFORETHE HON'BLE PANKAJ MITHAL, J.

Writ-C No. 60941 of 2015

Smt. Kusum Yadav & Anr. ...PetitionersVersus


Counsel for the Petitioner:Shiv Babu Dubey

Counsel for the Respondents:C.S.C., Kaushalendra Kumar

Constitution of India, Art.-226-Protection tomarried life-petitioner illegally detained byPetitioner No. 2-against her will-forced tosign on writ petition-marriage if foundnullity-petitioner is free to go on place ofher choice-petition dismissed with cost ofRs. 25000/-.

Held: Para-9, 10 & 119. The demeanor of petitioner no. 1 inmaking the above statement strengthensthe belief of the Court at her statement istrue and correct and that she has beenpressurised to sign and file this petition. Thefiling of this petition on her behalf is not herfree and independent act.

10. In view of the statement of thepetitioner no. 1 given before this Court, it isapparent thatpetitioner no. 2 had keptpetitioner no. 1 in illegal detention and thereis no marriage between the petitioners withthe free will of both of them.

11. Accordingly, the marriage as allegedin the petition of the petitioners if any isdeclared to be a nullity. The petitionerno. 1 is permitted to go with her parentsto her home.

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

1. This is a petition under Article226 of the constitution of India by twopetitioners claiming protection to theirmarried life on the ground that they areboth majors and have married of theirown free will, but their life is beingdisturbed by the respondents.

2. On the first date when the petition wastaken up, learned Standing Counsel on thebasis of the instructions received by him hadinformed the Court that a First InformationReport/N.C.R. has been lodged againstpetitioner no. 2 under Section 498 IPC.

3. Learned counsel for the petitionerswas accordingly directed to file an affidavitof the petitioner no. 2 clarifying his maritalstatus at the time of the alleged marriage withthe petitioner no. 1.

4. Accordingly, affidavit ofpetitioner no. 2 was filed stating he hadmarried petitioner no. 1 and he was notmarried to any one earlier.

5. Sri Kaushlendra Kumar, learnedcounsel who had put in appearance onbehalf of respondent no. 5, had stated thatthe petitioner no. 1 is in illegal detentionof petitioner no. 2. She had not married

1 All. Smt. Kusum Yadav & Anr. Vs. State of U.P. & Ors. 125

him. The petitioner no. 1 had forced her tosign the affidavit filed in support of thepetition.

6. In view of the above allegationsmade by the learned counsel for therespondent no. 5, petitioner no. 1 wasdirected to be produced before the Court.

7. The petitioner no. 1 is present inCourt. She has been identified by counsel forrespondent no. 5, who is representing thefather of the petitioner no. 1. Her identity isnot disputed by the counsel for the petitioners.

8. She states that she knowspetitioner no. 2. He is the person who hadforcibly taken her away and had detainedher for many days. He had forced her toput signatures on the affidavit as well asvakalatnama. She had not married him atall. She also stated that she wants to gowith her parents and live with them.

9. The demeanor of petitioner no. 1in making the above statementstrengthens the belief of the Court at herstatement is true and correct and that shehas been pressurised to sign and file thispetition. The filing of this petition on herbehalf is not her free and independent act.

10. In view of the statement of thepetitioner no. 1 given before this Court, it isapparent thatpetitioner no. 2 had keptpetitioner no. 1 in illegal detention and thereis no marriage between the petitioners withthe free will of both of them.

11. Accordingly, the marriage asalleged in the petition of the petitioners ifany is declared to be a nullity. Thepetitioner no. 1 is permitted to go with herparents to her home.

12. The writ petition is dismissedwith costs of Rs. 25,000/- which has beenreduced by the Court to half on thepersuasion of the counsel appearing forpetitioners. It shall be realized by theCollector Jaunpur from petitioner no. 2 asarrears of land revenue within threemonths and a report of realizing the sameshall be submitted to the Court.



BEFORETHE HON'BLE KRISHNA MURARI, J

THE HON'BLE RAGHVENDRA KUMAR, J.

C.M. W. P No. 62660 of 2015

Srikant Tripathi ...PetitionerVersus


Counsel for the Petitioner:Sri Madan Lal Srivastava


Uttar Pradesh Minor Minerals (concession)Rules 1963-Rule-3(2), 67-Permission tomining operations-petitioner claims himselfto be owner of plots in question-without noobjection on his part-permission illegal-held-even owner can not conduct anymining operation on his own land-withoutprior permission of authority- petitiondevoid of any merit-dismissed.

Held: Para-7In view of provisions of Rule 67 and themandate of Rule 3, no mining operationcan be undertaken, by any person, of anyminor mineral within the State to whichthe Rules are applicable, except inaccordance with the terms andconditions of a mining lease or miningpermit granted under the Rules, and landholder has a right only to claim


compensation from the holder of thelease or of the mining permit inaccordance with the provisions and theprocedure prescribed by Rule 67. Thescheme of the Rules is such that even aland holder cannot carry on miningoperations without obtaining a validmining lease or permit. Consent by aland owner is not a condition precedentto carry on mining operations. If aperson is granted mining lease or permitunder the Rules, he becomes entitled tocarry on mining operation and he cannotrestrained to do so by the land ownersimply because his consent was notobtained. There is no requirement forgrant of a consent or No Objection by theland owner.

Case Law discussed:AIR 1976 SC 1393.

(Delivered by Hon'ble Krishna Murari, J.)

1. Petitioner has approached thisCourt seeking a writ of certiorari to quashthe advertisement dated 16.09.2015 issuedby District Magistrate, Sonbhadra,respondent no. 2 inviting application forgrant of mining lease in respect of plotnos. 4783, 4785, 4786, 4787, 4811, 4812and 4813, area 3.40 acre situate at villageBilli Markundi, Tehsil Robertsganj,District Sonbhadra (hereinafter referred toas the 'plots in dispute').

2. According to the pleadings set outin the writ petition, the plots in disputewere jointly owned by one Ramdev andone Ghoorahu, father of respondent nos. 5and 6, each having half share in the plotsin dispute. Ramdev is alleged to havetransferred his half share in favour of thepetitioner through registered sale deeddated 30th June, 2009 and thereafter hisname also came to be mutated in therevenue record in pursuance of an orderdated 29.08.2009 passed by Naib

Tehsildar, Robertsganj, DistrictSonbhadra under Section 34 of the LandRevenue Act in Case No. 616 of 2009.The plots in dispute along with certainother plots were subject matter ofadvertisement inviting applications forgrant of mining lease. Respondent nos. 5and 6 in pursuance whereof made anapplication in respect of plots in dispute.A No Objection Certificate dated08.09.2015 is alleged to have been issuedby the Divisional Forest Officer, Obra,Van Prabhag, Obra, District Sonbhadra.The petitioner on attaining knowledge ofthe fact, made a representation/objectionbefore the District Magistrate, Sonbhadradated 18.10.2015 seeking cancellation ofthe proceedings for granting mining leasein respect of plots in dispute on theallegation that he was share holder to theextent of the half share in the said plotsand the respondent nos. 5 and 6 have nottaken any No Objection Certificate fromhim. However, when no action has beentaken, he has approached this Court byfiling instant writ petition seeking theabovequoted relief.

3. We have heard Shri Madan LalSrivastava, learned counsel for thepetitioner and learned Standing Counselrepresenting the State respondents.

4. The main grievance of thepetitioner is that he is co-tenure holder ofthe plots in dispute to the extent of halfshare and the application made byrespondent nos. 5 and 6 for grant ofmining lease in respect of said plots isliable to be rejected for want of noobjection from him.

5. The Uttar Pradesh MinorMinerals (Concession) Rules, 1963 (forshort the 'Rules) framed by the State of

1 All. Srikant Tripathi Vs. State of U.P. & Ors. 127

U.P. provides for grant of a mining leaseor mining permit. Rule 3 of the Rulesclearly prohibits any mining operation byany person within the State of any minormineral to which the Rules are applicable,except under and in accordance with theterms and conditions of a mining lease ormining permit granted under the Rules.Sub-rule (2) of Rule 3 of the Rulesprovides that no mining lease or miningpermit shall be granted otherwise than inaccordance with the provisions of theRules.

6. The statutory Rules governing theprocedure and the conditions for grant ofa mining lease or permit, do not prescribeany requirement for the consent of a landowner for grant of a mining lease orpermit. On the contrary, Rule 67 of theRules disentitles a person having any rightin any capacity over the land covered by amining lease or mining permit, to imposeany prohibition or restriction on a right ofa person holding any lease or permit tocarry out such operation and such aperson is only entitled for annualcompensation for use of the surface eitherunder an agreement with such person andin case of dispute between them for suchsum as may be determined by the DistrictOfficer in the manner prescribed underRule 67. It may be relevant to quote Rule67, which reads as under.

"67. No restriction etc., to beimposed by owner of land on miningoperation except demand ofcompensation.-(1) No person, who hasright in any capacity on the land coveredby a mining lease or mining permit, shallbe entitled to impose any prohibition orrestriction on the mining operations by theholder or such lease or permit of suchland or to demand any sum by way of

premium of royalty for the removal ofminor mineral.

Provided that such person shall beentitled to get annual compensation fromthe said holder of mining lease or permitfor the use of surface of the land formining operations, as may be agree uponbetween them.

(2) Where the holder of a mininglease or permit and the owner of thesurface of the land could not agree uponthe amount of annual compensation and adispute arises in respect thereof, it shall bedetermined by the District Officer in suchmanner that-

(a) in the case or agricultural land,the amount of annual compensation shallbe worked out on the basis of the averageannual net income from the cultivation ofsimilar land for the past three years, and

(b) in the case of non-agriculturalland, the amount of annual compensationshall be worked out on the basis ofaverage annual letting value of similarland for the previous three years."

7. In view of provisions of Rule 67and the mandate of Rule 3, no miningoperation can be undertaken, by anyperson, of any minor mineral within theState to which the Rules are applicable,except in accordance with the terms andconditions of a mining lease or miningpermit granted under the Rules, and landholder has a right only to claimcompensation from the holder of the leaseor of the mining permit in accordancewith the provisions and the procedureprescribed by Rule 67. The scheme of theRules is such that even a land holdercannot carry on mining operationswithout obtaining a valid mining lease orpermit. Consent by a land owner is not acondition precedent to carry on miningoperations. If a person is granted mining


lease or permit under the Rules, hebecomes entitled to carry on miningoperation and he cannot restrained to doso by the land owner simply because hisconsent was not obtained. There is norequirement for grant of a consent or NoObjection by the land owner.

8. The aforesaid view taken by usfinds support from the judgment of theHon'ble Apex Court in the case ofBhagwan Dass Vs. State of U.P. & Ors.,AIR 1976 SC 1393, wherein the Hon'bleApex Court while considering theprovisions of Rule 67, in paragraph 14 ofthe report, has observed as under.

"We would like before closing toinvite especial attention to Rule 67 of theRules of 1963 under which a "personhaving a right in any capacity in the landcovered by a mining lease or miningpermit ..... shall be entitled to getcompensation" from the holder of amining lease or mining permit of suchland for the use of the surface, which maybe agreed upon between the parties. Incase of any dispute, the amount ofcompensation has to be determined by theDistrict Officer whose order assumesfinality. The counter-affidavit filed by theState Government in the High Courtconcedes expressly, as it ought, thatconsidering the fact that the personentitled to the use of a land may beprevented from using it by reason of amining lease or permit, Rule 67 providesfor the payment of compensation to himfor such deprivation. When the right toconduct a mining operation is auctionedby the Government the person who isotherwise entitled to the user of the land,say for agricultural purposes, is deprivedof its user and the object of Rule 67 is toensure that he should be compensated

adequately for the deprivation of suchuser."

9. In view of the above facts anddiscussions, the petitioner cannot be heldentitled to raise any objection either inrespect of grant of mining permit/lease formining operations for inclusion of hisplots in the advertisement in accordancewith law and the procedure prescribed bythe Rules, for want of a No Objectionfrom him.

10. This writ petition is, thus, devoidof any merit and, accordingly, standsdismissed in limine.

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Documents

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