3 All] Manoj Jaiswal Vs. Union of India & Ors. 1025 a general disturbance of public tranquility ... 1026 INDIAN LAW REPORTS ALLAHABAD SERIES ... Manoj Jaiswal Vs. Union of India &

3 All] Manoj Jaiswal Vs. Union of India & Ors. 1025

ORIGINAL JURISDICTIONCIVIL SIDE

DATED: LUCKNOW 30.09.2015

BEFORETHE HON'BLE DINESH MAHESHWARI, J.THE HON'BLE RAKESH SRIVASTAVA, J.

Habeas Corpus No. 5 of 2015

Manoj Jaiswal ...PetitionerVersus

Union of India & Ors. ...Respondents

Counsel for the Petitioner:B.K. Shukla, P.K. Rai

Counsel for the Respondents:Govt. Advocate, A.S.G., Vimal KumarSrivastava

Constitution of India, Art.-226-HabeasCorpus Petition-challenging detentionorder-on ground causing death in openmarket-can not be disturb to public order-held-such act caused terror and panic inbusy locality-certainly effects public order,the second ground-solitary incidentsufficient to form opinion to disturb thepublic order-detention held-proper.

Held: Para-12 & 2012-The daring act of the petitioner in abusy market, in our opinion, affectedpublic order and not merely law andorder. The said act, certainly, causedterror and panic in the locality andaffected those who watched the wholething in fear as helpless spectators. Theact in question adversely affected theeven tempo of life of the community andcaused a general disturbance of publictranquility

20-This leads us to the third contentionmade on behalf of the petitioner. Thequestion as to whether a person who is injail can be detained under detention lawhas been the subject-matter ofconsideration before the Apex Court timeand again, and it has been consistently held

in such cases that there was no law inpassing a detention order even against aperson under custody, however, at the timeof passing the detention order, thedetaining authority should be aware thatthe detenu was already in custody and waslikely to be released on bail. The conclusionthat the detenu could be released on bailcannot be ipse dixit of the detainingauthority and once it is established that thedetaining authority was conscious of thesaid fact, its subjective satisfaction basedon materials, normally, should not beinterfered with.

Case Law discussed:(1990) 2 SCC 456; (2012) 7 SCC 181; (2012) 2SCC 176; (1970) 1 SCC 98; (1983) 4 SCC 301;(1989) 4 SCC 509; (1994) 5 SCC 54; (2004) 8SCC 106; W.P. No. 2690 OF 2015.

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

1. This is a petition through jail underSection 226 of the Constitution for issuanceof a writ of Habeas Corpus by ManojJaiswal, who has been detained by an orderof detention dated 11.10.2014 passed by theDistrict Magistrate, Barabanki, under sub-section (2) of section 3 of the NationalSecurity Act, 1980 (for brevity 'Act') with aview to prevent him from acting in anymanner prejudicial to the maintenance ofpublic order.

2. The grounds of detention, ascommunicated to the detenue by theDistrict Magistrate on the basis of whichthe detention order was passed, are asfollows:

dk;kZy; ftyk eftLVsªV] ckjkcadhfu#f) ds vk/kkj

pwafd vkns'k la[;k 06@-------- fnukad11&10&2014 ds vUrxZr vki eukst tk;loky mezyxHkx 33 o"kZ] iq= fouksn tk;loky] fuoklh nf{k.kVksyk cadh] Fkkuk dksrokyh uxj] tuin ckjkcadh dksjk"Vªh; lqj{kk vf/kfu;e] 1980 ¼vf/kfu;e la[;k

1026 INDIAN LAW REPORTS ALLAHABAD SERIES

65@1980½ dh /kkjk 3 mi /kkjk ¼2½ ds v/khu fu#)fd;k x;k gSA

vr,o] mDr vf/kfu;e dh /kkjk&8 ds micU/kksads vuqlj.k esa ,rn~}kjk vkidks lwfpr fd;k tkrk gSfd vkidks fu#) djus ds vk/kkj vuqorhZ izLrj esafn;s x;s gS%&

fnukad 15&01&2014 dks nksigj 02 cts vkiusvius vU; lkfFk;ksa ds lkFk cadh cktkj] Fkkukdksrokyh uxj] tuin ckjkcadh esa vjfoUn ;kno dksrepa s ls Qk;j djds u'̀kal gR;k dj nhA bl?kVuk dh izFke lwpuk fjiksVZ er̀d vjfoUn ;kno dsHkkbZ iq:"kksRre yky ;kno us vijk/k la[;k&40@14]/kkjk&147@148@149@307@302 Hkkjrh; n.Mfo/kku] Fkkuk dksrokyh uxj] tuin ckjkcadh esaiathdr̀ dh x;hA er̀d vjfoUn ;kno dk iksLVekVZe fnukad 15&01&2014 dks gqvkA iksLVekVZe esaer̀d vjfoUn ;kno dh e`R;q vkXus;kL= dh pksVksa lsgksuk ik;k x;kA

bl vijk/k ds xokg iq:"kksRre yky ;kno]v'kaw ;kno] lksuw ;kno ,oa iznhi ;kno usvius&vius c;kuksa esa mDr u'̀kal gR;k dh ?kVuk dkleFkZu fd;k gSA xokgksa us tgka ,d lkFk mDrdkfjr ?kVuk dk leFkZu fd;k gS ogha nwljh vksj ;gHkh lk{; gS fd vki }kjk dkfjr mDr u'̀kalgR;kdk.M ls yksd dkQh Hk;Hkhr gks x;s gSa] Mj dsdkj.k vius ?kjksa ds njokts o f[kM+fd;ka cUn djyh] yksx ?kjksa ls ugha fudysA nqdkusa cUn gks x;hyksx vko';d oLrq,a [kjhnus ls oafpr gks x;sALFkkuh; yksd O;oLFkk fNUu&fHkUu gks x;h vkSjtuekul dk veu pSu vLr O;Lr gks x;kA vki}kjk dkfjr mDr u'̀kal gR;kdk.M dk lekpkjfofHkUu lekpkj i=ksa esa izeq[krk ls izdkf'kr gqvkAftldks i<+dj tuthou esa Hk; O;kIr gks x;k vkSjO;kid :i ls tuekul dk veu pSu foijhr :ils izHkkfor gqvkA vki }kjk dkfjr mDr gR;kdk.Mesa vHkh Hkh yksx nqdku] ?kj o dkjksckjh Mjs o lgesagSA

vki fnukad 27&01&2014 ls ftyk dkjkxkj]ckjkcadh esa fu#) gSA vki tekur ij NwVus dkiz;kl dj jgs gSa rFkk ekuuh; mPp U;k;ky; esatekur izkFkZuk i= izLrqr dj fn;k gSA vkidstekur ij NwVus dh iw.kZ lEHkkouk gSA ;fn vkitekur ij NwVdj tsy ls Ckkgj vk x;s rks iqu%xaHkhj vijk/k ?kfVr djds yksd O;oLFkk dks Hkaxdjsaxsa ,oa tuekul ds veu pSu dks fCkxkM+saxsaA

mi;qZDr vk/kkjksa ls esjk ;g lek/kku gks x;k gSfd vkids }kjk ,slh fdlh Hkh jhfr esa dk;Zokgh fd;stkus dh lEHkkouk gS] tks yksd O;oLFkk cuk;s j[kusds izfrdwy gS] vkSj vkidks ,slh jhfr esa dk;Zokghdjus ls] tks yksd OloLFkk cuk;s j[kus esa izfrdwygS] dks jksdus ds mn~ns'; ls] ;g vko';d gS fdvkidks fu#) fd;k tk;sA

vkidks mDr vf/kfu;e dh /kkjk&8 dsvuqlj.k esa ,rn~}kjk lwfpr fd;k tkrk gS fdvkidks ,sls vkns'k] ftlds v/khu vki fu#) fd;sx;s gSa] ds fo#) fujks/kd vf/kdkjh ¼ftyk eftLVsªV½rFkk jkT; ljdkj dks izR;kosnu nsus dk vf/kdkj gSsaA;fn vki fujks/kd vf/kdkjh ¼ftyk eftLVsªV½ dksizR;kosnu nsus ds vius vf/kdkj iz;ksx djuk pkgsa rksmls] ml dkjkxkj] tgkWa vki fu#) gSa] ds v/kh{kdds ek/;e ls ;Fkk'kh?kz izLrqr djsA ,sls izR;kosnu ij];fn og fujks/kkns'k tkjh gksus ds 12 fnol vFkokjkT; ljdkj }kjk fujks/kkns'k dk vuqeksnu gksus] tksHkh igys gks ds ckn izkIr gksxk rks fujks/kd vf/kdkjh¼ftyk eftLVsªV½ }kjk ml ij fopkj ugha fd;k tkldsxkA ;fn vki jkT; ljdkj dks ,slk izR;kosnunsus ds vius vf/kdkj dk iz;ksx djuk pkgsa rks vkimls lfpo] x̀g foHkkx] mRrj izns'k ljdkj] y[kuÅdks lEcksf/kr djds ml dkjkxkj] tgkWa vki fu#)gSa] ds v/kh{kd ds ek/;e ls izLrqr djsaA

vkidks mDr vf/kfu;e dh /kkjk 9 ,oa 10 dslUnHkZ esa ,rn~}kjk lwfpr fd;k tkrk gS fd vkidks ,slsvkns'k] ftlds v/khu vki fu#) fd;s x;s gSa] ds fo#);fn vki mRrj izns'k jkT; lykgdkj cksMZ] y[kuÅ dksHkh viuk izR;kosnu nsuk pkgsa rks mls v/;{k mRrj izns'kjkT; lykgdkj cksMZ] y[kuÅ dks lEcksf/kr djdsdkjkxkj] tgkWa vki fu#) gSa] ds v/kh{kd ds ek/;e ls;Fkk'kh?kz izLrqr djsaA vkidks ;g Hkh lwfpr fd;k tkrkgS fd vkidk ekeyk mDr vf/kfu;e dh /kkjk&10 dsv/khu vkidh fu#f) dh okLrfod frfFk ds rhu lIrkgds vUnj mRrj izns'k jkT; lykgdkj cksMZ] y[kuÅ dkslanfHkZr fd;k tk;sxk vkSj vkids izR;kosnu ij] ;fn ogfoyEc ls izkIr gksxk rks mDr cksMZ }kjk ml ij fopkjugha fd;k tk;sxkA

vkidks ;g Hkh lwfpr fd;k tkrk gS fd mDrvf/kfu;e dh /kkjk&11 dh mi/kkjk ¼1½ ds vuqlkjmRrj izns'k jkT; lykgdkj cksMZ] ;fn vko';dle>s vFkok ;fn vki pkgs rks vkidks mDr cksMZ}kjk lquk tk;sxkA ;fn vki mDr cksMZ }kjk viuhO;fDrxr lquokbZ djuk pkgs rks ;g ckr vki viusizR;kosnu esa fof'k"V :i ls fy[ks rFkk dkjkxkj]


tgka vki fu#) gSa] ds v/kh{kd ds ek/;e ls jkT;ljdkj dks izLrqr djsaA

vkidks mDr vf/kfu;e dh /kkjk&14 dsvuqlj.k esa ,rn~}kjk ;g lwfpr fd;k tkrk gS fdvkidks ,sls vkns'k] ftlds v/khu vki fu#) fd;sx;s gSa] ds fo#) dsUnzh; ljdkj dks Hkh izR;kosnunsus dks vf/kdkj izkIr gSA ;fn vki dsUnzh; ljdkjdks izR;kosnu nsus ds vius vf/kdkj dk iz;ksx djukpkgs rks vki mls lfpo] Hkkjr ljdkj] xg̀ ea=ky;¼vkUrfjd lqj{kk foHkkx½] ukFkZ Cykd] ubZ fnYyh dkslEcksf/kr djds ml dkjkxkj] tgkWa vki fu#) gSa] dsv/kh{kd ds ek/;e ls izLrqr djsaA

¼;ksxs'oj jke feJ½ ftyk eftLVsªV

ckjkcadhA

3. The detention order as well asgrounds of detention was served upon thepetitioner. The District Magistrate sent areport to the State Government about thepassing of detention order together with thegrounds of the detention and all theparticulars bearing on the same. The saidreport and the particulars were considered bythe State Government and it approved of thedetention order under sub-section (4) ofsection 3 of the Act and sent a report to theCentral Government under section 3 (5) ofthe Act. The State Government forwardedthe case of the petitioner to the AdvisoryBoard in due course under section 10 of theAct along with detention order together withthe grounds of detention. The representationmade by the petitioner to the StateGovernment was also placed before theAdvisory Board. The Board considered thematerial placed before it, including therepresentation of the petitioner and afterhearing the petitioner in person, sent itsreport to the State Government undersubsection (1) of section 11 of the Act.According to the Board there was sufficientcause for detention of the petitioner. Inpursuance of the opinion expressed by theAdvisory Board the State Government, in

exercise of its powers under subsection (1) ofsection 12 of the Act, confirmed the order fordetention of the petitioner and the same wascommunicated to the petitioner.

4. In response to the rule nisi, SriYogeshwar Ram Mishra the DistrictMagistrate, Barabanki, who had passed theimpugned order, has filed a counter affidavitto which the petitioner has filed his rejoinderaffidavit. In his counter affidavit, the DistrictMagistrate has explained the circumstanceswhich led to the issuance of the detentionorder. In the counter affidavit, the allegationsmade by the detenu have been controvertedand it has been unequivocally stated that theConstitution safeguards of Article 22 (5) andthat of section 8 of the Act, have been strictlycomplied with.

5. The detention order was passedby the District Magistrate on 11.10.2014and at that point of time the petitioner wasunder detention in District Jail Barabankion the basis of an FIR dated 15.01.2014lodged by Purushottam Lal Yadav - thebrother of the deceased in Case Crime No.40 of 2014, under Sections 147, 148, 149,307, 302 IPC lodged at Police StationKotwali Nagar, District Barabanki. It maybe mentioned, at this stage, that thedetenu has since been granted bail on23.07.2015, but in view of the order ofdetention, he has not been released.

6. The contentions raised by Sri P.K.Rai, learned counsel for the petitioner arethree-fold:

a. The grounds, at the worst, do nomore than to suggest a possible 'law andorder' situation and not a 'public order'situation and therefore the detention on theostensible ground of preventing him from


acting in a manner prejudicial to public orderwas not justified.

b. In the absence of any past history,the detention of the petitioner on thesolitary incident, referred to in the groundof detention, was totally unwarranted.

c. The petitioner, who was in jailwhen the detention order was passed, hadnot moved any bail application and assuch there was no apprehension of breachof public order from him.

In support of his submissions, thelearned counsel has placed reliance uponthe cases reported in (1990) 2 SCC 456,Devaki v. Government of Tamil Nadu &Ors., (2012) 7 SCC 181, HuidromKonungjao Singh v. State of Manipur &Ors. and (2012) 2 SCC 176, YummanOngbi Lenbi & Ors. v.. State of Manipur& Ors.

7. Sri R.K. Diwedi, however, relyingupon the records of the proceedings andthe affidavit filed by the detainingauthority, has supported the order ofdetention.

8. We have heard Sri P. K. Rai,learned counsel for the petitioner and SriR.K. Dwivedi, learned GovernmentAdvocate and perused the record.

9. The distinction between theconcept of public order and that of lawand order has been adverted to by theApex Court in a catena of decisions. Thequestion whether a man has onlycommitted a breach of law and order oracted in a manner leading to disturbanceof public order is a question of degree ofthe reach of the act upon society is nomore res integra. In the case reported inAIR 1966 SC 740, Dr Ram ManoharLohia v. State of Bihar it was observed

that the contravention 'of law' alwaysaffects 'order' but before it could be saidto affect 'public order', it must affect thecommunity or the public at large. One hasto imagine three concentric circles, thelargest representing "law and order", thenext representing "public order" and thesmallest representing "security of State".An act may affect "law and order" but not"public order", just as an act may affect"public order" but not "security of theState".

10. In paragraph 3 of the casereported in (1970) 1 SCC 98, Arun Ghoshv. State of West Bengal. it was held asfollows:

"Public order was said to embracemore of the community than law andorder. Public order is the even tempo ofthe life of the community taking thecountry as a whole or even a specifiedlocality. Disturbance of public order is tobe distinguished, from acts directedagainst individuals which do not disturbthe society to the extent of causing ageneral disturbance of public tranquillity.It is the degree of disturbance and itseffect upon the life of the community in alocality which determines whether thedisturbance amounts only to a breach oflaw and order. Take for instance, a manstabs another. People may be shocked andeven disturbed, but the life of thecommunity keeps moving at an eventempo, however much one may dislike theact. Take another case of a town wherethere is communal tension. A man stabs amember of the other community. This isan act of a very different sort. Itsimplications are deeper and it affects theeven tempo of life and public order isjeopardized because the repercussions ofthe act embrace large Sections of the


community and incite them to makefurther breaches of the law and order andto subvert the public order. An act byitself is not determinant of its owngravity. In its quality it may not differfrom another but in its potentiality it maybe very different."

In the same paragraph the ApexCourt has held as follows:

"It means therefore that the questionwhether a man has only committed abreach of law and order or has acted in amanner likely to cause a disturbance ofthe public order is a question of degreeand the extent of the reach of the act uponthe society. The French distinguish lawand order and public order by designatingthe latter as order publique. The latterexpression has been recognised asmeaning something more than ordinarymaintenance of law and order. JusticeRamaswami in Writ Petition No. 179 of1968 drew a line of demarcation betweenthe serious and aggravated forms ofbreaches of public order which affect thecommunity or endanger the public interestat large from minor breaches of peacewhich do not affect the public at large. Hedrew an analogy between public andprivate crimes. The analogy is useful butnot to be pushed too far. A large numberof acts directed against persons orindividuals may total up into a breach ofpublic order. In Dr Ram Manohar Lohia'scase examples were given by Sarkar andHidayatullah, JJ. They show how similaracts in different contexts affect differentlylaw and order on the one hand and publicorder on the other. It is always a questionof degree of the harm and its affect uponthe community. The question to ask is:Does it lead to disturbance of the currentof life of the community so as to amount a

disturbance of the public order or does itaffect merely an individual leaving thetranquillity of the society undisturbed?This question has to be faced in everycase on facts. There is no formula bywhich one case can be distinguished fromanother."

11. The principle enunciated abovehas been followed by the Apex Court inall subsequent cases. It is, therefore,necessary in each case to examine thefacts to determine as to whether the actreferred to in the grounds of detentionfalls in the realm of 'law and order'problem or it had the reach andpotentiality so deep, so as to disturb thesociety, to the extent of causing a generaldisturbance of public tranquillity.

12. It would appear from the groundof detention that the petitioner and hisassociates attacked Arvind Yadav and hisassociate with firearms in the open marketin broad daylight which resulted in thedeath of Arvind Yadav. It has been furtherstated that the above act of the petitionerand his associates created terror and panicamongst the people of the locality andthereby disturbed public order. The daringact of the petitioner in a busy market, inour opinion, affected public order and notmerely law and order. The said act,certainly, caused terror and panic in thelocality and affected those who watchedthe whole thing in fear as helplessspectators. The act in question adverselyaffected the even tempo of life of thecommunity and caused a generaldisturbance of public tranquility

13. On behalf of the petitioner, areference has been made to T. Devaki'scase (supra). The petitioner in that casehad attacked the Minister in a seminar. He


threw a knife towards the minister with anintention to kill him but he missed thetarget and fell down at the stage. Thepolice caught hold him and those whoaccompanied him were also overpoweredby the police and consequent to theconduct of the petitioner the proceedingof the seminar was interrupted for "only awhile" and since the proceedings of theseminar were interrupted for a while itwas held that the petitioner's activity inthat case did not and could not affectpublic peace and tranquility. The decisionis thus of no help to the petitioner.

14. We now come to the secondsubmission made by the learned counselfor the petitioner that detention on asolitary incident, referred to in the groundof detention, was totally unwarranted.

15. It is also settled that a solitaryact of omission or commission can betaken into consideration, by the detainingauthority to pass an order of detention ifthe reach, effect and potentiality of the actis such that it disturbs public tranquillityby creating terror and panic in the societyor a considerable number of people in thespecified locality where the act is allegedto have been committed.

16. In paragraph 14 of the casereported in (1983) 4 SCC 301, AlijanMian v. Distt. Magistrate the Apex Courthas held as follows:

"14. Now the question arises whetherthe two incidents were sufficient for thedetaining authority to initiate proceedingsfor preventive detention. It is for thedetaining authority to have the subjectivesatisfaction about the apprehension of thebreach of the public order from theincidents mentioned above. Even one

incident may be sufficient to satisfy thedetaining authority. It all depends uponthe nature of the incident. In the case in handthe detaining authority was fully satisfiedthat there was apprehension of breach ofpublic order from the petitioners in case theywere bailed out, of which there was everylikelihood. This contention in our opinionhas no force."

17. In the case reported in (1989) 4SCC 509, Bimla Rani v. Union of Indiathe Apex Court opined as follows:

"8. It is true that the incident on 13-4-1989 was a solitary one so far as thedetenu was concerned, but the question iswhether the incident had prejudiciallyaffected the public order. In other words,whether it had affected the even tempo oflife of the community. As observed inAlijan Mian case, it is for the detainingauthority to have the subjectivesatisfaction about the apprehension of thebreach of the public order and that evenone incident may be sufficient to satisfythe detaining authority in that regarddepending upon the nature of the incident.It is not disputed by Mr Lalit that a singleincident may disturb the tranquillity andthe even tempo of life of the community.

18. In the case reported in (1994) 5SCC 54, Attorney General for India &Others Vs. Amratlal Prajivandas &Others, though the matter related to theCOFEPOSA, a nine judges Bench of theApex Court has inter alia held as under:-

"Though ordinarily one act may notbe held sufficient to sustain an order ofdetention, one act may sustain an order ofdetention if the act is of such a nature asto indicate that it is an organised act or amanifestation of organised activity. The


gravity and nature of the act is alsorelevant. The test is whether the act issuch that it gives rise to an inference thatthe person would continue to indulge insimilar prejudicial activity. "

19. In the ground of detention, thedetaining authority on the basis of relevantand cogent material, has elaborately statedthe effect of the incident. The detainingauthority has categorically stated that onaccount of the incident fear and terror wasspread in the hearts of the public in themarket. In our opinion, even though it wassolitary incident but in the circumstances, itwas sufficient for the detaining authority toarrive at a finding that the even tempo of lifehad been disturbed which had prejudiciallyaffected the public order. In view of theabove the second submission made on behalfof the petitioner also cannot be upheld.

20. This leads us to the third contentionmade on behalf of the petitioner. The questionas to whether a person who is in jail can bedetained under detention law has been thesubject-matter of consideration before theApex Court time and again, and it has beenconsistently held in such cases that there wasno law in passing a detention order evenagainst a person under custody, however, atthe time of passing the detention order, thedetaining authority should be aware that thedetenu was already in custody and was likelyto be released on bail. The conclusion that thedetenu could be released on bail cannot beipse dixit of the detaining authority and once itis established that the detaining authority wasconscious of the said fact, its subjectivesatisfaction based on materials, normally,should not be interfered with.

21. In (2004) 8 SCC 106, at page118, T.P. Moideen Koya v. Govt. ofKerala the Apex Court held as follows:

"19. The very object of passing adetention order being to prevent the personfrom acting in any manner prejudicial tomaintenance of public order or fromsmuggling goods or dealing in smuggledgoods, etc., normally therewould be norequirement or necessity of passing such anorder against a person who is already incustody in respect of a criminal offencewhere there is no immediate possibility of hisbeing released. But in law there is no bar inpassing a detention order even against such aperson if the detaining authority issubjectively satisfied from the materialplaced before him that a detention ordershould be passed. A Constitution Bench inRameshwar Shaw v. District Magistrate heldas under: (SCR p. 929)

"As an abstract proposition of law,there may not be any doubt that Section3(1)(a) does not preclude the authorityfrom passing an order of detention againsta person whilst he is in detention or injail; but the relevant facts in connectionwith the making of the order may differand that may make a difference in theapplication of the principle that adetention order can be passed against aperson in jail."

20. In Vijay Kumar v. State of J&K itwas held: (SCC p. 48, para 10) "If the detenuis already in jail charged with a seriousoffence, he is thereby prevented from actingin a manner prejudicial to the security of theState. Maybe, in a given case there yet maybe the need to order preventive detention of aperson already in jail. But in such a situationthe detaining authority must discloseawareness of the fact that the person againstwhom an order of preventive detention isbeing made is to the knowledge of theauthority already in jail and yet forcompelling reasons a preventive detentionorder needs to be made."


22. A perusal of the grounds ofdetention would show that the detainingauthority was fully aware of the fact that thedetenu was actually in jail custody and therewas material before him to believe that therewas real possibility of his release on bail. Thelearned counsel for the petitioner hasstrenuously contended that the petitioner hadnot moved any bail application before thisCourt as alleged in the grounds of detentionand has thereby questioned the observationsmade by the detaining authority that thedetenue was likely to be released on bail. Thelearned counsel for the petitioner has,however, candidly accepted that a notice forfiling bail application on behalf of thepetitioner had been given in the office of theGovernment Advocate.

23. For filing a bail applicationunder Chapter XVIII Rule 8 of theAllahabad High Court Rules, at least 10days notice is required to be given. Assoon as notice is given, the intention tomove the bail application is clear and theState cannot presume negative thatdespite giving the notice bail applicationwould not be moved. Therefore, theauthorities concerned cannot be faulted inpresuming that the petitioner was makingattempt to get himself released on bail.

24. In habeas corpus writ petitionno. 2690 of 2015, Robin Tyagi versusUnion of India & Ors. a Division Benchof this court had the occasion to considerthis aspect of the matter. The DivisionBench held as follows:

"Sri Sudhir Mehrotra, learned counselfor the petitioner, contends that the groundsof detention reply nonapplication of mind inas much as the bail was granted in case CaseCrime. No. 200 of 2014 by the High Courton 1.8 .2014, but grounds of detention could

not have proceeded on such a presumption.This has been countered by the learnedA.G.A. clearly contending that a bailapplication is moved under ChapterXVIIIRule 8 of the Allahabad High Court Ruleswherein at least 10 days notice is required tobe given. The notice was given and then thebail application was filed on 30.7 .2014.Thus, the State will be presumed to haveknowledge about the said bail applicationhaving been filed an attempt being made bythe petitioner to get himself released on bail.The aforesaid contention of the learnedA.G.A. appears to be correct, and thereforehas to be accepted."

25. In support of the third contentionlearned counsel for the petitioner has placedreliance upon the case of Huidrom KonungjaoSingh (supra). In the said case the detentionorder passed against the petitoner of that case,who was in jail, was set aside. In that case nobail application, whatsoever, was moved onbehalf of the petitioner and as such there wasno possibility of the accused being releasedfrom jail custody accordingly the detentionorder was set aside. That is not the case here.Thus, the petitioner does not derive anybenefit from the case of Huidrom KonungjaoSingh (supra). The case of Yumman OngbiLenbi (supra) on which reliance has beenplaced is also of no help to the petitioner. Inthe said case the detention order was passedafter almost 12 years after the last FIR wasfiled against the petitioner of that case and itwas held that there was no live link of theearlier incident and incident in respect ofwhich the detention was passed.

26. In view of the above, the thirdcontention raised in behalf of thepetitioner also fails.

27. For the foregoing discussion, wefind no force in any of the contentions

3 All] Vijay Kumar Yadav Vs. State of U.P. & Ors. 1033

raised on behalf of the petitioner. Thepetition is accordingly dismissed.

--------APPELLATE JURISDICTION

CIVIL SIDEDATED: ALLAHABAD 28.09.2015

BEFORETHE HON'BLE KRISHNA MURARI, J.

THE HON'BLE AMAR SINGH CHAUHAN, J.

Special Appeal No. 21 of 2009

Vijay Kumar Yadav ...AppellantVersus

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

Counsel for the Appellant:Sri Akhilanand Mishra, Sri A.K. Singh, SriManish Kumar Nigam, Sri Vijay KumarYadav (I/P)

Counsel for the Opp. Parties:C.S.C.

Constitution of India-Art.-226-Servicelaw-dismissed on allegation-appointedas class 4th employee on compassionateground-as per date of birth in schoolcertificate-minor below than 18 years-Single Judge ignored the fact-when notrequired to produce age proof but askedto produce medical certificate-can not beheld guilty for suppression of materialfacts-appeal allowed.

Held: Para-11But in the present case, the appellanthad not given any false information orsuppressed any relevant or materialinformation. This is not a case where awrong date was given to have a longerperiod of service and thereafter anattempt to justify it. The date of birthwas recorded in the service book on thebasis of age determined by CMO on thebasis of medical examination.

Case Law discussed:AIR 2012 SC 1608; (1991) 1 SCC 588; (1993)4 SCC 727; (2010) 11 SCC 702.

(Delivered by Hon'ble Amar SinghChauhan, J.)

1. Heard Sri Vijay Kumar Yadav,appellant in person, learned StandingCounsel for the State respondents andperused the material on record.

2. This intra court appeal is directedagainst the order dated 24.11.2008, wherebythe learned Single Judge dismissed the CivilMisc. Writ Petition No. 23090 of 2008,(Vijay Kumar Yadav vs. State of U.P. &others) on the ground that the petitioner wasnot major and he was aged about 14 years atthe time of appointment. Therefore, primafacie, his appointment was illegal on the postof Runner in Tubewell ConstructionDivision, Gonda.

3. Brief facts of this case are that thepetitioner-appellant was appointed on thepost of Runner (DHAWAK) in TubewellConstruction Division, Gonda under theDying in Harness Rules, 1974. Thereafterthe petitioner-appellant was transferred toTubewell Division-I, Gorakhpur where hejoined on 10.9.1992. In this regard, aconfirmation letter dated 29.1.1999 ofrespondent no. 5 is annexed at page 33 asAnnexure-1 to the writ petition. At thetime of appointment, the petitioner-appellant was asked to prove his date ofbirth. The Chief Medical Officer, Gondahas determined the age of the appellant as18 years and on the basis of which thedate of birth of the appellant was recordedas 11.12.1969 in his service book. On27.10.2006, a complaint was made by SriRaj Kumar Yadav to the ExecutiveEngineer Tubewell Division-I, Gorakhpurthat on the basis of forged medicalcertificate, the appellant namely VijayKumar Yadav has obtained appointment.On the basis of the complaint, a


Committee was constituted by theExecutive Engineer, Tubewell Division-I,Gorakhpur asking for report regarding thecomplaint and verification of age of thepetitioner. The Committee submitted itsreport on 28.4.2007 mentioning that thecertificate which was issued by thePrincipal of the institution namelyCooperative Inter College, Pipraich,Gorakhpur dated 28.2.2003, the date ofbirth of the petitioner was 1.7.1974.Therefore, on the date of the appointment,the appellant was only 14 years of age andon the basis of the forged medicalcertificate, he has obtained appointment.It is recommended by the Committee thatmajor punishment be awarded to thepetitioner. On these facts, the appellantwas given charge sheet on 31.10.2007,which is Annexure-2 to the writ petition.Thereafter, the appellant submitted hisreply of the charge sheet on 3.11.2007,which is Annexure-3 to the writ petition.The reply submitted by the petitioner-appellant reveals that allegation made inthe charge sheet about the certificateissued by the Cooperative Inter Collegeand the date of birth mentioned in theCollege record has not been denied.Having regard to the reply of the chargesheet filed by the petitioner-appellant andthe enquiry report, the appellant has beenremoved from service by the impugnedorder dated 24.11.2008 and theappointment was declared as illegal.

4. Submission of the appellant is thatRaj Kumar Yadav was inimical to thepetitioner and manipulated the record of theschool and filed a character certificate whichwas believed by the Committee whereasMedical Board has given the age of 18 years.He was not aware of his date of birth and thefinding given by the Chief Medical Officershould be believed. At the time of the

appointment, petitioner-appellant was askedto get his age determined by the CMO. Hisage was determined as 18 years and,accordingly, CMO issued the age certificateon the basis of which date of birth wasrecorded as 11.12.1969 in service book. Hehad studied in Cooperative Inter College,Pipraich, Gorakhpur up to the 9th class andfailed in Class IX in the year 1987 since hehad not appeared at all or passed HighSchool Examination. Order dated 23.4.2008shows that it was passed on the basis of theinquiry report dated 22.1.2008, according towhich, the appellant appeared in HighSchool Examination without permission ofthe Department to justify his date of birthrecorded in his service book. Therefore, thereport dated 22.1.2008 was submittedwithout holding enquiry proceeding andappellant was not called upon to appearbefore the Enquiry Officer. The inquiryreport was also not supplied to him. Order ofremoval from service has been passedwithout providing opportunity of hearinginasmuch as he was not asked to participatein the inquiry proceeding. Enquiry report wassubmitted behind his back without holdingthe inquiry. The order of removal is violativeof Article 311 of the Constitution and alsoviolative to principle of natural justice.

5. Per contrary learned StandingCounsel submitted that the petitioner hasobtained the compassionate appointmentafter the death of his father namely RamSunder Yadav at the age of 14 years. Assuch, at the time of appointment, he wasminor and has obtained appointment onthe basis of the forged certificate allegedto be issued by CMO, Gonda. The date ofbirth as entered in service book on thebasis of certificate issued by CMO, Gonda, is11.12.1969 whereas, as per complaint, whichwas sent by Raj Kumar Yadav accompaniedby the character certificate issued by the

3 All] Vijay Kumar Yadav Vs. State of U.P. & Ors. 1035

Principal, Cooperative Inter College,Pipraich, Gorakhpur, the age of the appellantis 1.7.1974. The Enquiry Committeesubmitted its report holding that the age ofthe petitioner was 14 years. He has concealedhis age at the time of initial appointment inthe Department and recommended for majorpunishment.

6. In the case, in hand, petitioner-appellant was appointed on the post ofRunner (DHAWAK) which falls underClass-IV category in the TubewellConstruction Division, Gonda on 24.3.1988on compassionate ground under the Dyingin Harness Rules, 1974. The appellant wasasked to get his age determined by the ChiefMedical Officer. His date of birth, on thebasis of the service book and the certificateissued by CMO Gonda, is 11.12.1969. Thecomplaint was received accompanied bycharacter certificate issued by the Principal,Cooperative Inter College, Pipraich,Gorakhpur in which date of birth ofpetitioner-appellant was shown as 1.7.1974.On the basis of the complaint, an enquirywas initiated. The Enquiry Committee,instead of relying the service book entry inwhich age of the petitioner on the basis ofthe certificate issued by the CMO, Gondawas entered as 11.12.1969, had relied on theletter of the Principal/Character Certificatewhereas in the eye of law charactercertificate is not admissible as proof of age.The medical evidence is based on scientificinvestigation such as X-ray, ossification testwhich will have to be given due weight andprecedence over the shaky evidence basedon school administration record which giverise to hypothesis and speculation about theage.

7. It is well known fact that parentshave a tendency to show lesser age of thechild for High School Examination. The

Hon'ble Supreme Court in Om Prakashvs. State of Rajasthan and another, AIR2012 SC 1608 held that in such a situationwhen the school record itself is not freefrom ambiguity and conclusively provethe minority of the accused the opinion ofthe medical experts based on X-ray andossification test will have to be givenprecedence over the shaky evidence basedon school records.

8. The appellant was not asked tosupply proof of age from the school where hehad studied but he was asked to give medicalcertificate of CMO in proof of age. In thesecircumstances, the medical certificate issuedby the CMO, based on ossification test or X-ray cannot be belied by saying that it is fakeand forged. The Enquiry Committeesubmitted his report without givingopportunity of hearing to the appellant andno show cause notice was given nor copy ofthe enquiry report was supplied to theappellant. Under Rule 9(4) of the U.P.Government Servant (Discipline and Appeal)Rules, 1999 (hereinafter referred to as the"rules of 1999") which governs the servicecondition of the appellant, it was incumbentupon the disciplinary authority to supply acopy of the enquiry report to the chargedGovernment servant giving him opportunityto submit his representation if he so desires,within a reasonable specified time andthereafter proceed to pass a reasoned order inrespect of the penalty. Relevant Rule 9(4)reads as under:

"9. Action on Inquiry Report.--(1)The Disciplinary Authority may, forreasons to be recorded in writing, remitthe case for re-inquiry to the same or anyother Inquiry Officer under intimation tothe charged Government servant. TheInquiry Officer shall thereupon proceedto hold the inquiry from such stage as


directed by the Disciplinary Authority,according to the provisions of Rule 7.

(2)The Disciplinary Authority shall,if it disagrees with the findings of theInquiry Officer on any charge, record itsown finding thereon for reasons to berecorded.

(3)In case the charges are notproved, the charged Government servantshall be exonerated the DisciplinaryAuthority of the charges and informedhim accordingly.

(4)If the Disciplinary Authority,having regard to its findings on all or anyof charges is of the opinion that anypenalty specified in Rule 3 should beimposed on the charged Governmentservant, he shall give a copy of theinquiry report and his findings recordedunder sub-rule (2) to the chargedGovernment servant and require him tosubmit his representation if he so desires,within a reasonable specified time. TheDisciplinary Authority shall, havingregard to all the relevant records relatingto the inquiry and representation of thecharged Government servant, if any, andsubject to the provisions of Rule 16 ofthese rules, pass a reasoned orderimposing on or more penalties mentionedin Rule 3 of these rules and communicatethe same to the charged Governmentservant."

9. The Apex Court in the case ofUnion of India Vs. Mohd. Ramzan Khan(1991) 1 SCC 588 and in the case ofManaging Director, ECIL, Hyderabad andothers Vs. B. Karunakar and others (1993)4 SCC 727 has held that where the enquiryofficer is not the disciplinary authority, thedelinquent employee has a right to receive acopy of the enquiry officer's report in Courtbefore the disciplinary authority arrives at itsconclusions with regard to guilt or innocence

of the employee with regard to the chargeslevelled against him. That right is a part ofthe employee's right to defend himselfagainst the charges levelled against him. Adenial of the enquiry officer's report beforethe disciplinary authority takes its decisionon the charges, is a denial of reasonableopportunity to the employee to prove hisinnocence and is a breach of principles ofnatural justice. In the case in hand,admittedly non supply of the enquiry reportto the petitioner-appellant giving him anopportunity to make a representation is notonly violative of Section 9(4) of the rules,1999 but also in violation of the principles ofnatural justice in view of the law laid downby the Hon'ble Apex Court.

10. Moreover, Rule 8 of U.P.Government (Discipline and Appeal), Rules1999 provides that the Enquiry Officer shallnot make any recommendation about thepenalty whereas the recommendation hasbeen made by the Enquiry Officer for majorpunishment cannot be said to be fair ratherunjustified and unwarranted and is againstthe provisions of Rule 8 of Rules of 1999.

11. The Hon'ble Apex Court in ManojKumar vs. Government of NCT of Delhi andothers, (2010) 11 SCC 702, observed that ifany candidate furnishes false or incompleteinformation or withholds or conceals anymaterial information in his application, hewill be debarred from securing employment.Even if such an applicant is alreadyappointed, his services are liable to beterminated for furnishing false information.But in the present case, the appellant had notgiven any false information or suppressedany relevant or material information. This isnot a case where a wrong date was given tohave a longer period of service and thereafteran attempt to justify it. The date of birth wasrecorded in the service book on the basis of

3 All] Satyawan Vs. Krishna Bahadur Upadhyay 1037

age determined by CMO on the basis ofmedical examination.

12. Thus, in view of the aforesaiddiscussion, the law and settled legalproposition, we are of the view that theorder dated 24.11.2008, passed by learnedSingle Judge is not sustainable in natureand the inquiry report is liable to be setaside.

13. Hence, the order dated 24.11.2008is quashed and the enquiry report is herebyset aside. The special appeal succeeds and isallowed.

14. Respondents no. 2 to 5 aredirected to hold an inquiry afresh in thelight of the aforesaid discussion accordingto law. There shall be no order as to cost.


CRIMINAL SIDEDATED: ALLAHABAD 08.09.2015

BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI, J.THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Contempt Appeal Defective No. 26 of 2003

Satyawan ...AppellantVersus

Krishna BahadurUpadhyay ..Respondents

Counsel for the Appellant:Sri K.P. Shukla

Counsel for the Respondents:A.G.A.

Contempt of Court Act 1971-Section 12-Civil contempt punishment of Rs. 5000/-fine with direction of deduction from salary-except fine of Rs. 2000/- and 6 monthmaximum of punishment-realization ofdamage without finding of guilt-held-unsustainable.

Held: Para-8In the wake of the aforesaid facts, we donot find any justification for impositionof damages to be deducted from thesalary of the appellant without holdingthe appellant to be guilty of havingcommitted the contempt. A prima facieopinion is not an order of conviction onsatisfaction that the charge was proved.

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

1. This contempt appeal has comeup after 12 years of its filing.

2. The appellant was the thenRegional Joint Director of Education, whowas directed to decide a rival dispute of aCommittee of Management vide judgmentof this Court dated 10th April, 2003.

3. The officer appears to havecompleted the hearing on 25th June, 2003but orders were not delivered. WhenContempt Application No. 2970 of 2003was filed, upon issuance of notices, theorder was passed by the officer on 4thNovember, 2003. When the contemptapplication came up for final hearing, alearned Single Judge after having noticedthe above facts, observed that prima facie acontempt has been committed by not strictlyobeying with the order dated 10th April,2003. However, the court instead ofpunishing the appellant under section 12 ofthe 1971 Act disposed of the contemptpetition by directing that he will deposit Rs.5,000/- as damages, and the Director ofEducation was further directed to deduct theaforesaid amount from the salary of theappellant.

4. The said judgment of the learnedSingle Judge dated 13.11.2003 is underappeal before us.


5. The Division Bench thatentertained this appeal, admitted the sameand stayed the operation of the judgmentof the learned Single Judge.

6. Section 12 of the Contempt ofCourts Act, 1971 read with the otherprovisions thereof makes a provision forpunishment after holding a contemnor guiltyof charges and provides for a maximumpunishment by way of imprisonment for sixmonths and in addition thereto a fine of Rs.2,000/-. There is no other mode ofpunishment or statutory power conferred onthe court so as to impose damages on a primafacie finding of guilt.

7. The learned Single Judge did notfinally hold the appellant to be guilty norwas the appellant punished, as is evidentfrom a perusal of the judgment itself.

8. In the wake of the aforesaid facts,we do not find any justification forimposition of damages to be deducted fromthe salary of the appellant without holdingthe appellant to be guilty of havingcommitted the contempt. A prima facieopinion is not an order of conviction onsatisfaction that the charge was proved.

9. Consequently, we set aside thesaid direction of imposition of Rs. 5,000/-damages and deduction of salary asdirected by the learned Single Judge.

10. The appeal is allowed on theaforesaid terms.

--------REVISIONAL JURISDICTION


BEFORE

THE HON'BLE SUDHIR KUMAR SAXENA, J.

Criminal Revision No. 55 of 2015

Furkan ...RevisionistVersus

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

Counsel for the Revisionist:Sri Ishwar Chandra Tyagi, Sri NirvikarGupta

Counsel for the Opp. Parties:A.G.A., Sri Sushil Kumar Pandey

Cr.P.C.-Section 397/401-Criminal Revision-given custody of Muslim girl to her father-medical certificate as well as statementrecorded before magistrate shows 18years-according to school certificateminor-magistrate given preference toschool certificate with a view of variationof age about 2 years on medical certificatecustody to her father-held-whenNikahnama not disputed-girl willing to joincompany of her husband-husband entitledfor custody-revision allowed.

Held: Para-15 & 1615. In view of the above, it is apparentthat opinion of the Doctor in respect ofage should have been given preference.Moreover when girl was expressingapprehension, Magistrate should havebeen careful in sending her with father.As stated above, marriage i.e.nikahnama is not disputed.Consequently, as wife, she is ready tolive with her husband, husband isentitled to have her custody.

16. It is settled law that against thewishes, even minor cannot be sent toNari Niketan and husband being naturalguardian is entitled to custody of wife.

Case Law discussed:[2005 Law Suit (SC) 1541]; Habeas CorpusWrit Petition No. 10180 of 2012; AIR 1982 SC1297; [2014 (2) All. Cr.J. 664]

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

3 All] Furkan Vs. State of U.P. & Anr. 1039

1. This revision under Section 397/401Cr.P.C. is directed against the order dated23.12.2014 passed by Chief JudicialMagistrate, Muzaffarnagar, ordering custodyof victim in favour of her father.

2. Heard Sri Nirvikar Gupta, learnedcounsel for the revisionist and learnedAGA for the State.

3. Briefly stated facts of this case arethat an FIR was lodged under Sections363/366 IPC (crime no. 230 of 2014, P.S.-Sikheda, District Muzaffarnagar) arising outof kidnapping of Kumari Sitara. AforesaidFIR was challenged by revisionist and othersin W.P. No. 22776 of 2014 before AllahabadHigh Court, which was finally disposed ofon 26.11.2014. Division Bench of this Courtdirected petitioners to produce the girl beforeChief Judicial Magistrate, Muzaffarnagar,who will get her medically examined fordetermination of her age. Her statement willalso be recorded under Section 164 Cr.P.C.

4. Sitara in her statement recordedunder Section 164 Cr.P.C. stated that shehad left her house alone in the morning of30.10.2014. She went to Sikheda,Muzaffarnagar, Roorkee and Ambala.After reaching Ambala, she called Furkanand both went to Doraha on her ownvolition. It was clearly stated that shewants to live with Furkan and report hasbeen wrongly lodged. Furkan has notkidnapped her and both are innocent. Thisstatement was recorded on 17.12.2014.

5. Report of Medical Officer showsthat victim was found to be abouteighteen years old.

6. In the statement recorded underSection 161 Cr.P.C., it was stated that shewas enticed by Furkan and he married her

by extending threats. She made allegationof rape against Sabu as well.

7. An application was given byFirozuddin, father of the girl seeking hercustody on the ground that her daughter isminor as her date of birth is 10.07.1999.Furkan's brother had also moved anapplication claiming her custody, whofiled copy of the Pariwar register to showthat she is major. Concerned InvestigatingOfficer moved an application for passingappropriate order in respect of custody.

8. Learned Magistrate came to theconclusion that Educational Certificatewas preferable over medical report.Moreover, application was not supportedwith affidavit and age opined by Doctorcan be reduced by two years. Treating herto be minor, he directed the custody of thegirl in favour of her father. This veryorder has been assailed by Sri NirvikarGupta on various grounds.

9. It was submitted that evenaccording to transfer certificate, whichshows that victim has passed class- 2 in theyear 2010 and left the school was abovefifteen years. According to medical report,she is about eighteen years. In her statementrecorded under Section 164 Cr.P.C. beforeMagistrate she categorically stated that shewants to live with Furkan with whom shehad married. She along with Furkan hadcome to High Court to file writ petition. It isthus evident that victim is not willing to gowith her father. Affidavit filed by her showsthat in the village in a similar case, a girlwas murdered by the members of herfamily. Thus, she expressed threat to her lifeif she was sent with father.

10. A muslim girl having attainedthe age of puberty can enter into a


marriage contract. It is settled law thathusband is the natural guardian of wife.Even in the case of minor, marriage doesnot become ipso facto void as such,custody should have been in consonancewith the will of the victim-wife. As aproof of marriage nikahnama was filed,which has not been denied by the victim.Respondents have not set up a case ofdivorce. Consequently, custody of the girlshould have been given to husband or themembers of the family or her in-laws. Shecannot be sent to a place against herwishes.

11. Hon'ble Apex Court in the caseof Juhi Devi vs. State of Bihar [2005 LawSuit (SC) 1541] was considering similarcontroversy where medical board hasfound the age of the victim between 16-17years while educational certificates wereshowing her minor. Hon'ble Apex Courtordered that she should be allowed to livewith her husband. Relevant extract of thejudgment is being reproducedhereinbelow:-

"The Medical Board opined that ason 17.05.2003, the petitioner must havebeen aged between 16 and 17 years.However, the father of the petitionerproduced two certificates before theRevisional Court and contended that herdate of birth is 12.10.1985 and she hasnot attained majority. However, themedical report shows that she must havebeen aged more than 16 years, even on17.05.2003. Having regard to these facts,we are of the view that she must haveattained majority and her stay at theremand home would not be in the interestof justice and we think that her continuedstay at the remand home would bedetrimental and she would be in a better

environment by living with the personwhom she had allegedly married."

12. Division Bench of this Court inthe case of Smt. Reena vs. State of U.Pand Ors. decided on 24.05.2012 (HabeasCorpus Writ Petition no. 10180 of 2012)has considered the similar controversywhere there was conflict between medicalcertificate and educational certificate.Hon'ble Court has opined that courtshould lean towards acting upon theopinion of the doctor furnished aftercarrying out scientific tests to assess theage of a victim. Relevant paragraphs ofthe judgment is being reproduced below:-

"There was some dispute in respectof the age of the girl but we find fromargument appearing at page 20 of thepresent petition that the Chief MedicalOfficer, Maharajganj had assessed her 18years of age. Thus, the lady wasundisputedly above 18 years of age, if weadd three years to the medically assessedage. In our considered view in case ofbeing a conflict between the age recordedin any school document and that assessedby the doctor then only for the presentpurposes, the court should lean towardsacting upon the opinion of the doctorfurnished after carrying out scientifictests to assess the age of a victim. This isnecessary as liberty of a person has to beprotected. No person could be deprived ofhis liberty unless reasonable procedurehas been adopted. Medical opinion onage may not be exact, but it is generallyacceptance and it is based on scientificmethod of assessing the age. As such,inspite of there being some sort of marginin assessing the age and actual age, therecould be chances that the assessed age isalmost exact.

3 All] Smt. Poonam Vs. State of U.P. & Ors. 1041

We have already noted that thepersonal liberty of a person should beparamount consideration in such casesand keeping that in view and forprotecting the personal liberty of aperson, the court should lean towardsconsidering the medical age than toconsider the age which is recorded inschool documents."

13. Relying upon the case of JayaMala vs. Home Secretary, Government ofJammu and Kashmir [AIR 1982 SC1297], another Division Bench of thisCourt in the case of Smt. Saroj vs. Stateof U.P. and Others vide judgment andorder dated 08.05.2012 (Habeas CorpusWrit Petition No. 19037 of 2011) hastaken a similar view i.e. medical reporthas to be believed.

14. Learned Single Judge of thisCourt in the case of Asmat Jahan andAnother vs. State of U.P. [2014 (2) All.Cr. J. 664] has taken a similar view.Relevant extract of the judgment is beingreproduced hereinbelow:-

"Learned Magistrate has not kept inmind the situation that he was notdetermining the age of a juvenile inconflict with law but was determining theage of prosecutrix who admittedly hadeloped with her lover and had marriedhim."

15. In view of the above, it is apparentthat opinion of the Doctor in respect of ageshould have been given preference.Moreover when girl was expressingapprehension, Magistrate should have beencareful in sending her with father. As statedabove, marriage i.e. nikahnama is notdisputed. Consequently, as wife, she is

ready to live with her husband, husband isentitled to have her custody.

16. It is settled law that against thewishes, even minor cannot be sent to NariNiketan and husband being naturalguardian is entitled to custody of wife.

17. In view of the discussion madeabove, this criminal revision is allowed.Order dated 23.12.2014 passed by ChiefJudicial Magistrate, Muzaffarnagar is setaside.

18. Learned Magistrate, Muzaffarnagaris directed to pass fresh order regarding thecustody of the victim within a week from thedate of production of certified copy of thisorder.

--------ORIGINAL JURISDICTION

CIVIL SIDEDATED: LUCKNOW 17.09.2015

BEFORETHE HON'BLE AJAI LAMBA, J.

THE HON'BLE ASHOK PAL SINGH, J.

Habeas Corpus No. 156 of 2015

Smt. Poonam ...PetitionerVersus

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

Counsel for the Petitioner:Pawan Kumar Dubey

Counsel for the Respondents:Govt. Advocate

Constitution of India, Art.-21-HabeasCorpus-detention in Nari Niketan-onpertext in her statement under Section164 Cr.P.C. Different stand taken-inoccification test found more than 18years-petitioner detained in Nari Niketanignoring her will-held-illegal-none


wanted in any criminal case-detentionorder quashed.

Held: Para-29While considering a petition filed forissuance of a writ in the nature of HabeasCorpus, the writ court is not required to gointo the complexities of law, once it is madeevident to the Court that personal liberty ofa citizen has been curtailed. A writ courtcannot contemplate any limitation on itspower to deliver substantial justice. Equityjustifies bending the Rules, where fair playis not violated, with a view to promotesubstantial justice.

Case Law discussed:(2015) 13 SCC 376; W.P. No. 10180 of 2012decided on 24.05.2015; 3519 (MB) 2015.

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

1- This petition seeks issuance of awrit in the nature of CERTIORARIquashing order dated 7.1.2015 passed byAdditional Chief Judicial Magistrate IIIrd,bearing Case Crime No.-510 of 2014under Sections 363/366 of the IndianPenal Code, Police Station Kasimpur,district Hardoi.

2- This petition also seeks issuanceof a writin the nature of Habeas Corpusdirecting respondent no.-4(Superintendent, Nari Niketan, ParagNarain Road, Lucknow) to release thepetitioner.

3- Mother of the petitioner (respondentno.-3) has been served twice, however, hasnot put in appearance, either in person orthrough her Counsel.

4- The facts of the case, as they emergefrom the available record, are required to benoticed. Allegedly, the petitioner got marriedto Bauwa alias Suneel Kumar Singh son ofKallu of her own free will and accord. The

marriage, however, has not been accepted byrespondent no.-3 (mother of the petitioner).Criminal proceedings have been initiated,bearing Case Crime No.-510 of 2014 underSections 363/366 of the Indian Penal Code,Police Station Kasimpur, District Hardoi(Annexure No.-2).

5- It appears that the petitioner andher husband had earlier approached thisCourt for quashing of the FirstInformation Report (Supra) by way offiling Writ Petition No.-10460 of 2014.The petition was disposed of vide orderdated 17th October 2014.

6- A perusal of order dated 17thOctober 2014 indicates that the petitionerclaimed that she has attained age ofmajority, and of her free will entered intomatrimonial alliance with Suneel KumarSingh. No offence under Section 363/366of the Indian Penal Code, accordingly ismade out.

7- The State Counsel opposed thecontention of the petitioner on the groundthat as per the F.I.R. the girl was a minor.

8- The Court directed that statementof the girl be recorded under Section 164Cr.P.C. Magistrate was directed to satisfyhimself as to whether the girl has attainedage of majority or not. It has been furtherobserved that in case the girl is found tobe major and does not support the F.I.R.version, the petitioner be not arrested tillfiling of report by the police underSection 173 (2) Cr.P.C. In case the girlappears to be a minor, it shall be open topolice to arrest the accused. It wasdirected that custody of the allegedkidnapped girl shall be decided by theMagistrate concerned , in accordance withlaw.


9- Evidently, in deference to order ofthe Court referred to above, the petitionerwas produced before the Magistrateconcerned. The Magistrate, vide orderdated 7.1.2015 (Annexure No.-1) issued adirection to confine the petitioner in NariNiketan, Parag Narain Road, Lucknow(respondent no.-4).

10- Perusal of the order passed by theMagistrate dated 7.1.2015 (Annexure No.-1)indicates that at one place, the petitioner hassaid that she had passed IVth class , at anotherplace, she has said that she had passed VthClass. Date of birth of the petitioner, as givenat various stages, is also different viz.12.12.1997, 6.6.1999 and 6.6.2000.

11- It appears that in the course ofinvestigation, the petitioner was alsosubjected to ossification test, in which herage has been determined as 18 years.

12- The plea of mother of thepetitioner, before the Magistrate, as isrecorded in Annexure No.-1 is that thepetitioner is 13-14 years of age.

13- The Magistrate, for consideringthe age of the petitioner has relied on thedate of birth of the petitioner recorded inHigh School certificate, which is6.6.2000. It has been concluded that thepetitioner was a minor on the date ofincident i.e. 30.11.2013. No legallytenable reason has been given to disregardthe date of birth recorded in other schoolcertificate or the ossification test report.

14- In the course of investigation,statement of the petitioner has beenrecorded under Section 164 Cr.P.C. whichhas been placed on record as AnnexureNo.-7. The petitioner gave her statementto the effect that she has studied up to

IVth class. On 12.8.2014 in the afternoon,she went of her free will with Bauwa aliasSuneel Kumar Singh and she stayed withhim for 3-4 months happily in Lucknowand got married to Suneel Kumar Singh.She was not induced to get married andwants to go with Suneel Kumar. She hasclearly stated that she did not want to gowith her mother. The petitioner claimedthat she is 22 years of age.

15- Considering the discrepancy inage, this Court had directed thatmedical/ossification test of the petitionerbe conducted by the Doctors of KingGeorges Medical University, Lucknow.Ossification test report has been received,according to which age of the petitioner ismore than 18 years and less that 19 years.

16- In deference to the direction ofthe Court, the petitioner has beenproduced before the Court.

17- The petitioner apparently hasattained the age of discretion, as also ageof majority. On questioning by this Court,the petitioner has reiterated the standtaken in her statement recorded underSection 164 Cr.P.C. The petitioner refusesto go with her mother while saying thatshe feels threatened.

18- We are faced with a situationwherein there are various inputs in regardto the age of the petitioner, as noticedabove. Somewhat similar facts came upfor consideration before the Hon'bleSupreme Court of India in (2015) 13 SCC376, Juhi Devi Versus State of Bihar andOthers. In the judgment , the followinghas been held in paragraph nos.-2 and 3 :-

"2.The petitioner herein is alleged tohave married another person of her age and


the 5th respondent herein, the father of thepetitioner, objected to the said marriage. Itseems that the petitioner had eloped withthat person and the father of the petitioner-5th respondent, has filed a complaint andthe petitioner was produced before theC.J.M.,Patna. The petitioner claims that shewas major and voluntarily left with herhusband. The father of petitioner allegedthat the petitioner was a minor and thequestion of age was referred to a MedicalBoard. The Medical Board opined that as on17.05.2003, the petitioner must have beenaged between 16 and 17 years. However,thefather of the petitioner produced twocertificates before the Revisional Court andcontended that her date of birth is12.10.1985 and she has not attainedmajority. However, the medical reportshows that she must have been aged morethan 16 years,even on 17.05.2003. Havingregard to these facts,we are of the view thatshe must have attained majority and her stayat the remand home would not be in theinterest of justice and we think that hercontinued stay at the remand home wouldbe detrimental and she would be in a betterenvironment by living with the personwhom she had allegedly married.

3. In the circumstances, we directthat the Respondent 3 Superintendent,Rajkiya Nari Uttar Raksha Sansthan,Gaighat, Patna to release the petitionerfrom the remand home forthwith. Thepetitioner would be at liberty to produce acopy of this order before the thirdrespondent for appropriate action."

[Emphasised by us]

19- A Division Bench of this Courthas also considered facts andcircumstances, that are similar to the caseunder consideration, in Smt. ReenaVersus State of U.P. and Others (HabeasCorpus Writ Petition No.-10180 of 2012)

decided on 24.5.2012. The following hasbeen held in relevant portion of thejudgment:-

"It appears that the lady, petitioner wasapprehended by the police and was producedbefore the Sub Division Magistrate, Sadar,Maharajganj. The father of the lady was alsopresent in the court. He filed a petition seekingcustody of his daughter. The statement of thepetitioner was recorded and that of her fatherwas also recorded by the Sub DivisionalMagistrate, Sadar, Maharajganj. In herstatement the petitioner, Smt. Reena statedthat she was major and she had eloped withaccused Rabdullah and had gone into hishouse to reside there. The father of thepetitioner, Hari Lal, in his statement alsostated that his daughter had eloped withRabdullah on 3-3-2011 and refused to take thepetitioner with him. The learned SubDivisional Magistrate found that the date ofbirth of the petitioner, Smt. Reena, as recordedin the certificate was 3-4-1998. As such, shewas only 13 years of age when her father wasnot ready to take her back who was desirousthat her custody be authorised to the NariNiketan Jaitpura, District - Varanasi.

We find from facts of the case that itwas a pure and simple case of elopement ofpetitioner, Smt. Reena with Rabdullah andthe petitioner, thereafter went straight awayto his house from where she appearsrecovered. There was some dispute in respectof the age of the girl but we find fromargument appearing at page 20 of the presentpetition that the Chief Medical Officer,Maharajganj had assessed her 18 years ofage. Thus, the lady was undisputedly above18 years of age, if we add three years to themedically assessed age. In our consideredview in case of being a conflict between theage recorded in any school document andthat assessed by the doctor then only for thepresent purposes, the court should lean


towards acting upon the opinion of thedoctor furnished after carrying out scientifictests to assess the age of a victim. This isnecessary as liberty of a person has to beprotected. No person could be deprived ofhis liberty unless reasonable procedure hasbeen adopted. Medical opinion on age maynot be exact, but it is generally acceptanceand it is based on scientific method ofassessing the age. As such, inspite of therebeing some sort of margin in assessing theage and actual age, there could be chancesthat the assessed age is almost exact.

We have already noted that the personalliberty of a person should be paramountconsideration in such cases and keeping thatin view and for protecting the personal libertyof a person, the court should lean towardsconsidering the medical age than to considerthe age which is recorded in schooldocuments. Besides, there is no dispute in thefact that the petitioner, Smt. Reena had elopedwith Rabdullah on 3-3-2011 and had wet intohis house and was living there. We very oftenrefer to S. Varadarajan vs. State of Madrasreported in AIR 1965 SC 942 to point out thedistinction between an act of elopement andact of taking or enticing away a woman below18 years of age from her lawful guardianship.Under the present set of facts, there could notbe any doubt that it is a simple and pure caseof elopement and as such no offence oroffences could be said to be constituted underthe admitted facts.

It is true that the lady was not ready togo with her father and her father for someunknown reasons, was not ready to take herback, but for that reason the lady ought nothave been confined in the Nari Niketan aswas directed by the learned Sub DivisionalMagistrate Sadar, Maharajganj. There is noage, as regards the personal liberty of aperson. Anyone who is born as a humanbeing and who is found living in India evenif he is not an Indian, has a right to enjoy his

or her liberties by virtue of the constitutionalguarantees. Any order which curtails orencroaches upon the liberties of such aperson and has always to be held fallingshort of the constitution requirements andsafeguards and, as such, we have to struckdown the same in exercise of the powersUnder Article 226 of the Constitution ofIndia.

In the result, we quash the order dated6-6-2011 passed by the Sub DivisionalMagistrate, Sadar, Maharajganj and directthat the petitioner Smt. Reena beimmediately released from custody ofrespondent no. 4, so that she enjoys herliberties and goes to what ever place shelikes."

[Emphasised by us]

20- Related issue is as to whetherhusband of the petitioner namely Bauwaalias Suneel Kumar Singh has committedoffence in context of the victim (petitioner)or not. Circumstances similar to the case inhand have been considered by this Court(this Bench) while dealing with Writ Petitionno.- 3519(MB) of 2015 Shaheen Parveenand Another Versus State of U.P. throughPrincipal Secretary, Home Department, andOthers. The following has been held inparagraph nos.-18 to 30 :-

"18. Petitioner No.1 the victim/prosecutrixwould be the best witness, rather the onlywitness of commission of offence underSections 363/366 I.P.C. Surely, the victim willnot support the prosecution case, as has beenmade evident by her in her statement,recorded in the course of investigation underSection 164 Cr.P.C., and therefore the trialwould result in acquittal. During course oftrial, considerable number of man hourswould be wasted in prosecution/ defendingand judging the case. No useful purposewould be served and the entire exercise of trial


would be in futility because the victim hasdeclared that she was not victimised orkidnapped.

19. The facts that have emergedfrom the 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 accountthe fact that in case the petitioner No.2 isallowed to be prosecuted, the matrimoniallife of petitioner No.1/the alleged victimwould be disrupted. Her husband wouldbe incarcerated and there would be no oneto take 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 orallures the girl and that influences theminor in leaving her guardian's custodyand the keeping and going with theaccused, then it would be difficult for theCourt to accept that minor had voluntarilycome to the accused. In case the victim/prosecutrix willingly, of her own accord,accompanies the boy, the law does notcast a duty on the boy of taking her back

to her father's house or even of telling hernot to accompany him.

23. A girl who has attained the age ofdiscretion and was on the verge ofattaining majority and is capable ofknowing what was good and what wasbad for her, cannot be said to be a victimof inducement, particularly when the caseof the victim/girl herself is that it was onher initiative and on account of hervoluntary act that she had gone with theboy and got married to him. In suchcircumstances, desire of the girl/victim isrequired 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 investigatingagency 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 of


India reported in (1965)1 SCR 243 S.Varadarajan versus State of Madras).

26. When the above noted situationis considered in context of the facts andcircumstances of the present case, itwould become evident that the victim(petitioner No.1) was a few months shortof attaining age of 18 years. The saidpetitioner had attained age of discretion,however, not age of majority. PetitionerNo.1, the victim in her statement recordedunder Section 164 CrPC has clearlydemonstrated that it was she who went ofher free will and accord on 10.2.2014with Mohd. Sarfaraj, without anycoercion, and stayed with him, and gotmarried to him willingly. It is aconsensual act on the part of petitionerNo.1 all through. Such clear stand of thevictim makes it evident that Mohd.Sarfaraj respondent No.2 cannot beattributed with coercing petitioner No.1,inducing petitioner No.1 or kidnapping orabducting her in commission of offence,as alleged. Surely, a girl who has attainedan age more than 17 years and who isalready carrying pregnancy cannot bestated to have not attained age ofdiscretion. In such circumstances, atechnicality in law would not be attracted.The Court has not been shown anymaterial which would indicate coercion,inducement or forceful act on the part ofSarfaraj (petitioner No.2) so as toconclude that offence has been committedby him.

27. The writ Court consideringtotality of fact and circumstances, cannotignore or disregard the welfare of thepetitioners, particularly when the exerciseof trial is going to be in futility, asobserved hereinabove.

28. In view of the facts andcircumstances of the case noted above,the Court is convinced that the impugned

proceedings have been initiated in abuseof process of the Court and process of thelaw. A personal grudge against marriageof choice of the daughter is being settledby virtue of initiating impugned criminalproceedings, which would not bepermissible in law. Such prosecutionwould abrogate constitutional right vestedin the petitioners to get married as pertheir discretion, particularly when there isno evidence to indicate that the marriageis void.

29. The stand of the ProsecutingAgency that the victim was a few monthsbelow age of majority when she joinedthe company of the accused/petitionerNo.2, and therefore offence has beencommitted, cannot be accepted if groundreality is taken into account. It has comeon record that the prosecutrix is anexpecting mother and is carrying apregnancy of 31 weeks. Coupled with thisfact is the statement of the prosecutrixwherein she has said that she was neitherkidnapped nor abducted, rather has beenliving with petitioner No.2 as his wife. Itis the prosecutrix who went in thecompany of the accused, willingly,knowingly, and rather than the accusedtaking the prosecutrix out of the custodyof the lawful guardian; the victim herselfhad eloped with petitioner No.2. In theconsidered opinion of the Court,substantial justice cannot be sacrificed atthe altar of technicality, as is beingconcluded by the Investigating Agency.

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."

[Emphasised by us]

21- We are coming across a largenumber of cases in which parent/ parents of a


girl do not accept marriage of choice of theirdaughter, on account of different reasons, beit the caste , financial conditions, social statusor religion. Although, the girl elopes with theboy voluntarily, however, criminalproceedings are initiated with allegation ofabduction, kidnapping or inducing the girl toget married. In most of such cases thecomplainant takes a ground that his daughteris a minor. For showing that his or herdaughter is a minor, school certificates arerelied upon .

22- The facts and circumstances of thepresent case are required to be considered incontext of the law , as noticed above. Whileconsidering the same, the Court is required totake into account the most Cherished Rightof a citizen of the country, which is personalliberty.

23- As noticed above, variousdocuments have come on record indicatingdifferent dates of birth/age of the petitioner.Be that as it may, there is a conflict betweenthe age of the petitioner determined on thebasis of school documents, and the ageassessed through ossification test. The Courtis required to lean towards the reportfurnished by the Doctor, on the basis ofscientific tests. This is particularly so becauseliberty of the petitioner is required to beprotected, it being most preciousConstitutional Right of the petitioner.

24- Considering the law laid downby this Court in Shaheen Parveen's case(Supra), as noticed above, it becomesprima-facie evident that the petitioner hadneither been abducted nor kidnapped orinduced by Suneel Kumar Singh. Ratherstatement of the petitioner recorded underSection 164 Cr.P.C. indicates that thepetitioner had gone with Bauwa aliasSuneel Kumar of her free will and

voluntarily. Prima-facie, therefore, thisCourt concludes that offence has not beencommitted in context of the petitioner.Surely, the petitioner is not an accused.Under the circumstances, we are facedwith a situation wherein liberty of analleged victim has been curtailed underthe direction of the Magistrate.

25- Considering the law laid downby Hon'ble Supreme Court of India inJuhi Devi's case (Supra) as extractedabove, it becomes evident that in suchcases reliance can safely be placed on theopinion of the Doctors in context of ageof the girl, when the age recorded inschool certificate(s) is at variance.

26- We have considered that there isconsistency in the results ofmedical/ossification test reports, whereasthe basis of making entry in school recordin regard to date of birth, is generally notbrought on record. In the circumstances,so as to consider whether a person hasattained age of majority/ age of discretionin cases such as the present one, it is saferto rely on medical /scientific / ossificationtest reports.

27- Perusal of the judgmentrendered in Smt. Reena's case (Supra), asextracted above, shows that age cannot beheld to be a relevant consideration, whileconsidering Personal Liberty of a person.A person living in India has a Right toenjoy his or her liberty, as guaranteed bythe Constitution of India. Any orderwhich curtails or encroaches upon theliberty of such a person is required to bestruck down, if it is not in accordancewith procedure established by law.

28- Article 21 of the Constitution ofIndia promises every citizen that he shall


not be deprived of his life or personalliberty except according to procedureestablished by law. Petitioner not being anaccused , it cannot be held that herpersonal liberty has been curtailed as perprocedure prescribed by law. This isparticularly so because she apparently hasattained age of discretion and has assertedher right to get married of her own choice.

29- While considering a petitionfiled for issuance of a writ in the nature ofHabeas Corpus, the writ court is notrequired to go into the complexities oflaw, once it is made evident to the Courtthat personal liberty of a citizen has beencurtailed. A writ court cannot contemplateany limitation on its power to deliversubstantial justice. Equity justifiesbending the Rules, where fair play is notviolated , with a view to promotesubstantial justice.

30- On questioning the petitioner,we find that the petitioner is capable oftaking decision in regard to her future.

31- Allegation against Suneel KumarSingh is that the petitioner had been induced,kidnapped or abducted. From the statementof the alleged victim recorded under Section164 Cr.P.C., it becomes evident that thepetitioner was neither induced nor abductedor kidnapped.

32- The entire sequence of events,from initiation of criminal proceedings bythe parent of the petitioner, to confining thepetitioner in a protection home by theMagistrate, has resulted in subverting theright of the petitioner to choose a life partnerof her choice. The order passed by theMagistrate directing detention of thepetitioner in a protection home is a clearviolation of right to liberty of the petitioner.

The impugned order Annexure No.-1, passedby the Magistrate, under the circumstances isillegal, and dehors the relevantconsiderations.

33- We have taken note of the fact thatthe petitioner has been housed in NariNiketan, Parag Narain Road, Lucknow sincemore than eight months. Surely, theconditions in Nari Niketan, are not conduciveand healthy for housing young girls. Underthe circumstances, a Court or authorityshould detain a person in Nari Niketan, onlyas a last option. In this case, the deponent(husband of the petitioner) is seeking custodyof the petitioner. The choice of the petitioneris also to live with the deponent.

34- We have also taken note of thefact that the petitioner is a Hindu and evenif it is concluded that at the point in timewhen the petitioner was married, she wasa minor, the marriage would not be voidunder Hindu Marriage Act, 1955.

35- When the facts are cumulativelyconsidered, we find that liberty of thepetitioner is being curtailed without anylegal cause. Order Annexure No.-1 has beenpassed by the Magistrate without giving dueimportance to the personal liberty of thepetitioner. The desire of the petitioner hasbeen ignored without any legally tenablereason. The age determined throughMedical/ossification test has beenoverlooked for the wrong reasons.

36- Consequently, we allow thispetition. Impugned order dated 7.1.2015passed by Additional Chief JudicialMagistrate IIIrd, Hardoi, is herebyquashed.

37- A writ in the nature of HabeasCorpus is issued directing respondent no.-


4 (Superintendent, Nari Niketan, ParagNarain Road, Lucknow) to release thepetitioner, forthwith.

38- Let copy of the order besupplied under the signature of BenchSecretary.

39- Let a copy of the order be sent tothe concerned Magistrate. Senior Registrar ofthe Court is directed to ensure compliance.



BEFORETHE HON'BLE SUDHIR AGARWAL, J.

Criminal Revision No. 168 of 1987

Nathoo ...RevisionistVersus

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

Counsel for the Revisionist:Sri M.W. Siddiqui, Sri Neeraj KumarSrivastava

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

Cr.P.C.-Section 397/401-Criminal Revision-against conviction u/s 7/16 preventionof Food Adulteration Act-sole ground noncomplinace of provisions Section 10 (7)-held-when no people come forward towitness the incident-proceeding wouldnot vitiate-trail court taken very lenientview intervene by Revisional court-unwarranted-revision dismissed.

Held: Para-19In the present case, the prosecution hasclearly proved that an attempt was madeto get independent witness at the timeof taking sample and seizure but sincenone came forward, hence, the FoodInspector proceeded further. Hence the

mere fact that independent witness isnot there, proceedings would not vitiate.

Case Law discussed:1991 Cri.L.J. 2174; 1974 (4) SCC 491; 1993 AllCriminal Cases 47; 1993 (1) FAC 93; AIR 1992SC 1121; Criminal Revision No. 976 of 1989;2009 (7) SCC 254; 2010 (12) SCC 532; 2012(8) SCC 734; 2013 (3) JT 444; 2013 (9) SCC516; AIR 1951 SC 196; AIR 1962 SC 1788; AIR1968 SC 707; AIR 1970 SC 272; AIR 1975 SC580; 2008 Cr.L.J. 1627 (S.C.); 1986 (2) SCC585; 2001 (9) SCC 631; 2004 (7) SCC 665.

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

1. Heard Sri Neeraj Kumar Srivastava,learned counsel for revisionist, learnedA.G.A. of State-respondent; and, perused therecord.

2. The prosecution story, inter alia, isthat on 11.11.1979 at about 10.00 AM theaccused-revisionist, Nathoo, was found sellingmilk at Ardali Bazaar, Police Station Cantt.,District Varanasi. There was 10 KG of milk ina container with him. Milk was checked byChief Food Inspector, Sri J.P. Dhuria, whopurchased 60 ML of Cow milk as sample onpayment of Rs. 75/- after duly serving a noticein Form-6. Thereafter at the spot the milk wasdivided into three parts, kept in three bottleswhich were duly sealed. One of the sealedbottle was sent to Public Analyst for analysisand remaining two bottles of sample werekept in reserve in the office of local HealthOfficer. According to report of PublicAnalyst, sample was found adulterated. Aftersending a copy of the said report to theaccused-revisionist and obtaining requisitesanction from Chief Medical Officer,Varanasi for instituting complaint, State filedcomplaint Case No. 5410 of 1984 submittingcharge-sheet against the accused revisionistunder Section 7/16 of the Prevention of FoodAdulteration Act, 1954 (hereinafter referred toas "Act, 1954").

3 All] Nathoo Vs. State of U.P. 1051

3. To prove the offence levelledagainst revisionist-accused, prosecutionexamined PW 1, Sri Ram Srivastava,Food Inspector; and, PW 2, Sri RajendraPrasad, Food Clerk.

4. The accused-revisionist pleadednot guilty and stated that he wasimplicated on account of enmity withFood Inspector. In his defence, heexamined DW 1, Sri Sharda Prasad, and,DW 2, Sri Purushottam.

5. Placing reliance on the statementsof the prosecution witnesses, the learnedMagistrate convicted accused for theoffence under Section 7/16 of Act, 1954and sentenced him to six months' rigorousimprisonment and a fine of Rs. 1000/-vide judgment dated 14.10.1986. Beingaggrieved, the revisionist preferredappeal, but concurring with the judgmentof Trial Court, Sri S.N. Pandey, 8thAdditional Sessions Judge, Varanasidismissed revisionist's appeal videjudgment and order dated 12.01.1987.

6. Learned counsel for revisionistcontended that there is no compliance ofSection 10(7) of Act, 1954 as there wasno independent witness who has signedsample taken by Food Inspector and,therefore, entire prosecution is bad andliable to be set aside.

7. Trial Court has considered thisaspect and has given two reasons todiscard it. One that Food Inspector hasproved that at the time of collectingsample, a large number of peoplecollected but none was ready to witnessthe proceedings and, therefore, signatureof independent witness at the time ofcollection of sample could not beobtained. This fact was duly mentioned in

the report as well as charge-sheet andfurther proved in oral evidence by PW-1,Sri Ram Srivastava.

8. Secondly, the accused himself hadadmitted that sample was collected byFood Inspector from the accused, but hehas tried to explain the fact that he wasnot carrying milk for sale but there was areligious ceremony at his residence and hewas taking milk thereat. Before thisCourt, the contention has been advancedbut the fact that the members of publicwho gathered at the time of taking samplewere not agreeable to become witnesscould not be shown otherwise. In absenceof any person being ready to witness theprocedure of taking sample and seizure,the factum that no independent witnesshas signed collection of sample andseizure does not vitiate the proceedings,particularly, when collection of samplefrom accused is admitted by him.

9. Section 10 (7) of Act, 1954 readsas under:

"Section 10(7)- Where the FoodInspector takes any action under clause(1) of sub-section (1), sub-section (2),sub-section (4), or sub-section (6), heshall call one or more persons to bepresent at the time when such action istaken and take his or their signatures."

10. The objective of Section 10 (7)of Act, 1954 is to ensure that actual orgenuine transaction of sale of sample andits formalities have been observed. Theprovision is mandatory in so much so thatFood Inspector must make genuine effortsto get the corroboration of one or morepersons present on the spot to witness hisact of taking sample and completion ofother formalities. Once such an effort has


been made, but in vain, it cannot be saidthat there is any non-compliance ofSection 10(7) of Act, 1954.

11. Section 10(7) was amended in1964 and prior thereto there were words"as far as possible call not less than twopersons". The words "as far as possible"were deleted by amendment of 1964. Itwas sought to be argued, therefore, thatdeletion means that if the independentwitnesses do not corroborate the action ofFood Inspector in taking sample etc., itshall vitiate the Trial.

12. A learned Single Judge of KeralaHigh Court in The Food Inspector,Palakkad Vs. M.V. Alu and another, 1991Cri.L.J. 2174 considered it and in para 2of the judgment said that sub-section (7)of Section 10 is only intended as asafeguard to ensure fairness of actiontaken by Food Inspector. What he isobliged to do is only to call one or moreindependent persons to be present andattest when he takes action. Ifindependent persons were available andeven then the Food Inspector did not wanttheir presence or attestation, it could besaid that he violated Section 10(7). Ifindependent persons available did notcare to oblige him in spite of his 'call', hecannot be said to have violated Section10(7). The duty is only to make an earnestattempt in getting independent witnesses.If that earnest attempt did not succeed onaccount of refusal of independent persons,it cannot be said that Section 10(7) isviolated. In such a contingency, nothingprevents the uncorroborated evidence ofthe Food Inspector being accepted, iffound acceptable.

13. In another matter arisen fromState of Uttar Pradesh itself, a three

Judges Bench of Apex Court had occasionto consider this aspect in Shri RamLabhaya Vs. Municipal Corporation ofDelhi and another, 1974(4) SCC 491 andin paras 5 and 6 thereof the Court said:

"5. We are of the opinion,particularly in view of the legislativehistory of Section 10(7), that while takingaction under any of the provisionsmentioned in the Sub-section, the FoodInspector must call one or moreindependent persons to be present at thetime when such action is taken. We are,however, unable to agree that regardlessof all circumstances, the non-presence ofone or more independent persons at therelevant time would vitiate the trial orconviction. The obligation which Section10(7) casts on the Food Inspector is to'call' one or more persons to be presentwhen he takes action. The facts in theinstant case show that the Food Inspectordid call the neighbouring shopkeepers towitness the taking of the sample but nonewas willing to co-operate. He could notcertainly compel their presence. In suchcircumstances, the prosecution wasrelieved of its obligation to citeindependent witnesses. In Babu LalHargovindas v. State of Gujarat, AIR1971 SC 1277 it was held by this Courtafter noticing that Section 10(7) wasamended in 1964, that non-compliancewith it would not vitiate the trial and sincethe Food Inspector was not in the positionof an accomplice his evidence alone, ifbelieved, can sustain the conviction. TheCourt observed that this ought not to beunderstood as minimizing the need tocomply with the salutary provision inSection 10(7) which was enacted as asafeguard against possible allegations ofexcesses or unfair practices by the FoodInspector.


6. As stated earlier the Food Inspectorwas unable to secure the presence ofindependent persons and was thereforedriven to take the sample in the presence ofthe members of his staff only. It is easyenough to understand that shopkeepers mayfeel bound by fraternal ties but no court cancountenance a conspiracy to keep outindependent witnesses in a bid to defeat theworking of laws."

14. From the above it is clear thatApex Court also took the view that whatis important to attract Section 10(7) is thatthe Food Inspector at least should try tosecure presence of one or moreindependent witness when he takes actionunder any of the provisions mentioned inSection 10(7). Once that has been done,evidence of Food Inspector himself, evenif not corroborated by independentwitnesses, can be relied if the Trial Courtfinds it otherwise acceptable. It is not tobe discarded only for the reason thatindependent witnesses have not signed thesample and seizure documents.

15. This Court also considered thisaspect in Nagar Swasthya Adhikari NagarMahapalika Vs. Mohammad Wasim, 1993All Criminal Cases 47. Here the Courtfurther said that object of indicatingSection 10(7) is to ensure that particularsample is taken from the accused. Theobject is to keep the act of taking sampleabove suspicion. Compliance of sub-section (7) of Section 10 is necessary onlyfor satisfying the Court that requisitesample was taken as alleged. Court'sscrutiny of such compliance becomesunnecessary when the accused admitstaking of such sample.

16. Once the efforts have been madeby Food Inspector to call for one or more

independent witnesses but none agreed orcooperated, then it cannot be said thatthere is any breach of requirement ofSection 10(7) and it will not vitiate theprosecution at all. Here I am fortified by adecision of Madras High Court in PublicProsecutor Vs. Ramachandran, 1993(1)FAC 93.

17. The Apex Court in State of U.P.Vs. Hanif, AIR 1992 SC 1121 said thatthere is no such law that the evidence ofFood Inspector must necessarily needcorroboration from independentwitnesses. His evidence is to be tested onits own merits and if found acceptable theCourt would be entitled to accept and relyon to prove prosecution case.

18. Following the above authoritiesand taking similar view, this Court inCriminal Revision No. 976 of 1989(Ramesh Chandra Vs. State of U.P.)decided on 11.12.2014 in para 18 ofjudgment said as under:

"18. It is the duty of Food Inspector tocall one or more independent persons to bepresent at the time of taking sample andonce that is done by him it is sufficient but ifthe witnesses are not ready to come forwardand sign the documents the Food Inspectorcannot compel them and, therefore, wherethe attempt has been made but failed, lackof signature by independent witness wouldnot vitiate the trial."

19. In the present case, the prosecutionhas clearly proved that an attempt was madeto get independent witness at the time oftaking sample and seizure but since nonecame forward, hence, the Food Inspectorproceeded further. Hence the mere fact thatindependent witness is not there, proceedingswould not vitiate.


20. Next it is contended that incidentis of 1979 and more than 35 years havepassed, therefore, punishment may bereduced to the period already undergoneor only fine.

21. Here also I find myself difficult toaccept the submission. It is a case where therevisionist has been found makingadulteration in the food article. Adulteration infood article has a direct adverse consequenceto the health of public. Many a times suchadulteration with food causes such serious lossto the consumer, which is unrecoverable andcreate permanent disability or loss etc. Itcannot be ascertained as to whether the milksold by accused-revisionist would have beenused by a healthy person or a patient facingserious disease in the Hospital or otherwise.The adulterated item is bound to cause suchloss as it could be and the consumer wouldsuffer without having any knowledge therefor.The people who are indulged in adulterationare more serious enemy of humanity thanthose who commit crime by killing a personin a straight manner. Here the hidden crimecause injury to a person who has no idea as tohow he has suffered. He believed that foodarticles contain substance as naturally aresupposed to be present there, but adulterationhas changed its nature in a bad way.Consumer suffers in ignorance but with anobvious confidence that whatever he isintaking is alright. The adulterators, therefore,do commit a much henious and serious crimeto the Society as a whole and deserve nosympathy.

22. In fact, in our Country, we dealwith adulteration with lot of sympathy whichis encouraging continuous indulgence insuch activities and the reason is thatadulteration is not being treated with suchseriousness as it ought to be. This treatmentto adulteration is anti-human and anti-

society. The act of adulteration need beviewed with absolute strictness and stringentmeasures must be taken to prevent it, elseSociety in general would continue to sufferin the hands of adulterators, who are mintingmoney playing with health of public at largewithout taking care whether sufferingconsumer would be an innocent child, apregnant lady, a patient in Hospital fightingfor his life or any such other needy person.

23. In the present case, the prosecutionhas proved the case beyond doubt. Accusedhas been found guilty of adulteration of milk.Court below has already taken a lenient viewby imposing punishment of only six months'rigorous imprisonment and fine of Rs. 1000/-. Attempt to grant any indulgence in such amatter, when the Court below has alreadytaken a lenient view in awarding punishment,would be nothing but making mockery ofjustice. Society had a confidence in thesystem of justice and is waiting that personsfound guilty of committing henious crimesare punished appropriately and suitably, evenif punishment is executed with lot of delaysince Society has no control over delayoccurring in Court but it has a faith in thesystem of justice and, therefore, not deterredfrom delay but is satisfied even when justicecomes highly belated, provided it is notdiluted and lean in favour of accused so as totreat him like a victim ignoring the losssuffered by actual victim.

24. Even otherwise, punishmentimposed by Court below after findingcharge proved beyond doubt is not to beinterfered lightly unless the Court findsadequate and appropriate reason therefor.

25. In the matter of awardingpunishment multiple factors have to beconsidered by this Court. The law regulatessocial interests, arbitrates conflicting claims


and demands. Security of individuals as well asproperty of individuals is one of the essentialfunctions of the State. The administration ofcriminal law justice is a mode to achieve thisgoal. The inherent cardinal principle of criminaladministration of justice is that the punishmentimposed on an offender should be adequate soas to serve the purpose of deterrence as well asreformation. It should reflect the crime, theoffender has committed and should beproportionate to the gravity of the offence.Sentencing process should be sterned so as togive a message to the offender as well as theperson like him roaming free in the society notto indulge in criminal activities but also to givea message to society that an offence ifcommitted, would not go unpunished. Theoffender should be suitably punished so thatsociety also get a message that if somethingwrong has been done, one will have to pay forit in proper manner irrespective of time lag.

26. Further sentencing process shouldbe sterned but tampered with mercy where-ever it is so warranted. How and in whatmanner element of leniency shall prevail,will depend upon multifarious reasonsincluding the facts and circumstances ofindividual case, nature of crime, the matter inwhich it was committed, whether preplannedor otherwise, the motive, conduct, nature ofweapon used etc. But one cannot be lostsight of the fact that undue sympathy toimpose inadequate sentence would do moreharm to justice system as it is bound toundermine public confidence in the efficacyof law. The society cannot long endure suchserious threats. It is duty of the court to giveadequate, proper and suitable sentencehaving regard to various aspects, some ofwhich, are noticed above.

27. In Ahmed Hussein ValiMohammed Saiyed and another Vs. State

of Gujrat, 2009 (7) SCC 254, the Courtconfirmed that:

"any liberal attitude by imposingmeager sentences or taking toosympathetic view merely on account oflapse of time in respect of such offenceswill be result-wise counter productive inthe long run and against the interest ofsociety which needs to be cared for andstrengthened by string of deterrenceinbuilt in the sentencing system".(Emphasis added)

28. In Jameel Vs. State of UttarPradesh, 2010 (12) SCC 532, the Courtheld that:

"It is the duty of every court to awardproper sentence having regard to the natureof the offence and the manner in which itwas executed or committed. The sentencingcourts are expected to consider all relevantfacts and circumstances bearing on thequestion of sentence and proceed to imposea sentence commensurate with the gravityof the offence."

29. In Guru Basavaraj @ BenneSettapa Vs. State of Karnataka, 2012 (8)SCC 734, the Court said that:

"The cry of the collective for justice,which includes adequate punishmentcannot be lightly ignored."

30. In Gopal Singh Vs. State ofUttarakhand, 2013 (3) JT 444, the courtsaid that:

"Just punishment is the collective cryof the society. While the collective cry hasto be kept uppermost in the mind,simultaneously the principle of


proportionality between the crime andpunishment cannot be totally brushedaside. The principle of just punishment isthe bedrock of sentencing in respect of acriminal offence"

31. In Hazara Singh Vs. Raj Kumarand another, 2013 (9) SCC 516, the Courtobserved that:

"We also reiterate that unduesympathy to impose inadequate sentencewould do more harm to the justice systemto undermine the public confidence in theefficacy of law. It is the duty of everycourt to award proper sentence havingregard to the nature of the offence and themanner in which it was executed orcommitted. The Court must not only keepin view the rights of the victim of thecrime but also the society at large whileconsidering the imposition of appropriatepunishment". (Emphasis added)

32. The revisionist has not shown thatpunishment, awarded by court below, isunjust, arbitrary or otherwise illegal.However, what it is trying to take advantageis that the act of the Court should come to hisrescue inasmuch as it is this Court which hastaken two and half decades and more intaking up this revision and this should cometo rescue of the revisionist for makingreduction in punishment drastically thoughotherwise what has been done by the courtbelow cannot be said per-se illegal, unjust orimproper. It is well settled that the act of thecourt prejudice none. The failure of this courtin taking up these matters within thereasonable time should not become a hand tothe offender like present one to claimreduction in the punishment as a matter ofright ignoring the fact that the societyrequires that an offender should be punishedadequately and over the above the victim,

who has suffered, is waiting for its ownrights in having the offender punishedsuitably, even if the system of justice takes along time. The delay in Courts cannotbecome a factor to convert and accused as avictim ignoring all the rights of the actualvictim, who has suffered, his family and thesociety in shown. Moreover, when thefinding of guilty and punishment imposed bythe court below is not found erroneous in anymanner, I am of the view that such an orderof the courts below cannot be interfered inexercise of revisional jurisdiction of thisCourt.

33. The judicial review in exerciseof revisional jurisdiction is not like anappeal. It is a supervisory jurisdictionwhich is exercised by the Court to correctthe manifest error in the orders ofsubordinate courts but should not beexercised in a manner so as to turn theRevisional court in a Court of Appeal.The legislature has differently madeprovisions for appeal and revision and thedistinction of two jurisdictions has to bemaintained.

34. Construing old Section 439 ofCriminal Procedure Code, 1898,pertaining to revisional jurisdiction, theCourt in D. Stephens Vs. Nosibolla, AIR1951 SC 196 said that revisionaljurisdiction under Section 439 of the Codeought not to be exercised lightlyparticularly when it is invoked by privatecomplainant against an order of acquittalwhich could have been appealed againstby the Government under Section 417. Itcould be exercised only in exceptionalcases where the interests of public justicerequire interference for the correction of amanifest illegality, or the prevention of agross miscarriage of justice. In otherwords, the revisional jurisdiction of the


High Court cannot be invoked merelybecause the lower court has taken a wrongview of law or misappreciated theevidence on record.

35. In K. Chinnaswamy Reddy Vs.State of Andhra Pradesh, AIR 1962 SC1788 it was held that revisionaljurisdiction should be exercised by theHigh Court in exceptional cases onlywhen there is some glaring defect in theprocedure or a manifest error on a point oflaw resulting in flagrant miscarriage ofjustice. However, this was also a case inwhich revisional jurisdiction was invokedagainst an order of acquittal. If the Courtlacks jurisdiction or has excludedevidence which was admissible or reliedon inadmissible evidence or materialevidence has been overlooked etc., thenonly this Court would be justified inexercising revisional power and nototherwise.

36. The above view has beenreiterated in Mahendra Pratap Singh Vs.Sarju Singh, AIR 1968 SC 707;Khetrabasi Samal Vs. State of Orissa,AIR 1970 SC 272; Satyendra Nath Duttaand another Vs. Ram Narain, AIR 1975SC 580; Jagannath Choudhary and othersVs. Ramayan Singh and another, 2002(5)SCC 659; and, Johar and others Vs.Mandal Prasad and another, 2008 Cr.L.J.1627 (S.C.).

37. In Duli Chand Vs. DelhiAdministration, 1975(4) SCC 649 theCourt reminded that jurisdiction of HighCourt in criminal revision is severelyrestricted and it cannot embark upon a re-appreciation of evidence. Whileexercising supervisory jurisdiction inrevision the Court would be justified inrefusing to re-appreciate evidence for

determining whether the concurrentfindings of fact reached by learnedMagistrate and Sessions Judge wascorrect.

38. In Pathumma and another Vs.Muhammad, 1986(2) SCC 585 reiteratingthe above view the Court said that inrevisional jurisdiction the High Courtwould not be justified in substituting itsown view for that of a Magistrate on aquestion of fact.

39. In Munna Devi Vs. State ofRajasthan and another, 2001(9) SCC 631the Court said:

"The revision power under the Codeof Criminal procedure cannot beexercised in a routine and casual manner.While exercising such powers the HighCourt has no authority to appreciate theevidence in the manner as the trial andthe appellate courts are required to do.Revisional powers could be exercisedonly when it is shown that there is a legalbar against the continuance of thecriminal proceedings or the framing ofcharge or the facts as stated in the FirstInformation Report even if they are takenat the face value and accepted in theirentirety do not constitute the offence forwhich the accused has been charged."

40. In Ram Briksh Singh and othersVs. Ambika Yadav and another, 2004(7)SCC 665, in a matter again arising fromthe judgment of acquittal, the revisionalpower of High Court was examined andthe Court said:

"4. Sections 397 to 401 of the Codeare group of sections conferring higherand superior courts a sort of supervisoryjurisdiction. These powers are required to


be exercised sparingly. Though thejurisdiction under Section 401 cannot beinvoked to only correct wrongappreciation of evidence and the HighCourt is not required to act as a court ofappeal but at the same time, it is the dutyof the court to correct manifest illegalityresulting in gross miscarriage of justice."

41. In view of above exposition oflaw and considering the facts andcircumstances of this case, this Courtfinds no merit in any of the submissionsadvanced on behalf of revisionist.

42. The revision is, accordingly,dismissed.

43. Interim order, if any, standsvacated.

44. The revisionist Nathoo is on bail.His bail bonds and surety bonds arecancelled. The Chief Judicial Magistrate,Varanasi shall cause him to be arrested andlodged in jail to serve out the sentence passedagainst him. The compliance shall bereported at the earliest.

45. Certify this judgment to thelower Court immediately.



BEFORETHE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Criminal Revision Defective No. 335 of 2010

Smt. Rubina & Anr. ...RevisionistsVersus

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

Counsel for the Revisionists:

Sri Ali Hasan, Sri O.P. Maurya

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

Cr.P.C.-Section 397/401-Criminal Revision-Magistrate rejected application formaintenance-on ground Civil Court decreeabout restitution of Conjugal rights running-against applicant-proceeding u/s 125 Cr.P.C.-not maintainable-as summoning Court cannot sit over regular court-Revision-dismissed.

Held: Para-5The judgment and decree of competentcivil court has to be followed in any case.As against it the proceeding undersection 125 CrPC is a summaryproceeding which has no legal sanctityagainst the judgment of formal decree ofcompetent civil court. Unless reversed orset aside, the decree and findings ofcompetent civil court is binding on itsparties, irrespective of the pendency orfindings of any summary proceeding likepetition u/s 125 CrPC.

(Delivered by Hon'ble Pramod KumarSrivastava, J.)

1. This revision has been filedagainst the order dated 21-10-2009 passedby Principal Judge, Family Court, Jhansi,in case no. 102/ 2006 Smt. Rubina &another v. Mohd. Javed under section 125Cr.P.C., p.s. Prem Nagar, Jhansi.

2. Admitted facts relating to thisrevision are that wife (/revisionist Rubina)had filed a petition u/s 125 CrPC withaverment that her husband had treatedwith cruelty and deserted her withoutsufficient reasons, therefore she should beawarded maintenance u/s 125 CrPC.Husband (present Respondent No.-2Mohd. Javed) had filed petition forrestitution of conjugal rights against hiswife (present revisionists) which was

3 All] Smt. Rubina & Anr. Vs. State of U.P. & Anr. 1059

decreed by the court of Civil Judge, Ist Class,Tikamgarh, M.P. That decree is still in effect.But wife (/revisionist Rubina) had notobeyed the decree of the court, and keptherself away from her husband. Duringhearing of this petition of maintenanceFamily Court had dismissed the petition formaintenance u/s 125 CrPC by impugnedorder on the ground that case of restitution ofconjugal rights of husband had been decreed,which is proof of the fact that wife RubinaBano had deserted her husband without anysufficient reason, therefore her petition u/s125 CrPC is not maintainable. Aggrieved bythis impugned revisionists have preferredpresent revision.

3. I have heard the learned counselfor the revisionists and A.G.A. andperused the records.

4. Learned counsel for the revisionistcontended that in spite of decree ofrestitution of conjugal rights petition u/s 125CrPC is maintainable; and secondly thatpetition maintenance should have beendecided on merits irrespective of judgment ofFamily Court. Therefore impugned order iserroneous and revision should be allowed.

5. The judgment and decree ofcompetent civil court has to be followed inany case. As against it the proceeding undersection 125 CrPC is a summary proceedingwhich has no legal sanctity against thejudgment of formal decree of competent civilcourt. Unless reversed or set aside, the decreeand findings of competent civil court isbinding on its parties, irrespective of thependency or findings of any summaryproceeding like petition u/s 125 CrPC.

6. In present matter competent civilcourt (Civil Judge, Ist Class, Tikamgarh,M.P. had decreed civil case no. 6-A/ 2007

Mohd. Javed v. Smt. Rubina Bano), forrestitution of conjugal rights, by judgmentdated 17-12-2008, with finding that Smt.Rubina Bano had not been treated withcruelty by her husband Javed, and that sheis living separately without any sufficientreason. Any contrary finding of judgment ofsummary proceeding in case u/s 125 CrPCcannot overrule the final decree ofcompetent civil court. Therefore learnedPrincipal Judge, family Court hadcommitted illegality by passing impugnedorder and dismissing the petition u/s 125CrPC by impugned order. There appears noerror or impropriety in impugned judgmentthat may require interference in impugnedorder by exercise of revisional jurisdiction.Therefore the revision is dismissed.



BEFORETHE HON'BLE ARUN TANDON, J.THE HON'BLE SHASHI KANT, J.

Special Appeal No. 638 of 2015

The Committee of Management A.N.I.C.Gorakhpur & Anr. ...Appellants

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

Counsel for the Appellants:Sri Radha Kant Ojha, Sri Akhilesh KumarSingh, Sri Shivendu Ojha

Counsel for the Respondents:C.S.C., Sri A.B. Singh

Constitution of India, Art.-226-Salary-teacher in aided institution ifmanagement-decides not to take work-liability of salary-upon managementshould not be fastened such liabilityupon state-exchequer-order by SingleJudge modified to the extent.


Held: Para-15We are, therefore, of the opinion that theorder of the Hon'ble Single Judge, in so far asit directs the payment of salary torespondent nos. 3 and 4 through Stateexchequer even when the managementdecides not to take work from the saidrespondents, cannot be legally sustained.Therefore, we provide that if themanagement still insists upon to not to takework from the respondent nos. 3 and 4, thenit must also bear the consequences ofpayment of salary to the employee/teacherconcerned from its own resources. Thepayment shall not be made from the Stateexchequer so long as the respondent nos. 3and 4 are not permitted to discharge theirofficial duty in the institution.

Case Law discussed:1999 (1) UPLBEC 1

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

1. This special appeal is directedagainst the judgment and order of theHon'ble Single Judge dated 21.08.2015.

2. The facts giving rise to thepresent special appeal are as follows:

Abhay Nandan Inter College, VishnuMandir, Medical College Road, Gorakhpuris a recognized and aided IntermediateCollege, which claims to be a minorityinstitution. The institution is stated to havepassed an order for terminating the servicesof respondent nos. 3 and 4, who wereemployed as Assistant Teacher on ad hocbasis. This order, according to the committeeof management, was made in compliance tothe order of the Hon'ble High Court passed inWrit Petition No. 36165 of 1995. Thedecision so taken by the committee ofmanagement was annulled by the DistrictInspector of Schools, Gorakhpur vide orderdated 14.08.2015. The District Inspector ofSchools also went on to cancel the

advertisement which had been published formaking fresh ad hoc appointment against theposts held by the aforesaid two respondents.

3. The committee of management notbeing satisfied with the order of the DistrictInspector of Schools, file Writ Petition No.47407 of 2015. The Hon'ble Single Judgeunder the order impugned dated 21.08.2015has recorded that the matter requiresconsideration and thereafter, on the statementmade by the Senior Advocate appearing onbehalf of the committee of management, ithas been recorded that it shall be open to thecommittee of management i.e. the petitionerto take work or not to take work from theprivate respondents, but they shall be entitledto their salary, which shall not be stopped.The committee of management has also beenrestrained from making any fresh selectionon the post held by respondent nos. 3 and 4.

4. On behalf of respondent nos. 3and 4 it is stated that the order has beenpassed on a statement made by counselfor the petitioner himself and therefore itdoes not lie in the mouth of the petitionerto challenge the direction for payment ofsalary even if the management decides notto take work from the teachers concernedand because there cannot be doublepayment of salary against the same post,there can be no valid objection to thefurther restrain on fresh appointments onthe posts held by respondent nos. 3 and 4.

5. In our opinion a very serious issuereflecting upon public money has arisenin the present appeal.

6. The right of the employer to takework or not to take work from hisemployee and to continue to makepayment of salary without taking work iswell recognized. But this general principle

3 All] The Committee of Management A.N.I.C. Gorakhpur & Anr. Vs. The State of U.P. & Ors. 1061

may not be applicable in respect ofrecognized and aided intermediatecolleges and other such aided institutionswhere the liability of payment of salary istaken over by the State Government.

7. As a matter of fact in recognizedand aided intermediate colleges and othersuch institutions, where liability of paymentof salary is taken over by the StateGovernment, namely, private aided degreecolleges etc., there is a tripartitearrangement. The first party i.e. theemployer is the management which has aright to appoint the employee after dueprocedure and to take work. Second party inthe agreement is the teacher/employee, whoworks in such an institution, who has rightto be paid his salary if his appointment is inaccordance with law and there is no legaljustification for withholding his paymenteven if the management does not take workfrom him, and there is a third party i.e. theState Government, which takes over theliability of payment of salary to the staff andteachers of such recognized and aidedinstitutions. In the case of intermediatecolleges such liability of payment of salaryhas been taken over by the StateGovernment vide U.P. Act No. 24 of 1971.

8. We may record that the liabilityof payment of salary, which has beentaken over by the State Government, isonly in respect of teachers and staff whoare appointed against sanctioned posts.The issue in that regard has been settledby the Full Bench of this Court in the caseof Gopal Dubey vs. District Inspector ofSchools, Maharajganj, reported in 1999(1) UPLBEC 1.

9. There is another aspect to thisliability, namely, such responsibility torelease the payment of salary to the

teacher/employee concerned would onlyarise if such teacher/employee actuallydischarges his duties in the institutionunless he is sanctioned leave permissibleunder the rules.

10. If the management of theinstitution decides on its own not to takework from such teacher/employee, thenthere cannot be a correspondingobligation upon the State Government tomake payment of salary to theteacher/employee concerned when he isactually not discharge his duties in theinstitution.

11. If the decision to not to takework from the employee concerned is ofthe management of the institution in itsown discretion, then the liability ofpayment of salary to such person shallalso be upon the management alone,inasmuch the management of theinstitution while exercising its power ofthe employer to not to take work cannottransfer the financial obligation upon theState Government.

12. Teachers and employees ofaided institutions are paid salary frompublic exchequer which is public money.It cannot be permitted to be paid withoutactual discharge of duties by theperson/employee concerned.

13. We have, therefore, no hesitationto record that even if the Hon'ble SingleJudge has proceeded on the statementmade by the counsel for the management,the High Court cannot in exercise of itspower under Article 226 of theConstitution of India issue a direction tothe State Government to make payment ofsalary to an employee/teacher who doesnot discharge his duties in the institution.


If the restrain on the discharge of dutiesand responsibility by the teacher has beenput by the management of the institution,then the management also must suffer theconsequences.

14. We have no hesitation to recordthat the High Court, while passing the orderpermits the management of an aidedrecognized institution to take or not to takework from the teacher/employee concerned,must couple the said direction with a furtherdirection that it shall be responsibility of themanagement to make payment of salary tosuch teacher/employee from whom it decidesnot to take work. The State Government maynot be fastened with the responsibility tomake payment of such employee, whoactually does not work because of the orderof the management.

15. We are, therefore, of the opinionthat the order of the Hon'ble Single Judge inso far as it directs the payment of salary torespondent nos. 3 and 4 through Stateexchequer even when the managementdecides not to take work from the saidrespondents, cannot be legally sustained.Therefore, we provide that if themanagement still insists upon to not to takework from the respondent nos. 3 and 4, thenit must also bear the consequences ofpayment of salary to the employee/teacherconcerned from its own resources. Thepayment shall not be made from the Stateexchequer so long as the respondent nos. 3and 4 are not permitted to discharge theirofficial duty in the institution.

16. This order shall not prejudice theright of the petitioner to make an applicationbefore the Hon'ble Single Judge or formodification of the order under appeal, asmay be necessary, inasmuch as the Hon'bleSingle Judge has proceeded on the

concession of the counsel for the petitioner.In view of what has been recorded above, thecounsel may like to withdraw the concessionso made. Petitioner is also at liberty to filesuch further application as may be necessary.

17. With the aforesaid direction, thisappeal is disposed of. The order of theHon'ble Single Judge stands modified tothe extent indicated above.



BEFORETHE HON'BLE DR. DHANANJAYA YESHWANT

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

THE HON'BLE YASHWANT VARMA, J.

Special Appeal No. 1140 of 2008with

Special Appeal No. 1137 of 2008, SpecialAppeal No. 1099 of 2008 and Special Appeal

No. 1145 of 2008

Ashutosh Shrotriya & Ors. ...AppellantsVersus

Vice-Chancellor, Dr. B.R. AmbedkarUniversity Agra & Ors. ...Opp. Parties

Counsel for the Appellants:Sri V.D. Dubey

Counsel for the Respondents:Sri C.B. Yadav, Add. Advocate General, SriShashank Shekhar, Addl. C.S.C., Sri SanjayKumar Singh, Sri Manish Goyal, Sri RahulAgarwal, Amicus Curiae.

Constitution of India. Art.-226-Writ Petition-inviting counter affidavit without interimorder-whether amenable under SpecialAppeal?-held-'No'.

Held: Para-45In view of the aforesaid discussions, weanswer the question of law referred to

3 All] Ashutosh Shrotriya & Ors. Vs. Vice-Chancellor, Dr. B.R. Ambedkar University Agra & Ors. 1063

the Full Bench by holding that, an orderof a learned Single Judge upon a petitionunder Articles 226 or 227 of theConstitution only calling for counter andrejoinder affidavits is merely a proceduralorder in aid of the progression of the case.An order of this nature which is purely of aprocedural nature in aid of the progressionof the case and to enable the Court to forma considered view after a counter affidavitand a rejoinder are filed would not beamenable to a special appeal under ChapterVIII Rule 5. Such an order does not decideanything nor does it have the trappings offinality. If a party to the proceedings seeksto press an application for ad interim reliefof a protective nature even before a counteraffidavit is filed, on the ground that asituation of irretrievable injustice mayresult or that its substantive rights wouldbe adversely affected in the meantime, suchan argument must be addressed before theSingle Judge. If such an argument is urged,it should be dealt with however briefly,consistent with the stage of the case, by theSingle Judge. It is for the Division Benchhearing the special appeal to considerwhether the order decides mattes ofmoment or is of such a nature that wouldaffect the vital and valuable rights of theparties and causes serious injustice to theconcerned party.

Case Law discussed:AIR 1970 Alld 561; [(2003) 1 UPLBEC 496];AIR 1953 SC 198; (1981) 4 SCC 8; (2001) 2SCC 588; (2006) 5 SCC 399; 2008 (73) ALR 3;[2009 (1) ADJ 144 (DB)]; [2014 (10) ADJ 211(DB)(LB)]; 1994 (1) AWC 55; [2007 (3) ADJ85 (DB)].

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

The issue

1. The reference to the Full Benchhas been occasioned by a referring orderof a Division Bench dated 15 September2008. The following questions have beenformulated for decision:

"(1) Where a learned Single Judgewhile hearing a writ petition calls forcounter and rejoinder affidavits, but doesnot pass any order on the stay applicationeither granting or refusing a stay, will theorder amount to a refusal of interim reliefto the petitioner either temporarily orimpliedly and a 'judgment' within themeaning of Chapter VIII Rule 5 of theRules of the Court, 1952;

(2) Does an order which adverselyaffects the valuable rights of a party by atemporary or implied refusal of interimrelief have the trappings of a judgment."

2. The appellants sought a writ in thenature of mandamus directing the Universityto permit them to appear for counselling foradmission to the Master of Social WorkDiploma Course for 2008-09. A part of therelief sought was a direction calling for theanswer sheets of the entrance test which washeld on 28 June 2008.

3. The appellants averred in the writpetition that counselling was to be held on31 August 2008. The learned SingleJudge while entertaining the writ petition,passed the following order on 1September 2008:

"Sri S K Singh has accepted noticeon behalf of respondents. He prays forand is granted two weeks' time to filecounter affidavit.

List on 16 September 2008."

4. A special appeal1 was filed againstthe order of the learned Single Judge. TheDivision Bench, while considering thespecial appeal noted that the issue is whetherthere is a judgment within the meaning ofChapter VIII Rule 5 of the Allahabad HighCourt Rules, 19522 when a Single Judgewhile hearing a writ petition calls for counter


and rejoinder affidavits but does not pass anyorder on the application for stay, eithergranting or refusing stay. In other words,would this amount to a refusal of an interimorder temporarily or impliedly, therebyamounting to a judgment within the meaningof Chapter VIII Rule 5.

History: Clause 10 of the LettersPatent and Chapter VIII Rule 5 of theRules of Court

5. Before we deal with the body ofprecedent on the subject, it would beworthwhile to briefly trace the history of theincorporation of Chapter VIII Rule 5. Inunderstanding the ambit of the expression"judgment" it is necessary to bear in mind theevolution of the Letters Patent and itsassociation with the Amalgamation Order of1948 and the Rules of Court. Both have to beanalysed together.

(i) Chapter VIII Rule 5

6. Rule 5 of Chapter VIII, as itstands at present, reads as follows:

"5. Special appeal.- An appeal shalllie to the Court from a judgment (notbeing a judgment passed in the exercise ofappellate jurisdiction) in respect of adecree or order made by a Court subjectto the superintendence of the Court andnot being an order made in the exercise ofrevisional jurisdiction or in the exercise ofits power of superintendence or in theexercise of criminal jurisdiction or in theexercise of jurisdiction conferred byArticle 226 or Article 227 of theConstitution in respect of any judgment,order or award-(a) of a tribunal, Court orstatutory arbitrator made or purported tobe made in the exercise or purportedexercise of jurisdiction under any Uttar

Pradesh Act or under any Central Act, withrespect to any of the matters enumerated inthe State List or the Concurrent List in theSeventh Schedule to the Constitution or (b)of the Government or any Officer orauthority, made or purported to be made inthe exercise or purported exercise ofappellate or revisional jurisdiction under anysuch Act of one Judge."

7. In tracing its history, we must, atthe outset, acknowledge the contributionmade by two judgments of this Court, thefirst by a Bench of four Judges in NotifiedArea Committee Vs Sri Ram SinghasanPrasad Kalwar3 and the other by aDivision Bench in Vajara Yojna SeedFarm, Kalyanpur Vs Presiding Officer,Labour Court II, U P, Kanpur4.

(ii) Letters Patent

8. The Letters Patent of 17 March1866 provided for the constitution of theHigh Court of Judicature at Allahabad,the civil jurisdiction of the High Courtand, among other things, for intra courtappeals from judgments of the Judges ofthe Court. Clause 10 of the Letters Patentprovided as follows:

"10. And we do further ordain that anappeal shall lie to the said High Court ofJudicature at Allahabad from the judgment(not being a judgment passed in the exerciseof appellate jurisdiction by a Court subject tothe Superintendence of the said High Courtand not being an order made in the exerciseof revisional jurisdiction, and not being asentence or order passed or made in theexercise of the power of Superintendenceunder the provisions of Section 107 of theGovernment of India Act, or in the exerciseof Criminal Jurisdiction) of one Judge of thesaid High Court or one Judge of any


Division Court, pursuant to Section 105 ofthe Government of India Act, and thatnotwithstanding anything herein beforeprovided an appeal shall lie to the said HighCourt from a judgment of one Judge of thesaid High Court or one Judge of anyDivision Court, pursuant to Section 108 ofthe Government of India Act, made on orafter the first day of February one thousandnine hundred and twenty nine in the exerciseof appellate jurisdiction in respect of a decreeor order made in the exercise of appellatejurisdiction by a Court subject to theSuperintendence of the said High Court,where the Judge who passed the judgmentdeclares that the case is a fit one for appeal;but that the right of appeal from otherjudgments of the Judges of the said HighCourt or of such Division Court shall be tous. Our heirs or successors or Our on TheirPrivy Council, as hereinafter provided."

(iii) Amalgamation Order

9. In exercise of the powers conferredby Section 229 of the Government of IndiaAct, 1935, the United Provinces High Courts(Amalgamation) Order, 19485 was issuedand published by the Government of India inthe Gazette Extraordinary on 19 July 1948.On 26 July 1948, the High Court ofJudicature at Allahabad and the Chief Courtof Oudh were amalgamated resulting in thecreation of a new High Court. Clause 7 of theAmalgamation Order provided that the newHigh Court shall have, in respect of thewhole of the United Provinces, all suchoriginal, appellate and other jurisdiction as,under the law in force immediately beforethe appointed day, was exercisable in respectof any part in that Province by either of theexisting High Courts. Clause 15 of theAmalgamation Order provided that the lawin force immediately before the appointedday relating to appeals of His Majesty in

Council or to the Federal Court from theHigh Court in Allahabad and the Judges andDivision Courts thereof shall, with necessarymodifications apply in relation to the newHigh Court. Though the Letters Patentceased to have effect as a result of Clause17(a) of the Amalgamation Order, thejurisdiction of the High Court to hear specialappeals from judgments of Single Judgeswas continued by virtue of Clauses 7 and 15of the Amalgamation Order. Clause 13 of theAmalgamation Order provided that the lawin force on the date 25 July 1948 relating tothe powers of the Division Courts of theformer High Court would apply in relation tothe new High Court.

(iv) Article 225

10. After the Constitution came intoforce, Article 225, which dealt with thejurisdiction of the existing High Courts,provided as follows:

"225. Jurisdiction of existing HighCourts.- Subject to the provisions of thisConstitution and to the provisions of any lawof the appropriate Legislature made by virtueof powers conferred on that Legislature bythis Constitution, the jurisdiction of, and thelaw administered in, any existing HighCourt, and the respective powers of theJudges thereof in relation to theadministration of justice in the Court,including any power to make Rules of Courtand to regulate the sittings of the Court andof members thereof sitting alone or inDivision Courts, shall be the same asimmediately before the commencement ofthis Constitution:

Provided that any restriction towhich the exercise of original jurisdictionby any of the High Courts with respect toany matter concerning the revenue orconcerning any act ordered or done in the


collection thereof was subjectimmediately before the commencement ofthis Constitution shall no longer apply tothe exercise of such jurisdiction."

11. Article 225 had the effect ofkeeping alive the Amalgamation Order and,in consequence, the applicability of Clause10 of the Letters Patent. The effect of Article225 was that the jurisdiction of, and the lawadministered in any existing High Courtwould be the same as immediately before thecommencement of the Constitution, subjectto the provisions of the Constitution and theprovisions of any law of the appropriatelegislature by virtue of powers conferred onthat legislature by the Constitution.

12. Chapter VIII Rule 5 of the Rules ofCourt, as it was originally framed, providedfor a special appeal in the following terms:

"5. An appeal shall lie to the Court fromthe judgment (not being a judgment passedin the exercise of appellate jurisdiction inrespect of a decree or order made in theexercise of appellate jurisdiction by a Courtsubject to the superintendence of the Court,and not being an order made in the exerciseof revisional jurisdiction, and not being anorder passed or made in the exercise of itspower of superintendence, or in the exerciseof Criminal Jurisdiction of one Judge, and anappeal shall lie to the Court from a judgmentof one Judge made in the exercise ofappellate jurisdiction in respect of a decree ororder made in the exercise of appellatejurisdiction by a Court subject to thesuperintendence of the Court, where theJudge who passed the judgment declares thatthe case is a fit one for appeal."

(v) Abolition of Letters Patent

13. In 1962, the state legislatureenacted the Uttar Pradesh High Court

(Abolition of Letters Patent Appeals) Act,19626. By virtue of the provisions ofSection 3, the legislature enacted theabolition of special appeals from ajudgment or order of one Judge of theHigh Court made in the exercise ofappellate jurisdiction in respect of adecree or order made by a Court subjectto the superintendence of the High Court.Section 3 provided as follows:

"3.(1) No appeal, arising from a suit orproceeding instituted or commenced,whether prior or subsequent to theenforcement of this Act, shall lie to the HighCourt from a judgment or order of one Judgeof the High Court, made in the exercise ofappellate jurisdiction, in respect of a decreeor order made by a Court, subject to thesuperintendence of the High Court, anythingto the contrary contained in Clause 10 of theLetters Patent of Her Majesty, dated the 17thMarch, 1866, read with Clause 17 of the U.P.High Courts (Amalgamation) Order; 1948,or in any other law, notwithstanding.

(2) Notwithstanding anythingcontained in sub-section (1) all appealspending before the High Court on the dateimmediately preceding the date ofenforcement of this Act shall continue tolie and be heard and disposed of asheretobefore, as if this Act had not beenbrought into force."

14. Following the provisions of U PAct 14 of 1962, the Rules of Court were alsoamended by a notification dated 6 November1963. Further amendments were made in1972 and 1975 to U P Act 14 of 1962. In1981 the Uttar Pradesh High Court(Abolition of Letters Patent Appeals)(Amendment) Act, 1981 was enacted with aview to abolishing Letters Patent appealsagainst the judgments or orders of a SingleJudge under Article 226 or Article 227 in


respect of any judgment, order or award ofthe subordinate courts, tribunals, or statutoryarbitrators made in exercise of jurisdictionunder any Uttar Pradesh Act or under anyCentral Act relating to any of the mattersenumerated in the State List or theConcurrent List to the Seventh Schedule ofthe Constitution or in respect of any ordermade in exercise of the appellate orrevisional jurisdiction under any such Act, bythe State Government or by any officer orauthority. Section 5 of U P Act 14 of 1962was substituted by the following provisionsby Amending Act 12 of 1981:

"5. Abolition of Letters Patent Appealsin certain other cases.- (1) Notwithstandinganything to the contrary contained in Clause10 of the Letters Patent of Her Majesty,dated March 17, 1866 read with Clauses 7and 17 of the U.P. High Courts(Amalgamation) Order, 1948, or in any otherlaw, no appeal arising from an application orproceeding, instituted or commencedwhether prior or subsequent to thecommencement of the Uttar Pradesh HighCourt (Abolition of Letters Patent Appeals)(Amendment) Act, 1981, shall lie to the HighCourt from a judgment or order of one Judgeof the High Court, made in the exercise ofjurisdiction conferred by Articles 226 or 227of the Constitution, in respect of anyjudgment, order or awards -

(a) of a Tribunal, Court or StatutoryArbitrator made or purported to be madein the exercise or purported exercise ofjurisdiction under any Uttar Pradesh Actor under any Central Act, with respect toany of the matters enumerated in the StateList or the Concurrent List in the SeventhSchedule to the Constitution, or

(b) of the Government or any officeror authority, made or purported to bemade in the exercise or purported exercise

of appellate or revisional jurisdictionunder any such Act.

(2) Notwithstanding anything containedin sub-section (1), all appeals of the naturereferred to in that sub-section pending beforethe High Court immediately before thecommencement of the Uttar Pradesh HighCourt (Abolition of Letters Patent Appeals)(Amendment) Act, 1981, shall be heard anddisposed of as if that sub-section had notbeen enacted."

15. In consequence, Chapter VIIIRule 5 of the Rules of Court was amendedby a notification dated 27 July 1983which was published in the Gazettee on13 August 1983 to make the provision forspecial appeals under Chapter VIII Rule 5accord with the provisions of Section 5 ofthe Amending Act of 1981.

The meaning of 'judgment'

16. The essence of the referencewhich has been made by the DivisionBench in the present case, turns upon themeaning of the expression 'judgment' inChapter VIII Rule 5. An appeal lies, firstand foremost, from a judgment. Rule 5then proceeds to lay down the exceptedcategories or exclusions where a specialappeal will not be maintainable. Theexclusions, which have been specified inRule 5, are:

(i) A judgment passed in the exerciseof the appellate jurisdiction in respect of adecree or order made by a court subject tothe superintendence of the Court;

(ii) An order made in the exercise ofrevisional jurisdiction;

(iii) An order made in the exercise ofthe power of superintendence;

(iv) An order made in the exercise ofcriminal jurisdiction;


(v) An order made in the exercise ofjurisdiction conferred by Articles 226 or227 of the Constitution in respect of anyjudgment, order or award :

(a) of a tribunal, court or statutoryarbitrator made or purported to be madein the exercise or purported exercise ofjurisdiction under any Uttar Pradesh Actor Central Act, with respect to a mattercontained in the State List or theConcurrent List to the Seventh Scheduleof the Constitution; or

(b) of the government or any officeror authority, made or purported to bemade in the exercise or purported exerciseof appellate or revisional jurisdictionunder any such Act.

17. The issue before the Court iswhether an order of a Single Judge on apetition under Articles 226 or 227 of theConstitution, merely directing the filing of acounter affidavit within a stipulated periodand a rejoinder thereafter, would constitute ajudgment within the meaning of ChapterVIII Rule 5 of the Rules of the Court.

18. The issue as to what constitutes ajudgment within the meaning of the LettersPatent of the High Courts came up initiallybefore the Supreme Court in Asrumati DebiVs Kumar Rupendra Deb Raikot7. That wasa case where an application had beenpresented by the plaintiff in a suit institutedbefore the Court of the Subordinate Judge,on the Original side of the High Court ofCalcutta under Clause 13 of the LettersPatent, praying for the transfer of the suit tothe High Court to be tried in its extraordinaryjurisdiction. A Single Judge of the HighCourt allowed the application. In appeal, aDivision Bench of the High Court held thatthe order appealed against was not ajudgment within the meaning of Clause 15 of

the Letters Patent. The Bench of four learnedJudges of the Supreme Court held that therewas a wide divergence of judicial opinion onthe subject and the scope of the word'judgment' as it occurred in Clause 15 of theLetters Patent of the Calcutta High Court andin the corresponding clauses of the LettersPatent of other High Courts, which maywarrant a determination in an appropriatecase. However, it was held that in none of thecases was an order of the character which theSupreme Court had before it, been regardedas a 'judgment' within the meaning of Clause15 of the Letters Patent. The appeal wasaccordingly dismissed.

19. Eventually, it was in the 1981decision in Shah Babulal Khimji Vs JayabenD Kania8, that the issue as to when adecision of a Single Judge could be regardedas a 'judgment' within the meaning of Clause15 of the Letters Patent of the Bombay HighCourt came to be considered and resolved. Aconsiderable body of law has emerged infollowing and interpreting the decision.Since we would have to advert to thosedecisions, we begin by stating the principleswhich emerge from Shah Babulal Khimji.

20. The first principle which has beenlaid down by the Supreme Court is thatthough the Letters Patent did not make anattempt to define what is meant by theexpression 'judgment', since the LettersPatent was a special law, it was notappropriate to project the definition of theexpression 'judgment' appearing in Section2(9) of the Code of Civil Procedure, 19089into the meaning of that expression for thepurposes of the Letters Patent. Under Section2 (9), the expression 'judgment' is defined tomean 'a statement given by the Judge on thegrounds of a decree or order.' In the view ofthe Supreme Court, the concept of a'judgment' as defined in the CPC was rather


narrow and the limitations which arecontained in sub-section (9) of Section 2while defining the expression 'decree' cannotbe physically imported into the definition ofthe expression 'judgment' for the purposes ofClause 15 of the Letters Patent which hasadvisedly not used the term 'order' or 'decree'.Consequently, it was held that the word'judgment' for the purposes of Clause 15should receive a wider and more liberalinterpretation than the expression 'judgment'in the CPC.

21. The second important principlewhich emerges from the judgment in ShahBabulal Khimji is that a 'judgment'imports a concept of finality in a broaderand not in a narrower sense. A judgmentcan be of three kinds:

(i) a final judgment;(ii) a preliminary judgment; and(iii) an intermediary or interlocutory

judgment.

22. The reference in the present case,essentially turns on what categories ofinterlocutory judgments would fall within theambit of the expression 'judgment' for thepurpose of Chapter VIII Rule 5. Interlocutoryorders governed by Clauses (a) to (w) ofOrder XLIII Rule 1 CPC contain a quality offinality and would hence be judgmentswhich would be appealable under the LettersPatent. But, in addition, there may beinterlocutory orders which are not coveredby Order XLIII Rule 1 but may also possessa characteristic of finality. Dealing with thisaspect, the Supreme Court observed that :

"(3) Intermediary or Interlocutoryjudgment.- Most of the interlocutoryorders which contain the quality offinality are clearly specified in clause (a)to (w) of Order 43 Rule 1 and have

already been held by us to be judgmentswithin the meaning of the Letters Patentand, therefore, appealable. There may alsobe interlocutory orders which are notcovered by Order 43 Rule 1 but whichalso possess the characteristics andtrappings of finality in that, the ordersmay adversely affect a valuable right ofthe party or decide an important aspect ofthe trial in an ancillary proceeding. Beforesuch an order can be a judgment theadverse effect on the party concernedmust be direct and immediate rather thanindirect or remote."

23. The third principle which was laiddown in Shah Babulal Khimji is that in thecourse of a trial, the trial Judge may pass anumber of orders of a procedural or routinenature. Some of these orders may even causea degree of inconvenience to one party or theother, such as an order refusing anadjournment or an order refusing to summona witness or document. Such orders, theSupreme Court held, are purely interlocutoryand are not judgments because it wouldalways be open to a party aggrieved to makea grievance against the order passed, in anappeal arising out of the final judgment ofthe trial Judge.

24. The fourth principle whichemerges from the judgment of the SupremeCourt in Shah Babulal Khimji is that every'interlocutory order' is not a 'judgment'. Onlycertain categories of interlocutory orders canbe regarded as judgments:

"...every interlocutory order cannotbe regarded as a judgment but only thoseorders would be judgments which decidematters of moment or affect vital andvaluable rights of the parties and whichwork serious injustice to the partyconcerned." (emphasis supplied)


25. The Supreme Court ruled that aninterlocutory order to be a judgment mustcontain traits and trappings of finality,either when it decides the questions incontroversy in an ancillary proceeding orin the suit itself or in a part of theproceedings.

26. The next important decision towhich a reference has to be made, is ajudgment of two learned Judges of theSupreme Court in Central Mine Planning andDesign Institute Ltd Vs Union of India10.That was a case where a learned Single Judge,on an application under Section 17-B of theIndustrial Disputes Act, 1947, directed theemployer to pay to the workmen the fullwages last drawn by them on the date onwhich they were terminated from service. TheSupreme Court observed that the DivisionBench of the High Court erred in coming tothe conclusion that the directions of thelearned Single Judge did not constitute a'judgment' within the meaning of Clause 10 ofthe Letters Patent of the Patna High Court.After following the earlier decision in ShahBabulal Khimji, the Supreme Courtformulated the following test:

"...to determine the question whetheran interlocutory order passed by oneJudge of a High Court falls within themeaning of "judgment" for purposes ofLetters Patent the test is: Whether theorder is a final determination affectingvital and valuable rights and obligationsof the parties concerned. This has to beascertained on the facts of each case."

27. The order of the learned SingleJudge was held to have determined theentitlement of the workmen to receivebenefits and imposed an obligation on theemployer to pay those benefits undersection 17-B and was held to be a

judgment within the meaning of Clause10 of the Letters Patent.

28. In Midnapore Peoples' CoopBank Ltd Vs Chunilal Nanda11, theissues, which among others, came upbefore the Supreme Court were :

(i) Where the High Court in acontempt proceedings renders a decisionon the merits of a dispute between theparties, either by an interlocutory order orfinal judgment, whether that would beappealable under Section 19 of theContempt of Courts Act, 1971 and if not,what would be the remedy to the personaggrieved; and

(ii) Where such a decision on meritsis rendered by an interlocutory order of alearned Single Judge, whether an intra-court appeal would be maintainable underClause 15 of the Letters Patent of theHigh Court of Calcutta.

29. The Supreme Court observedthat interlocutory or interim orders whichare passed during the pendency of a casewould fall under one or the other of thefollowing categories:

"(i) Orders which finally decide aquestion or issue in controversy in themain case;

(ii) Orders which finally decide anissue which materially and directly affectsthe final decision in the main case;

(iii) Orders which finally decide acollateral issue or question which is notthe subject-matter of the main case;

(iv) Routine orders which are passedto facilitate the progress of the case till itsculmination in the final judgment;

(v) Orders which may cause someinconvenience or some prejudice to aparty, but which do not finally determinethe rights and obligations of the parties."


30. The Supreme Court held that theexpression 'judgment' in Clause 15 of theLetters Patent will, besides coveringjudgments as defined in Section 2(9) of CPCand orders enumerated under Order XLIIIRule 1, also cover other orders which thoughthey may not finally and conclusivelydetermine the rights of parties with regard toall or any of the matters in controversy, mayfinally decide some collateral matters whichaffect the vital and valuable rights andobligations of the parties. Interlocutoryorders which fell under categories (i) to (iii)above were held to be 'judgments' whereas,orders falling under categories (iv) and (v)were held not to be 'judgments' for thepurpose of filing appeals provided under theLetters Patent.

31. We now formulate the governingprinciples :

(i) The expression 'judgment' wasadvisedly not defined in the LettersPatents of various High Courts whichconferred a right of appeal against ajudgment of a Single Judge to a DivisionBench of that Court;

(ii) The expression 'judgment' is notto be construed in the narrower sense inwhich the expression 'judgment', 'decree'or 'order' is defined in the CPC, but mustreceive a broad and liberal construction;

(iii) Every order passed by a trial Judgeon the Original side of a High Courtexercising original jurisdiction or, for thatmatter, by a learned Single Judge exercisingthe writ jurisdiction, would not amount to ajudgment. If every order were construed tobe a judgment, that would result in opening aflood of appeals and there would be no endto the number of orders which could beappealable under the Letters Patent;

(iv) Any interlocutory order toconstitute a judgment, must possess the

characteristic of finality in the sense thatit must adversely affect a valuable right ofa party or decide an important aspect ofthe trial in an ancillary proceeding. Inorder to constitute a 'judgment', theadverse effect on a party must be directand immediate and not indirect or remote;

(v) In order to constitute a judgment,an interlocutory order must: (a) decide amatter of moment; or (b) affect vital andvaluable rights of the parties and mustalso work serious injustice to the partyconcerned:

(vi) On the other hand, orders passed inthe course of the proceedings of a routinenature, would not constitute a judgment evenif they result in some element ofinconvenience or hardship to one party or theother. Routine orders which are passed by aSingle Judge to facilitate the progress of a casemay cause some element of inconvenience orprejudice to a party but do not constitute a'judgment' because they do not finallydetermine the rights or obligations of theparties. Procedural orders in aid of theprogression of a case or to facilitate a decisionare not judgments.

32. Now, it is in the background ofthese principles that we need to deal with theissue as to whether an order of a SingleJudge, in the exercise of writ jurisdiction,calling for the filing of a counter affidavitand a rejoinder, must in all circumstanceswithout exception be treated as orders merelyfacilitating the progress of the case and notconstituting a judgment. Where a judgerequires the filing of a counter affidavit bythe respondent and a rejoinder by thepetitioner in response, this is in the nature ofa procedural direction to enable the Court tohave a full disclosure of the underlying factsand issues so as to facilitate a decision. Theobject of such a direction is to enable theSingle Judge to be apprised of facts relevant


and material to arriving at a considered view.Such a direction is in aid of the progressionof the case. It does not decide the matter orissue in controversy. The lis continues toremain pending before the Single Judge. TheCourt would apply its mind to the merits ofthe controversy, for the purpose of decidingan application for interim relief andeventually for the final disposal of the writproceedings after affidavits are filed. This isa procedural order and not a judgment.

33. At least three judgments of theDivision Benches of this Court haveconstrued directions of this nature not toconstitute 'judgment' for the purpose ofChapter VIII Rule 5 of the Rules of theCourt. The first decision was of a DivisionBench of this Court in Mohd Hashim VsBoard of Madarsa Education12. In the writproceedings, a learned Single Judge issueddirections for the filing of a counter affidavitand rejoinder affidavit and the case wasdirected to be listed after the expiry of theperiod mentioned in the order. No orderappears to have been passed on the stayapplication filed together with the writpetition. The grievance of the originalpetitioner, who was in a special appeal, wasthat the order of the learned Single Judgeamounted to a rejection of the prayer for stayrendering the writ petition infructuous. Fromthe judgment of the Division Bench, itappears that the case related to examinationswhich were scheduled to be held with effectfrom 31 May 2008. When the writ petitionwas filed before the learned Single Judgewho passed an order on 13 May 2008, it wasstated that the examinations were expected tobe held in the last week of May 2008. Beforethe Division Bench, it was stated that theexaminations were now scheduled from 31May 2008 and the fate of nearly two hundredstudents who had submitted theirexamination forms would be adversely

affected. The Division Bench held that therewas no judgment by which the appellant hadbeen aggrieved and hence the special appealwas not maintainable. It was left open to theappellant to move an application before thelearned Single Judge and the special appealwas dismissed.

34. The second judgment of aDivision Bench in Committee ofManagement of National IntegratedMedical Association Vs State of U P13arose out of an order which was passed bythe Prescribed Authority in the exercise ofjurisdiction under Section 25 of theSocieties Registration Act, 1860. Thelearned Single Judge directed, while issuingnotice, that the case be listed after sixweeks. The Division Bench, in specialappeal, noted that the stay application hadneither been allowed nor rejected. TheDivision Bench held that since thePrescribed Authority was a Tribunal whileexercising jurisdiction under Section 25, aspecial appeal was barred under ChapterVIII Rule 5. The Division Bench also heldthat the order which was passed by thelearned Single Judge was not an orderdeciding an interim application nor was anyissue decided which may adversely affect avaluable right of the parties and hence, thespecial appeal would not be maintainable.The Division Bench held as follows:

"...routine orders which are passed tofacilitate the progress of the case are not"judgment" which are appealable underthe Letters Patent. The impugned orderdated 17.9.2008 as extracted aboveclearly indicates that the said order is notan order deciding the interim applicationof the appellants nor any issue has beendecided by the said order which mayadversely affect the valuable right of theparties..."


35. The Division Bench rejected thesubmission that the application for interimrelief must be deemed to have beenrejected on the basis of the provisions ofExplanation V to Section 11 of the CPC. Inthe view of the Division Bench, the orderimpugned was a 'normal routine order'passed during the progress of the case anddid not affect the valuable right of anyparty and was hence not appealable.

36. The third judgment of the DivisionBench is in Ghisai Ram Krishak VidyalayaSamiti Vs State of U P14. In this case, achallenge was addressed to an order passedby the Deputy Registrar, Firms, Societies &Chits on 8 July 2014. The learned SingleJudge, by an order dated 24 July 2014directed that the petition be listed in thefollowing week when the prayer for interimrelief would be considered. Subsequently,when the petition came up, a consequentialorder had been passed by the District BasicEducation Officer on 21 July 2014 and inorder to challenge that order the writ petitionwas sought to be amended. On 15 October2014, the learned Single Judge merelydirected that a counter affidavit and rejoinderbe filed. It was this order dated 15 October2014 that was sought to be challenged on theground that it effectively amounted to thedenial of interim relief since the tenure of theappellant Committee was to expire on 31October 2014. The Division Bench held thatthe order of the learned Single Judge, as itstood, did not contain any decision. In orderto be an order which was appealable underChapter VIII Rule 5 of the Rules of theCourt, there had to be an order adverselyaffecting the rights of a party touching thequality of finality or adversity. The DivisionBench observed as follows:

"...There is however another categoryof situations which is very common as in thepresent case where it is routine in procedure

and is otherwise compulsory or expedient inthe interest of justice to postpone or deferpassing of an order for having a grip of factsand law, dependant upon cross-pleadings ofthe adversaries. The elements of observanceof the principles of natural justice areattracted and have to be adhered. The court,therefore, has to decipher the exact situationprevailing in a particular matter before itproceeds to apply the principles attracted aseach case may have different facts. However,in such types of cases, ordinarily, it would benot wrong to presume that there is nodecision amounting to a judgement."

37. In the view of the DivisionBench, all that had happened was that thecase was adjourned for the filing ofaffidavits. The order of the learned SingleJudge dated 15 October 2014 was heldnot to be a judgement.

38. A close analysis of the facts ofeach of the three cases, which have beenadverted to above, would indicate that atleast in the first two cases, the DivisionBench, while holding that special appeal wasnot maintainable, had due regard to thenature of the order and the facts of the caseout of which the order of the learned SingleJudge had arisen. In the first decision inMohd Hashim (supra), the Division Benchnoted that when the learned Single Judge hadinitially been moved on 13 May 2008, it wasstated that the examinations were tocommence in the last week of May. It wassubsequently and before the Division Benchin appeal, that it was sought to be stated thatthe examinations were scheduled on 31 May2008 (thereby making out a case of urgency).This was evidently not a fact of which thelearned Single Judge was apprised since itappears from a reading of the judgement thatit was the Division Bench which was soughtto be moved on the ground that there was a


pressing urgency warranting the grant ofinterim relief. The Division Bench in this setof facts held that the proper remedy for theappellant was to move the learned SingleJudge and hence the appeal was held not tobe maintainable. The second judgement ofthe Division Bench in Committee ofManagement of National Integrated MedicalAssociation (supra) involved plain andsimple an order passed under Section 25 ofthe Societies Registration Act 1860 by thePrescribed Authority which was in questionbefore the learned Singe Judge. The DivisionBench observed that the order of the learnedSingle Judge calling for the filing ofpleadings in response to the petition had notdecided any issue which may adverselyaffect a valuable right of the parties and washence not appealable. The finding that theappeal was not maintainable in both thesecases would, on a proper appreciation of thenature of the two decisions of the DivisionBench, indicate that it was in the facts ofeach individual case that the appeal was heldnot to be maintainable. What was in issue inboth the cases was purely a procedural orderagainst which no special appeal would bemaintainable under Chapter VIII Rule 5.

39. In the third decision in GhisaiRam Krishak Vidyalaya Samiti, theDivision Bench has held that an orderwhich merely calls for the filing of acounter and a rejoinder would, in nocircumstances, be regarded as anappealable order. The Division Benchheld that merely because this would delaythe disposal of the application for interimrelief - the hearing of the applicationbeing deferred until after a reply ofrejoinder is filed - does not constitute theorder appealed against a judgment. Thisline of reasoning of the Division Benchappears from the following observationsin paragraphs 48 and 49 of the judgment:

"...The case being adjourned with adirection to exchange affidavits causing adelay on account of this processualcompulsory requirement, cannot be inferredto mean a refusal to pass an order. There isnothing hidden or undecipherable so as toconstrue it as a decision amounting to ajudgment. There is, therefore, no mysterythat requires any probe or discovery tounravel more than what is actually writtenand clearly intended. It is not possible to readbetween the lines when there is not even aremote exercise of discretion to make out aground of appeal. Thus, in our consideredopinion, the impugned order dated15.10.2014 does not fall within the meaningof the word 'judgment' or an order ascontemplated in Chapter VIII Rule 5 of the1952 Rules so as to make this appealcompetent against such an order.

...

...To put it simple, the proceedingsbefore the learned Single Judge where it isalleged that the passing of an interim orderhas been withheld by itself in view of theterminology of the impugned order, may notbe a ground for maintaining an appeal, but atthe same time it may be a ground forpressing for an interim relief or disposal ofthe entire dispute on issues of jurisdiction orviolation of principles of natural justicebefore the learned Single Judge in thebackground of the case where the appellantwas ousted and was deprived fromfunctioning till the end of his tenure."

40. In the earlier part of the decision,the Division Bench observed that an orderwhich is merely of a procedural naturecalling for the filing of a reply to enablethe Court to have a proper factual basisfor considering the controversy, wouldnot be amenable to an appeal underChapter VIII Rule 5 of the Rules of Court.


This statement of law is consistent withthe law laid down by the Supreme Courtin Shah Babulal Khinji which indicatesthat orders passed by the Court of aroutine nature in a proceeding would notbe a judgement even if they cause someinconvenience to a party. In MidnaporePeoples' Coop Bank Ltd, the SupremeCourt once again emphasised that orderswhich are passed to facilitate the progressof the case till the culmination of thematter in a final judgement are notamenable to being called 'a judgement'.Similarly, orders which may cause someinconvenience or prejudice but do notfinally determine rights or obligations ofparties would not amount to a judgment.

41. There is another vital principlewhich is involved here. The High Court is acourt of record. The Court in its judicialproceedings speaks through its orders. Theorder of a court reflects the position of whatwas urged and what was decided. Where aSingle Judge has passed only a proceduraldirection calling for a reply or counter, itwould be correct and fair to proceed on thebasis that the hearing of the prayer forinterim relief has been deferred until acounter has been filed. A party cannot bepermitted to urge a submission contrary tothe record in appeal. If the grievance of aparty is that the Single Judge has notconsidered a submission which was urgedand an argument is not reflected in therecord, the remedy is to apply to that veryjudge who is passing or has passed the orderto record a submission urged. Not havingdone so, a party cannot be allowed toordinarily urge in appeal that what is aprocedural direction also involves a failure toconsider an application for interim relief or todeal with a submission raised. A party mayrest content with a mere deferment of ahearing so as to allow a counter to be filed.

The party cannot be allowed to turn aroundand maintain an appeal on the speciousground that the procedural direction of theSingle Judge amounts to a denial of interimrelief. This would destroy the sanctity of thejudicial process. Chapter VIII Rule 5 is aprovision for an intra court appeal from onejudge of the High Court to a Division Benchof the same Court. Single judges are judgesof the Court and not Courts subordinate tothe High Court. They control the procedureof the courts over which they preside thoughconsistent with judicial objectivity andfairness. That is the rationale why aprocedural direction in the progress of apetition is not appealable under Chapter VIIIRule 5. It decides no issue of fact or law andis not a judgment.

42. The area which both thejudgements in Shah Babulal Khinji andMidnapore Peoples' Coop Bank Ltd leaveopen to be considered is whether the orderwhich is sought to be placed in issue inappeal, though passed at an interlocutorystage, is of a nature that would affect the vitaland valuable rights of parties and workserious injustice to the party concerned. Anorder, which has the consequence ofadversely affecting the valuable rights of aparty has the characteristics or trappings offinality and has, therefore, been held to be a'judgement' which is amenable to theappellate jurisdiction. For the purpose of thisproceeding, it would not be appropriate forthe Court to draw an exhaustive catalogue ofthe circumstances in which an order of thelearned Single Judge declining to even takenote of a prayer for interim relief may resultin an irreversible situation or irretrievableinjustice that would affect valuable andsubstantive rights of a party to the lis.Ultimately, as the Supreme Court held in thedecision in Central Mine Planning andDesign Institute, whether the order is a final


determination affecting vital and valuablerights and obligations of the partiesconcerned has to be ascertained on the factsof each case. Evidently, there is a clearcategory of cases where an order is purely ofa processual nature in aid of the finalprogression of a case and which neitherdetermines nor has the effect of determiningvital and substantive rights as between thecontesting parties. The test to be applied iswhether the order of the learned Single Judgehas trappings of finality in the sense that theconsequence of the order is to affect vital andvaluable rights of the parties and to cause orwork serious injustice to the party concerned.The judgements of the Supreme Court leaveit open to the appellate court to determine inthe facts of each case whether these testswhich have been laid down consistently fordefining the ambit of the expression'judgement' are fulfilled in the facts of eachcase. The judgement in Ghisai Ram KrishakVidyalaya Samiti cannot be read as takingaway the discretion of the appellate court andits unquestioned jurisdiction to enquire intothe maintainability of an appeal on the testswhich have been laid down by the SupremeCourt.

43. We may also note a judgementof a Division Bench of this Court inSociety Madarsa Mazahir UloomMubarak Shah Saharanpur Vs MuzaffarHussain15 In that case, an application wasmade for the registration of a societyunder the Societies Registration Act,1860. An objection was filed by therespondent before the Assistant Registrar,alleging that a waqf had been created inthe name of the Madarsa and wasregistered with the U P Sunni CentralWaqf Board. This objection was repelledand the society was directed to beregistered. In a writ petition, the HighCourt directed the Assistant Registrar to

refer the question of registration to theState Government which, in turn, rejectedthe objection of the respondent and,hence, the appellant was held entitled toregistration. This order was challenged bythe respondent in a writ petition on whichonly notice was issued but no interim staywas granted. The appellant was grantedregistration thereafter, after which anapplication for renewal was submitted.The Deputy Registrar allowed theapplication for renewal of the certificateof registration. This order was challengedin a writ petition and the learned SingleJudge stayed the operation of the order.The Division Bench held that the appealwas not maintainable. The DivisionBench also held that in certain cases at thetime when writ petitions are entertained,the valuable rights of the other side maybe affected by passing what is called 'apre-hearing judgement.' However, if afterfurnishing an opportunity to therespondents, the Court passes an ordermaking an arrangement till the dispute isdecided so as to preserve the status quo,such an order will not have the quality offinality. There are certain observations inthe judgement of the Division Benchwhich appear to be of an excessivelybroad nature. For instance, the DivisionBench held that "mere" grant of an orderof stay or vacating an order of stay doesnot decide any controversy on whichparties are at issue. The Division Benchalso adverted to an earlier unreporteddecision in support of the principle that anorder granting or refusing to grant staydoes not constitute a 'judgment'. Theseobservations of the Division Benchwould, in our view, be rather broadlystated and may not be in accord with thejudgments of the Supreme Court whichwe have referred to above. Ultimately,however, the Division Bench observed


that in each case, the nature of the order willhave to be examined and the effect of theorder passed would have to be considered onwhether it determines a right or liability ofthe parties so as to be treated as a 'judgment'.This judgment was followed subsequently byanother Division Bench in Chhatra DhariPrasad Vs Anil Kumar Gautam16. Boththese decisions, it must be clarified, cannotbe held to lay down a principle of law thatthough an interlocutory order of the learnedSingle Judge is of such a nature that wouldadversely affect the right of a party or decidean important aspect of the trial in an ancillaryproceeding, that it would yet not beamenable to a special appeal. On thecontrary, the law as laid down by theSupreme Court in Shah Babulal Khimji isthat an interlocutory order which decidesmatters of moment or affects the valuablerights of the parties and works seriousprejudice to the parties concerned wouldconstitute a 'judgment' and would beamenable to a special appeal.

44. We, accordingly, are of the viewthat a direction issued by the learned SingleJudge in the course of the hearing of a writpetition, calling for the filing of a counter anda rejoinder or, in other words, for thecompletion of pleadings is a direction of aprocedural nature, in aid of the ultimateprogression of the case. The object andpurpose of such a direction is to enable theSingle Judge to have the considered benefitof a response to the petition so as to enablethe Court to deal with an application of aninterlocutory nature upon a fair considerationof the rival perspectives and eventually forthe purpose of the disposal of the case at thefinal stage. A purely procedural direction ofthis nature would ordinarily not be amenableto the remedy of a special appeal even if theconsequence of the issuance of such adirection is to cause some inconvenience or

prejudice to one or other party. The Court, inorder to decide a lis, either at theinterlocutory or at a final stage, wouldgenerally require the benefit of a responsefiled by a party which would be affected bythe order which is sought and the reliefswhich are claimed. Compliance with theprinciples of natural justice is as much asafeguard for the parties as it is for the Courtof having considered the matter in all itsperspectives before rendering a finaldecision. If a party to the proceeding seeks topress an application for ad interim relief evenbefore a reply is filed on grounds of extremeurgency or on the ground that the situationwould be irreversibly altered or thatirretrievable injustice would result unless aprotective order is passed, such a submissionmust be urged before the Single Judge. Ifsuch a submission is urged, it must berecorded and dealt with however briefly toobviate a grievance that an application for adinterim relief was pressed but not dealt with.A purely procedural direction of calling for acounter affidavit and rejoinder would not beamenable to a special appeal since it decidesno rights and does not affect the vital andsubstantive rights of parties. However, theappellate court has the unquestionedjurisdiction to decide whether the direction isof a procedural nature against which aspecial appeal is not maintainable or whetherthe interlocutory order decides matters ofmoment or affects vital and valuable rights ofparties and works serious injustice to theparty concerned. Where the Division Benchin a special appeal is of the view that theorder of the learned Single Judge is not just aprocedural direction but would result in agrave detriment to substantive rights of anirreversible nature, the jurisdiction of theCourt is wide enough to intervene at thebehest of an aggrieved litigant. The Rules ofCourt are in aid of justice. We, therefore,affirm the principle that a purely processual


order of the nature upon which the referenceis made would not be amenable to a specialappeal not being a judgement. The DivisionBench will have to decide in the facts of eachcase, the nature of the order passed by aSingle Judge while determining whether theappeal is maintainable.

45. In view of the aforesaiddiscussions, we answer the question of lawreferred to the Full Bench by holding that, anorder of a learned Single Judge upon apetition under Articles 226 or 227 of theConstitution only calling for counter andrejoinder affidavits is merely a proceduralorder in aid of the progression of the case.An order of this nature which is purely of aprocedural nature in aid of the progression ofthe case and to enable the Court to form aconsidered view after a counter affidavit anda rejoinder are filed would not be amenableto a special appeal under Chapter VIII Rule5. Such an order does not decide anythingnor does it have the trappings of finality. If aparty to the proceedings seeks to press anapplication for ad interim relief of aprotective nature even before a counteraffidavit is filed, on the ground that asituation of irretrievable injustice may resultor that its substantive rights would beadversely affected in the meantime, such anargument must be addressed before theSingle Judge. If such an argument is urged, itshould be dealt with however briefly,consistent with the stage of the case, by theSingle Judge. It is for the Division Benchhearing the special appeal to considerwhether the order decides mattes of momentor is of such a nature that would affect thevital and valuable rights of the parties andcauses serious injustice to the concernedparty.

46. The reference to the Full Benchshall accordingly stand answered in the

aforesaid terms. All these special appealsshall now be placed before the appropriateBench according to the roster of work forfinal disposal in the light of this judgment.

47. Before we conclude, the Courtwould like to express its appreciation of theable assistance rendered to the Court by thelearned counsel appearing for the appellants,the learned Additional Advocate Generalappearing for the State, and by Shri ManishGoel and Shri Rahul Agarwal who wereappointed by the Court as amicus curiae.



BEFORETHE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Misc. Bail Application No. 1372 of2014

Sonu ...ApplicantVersus

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

Counsel for the Applicant:Sri R.P. Mishra, Sri Manoj Kumar Srivastava,Sri Omvir Babu, Sri Ratan Singh


Cr.P.C.-Section 439-Bail application-offence under Section 302-consideringallegation of honor killing -applicantbeing real brother of deceased-brutallydone to death-considering post crimeconduct, gravity of offence-no case forbail-rejected.

Held: Para-8Looking to the nature of offence, itsgravity and the evidence in support of itand the overall circumstances of thiscase, this Court is of the view that theapplicant has not made out a case for

3 All] Sonu Vs. State of U.P. 1079

bail. Therefore, the prayer for bail of theapplicant is rejected.

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

1. This application has been filedseeking the release of the applicant onbail in Case Crime No.136 of 2013, u/s302 I.P.C., Police Station-Palimukimpur,District- Aligarh.

2. Counter affidavit filed, taken onrecord.

3. Heard learned counsel for theapplicant and learned A.G.A.

4. Perused the record.

5. Submission of counsel for theapplicant is that this is a case ofcircumstantial evidence and there is no eyewitness account of murder available in thiscase and the charge sheet against theapplicant is nothing except a conjecturalinference of the investigating Officer withoutany sure basis. The applicant himself hadlodged the first information report about theoccurrence which according to the counselspeaks about the clean conscience of theapplicant. The submission of the counsel isthat actually the deceased had committedsuicide out of shame and fear of socialhumiliation.

6. Learned A.G.A. has opposed theprayer for bail and has submitted that this is acase of honour killing. The deceased wassister of the first informant and as she hadbeen seen along with one Subhash in someobjectionable position or compromisingposition, she was taken back home by herbrother and then she was strangulated todeath. Further submission is that the most

incriminating circumstance against theapplicant is that though it was a case ofmurder, but while giving the information tothe police station the applicant reported theincident showing it to be a case of suicide.Learned A.G.A. has drawn the attention ofthe Court to the post mortem examinationreport of the deceased which shows that notonly the froth was coming out from thenostrils and the eyes as well as the face werefound congested, the hyoid bone was alsofound fractured. In the opinion of the doctoralso the death was the result of strangulationand not hanging. The submission is that itwas not a case of suicide at all as was shownor projected by the applicant and the samemisinformation has been completelydisproved by the medical evidence. Thedeceased had died within the precincts of herhome and how and under whatcircumstances she met with her homicidaldeath are matters certainly within the'especial knowledge' of the applicant ascontemplated u/s 106 Evidence Act. It wasthe onus of the applicant to explain thecircumstances as to how did she meet withher end. The explanation offered by theapplicant with regard to her death is not onlyinadequate but has been exposed to be false.The submission is that whatever might havebeen the conservative social values of theapplicant and however much objection theapplicant might have had against therelationship or the meeting of the deceasedwith any other boy, the extreme punitive steptaken by the family members of the deceasedis absolutely unpardonable. A helpless girlwho aught to have been protected by theapplicant being his sister was brutally doneto death and then in order to preserve hisownself from the accusation of murder anentirely false suicide story was reported tothe police department as a camouflage butwhich got exploded completely by theinvestigation. The mischievously calculating


attempt to bluff the authorities andmisleading the police with the aim to make itdraw wrong conclusions is an additionalincriminating circumstance to be reckonedwith against the applicant. This post-crimeconduct of the applicant bears an eloquenttestimony to his guilty mind. A.G.A. has alsodrawn the attention of the court to certainstatements which were given by certainwitnesses in which extra judicial confessionis said to have been made by the applicantadmitting his guilt.

7. After adverting to the record of thecase in the light of the rival submissionsmade at the bar the court is once againreminded of the old saying that "The livingdo not speak the truth with the candour of thedead." However much the applicant mighthave tried to suppress the truth, the deceased,who spoke from her death through theautopsy of her cadaver was candid enough tospill the beans and unveil the truth.Theaccused has lied but the deceased did not, nordid the circumstances of the case. But whatadds to the poignancy of the murder is to seethat the blood has taken the blood of its ownand that too for a reason which was sounreasonable, so irrational and sounjustifiable. To speak the least, theindefensible and morbid conservatism of theapplicant who treated the adolescent love asa culpable offence and that too punishablewith death, makes the murder all the morefoul and despicable. The courts of law cannot brook with such crimes which have allthe trappings of primitive orthodox savagery.

8. Looking to the nature of offence,its gravity and the evidence in support ofit and the overall circumstances of thiscase, this Court is of the view that theapplicant has not made out a case for bail.Therefore, the prayer for bail of theapplicant is rejected.

9. It is clarified that the observations, ifany, made in this order are strictly confinedto the disposal of the bail application andmust not be construed to have any reflectionon the ultimate merits of the case.



BEFORETHE HON'BLE MANOJ KUMAR GUPTA, J.

C.M.W.P. No. 3025 of 2015Connected with

Matters Under Article 227 No. 3897 of2015

Jagdish Chand Kashyap ...PetitionerVersus

Smt. Malti Agarwal ...Respondents

Counsel for the Petitioner:Sri Om Prakash Lohia, Sri Noor Sabaa

Counsel for the Respondents:C.S.C., Sri Arvind Srivastava, Sri PushkarSrivastava

U.P. Urban Building (Regulation of lettingand rent) Act 1972-Section 2(2)explanation-New construction-on sameplaint after complete demolition utilizingone old wall-new construction completed-inthe year 1987-deposit of rent under Section30 without protest of inapplicability of Act1972-exemption from applicability heldproper-reliance placed upon of Gopal Dascase-misconceived-in that case questionreferred was apart protection of tenant andnot applicability-against concurrentfindings of Court below-High Court not tointerfere-petition dismissed.

Held: Para-26As regards absence of fresh assessment,it may be noted that under clause (a)Explanation-1 section 2(2), in casewhere fresh assessment has not been

3 All] Jagdish Chand Kashyap Vs. Smt. Malti Agarwal 1081

made, nor the completion thereofreported to or otherwise recorded by thelocal authorities, the date of constructionof the building shall be the date on whichit was actually occupied. Concededly, theshop in dispute after substantialdemolition of the existing constructionand reconstruction, was first occupied bythe petitioner in the year 1987. It is alsonot in dispute that a fresh contract oftenancy was entered into between theparties, though oral, whereunder, therent of the shop was also enhanced. Insuch view of the matter, this Court doesnot find any illegality in the view takenby the courts below in holding that theprovisions of the Act would not apply tothe shop in dispute.

Case Law discussed:2012 (2) ARC 408; 2008 (3) ARC 841; 2001(2) ARC 226; 1980 ALL.L.J. 229; 1995 (2) ARC549; (2001) 1 SCC 564; Laws (All) 1991-5-112; Laws (All) 2013-1-206.

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

1. The petitioner is a tenant of ashop in building no. 343-A (private no.343-A/10 and present no.917) JokhanBagh, Civil Lines, Jhansi (hereinafterreferred to as 'the shop in dispute'). Thelandlord of the shop is Smt. MaltiAgarwal (the respondent herein).

2. Before the petitioner was inductedas the tenant of the shop in dispute, hewas occupying another smaller shop inthe same building, in pursuance of a leaseagreement dated 27.5.1981 whereunder,the rent was Rs.500/- per month and thetenancy was for a period of 15 years withan option of renewal for a further periodof five years. It is admitted case of theparties that in the year 1986-87, anadjoining shop in the tenancy of oneMohd. Qamar was got vacated and the

said shop alongwith the shop in thetenancy of the petitioner, were mergedtogether by undertaking extensivemodifications and constructions.Whereas, the shop earlier in the tenancyof the petitioner measured 12.6' x 14.6',the new shop i.e., the disputed shop, nowmeasures 30' x 20'. In pursuance of anoral agreement between the parties, therent of the disputed shop was enhanced toRs.750/- per month, out of which Rs.250/-was to be adjusted in the expensesincurred by the petitioner in remodellingthe structure.

3. The respondent-landlord filed SCCSuit no. 8 of 1991 for recovery of arrears ofrent and ejectment. In the said suit, therespondent-landlord took a specific plea thatthe disputed shop now in the tenancy of thepetitioner since 1.2.1987, is a newconstruction within the meaning of U. P. Actno. 13 of 19721 and is exempt from theprovisions thereof. The suit was contested bythe petitioner by filing written statement inwhich it was admitted that during the year1986-87, after getting the adjoining shopvacated from Mohd. Qamar, the two shopswere merged together. However, it waspleaded that there was no default in paymentof rent and tenancy of the petitioner was of apermanent nature and thus, he could not beevicted.

4. The Judge Small Causes Court,by judgement dated 3.9.2003 dismissedthe suit holding that under the registeredlease deed dated 27.5.1981, the tenancybeing for a duration of 15 years, thepetitioner could not be evicted beforeexpiry of the said period. The suit foreviction was found to be bad in law.However, while deciding the questionwhether the provisions of the Act areapplicable or not, it was specifically held


that the new constructions undertakenduring the year 1986-87, were soextensive in nature that the new structurenow in the tenancy of the petitioner,would be deemed to be constructed on thedate of completion thereof, and thusexempt from the provisions of the Act.

5. The respondent-landlord, aggrievedby the judgement of the Judge Small CausesCourt dated 3.9.2003 dismissing the suit,preferred Civil Revision No.831 of 2003before this Court. During the pendency of therevision, the respondent-landlord served afresh notice dated 7.4.2011 upon thepetitioner seeking to terminate his tenancy.Consequently, Civil Revision No.831 of2003 pending before this Court was gotdismissed as withdrawn on 11.5.2011,followed by filing of SCC suit no. 17 of2011. It was pleaded therein that theremodelled shop in the tenancy of thepetitioner was held to be a new constructionin SCC Suit no. 8 of 1991 and the tenancy ofthe petitioner having been terminated bynotice dated 7.4.2011, he is liable toejectment.

6. The suit was contested by thepetitioner admitting the relationship oflandlord and tenant between the parties. Itwas admitted that extensive constructionsand modification were undertaken in theyear 1986-87 and the remodelled shopwas let out to the petitioner. However, itwas claimed that the petitioner haddeposited rent in proceeding under section30 of the Act being Misc. Case no. 25 of2004. The same was duly allowed andthus, the respondent-landlord is nowestopped from contending that theprovisions of the Act are not applicable. Itwas further pleaded that the shop indispute being used for manufacturingpurposes and thus, in the absence of

notice of six month, the tenancy cannot bevalidly terminated. It was further pleadedthat the lease in favour of the petitionerwas of perpetual nature and thus, the suitinstituted for his ejectment deserves to bedismissed.

7. The trial court by judgment dated1.4.2014 decreed the suit for eviction of thepetitioner while it was dismissed for therelief of recovery of arrears of rent. The trialcourt held that the shop in dispute would bedeemed to be a 'new construction' within themeaning of explanation 1 of section 2(2) ofthe Act and thus, the provisions of the Actwould not apply; that the notice dated7.4.2011 terminating the tenancy is legal andvalid; that there was no default in payment ofrent as the entire amount stood deposited inthe court and thus, the respondent-landlord isnot entitled for the relief of recovery ofarrears of rent, but in view of the finding thatthe Act does not apply and the noticedetermining the tenancy was duly served, therespondent was held entitled to a decree foreviction of the petitioner.

8. Aggrieved by the judgement anddecree by the Judge Small Causes Courtdated 1.4.2014, the petitioner preferredSCC revision No.47 of 2014, which hasbeen dismissed by the District Judge,Jhansi by judgement dated 29.4.2015. Thepetitioner has now assailed the judgementpassed by the Judge Small Causes Courtdated 1.4.2014 and the judgement dated29.4.2015 passed in SCC revision no. 47of 2014, by filing Petition No. 3025 of2015 before this Court invoking thesupervisory jurisdiction under Article 227of the Constitution of India.

9. The petitioner also filed anapplication for review of the judgementpassed by the District Judge, Jhansi dated


29.4.2015, which was rejected by orderdated 1.7.2015. Against the same, thepetitioner preferred a separate petitionbearing no. 3897 of 2015. Both thepetitions were clubbed and heard togetherand are being decided by this commonjudgment.

10. Sri Om Prakash Lohiya, learnedcounsel appearing for the petitionerchallenged the impugned judgements byraising the following contentions :-

(a) The shop in dispute was onlyremodelled in the year 1986-87 and since theexisting construction, i.e., the shop in disputewas built on the same foundation and thus, itcould not be treated to be a new constructionand provisions of the Act would apply.Accordingly, the petitioner was entitled toprotection under the Act.

(b) The tenancy of the petitionerbeing for manufacturing purposes, thenotice dated 7.4.2011 seeking to terminatethe tenancy on expiry of 30 days, wasthus, invalid.

11. On the other hand, learned counselfor the respondent-landlord submitted thatthe shop in dispute was newly built in theyear 1986-87 and provisions of the Act arenot applicable to it. It is urged that inprevious proceedings, a categorical findingwas returned to the effect that the provisionsof the Act are not applicable to the shop indispute. He further submitted that thefindings recorded by the Judge Small CausesCourt in the judgement dated 1.4.2014 thatthe shop earlier in the tenancy of thepetitioner was substantially demolished andthereafter, the shop in dispute wasconstructed, is a finding based on theappreciation of evidence and does not call forany interference by this Court. It is furtherurged that the petitioner failed to prove that

the tenancy was for manufacturing purposesand thus, there was no illegality in the viewtaken by the courts below in upholding thevalidity and legality of the notice dated7.4.2011.

12. The main issue is the date onwhich the shop in dispute would bedeemed to have been constructed andwhether the provisions of the Act wouldapply to it or not.

13. It is now no more res integra as towhether the provisions of the Act wouldapply to a case where under an agreement,tenant voluntarily vacates the tenantedaccommodation for demolition and newconstruction, and after demolition and newconstruction, the newly constructed premisesis let out to the tenant. Earlier, there weredivergent views and the issue was resolvedby a Larger Bench in the case of Gopal Dassvs. Bal Kishan Dass2. The Larger Benchdisapproved the view taken by a learnedSingle Judge in the case of Shri PrakashChandra Mehta vs. III Additional DistrictJudge,3 wherein, it was held that where thetenant voluntarily vacates the tenantedaccommodation for purposes of demolitionand new construction and subsequentlyinducted as a tenant in the new constructedbuilding, the provisions of the Act wouldcontinue to apply. On the other hand, thiscourt approved the decision in the case ofNaseem Ahmed Vs. IV Additional DistrictJudge4 wherein contrary view was taken.The larger Bench concluded by answeringthe reference as under :-

"It is, therefore, difficult for us toagree with the judgment delivered in thecase of Shri Prakash Chand Mehta(supra). It is not a good law. The said casewas decided more on equitableconsiderations than legal.


For the reasons given above, weanswer the question referred to us byholding that the provisions of the U.P. ActNo.13 of 1972 will not apply to newconstruction where under the agreement, atenant voluntarily vacates the tenantedaccommodation for demolition and newcons-truction and after demolition and newconstruction, newly constructed premises islet out to the tenant. To put it differently, anew construction after demolition shall beexempt from the operation of provisions ofthe U.P. Act No.13 of 1972 as providedunder Section 2(2) of the Actnotwithstanding the fact that the tenant whowas earlier in occupation of the existingbuilding voluntarily agreed to vacate it andin lieu thereof the landlord agreed to let thenew construction out to such tenant afterreconstruction."

14. The aforesaid proposition of lawwas also not disputed by learned counselfor the petitioner. Rather, he himself citedthe decision in the case of Gopal Dass(supra) in submitting that the newstructure should have been constructedafter complete demolition of the existingstructure. In other words, it was urged thatwhere the old structure was notcompletely demolished as in the instantcase, it would be treated to be an oldconstruction and would not be exemptfrom the provisions of the Act.

15. In previous proceedings in SCCsuit no. 8 of 1991, the trial court in thejudgement dated 3.9.2003, while decidingissue no. 4, returned the following finding:-

^^fjekMfyax esa iwjh Nr iM+h] vkxs dh nhokyNksM+dj rhu nhokys tehu ls ubZ cukbZ xbZ Fkh]pkSFkh nhoky dqN Å¡ph dh xbZ bl izdkj ns[kk tk;rks okLro esa nqdku la[;k&343,@10 o"kZ 1986&87

esa iwjh rjg ubZ cukbZ xbZ FkhA igys nqdku dh dqyuki 12-6 x 14-6 QhV Fkh ogh iqu% fuekZ.k cknbldh uki 30 x 20 QhV gks xbZA**

16. In the instant suit, the JudgeSmall Causes Court, while deciding issueno.1, regarding applicability of the Act,has held as under :-

ÞizLrqr ekeys esa ;g lk{; ls Lohd̀r gS fdnksuksa nqdkuksa dks feykdj ds uofufeZr gkWy cuk;kx;k] tSlk fd iwoZ o if'pe fLFkr nhoky fxjk nhx;h rFkk nf{k.k dh nhoky Å¡ph dh x;h vkSj iwjhNr u;s fljs ls Mkyh x;hA mRrj rjQ 4 'kVj o'kVjksa ds e/; fiyj cuk;k x;k vkSj e/; ikVhZ'kudh nhoky gVk nh x;hA bl izdkj ls uo&fufeZrgkWy dh iSekbZ'k 30 x 20 QhV gks x;hA mijksDrfof/kd fu.kZ; ds vkyksd esa izLrqr fuekZ.kuo&fuekZ.k dh Js.kh esa gS vkSj ml ij ;w0ih0 ,DVla[;k 13@72 ds izkfo/kku izHkkoh ugha gksrs gSA**

17. Learned counsel for thepetitioner has not challenged the findingsrecorded by the trial court in relation tothe extent of the constructions undertakenin constructing the shop in dispute. Thefindings returned by the courts belowclearly reveals that two shops weremerged and in their place, a new hallmeasuring 30' x 20' now in the tenancy ofthe petitioner was constructed. Whereas,the area of the structure earlier in thetenancy of the petitioner was 12.6' x 14.6',the shop in dispute now measures 30' x20'. In constructing the existing structure,the eastern and western wall werecompletely demolished, the height ofsouthern wall was raised and the roof waslaid afresh. In the northern wall, fourshutters were installed and between them,pillars were constructed. The partitionwall was removed. The question, thus forconsideration before this Court is whetherthese construction indisputably made,would amount to a new constructionwithin the meaning of the Act or not.


18. Section 2 (2) of the Actstipulates that the provisions of the Actwould not apply to a building for a periodof 10 years from the date on which itsconstruction is completed. Since26.4.1985, in relation to a building, theconstruction whereof is completed on orafter April 26, 1985, the period ofexemption was initially enhanced to 20years and thereafter to 40 years by U.P.Act No. 11 of 1988. The Explanation 1 tosection 2(2) of the Act which is materialfor deciding the controversy is as under :-

"Explanation 1. (a) the construction of abuilding shall be deemed to have beencompleted on the date on which thecompletion thereof is reported to orotherwise recorded by the local authorityhaving jurisdiction, and in the case ofbuilding subject to assessment, the date onwhich the first assessment thereof comes intoeffect, and where the said dates are different,the earliest of the said dates, and in theabsence of any such report, record orassessment, the date on which it is actuallyoccupied (not including occupation merelyfor the purposes of supervising theconstruction or guarding the building underconstruction) for the first time :

Provided that there may be differentdates of completion of construction inrespect of different parts of a buildingwhich are either designed as separateunits or are occupied separately by thelandlord and one or more tenants or bydifferent tenants;

(b) "construction" includes any newconstruction in place of an existingbuilding which has been wholly orsubstantially demolished;

(c) where such substantial addition ismade to an existing building that theexisting building becomes only a minor

part thereof the whole of the building theexisting building shall be deemed to beconstructed on the date of completion ofthe said addition;

19. In Jagdish Prasad vs. DistrictJudge, Ghaziabad and others5, this Courtlaid down certain tests for determiningwhether "substantial addition" within themeaning of clause (c) of the Explanationhave been undertaken or not by holdingthus :-

"It is contended that since an oldBaithaka was used to carve out the shops, thesaid shops cannot be treated to be a newbuilding unless the additional constructionsmade can be found to be the major part of thebuilding after the alterations. This is said tobe not so in the instant case because the roofand at least three outer walls are the sameand only partition walls and front shuttershave been installed. I am inclined to agreewith the contention that the words'substantial addition' in Clause (c) take withintheir ambit not merely the addition of whollynew construction increasing the area of thebuilding but also the alteration of the existingbuilding into a new accommodation byremodelling it which may include the use ofsome parts of the old structure. The test fordetermining whether the altered constructionshould be regarded as old or new underClause (c) would be whether afterconsidering the area added the alterationeffected and the cost incurred in alterationsvis-a-vis the presumptive cost of the oldbuilding utilised and the form and structureof the building after the alterations it can besaid that the parts utilised remained a majorpart of the altered structure. The purpose ofthe landlord before and after alterations mayalso be relevant for appreciating the changein form and structure. No single factor can bedecisive. Looked at from this point of view, I


cannot find any infirmity in the view thatwhere a long room used as a Baithak hasbeen converted into four shopsapproximately 8' x 4 ½' each by makingchanges as above the shops do not remainparts of an old construction so as to begoverned by the Act."

(Emphasis supplied)

20. In Phool Chand vs. III AdditionalDistrict Judge6, this Court held that even ifthe some portion of old construction hadbeen used to carve out the new shops, itwould not bring the same within the purviewof the Act. It has been held that Explanation1 to section 2(2) of the Act shall "take withintheir ambit not merely the addition of whollynew construction, but also the alteration ofthe existing building into a newaccommodation by remodelling it whichmay include the use of some parts of the oldstructure". In that case, wall of the buildingwere changed and a double storey new roofwas laid while utilising some part of the oldexisting constructions. In taking such view,the decision in the case of Jagdish Prasad(supra) was relied upon.

21. Applying these tests, it can safelybe held that the shop in dispute would becovered by both clauses (b) and (c) ofExplanation 1 of section 2(2) of the Act.The mere fact that the disputed shop wasbuilt over old foundation or by partiallyutilising one of the walls, will not make itan old construction. Concededly, partitionwall between two shops was demolished,two walls were built anew, the level of oneof the walls was raised and in the northernwall, four shutters were installed and newpillars were constructed. In making theseconstructions, the existing building wassubstantially demolished. The additions aresubstantial in extent so much so that theexisting building becomes only a minor part

of the shop in dispute. Consequently, theshop in dispute shall be deemed to becompleted on the date of completion of thenew addition, i.e, in the year 1987 asconcurrently held by the courts below.

22. Learned counsel for the petitionerplaced reliance on certain observations madein the case of Gopal Dass (supra), incontending that the new construction shouldhave come into existence after completelydemolishing the old building. However, thisCourt is unable to find any such propositionof law laid down in the said judgement.Infact, in that case, it was not in issue as towhen the building would be deemed to be anew construction within the meaning ofsection 2(2) of the Act. On the other hand, asnoted above, the question referred was as towhether in case new constructions have beenmade after demolition of existingconstructions, a tenant would still be entitledto protection under the Act or not. Thus, thisCourt is unable to accept the contentionmade by learned counsel for the petitioner byplacing reliance on the judgement in the caseof Gopal Dass (supra).

23. The next decision relied upon bylearned counsel for the petitioner is in thecase of Vannattankandy Ibrayi vs.Kunhabdulla Hajee7. In that case, thequestion was whether in a case where thetenanted shop got completely destroyedby natural calamities and in its place, newconstructions were made by the tenanthimself, would the old tenancy continue.The Supreme Court held that such plea isnot acceptable as after destruction of theexisting shop, tenancy comes to an endautomatically. It was observed as under :-

"On destruction of the shop thetenancy cannot be said to be continuingsince the tenancy of a shop presupposes a


property in existence and there cannot besubsisting tenancy where the property isnot in existence. Thus when the tenantedshop has been completely destroyed, thetenancy right stands extinguished as thedemise must have a subject matter and ifthe same is no longer in existence, there isan end of the tenancy and therefore :Section 108(B)(e) of the Act has noapplication in case of premises governedby the State Rent Act when it iscompletely destroyed by naturalcalamities."

The said decision is also of no helpto the petitioner as therein, it was not inissue as to when a remodelled shop wouldbe deemed to be a new construction as inthe case at hand.

24. The other two decisions cited bylearned counsel for the petitioner are inthe case of Ajit Kumar Tandon vs.District Judge8 and Surendra Nath Rai vs.Arjun Kukreja9. In both these cases, theCourt found that as a result of alterationand modification, the new structure stoodexempted from the provisions of the Act.Thus, they are also of no help to thepetitioner.

25. Learned counsel for thepetitioner also made an attempt to suggestthat in the absence of any building planbeing sanctioned by the DevelopmentAuthority and fresh assessment havingbeen made, the shop in dispute cannot besaid to be a new construction. However,the argument does not have any force. Incase, constructions have been undertakenwithout getting the building plansanctioned, it may be matter forconsideration by the DevelopmentAuthority, but the same would not makethe shop in dispute an old construction forthe purposes of determining the

applicability of the Act. The same has tobe adjudged by applying the test laiddown in Explanation-1 to section 2(2) ofthe Act.

26. As regards absence of freshassessment, it may be noted that under clause(a) Explanation-1 section 2(2), in case wherefresh assessment has not been made, nor thecompletion thereof reported to or otherwiserecorded by the local authorities, the date ofconstruction of the building shall be the dateon which it was actually occupied.Concededly, the shop in dispute aftersubstantial demolition of the existingconstruction and reconstruction, was firstoccupied by the petitioner in the year 1987. Itis also not in dispute that a fresh contract oftenancy was entered into between the parties,though oral, whereunder, the rent of the shopwas also enhanced. In such view of thematter, this Court does not find any illegalityin the view taken by the courts below inholding that the provisions of the Act wouldnot apply to the shop in dispute.

27. The next contention of learnedcounsel for the petitioner is that thedemised premises was being used formanufacturing purposes and thus sixmonths' notice was required to determinethe tenancy.

28. The finding returned by the JudgeSmall Causes Court is that the petitioner couldnot prove that he was engaged inmanufacturing from the demised premises. Ithas further been noted that in the previoussuit, no such pleading was made. Thepetitioner, though contended that he wasutilising the shop in dispute for manufacturingpurposes but in his statement as DW-1, headmitted that he had not filed any evidence toprove that the shop in dispute was being usedfor manufacturing purposes. Even before this


Court, except for contending that thepetitioner had taken loan from U.P. F.C.,which is only extended by U.P.F.C. to anundertaking engaged in manufacturing, noevidence could be produced to prove thatthere had been any registration with theIndustries department or any manufacturingactivity was being done from the demisedpremises. In such view of the matter, thisCourt does not find any reason to interferewith the concurrent findings of fact recordedby the courts below to the effect that thedemised premises was not being used formanufacturing purposes.

29. No other submission was madeby learned counsel for the petitioner.

30. The order passed by the revisionalcourt rejecting the review application was notsubjected to attack at the time of hearing.

31. In view of the foregoingdiscussion, both the petitions are devoid ofmerit and are dismissed. No order as to costs.


CRIMINAL SIDEDATED: LUCKNOW 02.09.2015

BEFORETHE HON'BLE ADITYA NATH MITTAL, J.

U/S 482/378/407 No. 4246 of 2015

Barsati & Ors. ...ApplicantVersus

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

Counsel for the Applicant:Amarnath Dubey

Counsel for the Opp. Parties:Govt. Advocate

Cr.P.C. Section 482-Quashing of CriminalProceeding-offence under section

323/504/506/308 IPC -when such powercan be exercised explained-from perusal ofrecord-cognizable offence made out-nointerference called for-with direction ofexpeditious disposal application-disposedof.

Held: Para-7However, in this matter, after investigation,Police has found a prima facie case againstaccused and submitted charge-sheet in theCourt below. After investigation the policehas found a prima facie case of commissionof a cognizable offence by accused whichshould have tried in a Court of Law. At thisstage there is no occasion to look into thequestion, whether the charge ultimatelycan be substantiated or not since thatwould be a subject matter of trial. Nosubstantial ground has been made outwhich may justify interference by this Courtunder Section 482 Cr.P.C.

Case Law discussed:1992 Supp (1) SCC 335; (2006) 7 SCC 296;(2008) 1 SCC 474; (2008) 8 SCC 781; (2009) 9SCC 682; JT 2010 (6) SC 588; 2011 (1) SCC74; JT 2012 (2) SC 237.

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

1. Heard learned counsel for thepetitioners, learned AGA and perused therecord.

2. This petition has been filed with theprayer to quash the criminal proceeding ofCriminal Miscellaneous Case No. 1319 of2015, Case Crime No.306 of 2014, underSections 323, 504, 506, 308 I.P.C. PoliceStation- Aaspur Devsara, DistrictPratapgarh as well as the charge-sheetNo.172 of 2014 dated 30.12.2014.

3. Learned counsel for the petitionershas submitted that the First InformationReport has been lodged on the basis of falseand fabricated story against the petitionersand the petitioners have falsely been

3 All] Barsati & Ors. Vs. The State of U.P. & Anr. 1089

implicated in this case. Lastly, learnedcounsel for the petitioners has submittedthat petitioners are ready to surrender beforethe court below and some protection may begranted to them.

4. Learned Additional GovernmentAdvocate has opposed the petition.

5. The power under Section 482Cr.P.C. is not to be exercised in a routinemanner, but it is for limited purposes,namely, to give effect to any order under theCode, or to prevent abuse of process of anyCourt or otherwise to secure ends of justice.Time and again, Apex Court and variousHigh Courts, including ours one, havereminded when exercise of power underSection 482 Cr.P.C. would be justified,which cannot be placed in straight jacketformula, but one thing is very clear that itshould not preampt a trial and cannot be usedin a routine manner so as to cut short theentire process of trial before the Courtsbelow. If from a bare perusal of firstinformation report or complaint, it is evidentthat it does not disclose any offence at all orit is frivolous, collusive or oppressive fromthe face of it, the Court may exercise itsinherent power under Section 482 Cr.P.C.but it should be exercised sparingly. This willnot include as to whether prosecution islikely to establish its case or not, whether theevidence in question is reliable or not orwhether on a reasonable appreciation of it,accusation would not be sustained, or theother circumstances, which would not justifyexercise of jurisdiction under Section 482Cr.P.C. I need not go into various aspects indetail but it would be suffice to refer a fewrecent authorities dealing all these matters indetail, namely, State of Haryana and othersVs. Ch. Bhajan Lal and others 1992 Supp (1)SCC 335, Popular Muthiah Vs. Staterepresented by Inspector of Police (2006) 7

SCC 296, Hamida vs. Rashid @ Rasheedand Ors. (2008) 1 SCC 474, Dr. MonicaKumar and Anr. vs. State of U.P. and Ors.(2008) 8 SCC 781, M.N. Ojha and Ors. Vs.Alok Kumar Srivastav and Anr. (2009) 9SCC 682, State of A.P. vs. GourishettyMahesh and Ors. JT 2010 (6) SC 588 andIridium India Telecom Ltd. Vs. MotorolaIncorporated and Ors. 2011 (1) SCC 74.

6. In Lee Kun Hee and others Vs. Stateof U.P. and others JT 2012 (2) SC 237, itwas reiterated that Court in exercise of itsjurisdiction under Section 482 Cr.P.C. cannotgo into the truth or otherwise of theallegations and appreciate evidence, if any,available on record. Interference would bejustified only when a clear case of suchinterference is made out. Frequent anduncalled interference even at the preliminarystage by High Court may result in causingobstruction in the progress of inquiry in acriminal case which may not be in publicinterest. It, however, may not be doubted, ifon the face of it, either from the firstinformation report or complaint, it is evidentthat allegation are so absurd and inherentlyimprobable on the basis of which no fair-minded and informed observer can everreach a just and proper conclusion as to theexistence of sufficient grounds forproceeding, in such cases refusal to exercisejurisdiction may equally result in injustice,more particularly, in cases, where thecomplainant sets the criminal law in motionwith a view to exert pressure and harass thepersons arrayed as accused in the complaint.

7. However, in this matter, afterinvestigation, Police has found a prima faciecase against accused and submitted charge-sheet in the Court below. After investigationthe police has found a prima facie case ofcommission of a cognizable offence byaccused which should have tried in a Court


of Law. At this stage there is no occasion tolook into the question, whether the chargeultimately can be substantiated or not sincethat would be a subject matter of trial. Nosubstantial ground has been made out whichmay justify interference by this Court underSection 482 Cr.P.C.

8. From perusal of the record, itcannot be said that the cognizable offenceis not made out against the petitioner. I donot find any sufficient ground to quash thecharge-sheet as well as the proceedings ofthe aforesaid criminal case.

9. However, it is provided that if thepetitioners Barsati, Judawan, Shyam LalHarijan and Babu Lal appear or surrenderbefore the court below within two weeksfrom today and moves an application forbail, the same shall be considered anddisposed of expeditiously in accordancewith law. Till then no coercive steps shallbe taken against the petitioners.

10. With the above observations, thepetition is disposed of.




C.M.W.P. No. 5171 of 2015(Matters under Article 227)

Chandrabali Yadav ...PetitionerVersus

Nand Bahadur & Ors. ...Respondents

Counsel for the Petitioner:Sri Rajeshwar Yadav, Sri Vijay BahadurYadav

Counsel for the Respondents:

C.S.C., Sri Manoj Kumar Yadav

C.P.C.-Order I Rule 10-Impleadmentapplication-suit for permanent prohibitoryinjunction-petitioner claimed impleadmentas in PIL-same direction has been issued athis instance-land in question being Bheetacertainly Gaon Sabha is necessary party-allowed by Trail Court-set-a-side byRevisional Court-held-proper.

Held: Para-14The suit in question is not arepresentative suit. Although, indirectly,the decision therein may affect thewhole village community, but it does notmean that any member of the public canseek his impleadment therein. If this ispermitted, there may be several publicspirited citizens coming forth, seekingtheir impleadment. The process would goon ad infinitum, making it impossible forthe suit to proceed. Concededly, thepetitioner has no personal interest in thematter. In such view of the matter, thisCourt is in full agreement with the viewtaken by the revisional court in holdingthat the petitioner is not required to beimpleaded in the suit.

Case Law discussed:AIR 2011 SC 1123; 2012 (11) ADJ 404; [2001(6) SCC 496]; [2015 (109) ALR 680]


1. The petitioner has assailed thevalidity of the order dated 19.8.2015 passedby Additional District Judge/Special Judge,EC Act, Jaunpur in Civil Revision No. 176of 2013, whereby the revision has beenallowed and the order of the trial court dated4.9.2013 permitting impleadment of thepetitioner as a party defendant in OriginalSuit No. 168 of 2008, has been set aside.

2. The plaintiff-respondents haveinstituted Original Suit No. 168 of 2008against the the defendant-respondents for

3 All] Chandrabali Yadav Vs. Nand Bahadur & Ors. 1091

permanent prohibitory injunctionrestraining contesting defendants no. 1 to4 from interfering in the possession of theplaintiffs and proforma defendants andtheir constructions existing over the suitproperty. The suit property has beenshown with letters A, B, C, D, E, F, A inthe plaint map and according to theplaintiff-respondents, its new number is52, measuring 0.80 decimals. The plaintcase is that the suit property had vested inthe plaintiff-respondents under Section 9of U.P. Act No. 1 of 19511.

3. In the suit, the State of U.P.through Collector, Jaunpur, CollectorJaunpur and Gram Panchayat, Brahmanpurand one Rajmani Yadav have been arrayedas contesting defendants. The State of U.P.and the Collector, Jaunpur have filed awritten statement on 22.10.2010,contending that the suit property belongs tothe State Government and the GramPanchayat and is recorded as 'Bheeta' inthe revenue records. The claim of theplaintiff-respondents that the suit propertyhad vested in them, was thus categoricallydenied.

4. During the pendency of the suit,the petitioner, who claims himself to bean Ex-Pradhan of the Village, filed anapplication seeking his impleadment inthe proceedings. In the application, it wasstated that the petitioner had filed writpetition no. 40811 of 2008 in the shape ofa Public Interest Litigation before thisCourt and wherein, he was given libertyto make a representation before the Sub-Divisional Magistrate and the Sub-Divisional Magistrate was required toexamine the matter and take appropriatedecision. It was pointed out that inpursuance of the liberty granted by thisCourt, the petitioner had moved

representation before the Sub-DivisionalMagistrate, but the Sub-DivisionalMagistrate, by order dated 3.12.2008,expressed his inability to take any decision inthe matter, unless the interim order granted inOriginal Suit No. 168 of 2008 preferred bythe plaintiff-respondents, is in existence. TheSub-Divisional Magistrate in its order hasobserved that it shall be open to the petitionerto file the order of this Court in the suitproceedings, so that the stay order passed inthe suit is vacated. It was on the strength ofthe said order that the petitioner sought hisimpleadment in the suit proceedings.

5. The application was opposed, butthe trial court, by order dated 4.9.2013,allowed the impleadment of the petitioneras a party defendant to the suit byobserving that unless the petitioner isimpleaded in the suit, the true spirit of theorder passed by this Court would not beachieved.

6. It seems that after the passing ofthe order by the trial court dated 4.9.2013,the petitioner preferred another PublicInterest Litigation No. 13236 of 2014before this Court in respect of the samecause of action i.e. his grievanceregarding unauthorised possession of plotno. 52 by the private respondents. Theaforesaid petition was disposed of byorder dated 4.3.2014, by a division Bench,placing reliance on the decision of theSupreme Court in the case of JagpalSingh and others Vs State of Punjab andothers2 and on an order passed in PublicInterest Litigation in the case of PremSingh Vs State of U.P. and others3.Liberty was granted to the petitioner toapproach the concerned respondents witha certified copy of the order so that theappropriate inquiry can be initiated andaction taken in accordance with law.


7. The plaintiff-respondents in OriginalSuit No. 168 of 2008, being aggrieved by theorder of the trial court dated 4.9.2013allowing impleadment of the petitioner in thesuit, preferred a revision, which has beenallowed by impugned order dated 19.8.2015.The revisional court has held that evenassuming that the suit land is Bheeta land, asis also the case set up by the state respondentin the suit, the petitioner, who claims himselfto be an Ex-Pradhan, is neither a necessarynor a proper party to the litigation. It hasbeen observed that the main contesting partyin the suit are the State Government throughCollector as well as Gram Sabha, both ofwhom have duly filed their written statementand are contesting the proceedings. It hasfurther been observed that Gaon Sabhawhich is the custodian of the land reservedfor public purposes is taking all interest in thesuit and is contesting the proceedings. Therevisional court further noted that in the orderof this Hon'ble Court passed in the PublicInterest Litigation, there was no direction toimplead the petitioner as a party defendant. Ithas been observed that since the petitioner isneither a necessary nor a proper party fordeciding the issues involved in the suit and assuch, his presence is not necessary andaccordingly, the order passed by the trialcourt has been set aside.

8. Learned counsel for the petitionerplacing reliance on the decision of theSupreme Court in the case of Hinch LalTiwari Vs Kamala Devi & Others4,submitted that bhumidhari rights can notaccrue in favour of a person in respect ofa land covered by Section 132 of the Act,even if he is in possession thereof. It isurged that in such circumstances, thepetitioner, who is Ex-Pradhan and hadapproached this Court twice by way of thePublic Interest Litigation is entitled to beheard in the suit. Learned counsel for the

petitioner has also placed reliance on arecent judgment of the Supreme Court inthe case of Balu Ram Vs. P.Chellathangam and others5.

9. The basic issue before the Courtis whether the petitioner, who is an Ex-Pradhan, is a necessary and a proper partyto be impleaded as a party defendant toOriginal Suit No. 168 of 2008.

10. Indisputably, in case the suit land isBheeta land, then in view of the provisions ofSection 132 of the Act, bhumidhari rightscan not accrue in respect thereof in favour ofany person. The question whether the suitland is Bheeta land or not and whether itcould vest in favour of the plaintiff-respondents are to be decided in the presenceof the State of U.P., the Collector and theGram Sabha. This is in view of the fact thatsuch land vests in the State and remainsunder the management of Gaon Sabha. Thus,it can not be disputed that the only necessaryparties to the suit are the State of U.P.,Collector, Jaunpur and the Gram Sabha.

11. The law in respect of PublicInterest Litigation is not circumscribed by thetechnicalities of the Civil Procedure Code.Any person, raising an issue of publicimportance can approach a court for settingthe law in motion, so long as the petition isnot motivated or based on malafideconsiderations. Thus, the petitioner in hiscapacity as an Ex-Pradhan had approachedthis Court twice by way of Public InterestLitigation, complaining that the privaterespondents are in possession of the Bheetaland and no action had been taken by theState respondents to dispossess the privaterespondent therefrom. Undoubtedly, PublicInterest Litigation at his instance, being amember of the Gaon Sabha and an Ex-Pradhan, was maintainable and was

3 All] Chandrabali Yadav Vs. Nand Bahadur & Ors. 1093

entertained by this Court. The fact that thePublic Interest Litigations, at his instance,were entertained by this Court, however, isnot sufficient to make the petitioner anecessary or a proper party to the suitinstituted by the plaintiff-respondentswherein, as observed above, the State ofU.P., Collector Jaunpur and the GramPanchayat are already contesting theproceedings. For becoming a party to a suit,governed by the provisions of CivilProcedure Code, one has to meet the testprescribed by Order 1, rule 10 CPC.

12. By virtue of the order of thisCourt dated 14.9.2015, the records ofPublic Interest Litigation No. 13236 of2014 have been placed before this Court.A perusal thereof reveals that in the saidpetition, the petitioner had not disclosedabout filing of the earlier Public InterestLitigation by him, being Civil Misc WritPetition No.40811 of 2008. The petitionerhad also suppressed the fact aboutpendency of the civil suit and regardingan injunction order operating therein.

13. In the opinion of the Court, thesefacts were essential to be disclosed in thesecond Public Interest Litigation No. 13237of 2014, which the petitioner had filed beforethis Court. Even the filing of the earlierpetition by him, was not disclosed. Rather,the petition was filed by making an incorrectdeclaration that it was the first petition on hisbehalf for the relief claimed therein. It wason the basis of the pleadings made in the saidpetition that this Court disposed of thepetition by order dated 4.3.2014 grantingliberty to the petitioner to move before theAppropriate Authority.

14. The suit in question is not arepresentative suit. Although, indirectly,the decision therein may affect the whole

village community, but it does not meanthat any member of the public can seekhis impleadment therein. If this ispermitted, there may be several publicspirited citizens coming forth, seekingtheir impleadment. The process would goon ad infinitum, making it impossible forthe suit to proceed. Concededly, thepetitioner has no personal interest in thematter. In such view of the matter, thisCourt is in full agreement with the viewtaken by the revisional court in holdingthat the petitioner is not required to beimpleaded in the suit.

15. In the case of Balu Ram (Supra),an agreement for sale was allegedly executedby a trust. In a suit for specific performancefor enforcement of the agreement for sale,one Balu Ram applied for impleadment as aparty defendant, which was allowed by thetrial court, but the order passed by the trialcourt was set aside in revision. The SupremeCourt held that the petitioner before it, is notalien to the subject matter of litigation, as heis a beneficiary of the trust and thus, if thesale is made at a throw away price, hisinterest would be adversely affected.However, it is not in dispute in the instantmatter, that the petitioner does not have anypersonal interest in the litigation. Twice, hehad moved this Court claiming himself to bea public spirited citizen and not for redressalof any personal cause. The State-respondentsare already contesting the proceedings.

16. In such view of the matter, therevisional court was fully justified insetting aside the order passed by the trialcourt permitting impleadment of thepetitioner.

17. In view of above discussion, thisCourt does not find any illegality in theimpugned order passed by revisional


court so as to warrant interference inexercise of supervisory power underArticle 227 of the Constitution.

18. The petition lacks merit and isdismissed.




C.M.W.P. No. 5224 of 2015(Matter under Article 227)

Musheer Alam ...PetitionerVersus

Ramesh & Ors. ...Respondents

Counsel for the Petitioner:Sri R.P. Srivastava, Sri Rakesh Pande

Counsel for the Respondents:Jokhan Prasad

C.P.C. Section-47-Execution of Decree-suitfor declaration of entitlement ofpossession-judgment debts objected-beingdeclaratory decree-can not be executed-judgment debtor-being tenant -noticevalidity terminated-concurrent finding notentitle to remain in possession-executioncourt rightly rejected-petition dismissed.

Held: Para-11The decision cited, would not apply tothe facts of the instant case, which asnoted above, are clearly distinguishable.The specious argument made by thelearned counsel for the petitioner is,thus, not acceptable. The petition lacksmerit and is dismissed.

Case Law discussed:2013 All. C.J. 739


1. The petitioner, who is a judgmentdebtor in Original Suit No.21 of 1985,preferred objections under Section 47C.P.C. against execution of the decree,inter alia, on the ground that the decreepassed by the trial court is declaratory innature and is incapable of being executed.

2. The objection filed by thepetitioner was rejected by the executingcourt by an order dated 8.4.2015 and therevision filed against the said order hasalso been dismissed by order dated31.8.2015. These orders are underchallenge in the instant petition.

3. The only submission made bylearned counsel for the petitioner is thatthe decree passed in the suit is adeclaratory decree, thus incapable ofbeing executed by delivering actualphysical possession to the plaintiffs assought for in the execution proceedings.

4. The suit in question was institutedby the plaintiff-respondents for grant of adecree of possession in respect of HouseNo.719, Ward No.6, Mohalla Malitola,Gandhi Nagar, Basti. Arrears of rent to theextent of Rs.1800 for the period September,1983 to February, 1984 and mesne profitsand damages were also claimed. Accordingto the plaint assertions, the petitioner, who isdefendant therein, was tenant of the demisedpremises on a rent of Rs.300 per month, onbehalf of the plaintiff-respondents. Theprovisions of U.P. Act No.13 of 1972 are notapplicable, as the demised premises is aconstruction of the year 1980 and 10 yearshave not passed since the date of itsconstruction. The tenancy of the petitionerwas allegedly terminated by a notice dated24.1.1984 but when he failed to vacatewithin a period of one month, the suit inquestion was instituted.

3 All] Musheer Alam Vs. Ramesh & Ors. 1095

5. The trial court framed several issuesand issue no.6 is in regard to the relief to begranted to the plaintiff. While deciding thesaid issue, the trial court held that sinceprovisions of U.P. Act No.13 of 1972 are notapplicable and the tenancy of the petitionerhas been lawfully terminated andconsequently, the plaintiff is entitled topossession and decree for arrears of rent anddamages. The operative part of the decreepassed by the trial court is to the followingeffect:-

oknh dk okn lO;; bl izdkj fMdzh fd;ktkrk gS fd og fookfnr edku 719 tks okn i= dsuD'kk utjh esa lhMh bZ,Q ls fn[kk;h x;h gS ijDCtk n[ky izkIr djus dk vf/kdkjh gS vkSj ogizfroknh ls flrEcj lu~ 1983 ls Qjojh lu~ 1984rd dk fdjk;k eq0 1800@& #i;k izkIr djus dkvf/kdkjh gS rFkk oknh izfroknh ls ekpZ 1984 lsn[ky ;kch rd dsoy 300@& izfrekg dh nj lsgh fdjk;k ikus dk vf/kdkjh gSA

6. It seems that the decree passed bythe trial court was subjected to challenge inappeal. The appellate court framed severalpoints for determination and point no.8framed by it was as regards the relief towhich the plaintiff was entitled to. Whiledeciding the said issue, the appellate courtagain held that the plaintiff is entitled topossession of the demised premises andconsequently, dismissed the appeal.

7. The executing court as well as therevisional court, while interpreting thedecree passed in the suit, have held thatthe decree is, in pith and substance, adecree for possession and the plaintiff isentitled to execute the decree by evictingthe petitioner.

8. Learned counsel for the petitionerin support of his contention has placedreliance on a judgment of this Court in thecase of Roman Catholic Diocese of Agra

Ltd. Vs. Rajendra Singh and others1. In thatcase, the Rent Control and Eviction Officer(for short RCEO), in proceedings heldunder Section 29-A (5) of U.P. Act No.13of 1972, had determined the enhanced rentpayable for the demised land by thepetitioner-tenant therein. On the basis of thedetermination so made, the RCEO issued arecovery certificate for realisation ofenhanced rent. It was subjected to challengein writ petition and therein, the Court heldthat the proceedings under Section 29-A (5),are declaratory in nature and on the basis ofan order passed therein, the RCEO was notauthorised to issue a recovery certificate.

9. Concededly, the suit instituted bythe plaintiff-respondent was for grant of adecree of possession against the petitioner-tenant, as his tenancy was duly terminatedand for recovery of arrears of rent and mesneprofits. The trial court as well as the appellatecourt, while deciding the suit, havecategorically held that the tenancy of thepetitioner was lawfully terminated and hehaving failed to vacate within the statutoryperiod, is liable to be evicted. Thus, from aperusal of the findings rendered in the bodyof the judgment of the trial court, there is noiota of doubt that the decree which the trialcourt intended to pass, was a decree ofpossession, as prayed for in the plaint.

10. Under Section 2 (2) 'decree'means the formal expression of adjudicationwhich, so far as regards the court expressingit, conclusively determines the right of theparties with regard to all or any of thematters in controversy in the suit. Thus, inthe opinion of the Court, in case there is anyconfusion in the operative part of thejudgment, the same is to be interpreted byreferring to the adjudication made in thejudgment. A perusal of the judgment, asnoted above, clearly reveals that the plaintiff


was held entitled to eject the tenant, as thetenancy of the petitioner was lawfullyterminated. In such view of the matter, thisCourt does not find any illegality in theinterpretation regarding the scope andextent of the decree made by the executingcourt and the revisional court.

11. The decision cited, would notapply to the facts of the instant case, whichas noted above, are clearly distinguishable.The specious argument made by the learnedcounsel for the petitioner is, thus, notacceptable. The petition lacks merit and isdismissed.

12. In the end, learned counsel forthe petitioner prayed for reasonable timebeing granted to vacate the demisedpremises to which Sri Jokhan Prasad,learned counsel appearing on behalf of thedecree holder has no objection.

13. Accordingly, with consent ofparties, it is further provided that thepetitioner shall be permitted to remain inpossession of the demised premises until31.12.2015, provided the petitionerfurnishes an undertaking in form of anaffidavit before the executing court,within three weeks from today, that hewill hand over peaceful vacant possessionof the demised premises to the decreeholder, without any let or hindrance on orbefore 31.12.2015. Within the aforesaidperiod, the petitioner shall also deposit theentire arrears of rent and damages, asdecreed by the trial court. In case ofdefault in compliance of any of theseconditions, the decree shall becomeexecutable forthwith.


CIVIL SIDEDATED: LUCKNOW 16.09.2015

BEFORETHE HON'BLE RITU RAJ AWASTHI, J.

Misc. Single No. 5377 of 2015

Darshan Singh & Ors. ...PetitionerVersus

Addl. Commissioner & Ors. ..Respondents

Counsel for the Petitioner:Anil Kumar Mishra

Counsel for the Respondents:C.S.C., Yogendra Nath Yadav

(A) U.P.Z.A & L.R. Act-Section 341-Applicability of provisions of Civil Procedurecode-partition suit-whether interiminjunction can be granted?-held-'yes' courtempowered either to grant or refusetemporary injunction.

Held: Para-18As such, I am of the considered view thatin the proceedings under Section 176 ofU.P.Z.A. & L.R. Act the Court concerned isfully empowered to grant temporaryinjunction/stay.

C.P.C.-Order XLIII Rule 1(r)-Partition suit-refusal or grant of interim order-Appealmaintainable-dismissal of revision-sayinginterlocutory order-held-illegal.

Held: Para-22In view of above, it is held that anappeal shall lie against an order grantingor refusing temporary injunction/stay inthe proceedings under Section 176 ofU.P.Z.A. & L.R. Act.

Case Law discussed:[1999 (17) LCD-201]

(Delivered by Hon'ble Ritu Raj Awasthi, J.)

1. Heard learned counsel for thepetitioners as well as learned AdditionalChief Standing Counsel Mr.M.E. Khanand perused the records.

3 All] Darshan Singh & Ors. Vs. Addl. Commissioner & Ors. 1097

2. Since the writ petition involvespurely legal questions of law which canbe considered without issuing notice toprivate respondents and without callingfor any counter affidavit, the writ petitionis being decided at the admission stagewith the consent of parties counsel.

3. The questions which has croppedup in this writ petition are (i) whether inthe proceedings under Section 176 ofU.P.Z.A. & L.R. Act the concerning courtis competent to grant temporaryinjunction/stay and; (ii) whether the orderrefusing or granting temporary injunctionis appellable or revisable.

4. The instant writ petition has beenfiled challenging the order dated10.08.2015, passed by opposite partyno.2/Sub-Divisional Officer, Palia Kalan,Lakhimpur Kheri as well as order dated26.08.2015 whereby in the suit filed underSection 176 U.P.Z.A. & L.R. Act bypetitioners the opposite party no.1 has cometo conclusion that there is no provision forgrant of stay in the proceedings underSection 176 of U.P.Z.A. & L.R. Act. Thetemporary injunction order dated 9.2.2015was therefore vacated. The revisionpreferred against the said order underSection 333 of U.P.Z.A. & L.R. Act by thepetitioners has been dismissed as being notmaintainable.

5. The facts of the case in brevity arethat the land in dispute bearing Gata No.176(Mi)/0.109, 184 (M.)/6.272, 197 (M.)/0.012,174/0.348, 246/0.518 and 247/0.077 hectaresituated at Village Murur Khaida, Pargana& Tehsil Palia Kalan, District LakhimpurKheri were recorded in the name of Naharson of Hari Singh as tenure holder. After thedeath of original tenure holder the land inquestion was jointly recorded in the name of

petitioners along with opposite parties no.3to 15 being legal heirs of original tenureholder. As per petitioners opposite partieshad started interfering in the peacefulpossession of the petitioners, as such,petitioners had filed a suit for partitionunder Section 176 of U.P.Z.A. & L.R. Actwhich is registered as Suit No.375 (DarshanSingh and others Vs. Malkeet Singh andothers). The petitioners in the said suit hadfiled an application dated 7.2.2015 for grantof stay. The said application was allowedvide order dated 9.2.2015 and the partieswere directed to maintain status-quo tillfurther orders in respect to the land indispute. The opposite parties no.7 to 11 hadfiled an application dated 13.7.2015 forvacation of stay order. On the saidapplication the opposite party no.2 videimpugned order dated 10.8.2015 hasvacated stay order dated 9.2.2015. Thepetitioners feeling aggrieved had filedrevision under Section 333 of U.P.Z.A. &L.R. Act which has been dismissed holdingthat the revision since has been filed againstan interlocutory order, as such is notmaintainable.

6. Learned counsel for thepetitioners submit that opposite party no.2without properly considering thesubmissions made by the petitioners hadvacated the stay order dated 9.2.2015. It iswrong to say that in the proceedingsunder Section 176 of U.P.Z.A. & L.R. Actthe concerning Court does not posses thepower of granting stay.

7. Submission is that under Section341 of of U.P.Z.A. & L.R. Act theapplicability of Code of Civil Procedurehas been made, as such, once a suit isfiled the concerning Court is fullyempowered to grant ad-interiminjunction/stay.


8. It is further submitted that sincethere is no specific provision of appeal insuch proceedings, as such, in view ofSection 333 of U.P.Z.A. & L.R. Act anorder passed in the proceedings where noappeal lies or where an appeal lies but hasnot been preferred the revision ismaintainable.

9. Mr. M.E. Khan, learnedAdditional Chief Standing Counsel, onthe other hand, submits that under Section341 of U.P.Z.A. & L.R. Act it has beenspecifically provided that provisions ofIndian Court Feel Act, Code of CivilProcedure, 1908 and Limitation Act shallapply to the proceedings of this Actexcept expressly barred.

10. As such, in the proceedingsunder Section 176 of U.P.Z.A. & L.R. Actthe procedure prescribed in Code of CivilProcedure shall be fully applicable. UnderOrder XLIII Rule 1 of C.P.C. an appealshall lie from an order passed in theproceedings under Order XXXIX Rules 1and 2 C.P.C. Order XXXIX Rules 1 and 2C.P.C. empowers the Court to granttemporary injunction. As such, the Courtdealing with the proceedings underSection 176 of U.P.Z.A. & L.R. Act shallbe empowered to grant ad-interiminjunction/stay and any order passed inthis regard is appellable. In support of hissubmissions he has relied on a DivisionBench judgment of this Court in the caseof Smt. Urmila Devi Vs. Pooran ChandDabar and others, [1999 (17) LCD-201]wherein the Court has come to conclusionthat in a suit for partition the Court cangrant temporary injunction.

11. I have considered thesubmissions made by parties' counsel andgone through the records.

12. So far as the question as towhether the concerning competent Courtdealing with the proceedings underSection 176 of U.P.Z.A. & L.R. Act isempowered to grant temporaryinjunction/stay is concerned, it is to benoted that Section 341 of U.P.Z.A. & L.R.Act clearly provides that unless otherwiseexpressly provided by or under this Actprovisions of Code of Civil Procedure,1908 would be fully applicable.

13. Section 341 of U.P.Z.A. & L.R.Act on reproduction reads as under:-

"341. Application of certain Acts tothe proceeding of this Act.-Unlessotherwise expressly provided by or underthis Act, the provisions of the IndianCourt Fees Act, 1870 (VII of 1870), theCode of Civil Procedure, 1908 (V of1908), and the [Limitation Act, 1963(XXXVI of 1963)] [including Section 5thereof] shall apply to the proceedingsunder this Act.

1. Purpose of.-Section 341 of theU.P.Z.A. and L.R. Act makes applicablethe provisions of the Code of CivilProcedure to the proceedings under theU.P.Z.A. and L.R. Act unless otherwiseexpressly provided by or under the Act. Ifa different procedure is contemplatedunder the U.P.Z.A. and L.R. Rules, theprocedure under the CPC would not beapplicable.

Section 341 of the U.P.Z.A. and L.R.Act makes applicable the provisions of theCivil Procedure Code also to the secondappeals in the Board of Revenue. Thesubstantial questions of law have,therefore, also to be framed by the Boardof Revenue.

2. Application of provisions of CPC.-Section 341 of the U.P.Z.A. and L.R. Actapplies the provisions of the CPC to


proceedings under the U.P.Z.A. and L.R.Act unless otherwise expressly provided.The Z.A. Act has made provisions forsuits, appeals, second appeals revisionsetc. The IPC thus has been madeapplicable to them unless otherwiseexpressly provided.

3. Second appeal.- By virtue ofSection 341 of the U.P.Z.A. and L.R. Act,the provisions of the Code of CivilProcedure are applicable to secondappeals under the U.P.Z.A. and L.R. Act."

14. Section 176 of U.P.Z.A. & L.R.Act does not expressly bar theapplicability of the Code of CivilProcedure. As such, it can be easilyconcluded that the provisions of the Codeof Civil Procedure are fully applicable inthe proceedings under Section 176 ofU.P.Z.A. & L.R. Act.

15. Order XXXIX of C.P.C. deals withtemporary injunction and interlocutoryorders. Order XXXIX Rule 1 of C.P.C.relates to the case in which temporaryinjunction may be granted whereas sub-Section (2) deals with injunction to restrainrepetition or continuance of breach.

16. Order XXXIX Rules 1 and 2 ofC.P.C. provides that wherein any suit it isproved by affidavit or otherwise that anyproperty in dispute in a suit is in danger ofbeing wasted, damaged or alienated by anyparty to the suit, or wrongfully sold inexecution of a decree or the defendantthreatens or intends to remove or dispose ofhis property which may cause injury to theplaintiff, the Court may by order grant atemporary injunction to restrain such act.

17. Order XXXIX Rules 1 and 2C.P.C. for convenience are reproducedhereinbelow:-

"1. Cases in which temporaryinjunction may be granted.- Where in anySuit it is proved by affidavit or otherwise?

(a) that any property in dispute in asuit is in danger of being wasted,damaged or alienated by any party to thesuit, or wrongfully sold in execution of adecree, or

(b) that the defendant threatens, orintends, to remove or dispose of hisproperty with a view to defrauding hiscreditors,

(c) that the defendant threatens todispossess the plaintiff or otherwise causeinjury to the plaintiff in relation to anyproperty in dispute in the suit,the court mayby Order grant a temporary injunction torestrain such act, or make such other Orderfor the purpose of staying and preventingthe wasting, damaging, alienation, sale,removal or disposition of the property ordispossession of the plaintiff, or otherwisecausing injury to the plaintiff in relation toany property in dispute in the suit] as thecourt thinks fit, until the disposal of the suitor until further orders.

2. Injunction to restrain repetition orcontinuance of breach.- (1) In any suit forrestraining the defendant from committing abreach of contract or other injury of any kind,whether compensation is claimed in the suitor not, the plaintiff may, at any time after thecommencement of the suit, and either beforeor after judgment, apply to the court for atemporary injunction to restrain thedefendant from committing the breach ofcontract or injury complained of, or anybreach of contract or injury of a like kindarising out of the same contract or relating tothe same property or right.

(2) The court may by Order grantsuch injunction, on such terms, as to theduration of the injunction, keeping anaccount, giving security, or otherwise, asthe court thinks fit."


18. As such, I am of the consideredview that in the proceedings under Section176 of U.P.Z.A. & L.R. Act the Courtconcerned is fully empowered to granttemporary injunction/stay.

19. So far as the question as to whetherthe order granting or refusing the interim stay inthe proceedings under Section 176 of U.P.Z.A.& L.R. Act is concerned, it is to be noted thatthe order XLIII Rule 1 C.P.C. deals with theorders which are appeallable. Order XLIII Rule1 (r) C.P.C. provides that an appeal shall liefrom an order under Rule 1, Rule 2, Rule 2-A,Rule 4 or Rule 10 of Order XXXIX.

20. Order XLIII of C.P.C. onreproduction reads as under:-

"1. Appeals from orders.- An appealshall lie from the following orders underthe provisions of section 104, namely:?

(a) an order under rule 10 of OrderVII returning a plaint to be presented tothe proper court except where theprocedure specified in rule 10A of OrderVII has been followed;

(b) Omitted by Act 104 of 1976,w.e.f. 1-2-1977

(c) an order under rule 9 of Order IXrejecting an appiication (in a case open toappeal) for an order to set aside thedismissal of a Suit;

(d) an order under rule 13 of OrderIX rejecting an application (in a caseopen to appeal) for an Order to set asidea decree passed e parte;

(e) [* * *](f) an order under rule 21 of Order

XI;(g) [* * *](h) [* * *](i) an order under rule 34 of order

XXI on an objection to the draft of adocument or of an endorsement;

(j) an order under rule 72 or rule 92of Order XXI setting aside or refusing toset aside a sale;

(ja) an order rejecting an applicationmade under sub-rule (1) of rule 106 oforder XXI, provided that an order on theoriginal application, that is to say, theapplication referred to in sub-rule (1) ofrule 105 of that order is appealable;

(k) an order under rule 9 of OrderXXII refusing to set aside the abatementor dismissal of a suit;

(I) an order under rule 10 of OrderXXII giving or refusing to give leave;

(m) [* * *](n) an order under rule 2 of Order

XXV rejecting an application (in a caseopen to appeal) for an order to set asidethe dismissal of a suit;

(na) an order under rule 5 or rule 7or Order XXXIII rejecting an applicationfor permission to sue as an indigentperson;

(o) [* * *](p) order in interpleader suits under

rule 3, rule 4 or rule 6 of Order XXXV;(q) an order under Rule 2, Rule 3 or

Rule 6 of Order XXXVIII;(r) an order under Rule 1, Rule 2,

Rule 2A Rule 4 or Rule 10 of OrderXXXIX;

(s) an order under Rule 1 or Rule 4of Order XL;

(t) an order of refusal under Rule 19of Order XLI to re-admit, or under Rule21 of Order XLI to re-hear, an appeal;

(u) an order under Rule 23 or Rule23A or Order XLI remanding a case,where an appeal would lie from thedecree of the Appellate Court;

(v) Omitted by Act 104 of 1976, w.e.f.1-2-1977

(w) an order under Rule 4 of OrderXLVII granting an application forreview."


21. As such, it is very much clearthat an appeal shall be filed against anorder passed in exercise of powers underRule 1, Rule 2, Rule 2-A, Rule 4 or Rule10 of Order XXXIX.

22. In view of above, it is held thatan appeal shall lie against an ordergranting or refusing temporaryinjunction/stay in the proceedings underSection 176 of U.P.Z.A. & L.R. Act.

23. It is also to be noted that theappeal shall lie before the authority asprovided under Schedule II which is to beread with Section 331 of U.P.Z.A. & L.R.Act. As such, an appeal shall lie beforethe Commissioner concerned in suchcircumstances.

24. This Court in the case of Smt.Urmila Devi Vs. Pooran Chand Dabar andothers (supra) has held that in theproceedings with respect to Section 176 ofU.P.Z.A. & L.R. Act the provisions of Codeof Civil Procedure would be applicableincluding Order XXXIX C.P.C. The relevantparagraphs 7 and 8 of the judgment onreproduction reads as under:-

"7. The learned counsel for appellantcontended that in a suit for division ofholding, no injunction can be issued underOrder 39 of Code of Civil Procedure inrespect of grant of temporary injunction.We are not inclined to accept the saidcontention in view of Section 341 of the Act,which reads as follows :

"341. Application of certain Acts tothe proceedings of this Act.-- Unlessotherwise expressly provided by or underthis Act, the provisions of the IndianCourt Fees Act, 1870 (VII of 1870), theCode of Civil Procedure, 1908 (V of1908), and the [Limitation Act. 1963

(XXXVI of 1963)], [Including Section 5thereof] shall apply to the proceedingsunder this Act."

As there is no express provision by orunder the Act providing for exclusion of Order39 of Code of Civil Procedure in respect ofgrant of temporary injunction during pendencyof a suit, the said provision is applicable to asuit for division of holding and the Court inwhich suit under Section 176 of Code of CivilProcedure is pending could have given therelief to the appellant which is being sought inpresent proceedings. At one stage, the learnedcounsel for appellant tried to argue that asSection 229-D of the Act provides for grant oftemporary injunction only in respect of suit fordeclaration filed under Sections 229-B and229-C, the provisions of Order 39 of Code ofCivil Procedure for temporary injunctionimpliedly extends excluded. We are not inclinedto accept the said contention. The provisionunder Section 229-D is only supplemental toOrder 39 which permits grant of temporaryinjunction. By incorporating Section 229-D, atemporary Injunction can be granted in a suitfor declaration though no permanentinjunction is being sought which would nothave been possible ha'a the specific provisionbeen not there. Thus, the argument that Order39 of Code of Civil Procedure stands excludedin view of Section 229-D of the Act isunacceptable to us.

8. It is argued by learned counsel forthe plaintiff/appellant that there was noJustification for the Court to vacate theinterim Injunction which was continuingfrom 28.4.1998 as an appeal waspreferred which was dismissed aswithdrawn and order of Court belowstood merged in it. The contention has noforce. Order 39, Rule 4 of Code of CivilProcedure comes into play in caseconditions mentioned therein come intoexistence. The power of a trial court tovacate its earlier order passed under Order


39, Rule 2 does not come to an end merelybecause an appeal against it stands dismissed.It is in different circumstances that the poweris to be exercised and if conditions mentionedtherein arise, the Court can vacate atemporary injunction granted by it. even if ithas been subject-matter of appeal provided itis satisfied that the conditions are such that Uscontinuance is not possible and It is givingrise to undue hardship to party. In the instantcase, the shares of Smt. Urmila Devl and Smt.Kanak Lata are admittedly 1/2 each. Smt.Kanak Lata has transferred a specific portion(western portion) to respondent Nos. 1, 2 and3. If it is assumed for the sake of argumentthat Smt. Kanak Lata could not havetransferred any particular portion of land yet1/2 share of Smt. Kanak Lata has certainlypassed to the vendees. It makes no differenceif the half share is specified by area. Theparties can always get the land partitionedand under the circumstances of this case,when preliminary decree for division ofholding has already been passed, the partiesshould get the land partitioned by metes andbounds."

25. In view of above, the orderimpugned dated 10.8.2015, passed byopposite party no.2 is not sustainable in theeyes of law. It is hereby set aside. Since thisCourt has held that against the order dated10.8.2015 the appeal shall lie before theCommissioner, as such, the proceedings underSection 333 of of U.P.Z.A. & L.R. Act by thepetitioners were nullity in the eyes of law.

26. The writ petition, as such, standsallowed. The opposite party no.2 shallconsider and pass appropriate orders on theapplication for stay as well as on applicationfor vacation of stay moved by thepetitioners and opposite parties respectively.



BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI, J.

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Jail Appeal No. 7742 of 2009

Durga Singh ...AppellantVersus

State ...Respondent

Counsel for the Appellant:Smt. Kavita Tomar, Amicus Curiae


Scheduled Caste & Scheduled Tribes(Prevention of Atrocities) Act 1989-Section3(2)(iv)-Conviction without considering theaspect-fire was put on consequent toenmity of civil litigation and not for beingsc/st-held-conviction-not sustainable.

Held: Para-16On the basis of above discussion it isexplicitly clear that charged offence ofmischief by fire had not been committedbecause victim was a member of SC/STcommunity. This offence appears to havebeen committed only because of dispute oftitle and possession of land over whichvictim's house is standing. In such a caseoffence punishable under section 3(2)(iv) ofScheduled Castes or Schedule Tribes Act isnot been committed. Therefore the findingof of trial Court holding the appellant guiltyfor the offence under SC/ST Act iserroneous and is liable to be set aside.

Cr.P.C.-Section 235-Offence u/s 436 and3(2)(iv) SC/ST Act-conviction by Trail Courtwithout opportunity to hear the accused-mainly on offence of sc/st Act-while no caseunder SC/ST made out-conviction reduced.

Held: Para-19In present case after the verdict ofconviction the accused-appellant had, at

3 All] Durga Singh Vs. State 1103

the time of hearing on point of quantum ofsentence, all relevant factors available andpresented, should have been considered fordetermining the appropriate amount ofsentence. But the trial Court had notconsidered them because the SessionsJudge had erroneously connectedpunishment of charge under section 436IPC with that of section3(2)(iv) SC/ST Actand awarded minimum prescribedpunishment for said offence. Thus theAdditional Sessions Judge, in the instantcase, had not complied with the obligationwhich Section 235(2) imposes. As discussedabove, in this case offence of section3(2)(iv) SC/ST Act is not made out,therefore punishment should have been forcharge u/s 436 IPC only and that too afteraffording opportunity of pre-punishmenthearing as discussed above. Such hearingwas made during appeal.

Case Law discussed:AIR 2006 SC 1267; (2007) 2 SCC 170

(Delivered by Hon'ble Pramod KumarSrivastava)

1. This appeal has been preferredagainst the judgment passed by AdditionalSessions Judge/ F.T.C. No. 3, Basti inSpecial Session Trial No. 61 of 1996 (Statev. Durga Singh) under Section 436 IPC andSection 3(2)(iv) The Scheduled Castes orSchedule Tribes (Prevention of Atrocities)Act, 1989 [hereinafter referred to as "SC/STAct"] in case crime no. 25/1995, p.s.-Dubaulia, Basti, by which, sole accusedDurga Singh was convicted on 05.12.2008for the charges u/s 436 IPC and Section3(2)(iv) of the SC/ST Act; and punished on06.12.2008 for the charge u/s 336 IPC withrigorous imprisonment of 10 years and fineof Rs. 500/- (in default of payment onemonth's additional imprisonment) and forthe charge u/s 3(2)(iv) of the SC/ST Actwith imprisonment for life and fine of Rs.500/- (in default of payment one month's

additional imprisonment), with directionthat both the sentences would runconcurrently.

2. The prosecution case in brief wasthat informant Raghuwar and accusedDurga Singh are the resident of samevillage. Informant belongs to the S/C(scheduled caste) community and accused isnon- SC/ST person. On 17.03.1995 at about8:00 p.m. in night informant Raghuwar(PW1) while cooking inside his house sawthe flames in backside of his house. Then herushed out of his house and saw that NeebarSingh and his son Durga Singh of hisvillage put on fire his house from thebackside and were running away. On hisalarm his brother Shivraj (PW-2) and sonDinai (PW-3) had seen the Neebar Singhand Durga Singh fleeing away from hishouse after putting his house on fire. Theinformant had given a written report (Ex-A-1) of this incident in police station afterabout three days on 20.03.1995 at 7:00p.m., on the basis of which case crime no.25/1995 was registered. After completion ofthe investigation, charge-sheet for theoffences u/s 436 IPC and Section 3(2)(iv) ofthe SC/ST Act were filed against twoaccused persons, namely, Neebar Singh andand his son Durga Singh (present appellant),on the basis of which Special S.T. No.61/1996 was registered, in which both theaccused were charged for the aforesaidoffences. They denied the charges, pleadednot guilty and claimed to be tried. Butduring trial, accused Neebar Singh had diedand his trial was abated; so trial proceededagainst Durga Singh only.

3. During trial, prosecution side hadexamined PW-1 Raghuwar, (informant),PW-2 Shivraj, PW-3 Dinai, PW-4 H.C.Harikrishna Singh and PW-5 S.I. Ali Raza


(IO). These witnesses had proved documentsof prosecution side.

4. After conclusion of the prosecutionevidence, statement of accused Durga Singhu/s 313 Cr.P.C. was recorded in which hehad denied the prosecution evidence and saidthat those evidences are false, erroneousinvestigation had been done and he isinnocent. Defence side had not adduced anydefence evidence.

5. After affording opportunity ofhearing to the prosecution and defence side,the trial court had passed the judgment dated05.12.2008, by which accused Durga Singhwas convicted as above. Then after affordingopportunity of hearing on the point of thequantum of the sentence, the trial court hadsentenced the appellant on 06.12.2008 asabove. Aggrieved by which, present appealhas been preferred by the accused.

6. Smt. Kavita Tomar, learnedAmicus Curiae appeared on behalf of theappellant, and learned AGA appeared forthe State respondent. We have heard theirarguments and perused the original records.

7. Learned counsel for the appellantcontended that there is no eye witness of theincident and accused persons were only seengoing away from the spot. There is noevidence that they had committed anymischief by fire. She contended that theappellant was falsely implicated in thismatter due to enmity as accepted by PW-1during his examination-in-chief. She furthercontended that the FIR is much delayedwithout any explanation, so appeal should beallowed. Her alternative argument was thateven if prosecution case is accepted to betrue for some time, in that case also thereappears no commission of offence underSC/ST Act because according to the

prosecution evidence alleged arsoning wasnot committed for the reason of informantbeing member of SC/ST community. Theinformant and appellant had been litigatingfor the land over which house of theinformant is situated and Neebar Singh hadintention to dispossessing the informant fromthat land, and due to this enmity chargedincident of arsoning was committed.Therefore, no charge u/s 3(2)(iv) of theSC/ST Act was made out and conviction ofappellant for the said offence should bequashed. Her alternative argument on thepoint of the quantum of sentence was that theappellant was young at the time of theincident having no criminal history. He isonly an earning member of his house and hisfather had expired during the trial and no oneelse is there to look after his familymembers. These facts were placed before thetrial court for taking into account on the pointof quantum of sentence, but were notconsidered. The appellant is a poor personhaving no means to contest his case and is injail for about 7 years, and in any case hissentence should be mitigated.

8. Learned AGA has contended thatthe appellant had put on fire the house ofthe informant due to enmity. The delay inlodging of the FIR has been explainedthrough the evidences adduced. AGA hadfairly accepted that the court has power topass appropriate sentences. We haveconsidered these arguments.

9. Section 436 IPC speaks about thepunishment for mischief by fire as under :

"436. Mischief by fire or explosivesubstance with intent to destroy house, etc.--Whoever commits mischief by fire or anyexplosive substance, intending to cause, orknowing it to be likely that he will therebycause, the destruction of any building which is


ordinarily used as a place of worship or as ahuman dwelling or as a place for the custody ofproperty, shall be punished with imprisonmentfor life, or with imprisonment of eitherdescription for a term which may extend to tenyears, and shall also be liable to fine."

10. So far conviction of the appellantfor the charge u/s 436 IPC is concerned, wehave meticulously gone through adducedevidences. It is a fact that none has seen theappellant or his father late Neebar Singhigniting the flame, but after seeing the flameby informant they were identified in the lightof flames. PW-1 (informant) had seen theflames in back portion of his house andrushed out and seen the appellant and hisfather fleeing away from the spot. On hisraising alarm, his brother Shivraj (PW-2) andson Dinai (PW-3) had rushed on spot. Thesefacts were proved by PW-1 Raghuwar, PW-2 Shivraj and PW-3 Dinai, who had alsostated that at the time of the incident at about8:00 p.m. they heard the alarm of Raghuwarand rushed to spot and found that the houseof Raghuwar was in flames from thebackside and they also saw that Durga Singhand his father Neebar Singh were runningfrom the spot after arsoning. Due to this fire,rice, flour and house hold articles wasdestroyed. After this incident, thereconciliation in panchyat was attempted butthat could not be materialized, theninformant Raghuwar had lodged the report inpolice station. From the evidence of threewitnesses of fact, it is proved that NeebarSingh and his son Durga Singh (appellant)were involved in arsoning in the backside ofhouse of the informant Raghuwar. It was notproved from the evidence as to how muchloss was in fact occurred, but it is proved thatthe appellant was involved in this chargedincident of mischief by fire on instruction ofhis father Neebar Singh. Therefore the trialcourt had committed no error when it had

convicted appellant Durga Singh for thecharge u/s 436 IPC. Therefore, theconviction for the charge u/s 436 IPC isfound correct and should be confirmed.

11. But so far as conviction of theappellant for the charge u/s 3 (2)(iv) ofthe SC/ST Act is concerned, the argumentof Amicus Curiae is correct. Theinformant PW-1 Raghuwar had admittedthat he had old and long dispute of landand for that reason enmity with NeebarSingh and Durga Singh for ownership andpossession of the land over which hishouse is situated. The said land initiallybelonged to Neebar Singh, but afterconsolidation the Neebar Singh was givencompensation for the same and said landwas converted into abadi land and portionof land relating to the house of appellantwas given to him after survey by Lekhpalwith the help of police. From theprosecution evidence, it is proved that thealleged act of mischief by arsoning wascommitted by the appellant on instructionof his father only because they had oldproperty dispute for the land over whichinformant's house existed. The chargedincident was not committed becauseinformant was member of the scheduledcommunity, but it was committed becauseof other reason of enmity relating to land.

12. Section 3(2)(iv) and (v) of theScheduled Castes or Schedule Tribes(Prevention and Atrocities) Act, 1989reads as under:

"3(2) whoever, not being a memberof Scheduled Caste or Schedule Tribe-

(iv) commits mischief by fire or anyexplosive substance intending to cause orknowing it to be likely that he will therebycause destruction of any building which isordinarily used as a place of worship or


as a place for human dwelling or as aplace for custody of the property by amember of a Scheduled Caste or aScheduled Tribe, shall be punishable withimprisonment for life and with fine;

(v) commits any offence under theIndian Penal Code (45 of 1860)punishable with imprisonment for a termof ten years or more against a person orproperty on the ground that such personis a member of a Scheduled Caste or aScheduled Tribe or such property belongsto such member, shall be punishable withimprisonment for life and with fine"

13. The provision of Section 3(2)(iv) or(v) of the SC/ST Act, as noted above providesthat a person can be punished under theseprovisions only when he commit such offenceagainst person of SC/ST community on theground that such a person/victim is a memberof SC/ST. From the evidence in present case,it is proved that charged incident of mischiefhad been committed by accused-appellantonly due to property dispute and enmityrelating to land, and not for any other reason.There is no evidence from prosecution casethat offence was committed because victimbelongs to scheduled-caste community. Atleast there is no evidence in this regard.Therefore, we are of well thought-out opinionthat accused-appellant cannot be punished foroffence punishable under Section 3(2)(iv) ofSC/ST Act.

14. Hon'ble Supreme Court inDinesh @ Buddha v. State of Rajasthan,AIR 2006 SC 1267 has held as under:

"15. Sine qua non for application ofSection 3(2)(v) is that an offence musthave been committed against a person onthe ground that such person is a memberof Scheduled Castes and ScheduledTribes. In the instant case no evidence has

been led to establish this requirement. Itis not case of the prosecution that therape was committed on the victim sinceshe was a member of Scheduled Caste. Inthe absence of evidence to that effect,Section 3(2)(v) has no application. HadSection 3(2)(v) of the Atrocities Act beenapplicable then by operation of law, thesentence would have been imprisonmentfor life and fine.

16. In view of the finding that Section3(2)(v) of the Atrocities Act is not applicable,the sentence provided in Section 376(2)(f),IPC does not per se become life sentence."

15. Hon'ble Supreme Court inRamdas v. State of Maharashtra, (2007) 2SCC 170 has held as under:

13."11. At the outset we may observethat there is no evidence whatsoever to provethe commission of offence under Section3(2)(v) of the Scheduled Castes andScheduled Tribes (Prevention of Atrocities)Act, 1989. The mere fact that the victimhappened to be a girl belonging to aScheduled Caste does not attract theprovisions of the Act. Apart from the fact thatthe prosecutrix belongs to the Pardhicommunity, there is no other evidence onrecord to prove any offence under the saidenactment. The High Court has also notnoticed any evidence to support the chargeunder the Scheduled Castes and ScheduledTribes (Prevention of Atrocities) Act, 1989and was perhaps persuaded to affirm theconviction on the basis that the prosecutrixbelongs to a Scheduled Caste community.The conviction of the appellants underSection 3(2)(v) of the Scheduled Castes andScheduled Tribes (Prevention of Atrocities)Act, 1989 must, therefore, be set aside."

16. On the basis of above discussionit is explicitly clear that charged offence


of mischief by fire had not been committedbecause victim was a member of SC/STcommunity. This offence appears to havebeen committed only because of dispute oftitle and possession of land over whichvictim's house is standing. In such a caseoffence punishable under section 3(2)(iv) ofScheduled Castes or Schedule Tribes Act isnot been committed. Therefore the finding ofof trial Court holding the appellant guilty forthe offence under SC/ST Act is erroneousand is liable to be set aside.

17. In view of the submission onbehalf of appellant on quantum ofsentence, the only question to beconsidered is whether the sentence of lifefor charge u/s 436 IPC in present case isreasonable or excessive?

18. The Section 235 of the CriminalProcedure Code, 1973 reads :

"(1) After hearing arguments andpoints of law (if any), the Judge shall givea judgment in the case.

(2) If the accused is convicted, theJudge shall, unless he proceeds inaccordance with the provisions of Section360, hear the accused on the question ofsentence, and then pass sentence on himaccording to law".

19. In present case after the verdict ofconviction the accused-appellant had, at thetime of hearing on point of quantum ofsentence, all relevant factors available andpresented, should have been considered fordetermining the appropriate amount ofsentence. But the trial Court had notconsidered them because the Sessions Judgehad erroneously connected punishment ofcharge under section 436 IPC with that ofsection3(2)(iv) SC/ST Act and awardedminimum prescribed punishment for said

offence. Thus the Additional Sessions Judge,in the instant case, had not complied with theobligation which Section 235(2) imposes. Asdiscussed above, in this case offence ofsection 3(2)(iv) SC/ST Act is not made out,therefore punishment should have been forcharge u/s 436 IPC only and that too afteraffording opportunity of pre-punishmenthearing as discussed above. Such hearingwas made during appeal.

20. The sentencing procedure is givenin the Code of Criminal Procedure, whichprovides broad discretionary sentencingpowers to judges. In the absence of anadequate sentencing policy or guidelines, itcomes down to the judges to decide whichfactors to take into account and which toignore. From various judgments of Hon'bleApex Court it has been established that at thetime of sentencing the Courts shouldconsider the aggravating circumstances relateto the crime while mitigating circumstancesrelate to the criminal.A balance sheet cannotbe drawn up for comparing the two.Theconsiderations for both are distinct andunrelated. It is erroneous for the court tomechanically proceed to impose anysentence without taking into account allaggravating and mitigating circumstances.

21. Now the matter is limited to theproper punishment for the offence u/s 436 IPC,and we have to consider about the appropriatesentence for the appellant in this case. For itaggravating circumstances relating to the crimewhile mitigating circumstances relating to thecriminal has to be considered. From facts andcircumstances of the case before us, as regardsaggravating circumstance is concerned it is clearthat appellant had acted according to wishes ofhis father Neebar Singh, without using his mindand had helped his father in putting fire thehouse of victim/ informant, which resulted in theloss of shelter to victim. So far as mitigating


circumstances are concerned, taking note ofvarious factors including the age of the youngappellant-accused being a rustic poor villager ofabout 22-23 years at the time of the incident (hisage being 36 years at time of his statement u/s313 CrPC in year 2008) which cannot be treatedas very mature, he is the only bread winner of hishouse, it is his first guilt. Apart from it he hailsfrom such poor family that he cannot affordexpenses of a lawyer, so he was provided help ofAmicus Curie at the expenses of State, the awardof 10 years R.I. is excessive. These points werenot considered at the time of awarding thepunishment; and the said sentence was awarded,which should be mitigated. This contention oflearned Amicus Curie for the appellant cannotbe ignored that during trial and then afterconviction appellant had suffered sufficient timein incarceration (more than six years) whichwould have taught him appropriate lesson torefrain from such overt acts.

22. While we see no reason to differwith the findings recorded by the trial courtregarding charged offence of section 436 IPC,we do see substance in the argument raised onbehalf of the appellants that keeping in viewthe prosecution evidence, the abovementioned aggravating and mitigatingattendant circumstances, the age of theaccused and the fact that they have alreadybeen in jail for a considerable period, theCourt should take lenient view as far as thequantum of sentence is concerned. Keeping inview the attending circumstances, we are ofthe considered view that ends of justice wouldbe met if the punishment awarded to theappellant is reduced. So, it appears appropriatethat in present case the sentence should notexceed more than seven years' imprisonment.

23. In view of above facts anddiscussion, the order of conviction u/s3(2)(iv) Schedule Tribes (Prevention ofAtrocities) Act, 1989 is set aside; but the

conviction u/s 436 IPC imposed on theappellant is hereby confirmed. For thecharge u/s 436 IPC the punishment ofsentence of imprisonment of 10 years ismodified to rigorous imprisonment of 7years. With this modification of sentence,the appeal stands disposed off.

24. Let the copy of this judgment besent to Sessions Judge, Basti of ensuringcompliance.



BEFORETHE HON'BLE DR. DHANANJAYA YESHWANT

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

THE HON'BLE YASHWANT VARMA, J.

C.M.W.P. No. 34833 of 2014with

Writ-C No. 32572 of 2014, W.P. No. 46000of 2014, W.P. No. 46363 of 2015, W.P. No.50574 of 2014, W.P. No. 53568 of 2014,W.P. No. 21180 of 2015, W.P. No. 23902 of2015, W.P. No. 29674 of 2015, W.P. No.44625 of 2015, W.P. No. 49108 of 2015,W.P. No. 49118 of 2015, W.P. No. 49123 of2015, W.P. No. 49132 of 2015, W.P. No.49136 of 2015, W.P. No. 49140 of 2015,W.P. No. 49143 of 2015, W.P. No. 49147 of2015, W.P. No. 49151 of 2015, W.P. No.34931 of 2014, W.P. No. 35050 of 2014,W.P. No. 35407 of 2014, W.P. No. 35824 of2014 and W.P. No. 36537 of 2014

Anand Kumar Yadav & Ors. ...PetitionersVersus

Union of India & Ors. ...Respondents

Counsel for the Petitioners:Sri Ashok Khare, Sri Siddharth Khare, Ms.Saumya Mandhyan, Sri Arvind Srivastava, SriRahul Agarwal, Sri Ashok Kumar Dubey, SriHimanshu Raghave, Sri Indrasen Singh

3 All] Anand Kumar Yadav & Ors. Vs. Union of India & Ors. 1109

Tomar, Sri Tarun Agarwal, Sri AnanadNandan, Sri Man Bahadur Singh, Sri NavinKumar Sharma, Sri Neeraj Tiwari

Counsel for the Respondents:Sri C.B. Yadav, Addl. Advocate General, SriShashank Shekhar Singh, Addl. C.S.C., SriH.R. Mishra, Sri R.K. Ojha, Sri AgnihotriKumar Tripathi, Sri K.S. Kushwaha, SriAbhishek Srivastava, Sri Ashok Pandey, SriNeel Kamal, Sri R.A. Akhtar, Sri M. Asthana,Sri Arvind Kr. Goswami

U.P. Rights of Children to Free & CompulsoryEducation (first amendments Rules 2014-bystate government degenerating into poorquality education-providing absorption ofShiksha Mitra-who completed BTC distancecourse-without TET could be appointed-such attempt-arbitrary, violation of Art. 14-ultra virus-quashed.

Held: Para-120In assuming to itself a power to relax theminimum qualification and thereafter bydiluting the minimum qualifications in thecase of Shiksha Mitras, the StateGovernment has patently acted in a mannerwhich is arbitrary, ultra vires the governingcentral legislation and in breach of therestraint on the limits of its own statutorypowers. By this exercise, the StateGovernment has sought to grantregularization to persons who failed to fulfilthe minimum qualifications and who werenever appointed against sanctioned posts. Inthese circumstances, the grant of largesse bythe State Government to Shiksha Mitrascannot be upheld and the amendment to theRules is ultra vires and unconstitutional.

(B)Constitution of India, Art.-226-Servicelaw-regularization-Shiksha Mitra workingon contractual basis-without any sanctionpost-in absence of essential qualification-can not be regularized.

Held: Para-122In the present case, it is evident that theShiksha Mitras do not fulfil any of thenorms laid down by the Supreme Court

for regular absorption into the service of theState. They were at all material timesappointed as and continued to be engagedas contractual appointees. Theirappointments were not against sanctionedposts. They did not fulfil the minimumqualifications required for appointment asAssistant Teachers.

Case Law discussed:(2006) 4 SCC 1; Writ-A No. 26189 of 2012decided on 8th August 2013; Special Appeal No.305 decided on 3rd March 2008; (2008) 3 SCC432; 2010 (1) ESC 42 (SC); (2006) 1 SCC 667;(2004) 7 SCC 112; (2005) 1 SCC 639; (1998) 6SCC 165; [2013 (6) ADJ 310 (FB)]; (2010) 9 SCC247; (2014) 4 SCC 583; (2003) 3 SCC 548; AIR2008 SC 1817; (2015) 6 SCC 247

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

I Constitution of the Full Bench

1. This Full Bench has been constitutedin pursuance of an order dated 27 July 2015of the Hon'ble Supreme Court in State ofUttar Pradesh Vs Shiv Kumar Pathak1 andconnected cases. The Supreme Courtdirected that all matters before the HighCourt of Judicature at Allahabad, both atAllahabad and Lucknow, relating to ShikshaMitras shall be heard by a Full Bench atAllahabad. In pursuance of the order passedby the Supreme Court, the writ petitionsrelating to Shiksha Mitras which werepending before the Lucknow Bench havebeen transferred to Allahabad in pursuanceof the provisions of Clause 14 of the UnitedProvinces High Courts (Amalgamation)Order, 1948.

II Scope of the challenge

2. In the leading writ petition2, therelief which has been sought, is for settingaside two notifications which were issuedon 30 May 2014 by the Government of


Uttar Pradesh for notifying the UttarPradesh Right of Children to Free andCompulsory Education (FirstAmendment) Rules, 20143 and the UttarPradesh Basic Education (Teachers)Services (Nineteenth Amendment) Rules,20144. By and as a result of theamendment , Rule 16-A was introducedinto the Rules framed by the StateGovernment under the Right of Childrento Free and Compulsory Education Act,20095, called the Uttar Pradesh Right ofChildren to Free and CompulsoryEducation Rules, 20116 to reserve to theState Government the power to relax theminimum qualifications prescribed for theappointment of Assistant Teachers injunior basic schools in the case of ShikshaMitras for the purpose of theirappointment in regular service. Thesecond amendment which has been madeby the State Government has the effect ofamending the Uttar Pradesh BasicEducation (Teachers) Services Rules,19817. By the amendment, the StateGovernment has enabled the appointmentof Shiksha Mitras who were working onthe date of commencement of theamended Rules into regular service asAssistant Teachers of junior basicschools. The reliefs which have beensought also include a challenge to aGovernment Order dated 7 February 2013issued by the Principal Secretary,contemplating the absorption into service,of Shiksha Mitras working in junior basicschools in phases covering a total of1,24,000 graduate Shiksha Mitras and46,000 Shiksha Mitras who havecompleted the intermediate qualification.There is also a challenge to a furtherGovernment Order dated 19 June 2014implementing the decision of the StateGovernment to absorb Shiksha Mitrasinto regular service.

III For convenience of exposition,the judgment has been divided into thefollowing parts:

(i) PART A : The legislative,regulatory and administrative framework

(ii) PART B : Submissions(iii) PART C : Analysis(iv) PART D : Operative orders

PART A : The legislative,regulatory and administrativeframework

3. The resolution of the controversybefore the Court turns upon the relevantlegislation, both Central and State,holding the field and the rules andnotifications. It is upon the interpretationof the regulatory framework that thedispute would turn.

A1 Uttar Pradesh Basic EducationAct, 1972

4. The Uttar Pradesh BasicEducation Act, 19728 was enacted by thestate legislature for the purpose of re-organising, reforming and expandingelementary education and, with thatpurpose in view, to enable the StateGovernment to rest control overelementary education from Zila Parishadsin rural areas and Municipal Boards andMahapalikas in urban areas while vestingit in the Board of Basic Education. Theexpression 'basic education' is defined inSection 2(b) to mean education upto theeighth class, imparted in schools otherthan high schools or intermediatecolleges. By Section 4(1), the Board isvested with the function of organising,coordinating and controlling the impartingof basic education and teachers' trainingfor the purpose of basic education in the


State. Among the powers which areconferred by sub-section (2) upon theBoard, is the power in clause (a) toprescribe courses of instruction andteachers' training in basic education and inclause (b) to conduct basic trainingcertificate examinations.

5. The Act was amended by U P Act No18 of 2000 to introduce the provisions ofSections 9-A and 10-A and for the substitutionof Section 10. As a result of the introduction ofSection 9-A, control over teachers andproperties of basic schools at the administrativelevel is entrusted to the gram panchayats or, asthe case may be, municipalities within whoseterritorial limits each basic school is situated.Substituted Section 10, which defines thefunctions of Zila Panchayats and Section 10-A,as inserted, confers upon the Municipalities,certain statutory duties and functions in regardto basic education in the district or, as the casemay be, the municipal area. Under Section 11,for each village or group of villages for which agram panchayat is established under the U PPanchayat Raj Act, 1947, a Village EducationCommittee is contemplated to be establishedconsisting of the Pradhan of the GramPanchayat as its Chairperson. The VillageEducation Committee is conferred with thestatutory function under sub-section (2)(a) toestablish, administer, control and manage basicschools in the panchayat area and under clause(g) such other functions pertaining to basiceducation as may be entrusted by theGovernment. Section 19 vests a rule-makingpower in the State Government whichcomprehends, among other things, in clause (c)of sub-section (2) the power to frame rules inrespect of the recruitment and conditions ofservice of persons appointed to posts ofteachers and other employees of basic schoolsrecognised by the Board.

A2 Uttar Pradesh Basic Education(Teachers) Service Rules, 1981

6. In exercise of the powers conferredby Section 19 (1) of the Act of 1972, theService Rules of 1981 were published on 3January 1981. Under Rule 2(1)(b), theappointing authority in relation to teachersreferred to in Rule 3 is defined to mean theDistrict Basic Education Officer. A juniorbasic school under Rule 2(1)(h) is defined tomean 'a basic school where instructions fromclasses I to V are imparted'. A senior basicschool under Rule 2(1)(m) is a basic schoolwhere instructions from classes VI to VIIIare imparted. Basic school comprehends aschool imparting instructions from classes Ito VIII. The expression 'teacher' has beendefined in Rule 2(1)(o) to mean ' a personemployed for imparting instructions innursery schools, basic schools, junior basicschools or senior basic schools. The Rulesincorporate a definition of 'traininginstitution' under Rule 2(1)(p) 'as aninstitution imparting training for recognizedcertificate courses of teaching.

7. Part II of the Rules of 1981 makesprovisions for cadre strength. Rule 4(1)contemplates that there shall be separatecadres of service under the Rules for eachlocal area which is defined under clause (i) ofsub-section (1) of Section 2 to mean 'the areaover which a local body exercises jurisdiction.Under sub-rule (2) of Rule 4, the strength ofthe cadre of the teaching staff pertaining to alocal area and the number of posts in the cadreare to be such, as may be determined by theBoard from time to time with the previousapproval of the State Government. The Boardof Basic Education is empowered, with theprevious approval of the State Government, tocreate temporary posts.

8. Part III of the Rules of 1981relates to recruitment. Rule 5 provides forthe sources of recruitment and mode ofrecruitment to various categories of posts.


Insofar as the present controversy isconcerned, Rule 5(a)(ii) provides forrecruitment of Assistant Masters andAssistant Mistresses of junior basicschools by direct recruitment as providedin Rules 14 and 15.

9. Qualifications for teachers of basicschools are defined in Part IV which, inRule 6, provides for age. Provisions existfor the extent of relaxation in the case ofcandidates belonging to Scheduled Castes,Scheduled Tribes, Backward Classes,dependents of freedom fighters and ex-servicemen. Rule 8 deals with academicqualifications and is in the following terms:

"8. Academic qualifications.-(1) Theessential qualifications of candidates forappointment to a post referred to in clause(a) of Rule 5 shall be as shown belowagainst each:

Post"...

(ii) Assistant Master and AssistantMistress of Junior Basic Schools

Academic qualificationsA Bachelor's Degree from a University

established by law in India or a Degreerecognised by the State Government asequivalent thereto together with the trainingqualification consisting of a Basic Teacher'sCertificate, Hindustani Teacher's Certificate,Junior Teacher's Certificate, Certificate ofTeaching or any other training courserecognised by the Government as equivalentthereto: Provided that the essentialqualification for a candidate who has passedthe required training course shall be the samewhich was prescribed for admission to thesaid training course."

10. Rule 8(1), as it was originallyframed, provided that for appointment ofan Assistant Teacher in a junior basic

school, the required academic qualificationwas the intermediate of the Board of HighSchool and Intermediate Education or aqualification recognised by the Governmentas equivalent and a training qualificationconsisting of a basic teacher's certificate orany other training course recognised by thegovernment as equivalent (includingHindustani Teacher's Certificate, JuniorTeacher's Certificate and Certificate ofTraining). The provisions of Rule 8(1) weremodified by the State Government by anamendment to the Rules which came intoforce with effect from 9 July 1998. Asmodified, the intermediate qualification wassubstituted by a Bachelor's degree.

11. Rule 9 provides for reservationsfor candidates belonging to ScheduledCastes, Scheduled Tribes, BackwardClasses, dependents of freedom fighters, ex-servicemen and other categories inaccordance with legislation in Uttar Pradeshand orders issued by the State Governmentissued from time to time. Under Rule 10, aprovision for relaxation in the maximumage limit, educational qualifications andprocedural requirements of recruitment arecontemplated in the following terms:

"10. Relaxation for ex-servicemen andcertain other categories.- Relaxation, if any,from the maximum age-limit, educationalqualifications or/and any proceduralrequirements of recruitment in favour of theex-servicemen, disabled military personnel,dependents of military personnel dying inaction, dependents of Board's servants dyingin harness and sportsmen shall be inaccordance with the general rules or order ofthe Government in this behalf in force at thetime of recruitment."

12. The Rules of 1981 makeelaborate provisions in regard to the


procedure for recruitment. Rule 14 requiresthe appointing authority, while makingappointments by direct recruitment to postsof Assistant Teachers in junior basicschools, to determine the number ofvacancies, vacancies set apart for reservedcategories under Rule 9 and to notify thevacancies to the employment exchange,besides publication in at least twonewspapers with an adequate circulation inthe State and in the district concernedinviting applications from candidatespossessing the prescribed trainingqualification from the district. Under sub-rule (2), the appointing authority is requiredto prepare a list of such persons who appearto possess the prescribed academicqualification and are eligible forappointment, from the applications receivedin pursuance of the advertisement or fromthe Employment Exchange. Under sub-rule(3), names of candidates are required to bearranged in such manner that a candidatewho has passed the required training courseearlier in point of time shall be placedhigher, candidates having passed thetraining course in a particular year beingrequired to be arranged in accordance withthe quality points. Under Rule 16, aSelection Committee is constitutedconsisting of the Principal of the DistrictInstitute of Education and Training9 asChairperson and other members includingthe District Basic Education Officer. Aseparate procedure for recruitment to ateaching post in respect of a language isprovided in Rule 17(1) where a writtenexamination is contemplated. Under Rule19, the appointing authority is required tomake appointment to any post referred to inRule 5 by taking the names of candidates inthe order in which they stand in the listprepared under Rule 17. Hence, noappointment can be made except on therecommendation of the Selection

Committee and in the case of directrecruitment only upon the production of aresidence certificate. Rule 22 envisages theseniority of a teacher in a cadre asdetermined by the date of appointment in asubstantive capacity. Rule 23 contemplatesthe appointment of all persons in asubstantive vacancy on probation for aperiod of one year and a confirmation inservice under Rule 24 subject to fitness andcertification of integrity. Rule 25 providesfor scales of pay in respect of personsappointed in a substantive or officiatingcapacity or as a temporary measure as maybe determined by the government from timeto time. The manner in which quality pointsare to be computed is laid down in theAppendix to the Rules. Hence, in the Rulesof 1981, comprehensive provisions weremade by the rule-making authority whileframing the subordinate legislation forprescribing the appointing authority, theunit of appointment, qualifications,determination of vacancies, extent ofreservation, the procedure for recruitmentand scales of pay, among other things.

A3 National Council for TeacherEducation, 1993

13. On 29 December 1993, theNational Council for Teacher EducationAct, 199310 enacted by Parliament,received the assent of the President andwas published in the Gazette of India onthe following day. For the purpose ofthese proceedings, it would be necessaryto understand the ambit of the NCTE Actof 1993 and RTE Act of 2009 which wasenacted sixteen years later by Parliament.The scope of the NCTE Act, as itspreamble indicates, is to establish aNational Council for TeacherEducation11 with a view to achievingplanned and coordinated development for


the teacher education system throughoutthe country and the regulation and propermaintenance of norms and standards. Theambit of teacher education covers pre-primary, primary, secondary and seniorsecondary stages in schools and has beencomprehensively defined to include non-formal education, part-time education,adult education and correspondenceeducation in Section 2(l).

14. Chapter II provides for theestablishment of a Council (NCTE), whileChapter III provides for its functions.Among the functions of the Council inclause (e) of Section 12 is to lay downnorms for any specified category ofcourses or training in teacher educationincluding the minimum eligibility criteriafor admission, the method of selection ofcandidates, duration, contents and modeof curriculum. Under clause (g), theCouncil is empowered to lay downstandards in respect of examinationsleading to teacher educationqualifications, criteria for admission tosuch examinations and schemes ofcourses or training.

15. Chapter IV provides for therecognition of teacher education institutions.A rule-making power is conferred upon theCentral Government by Section 31(1).Section 32 empowers the Council to frameregulations to carry out the provisions of theAct. Under clause (d) of sub-section (2) ofSection 32, the Council is empowered toframe regulations, inter alia, on:

"(d) the norms, guidelines andstandards in respect of -

(i) the minimum qualifications for aperson to be employed as a teacher underclause (d) of Section 12;

(ii) the specified category of coursesor training in teacher education underclause (e) of Section 12."

A4 Contractual engagement ofShiksha Mitras

16. On 26 May 1999, a GovernmentOrder was issued by the StateGovernment of Uttar Pradesh forengagement of Shiksha Mitras. TheGovernment Order stated that the ShikshaMitra scheme was being implemented soas to provide for universal primaryeducation and for the maintenance of theteacher-student ratio in primary schools.The salient aspects of the Shiksha Mitrascheme were as follows:

(i) The appointment of ShikshaMitras was to be against the payment ofan honorarium;

(ii) The appointment was to be for aperiod of eleven months renewable forsatisfactory performance;

(iii) The educational qualificationswould be of the intermediate level;

(iv) The unit of selection would bethe village where the school is situatedand in the event that a qualified candidatewas not available in the village, the unitcould be extended to the jurisdiction ofthe Nyay Panchayat;

(v) The services of a Shiksha Mitracould be terminated for want ofsatisfactory performance;

(vi) Selection was to be made at thevillage level by the Village EducationCommittee; and

(vii) The scheme envisaged theconstitution, at the district level, of aCommittee presided over by the DistrictMagistrate and consisting, inter alia, ofthe Panchayat Raj Officer and the District


Basic Education Officer among othermembers to oversee implementation;

17. Subsequently, GovernmentOrders were issued by the StateGovernment to amplify the nature andambit of the Shiksha Mitra Scheme.Among them was a Government Orderdated 1 July 2001 by which it wasclarified that the scheme was not ascheme for employment in regular servicesince its object was to provide to educatedrural youth an opportunity to rendercommunity service at the level of primaryeducation. The Government Order alsocontemplated that persons would beselected on the basis of marks obtained inthe high school, intermediate, Bed/LT.

A5 Sarva Shiksha Abhiyan

18. On 31 July 2001, the UnionGovernment formulated the policy calledthe Sarva Shiksha Abhiyan12 touniversalize elementary educationthrough the provision of communityowned quality education in a missionmode. SSA was intended to provideuseful and relevant elementary educationfor all children in the age group of 6 to 14by 2010. Among the interventionscontemplated by SSA, was the provisionof one teacher for every forty children inprimary and upper primary schools. Para6.2 acknowledged that States possessedtheir own norms for recruitment ofteachers. States were left free to followtheir own norms as long as they wereconsistent with the norms established byNCTE.

A6 NCTE Regulations, 2001

19. On 4 September 2001, NCTE,while exercising its power to frame

Regulations, notified and issued theNational Council for Teacher Education(Determination of MinimumQualifications for Recruitment ofTeachers in Schools) Regulations, 2001.The Regulations provided forqualifications for teachers from the pre-school to the senior secondary stagesincluding for teachers of elementaryschools imparting instruction at theprimary and upper primary/middle schoolstages. The qualifications for recruitmentunder Rule 3 read with the First Schedulein respect of teachers of elementaryschools were defined in the followingterms:

"III. Elementary(a) Primary

(b) Upper Primary (Middle schoolsection)

(i) Senior Secondary Schoolcertificate of Intermediate or itsequivalent; and

(ii) Diploma or certificate in basicteachers training of a duration of not lessthan two years. OR

Bachelor of Elementary Education(B EI Ed)

(i) Senior Secondary Schoolcertificate or Intermediate or itsequivalent; and

(ii) Diploma or certificate inelementary teachers training of a durationof not less than two years.

ORBachelor of Elementary Education

(B EI Ed) OR Graduate with Bachelor ofEducation (B Ed) or its equivalent."

20. The Note appended to the FirstSchedule stipulated that for appointment


of teachers for primary classes, a basicteachers' training programme of two yearsduration was required and that the BEdwas not a substitute.

A7 Articles 21-A and 45 : TheEighty-sixty Amendment

21. The Eighty-sixth ConstitutionalAmendment substituted Article 45, whichforms a part of the Directive Principles ofState Policy. Article 45 lays down that theState shall endeavour to provide for earlychildhood care and education to childrenbelow the age of six years. Article 21-Aof the Constitution was also inserted bythe Eighty-sixth Amendment into theChapter on fundamental rights to stipulatethat the State shall provide free andcompulsory education to all children ofthe age of six to fourteen years in suchmanner as it may, by law, determine.

A8 Right of Children to Free andCompulsory Education Act, 2009

22. Parliament enacted the Right ofChildren to Free and CompulsoryEducation Act, 2009. The Act receivedthe assent of the President on 26 August2009 and came into force on 1 April2010. The long title to the Act providesthat it is an Act 'for free and compulsoryeducation to all children of the age of sixto fourteen years.' Consistent with thisambit, 'child' in Section 2(c) is defined tomean 'a male or female child of the age ofsix to fourteen years'. Chapter II of theAct makes a provision for the right to freeand compulsory education; Chapter III forthe duties of the appropriate government,local authority and parents; Chapter IVfor the responsibilities of schools andteachers; Chapter V for the curriculumand completion of elementary education;

Chapter VI for the protection of rights ofchildren; and Chapter VII formiscellaneous provisions. Section 23,which is a part of Chapter IV, provides asfollows:-

"23. Qualification for appointmentand terms and conditions of service ofteachers.-(1) Any person possessing suchminimum qualifications, as laid down byan academic authority, authorized by theCentral Government, by notification, shallbe eligible for appointment as a teacher.

(2) Where a State does not haveadequate institutions offering courses ortraining in teacher education, or teacherspossessing minimum qualifications as laiddown under sub-section (1) are notavailable in sufficient numbers, theCentral Government may, if it deemsnecessary, by notification, relax theminimum qualifications required forappointment as a teacher, for such period,not exceeding five years, as may bespecified in that notification:

Provided that a teacher who, at thecommencement of this Act, does notpossess minimum qualifications as laiddown under sub-section (1), shall acquiresuch minimum qualifications within aperiod of five years.

(3) The salary and allowancespayable to, and the terms and conditionsof service of, teachers shall be such asmay be prescribed."

A9 NCTE Regulations, 2009 :Open and Distance Learning

23. On 31 August 2009, NCTEissued the National Council for TeacherEducation (Recognition norms andProcedure) Regulations, 200913.Regulation 3 provides that theRegulations shall be applicable to all


matters relating to teacher educationprogrammes covering norms andstandards and procedures for recognitionof institutions, commencement of newprogrammes and addition to sanctionedintake in existing programmes and othermatters incidental thereto. Rule 5provided for the manner in which aninstitution eligible and desirous ofconducting a teacher educationprogramme could apply to the RegionalCommittee of NCTE for recognition.Provisions have been made in theRegulations for the manner in whichapplications would be processed, inregard to the conditions for the grant ofrecognition and allied matters. Among theAppendices to the Regulations,Appendix-9 provides for the norms andstandards for a diploma programme inelementary education through open anddistance learning, leading to a Diploma inElementary Education (D El Ed). Para 1of Appendix-9 provides the Preamble andthe rationale underlying the adoption ofopen and distance learning, thus:

"Preamble.-(i) The elementaryteacher education programme throughOpen and Distance Learning System isintended primarily for upgrading theprofessional competence of workingteachers in the elementary schools(primary and upper primary/middle). Italso envisages bringing into its fold thoseteachers who have entered the professionwithout formal teacher training.

(ii) The NCTE accepts open anddistance learning (ODL) system as auseful and viable mode for the training ofteachers presently serving in theelementary schools. This mode is usefulfor providing additional education supportto the teachers and several other

educational functionaries working in theschool system."

24. Clause 2 of Para 5 provides foreligibility of teachers entitled to be sentfor training in the following terms:

"(2) Eligibility(i) Senior Secondary (Class XII) or

equivalent examination passed with fiftypercent marks.

(ii) Two years teaching experience ina Government or Government recognizedprimary/elementary school."

A10 NCTE Notification dated 23August 2010

25. On 31 March 2010, NCTE wasdesignated as the authority under Section23(1) of the Act for laying down theminimum qualifications for appointmentas a teacher. On 6 July 2010, aGovernment Order was issued by theState Government taking note of ajudgment rendered by a Division Benchof this Court in Devi Prasad Vs State of UP14 to the effect that Shiksha Mitrascould not be accorded leave for thepurpose of acquiring higherqualifications. The Government Orderprovided that the Shiksha Mitras, if theyso desire, may obtain a higherqualification by pursuing correspondencecourses.

26. On 23 August 2010, NCTEissued a notification in exercise of powersconferred upon it, pursuant to theauthorisation of the Central Governmentunder Section 23(1), laying down theminimum educational qualifications for aperson to be eligible for appointment as ateacher for Classes I to VIII. Theminimum qualifications are as follows:


"1. Minimum Qualification.-(i) Classes I-V(a) Senior Secondary (or its

equivalent) with at least 50 % marks and2-year Diploma in Elementary Education(by whatever name known)

ORSenior Secondary (or its equivalent)

with at least 45% marks and 2-yearDiploma in Elementary Education (bywhatever name known), in accordancewith the NCTE (Recognition Norms andProcedure), Regulations 2002


with at least 50% marks and 4-yearBachelor of Elementary Education(B.El.Ed.)


with at least 50% marks and 2-yearDiploma in Education (Special Education)

AND(b) Pass in the Teacher Eligibility

Test (TET), to be conducted by theappropriate Government in accordancewith the Guidelines framed by the NCTEfor the purpose.

(ii) Classes VI-VIII(a) BA/BSc and 2-year Diploma in

Elementary Education (by whatever nameknown)

ORBA/BSc with at least 50% marks and

1-year Bachelor in Education (BEd)OR

BA/BSc with at least 45% marks and1-year Bachelor in Education (BEd), inaccordance with the NCTE (RecognitionNorms and Procedure) Regulations issuedfrom time to time in this regard


with at least 50% marks and 4-year

Bachelor in Elementary Education (B ElEd)


with at least 50% marks and 4-yearBA/BSc, Ed or BA, Ed/BSc, Ed

ORBA/BSc with at least 50% marks and

1-year BEd (Special Education)AND

(b) Pass in the Teacher EligibilityTest (TET), to be conducted by theappropriate Government in accordancewith the Guidelines framed by the NCTEfor the purpose." (emphasis supplied)

27. Clause 4 of the notification dealtwith the teachers who had been appointedprior to the date of the notification andprovided as follows:

"4. Teacher appointed before the dateof this Notification.- The followingcategories of teachers appointed forclasses I to VIII prior to date of thisNotification need not acquire theminimum qualifications specified in Para(1) above:

(a) A teacher appointed on or afterthe 3rd September, 2001 i.e. the date onwhich the NCTE (Determination ofMinimum Qualifications for Recruitmentof Teachers in Schools) Regulations, 2001(as amended from time to time) came intoforce, in accordance with that Regulation.

Provided that a teacher of class I to Vpossessing BEd qualification, or a teacherpossessing BEd (Special Education) orDEd (Special Education) qualificationshall undergo an NCTE recognized 6-month special programme on elementaryeducation.

(b) A teacher of class I to V withBEd qualification who has completed a 6-


month Special Basic Teacher Course(Special BTC) approved by the NCTE;

(c) A teacher appointed before the3rd September, 2001, in accordance withthe prevalent Recruitment Rules."

28. Clause 5 stipulates that where anappropriate government, local authority orschool had issued an advertisement forinitiating the process of appointment priorto the date of the notification,appointments could be made inaccordance with the Regulations of 2001.

29. The notification dated 23 August2010 basically stipulated two sets ofminimum qualifications. The first is aneducational qualification and the second atraining qualification. Apart from these,the notification has made the passing ofthe Teacher Eligibility Test15 mandatory;the test being required to be conducted bythe appropriate government in accordancewith the guidelines framed by NCTE. Forclasses I to V, the minimum educationalqualification prescribed is seniorsecondary (with a stipulated percentage ofmarks). The training qualification is adiploma in elementary education. Forclasses VI to VIII, the minimumeducational qualification is a bachelor'sdegree in arts or, as the case may be,science (with a stipulated percentage)coupled with a diploma in elementaryeducation or a bachelor's degree ineducation. For classes VI to VIII, a seniorsecondary is also treated as one of thepermissible qualifications, provided acandidate has a four year's bachelor'sdegree in elementary education. Both forteaching students of classes I to V and forimparting instruction to students ofclasses VI to VIII, the passing of the TETis made mandatory. The notification dated23 August 2010 was subsequently

amended by a notification dated 29 July2011. The minimum qualifications for aperson to be eligible for appointment asan Assistant Teacher contained in sub-paras (i) and (ii) of Para (I) of theprincipal notification were substituted.

30. Clause 4 of the notificationprovides for the categories of teachersappointed prior to the date of thenotification who were not required toacquire the minimum qualificationsspecified in Clause 1. Clause 4 basicallydeals with three categories. The firstcategory consists of teachers appointedafter 3 September 2001 which is the dateon which the Regulations of 2001 cameinto force. Teachers who were appointedprior to 23 August 2010 but "inaccordance with that Regulation"(meaning thereby the Regulations of2001) were exempted from the acquisitionof the minimum qualifications prescribedby Clause 1. The second categorycomprises of teachers of classes I to Vwith a BEd qualification who hadcompleted a six months Special BTCcourse approved by NCTE. The thirdcategory comprises of teachers appointedprior to 3 September 2001; such of themwho were appointed in accordance withthe prevalent recruitment rules, that is tosay, the rules in existence on the date ofthe appointment of the teacher, wereexempted from the requirement ofcomplying with the minimumqualifications prescribed in thenotification. After the date of thenotification, the minimum qualificationsbecame mandatory, save and except forthe exceptions which were carved out.Clause 5 is to the effect that where anadvertisement had been issued prior to thedate of the notification, the appointmentprocess could be completed on the basis


of the Regulations of 2001 which hadheld the field until then.

A11 Relaxation of minimumqualifications

31. On 8 November 2010, the UnionGovernment called upon the States tosubmit proposals, if any, for relaxation ofthe norms fixed by NCTE. The power ofrelaxation, it must be noted, was vested inthe Central Government alone by virtue ofthe provisions of sub-section (2) ofSection 23. The Union Government, by itscommunication to the State Governments,clarified that the requirement of holdingthe TET would not be relaxed. In order toenable the Union Government to exerciseits powers in a considered manner,information was specifically sought fromthe States on the following aspects in thecommunication:

"(a) Quantitative information as perthe format prescribed in the Annexure tothis Guideline;

(b) Nature of relaxation sought,separately for classes I to V and VI toVIII, along with justification;

(c) The time period for whichrelaxation is sought;

(d) The manner in which and thetime period within which the StateGovernment would enable teachers,appointed with relaxed qualification, toacquire the prescribed qualification;

(e) The manner in which and thetime period within which the StateGovernment would enable existingteachers, not possessing the prescribedqualification, to acquire the prescribedqualification. Reference in this regard isinvited to para 4 of the aforementionedNotification of the NCTE.

(f) Any other information the StateGovernment may like to furnish insupport of its request for seekingrelaxation under Section 23(2)."

A12 Proposal of State Governmentfor distance learning

32. On 24 December 2010, the StateGovernment addressed a communicationto the Union Government in the Ministryof Human Resource Development, bywhich it disclosed that 1,78,000 ShikshaMitras were working in the State, ofwhich 1,24,000 held graduate degrees.The State Government noted that theseShiksha Mitras had been appointed on acontractual basis with an intermediatequalification as the prescribed norm,whereas the required qualification forteachers engaged in primary schools inthe State was a graduate degree. The StateGovernment proposed a schedule forimparting training to 1,24,000 graduateShiksha Mitras and, for that purpose,sought the grant of permission so as toenable training to be commenced from2010-11.

A 13 Section 23(2) relaxation

33. On 10 September 2012, theUnion Government issued an order underSection 23(2) of the RTE Act of 2009, bywhich it granted a relaxation to thecategories of persons falling in Para 3 ofNCTE's notification dated 23 August2010. The categories of persons coveredby this category comprised of personswith BA/BSc degrees with at least 50%marks and BEd qualifications and personswith DEd (Special Education) or BEd(Special Education). The period forobtaining the minimum qualifications was


extended by the Central Government from1 January 2012 until 31 March 2014.

A14 Open and Distance Learningproposal: NCTE permission

34. On 3 January 2011, a revisedproposal was submitted by the StateGovernment for the training of ShikshaMitras to NCTE. The proposal envisagedthat there were 1,78,000 untrainedteachers (graduate Shiksha Mitras)engaged on a contract basis by VillageEducation Committees, working inprimary schools. Of these, it was statedthat 1,24,000 Shiksha Mitras weregraduates and if the untrained graduateShiksha Mitras were given teachertraining, the shortage of qualified teachersin schools would be met. The operationalplan which was envisaged by the State,provided that 62,300 untrained graduateShiksha Mitras would be imparted a twoyear BTC training during 2011-12 and2012-13, while the remaining 62,000would be trained in 2013-14 and 2014-15.The proposal envisaged that the trainingwould be imparted at seventy DistrictInstitutes of Education and Training(DIETs) and at twenty Block ResourcesCentres (BRCs).

35. On 14 January 2011, the NCTEspecifically on the basis of the permissionwhich was sought by the StateGovernment in terms of its letter dated 3January 2011, acceded to the proposal fortraining of untrained graduate ShikshaMitras and, for that purpose, forconducting a two year diploma inelementary education through the openand distance learning mode. NCTE,however, clarified in Clause 13 of itsletter that the State Government shallensure that no appointment of untrained

teachers is made in whatsoever manner.On 11 July 2011, details of the trainingprogramme were issued by the StateGovernment.

A15 Central Rules under RTE Act,2009

36. The Union Government hadissued the Right of Children to Free andCompulsory Education Rules, 201016,under the RTE Act 2009. The RTE Rulesof 2010 dealt with the acquisition ofminimum qualifications in Part VI. Rule17 empowered the Central Government tonotify an academic authority for layingdown the academic qualifications for aperson to be eligible as a teacher. Oncethe minimum qualifications wereprescribed, they would mandatorily applyto every school governed by Section 2(n)of the RTE Act of 2009. Rule 18 governsa relaxation of the minimum qualification,under which the State Government wasrequired to estimate its teachers'requirement in accordance with the normsprescribed in the Schedule for all schoolscovered by Section 2(n). Under sub-rule(2) of Rule 18, it is contemplated that theState Government could request theUnion Government for a relaxation of theprescribed minimum qualifications ineither of two eventualities, namely: (i)where the State did not have adequateinstitutions offering courses of training inteacher education; or (ii) the State did nothave adequate persons possessing theminimum qualifications notified underRule 17(2) by the authority authorised bythe Central Government. On receivingsuch a request, the Central Governmentwas empowered to specify the nature ofthe relaxation and the period of time, notexceeding three years but not beyond fiveyears from the commencement of the Act


within which the minimum qualificationswould have to be acquired. Sub-rule (5) ofRule 18 stipulated that after six monthsfrom the commencement of the Act, noappointment of a teacher for any schoolcan be made in respect of a person notpossessing the minimum qualificationsnotified in sub-rule (2) of Rule 17 withouta relaxation of qualifications under sub-rule (3). Rule 19 made it mandatory forthe State Government to provide adequatetraining facilities to ensure that allteachers in schools acquired the minimumqualifications within a period of five yearsfrom the commencement of the Act.

A16 State Rules under RTE Act2009

37. On 27 July 2011, the UPRTERules, 2011 were issued. The UPRTERules of 2011 which were framed by theState of Uttar Pradesh under the RTE Actof 2009 were in accordance with theprovisions which were contained in theCentral Rules. The salient provisions ofthe UPRTE Rules of 2011 were asfollows :

(i) Under Rule 15, the minimumeducational qualifications for teachers laiddown by an authority authorised by theCentral Government were to be applicableto every school under Section 2(n);

(ii) For the purpose of applying for arelaxation of the minimum qualificationsunder Section 23(2), Rule 16 envisagedthe same procedure as was contemplatedby Rule 18 of the Central Rules of 2010;

(iii) Rule 16 contemplated that theState Government could move the UnionGovernment for the grant of a relaxationof the minimum qualifications andprovides that no appointment of a teacherto any school could be made of a person

not possessing the minimum educationalqualifications without the issuance of anotification of relaxation by the CentralGovernment.

A17 State amendment to ServiceRules

38. The State Government by anotification dated 9 November 2011amended the Services Rules which wereframed in 1981 under the Basic EducationAct. By the Rules as amended, whichwere called the Uttar Pradesh BasicEducation (Teachers) Service (TwelfthAmendment) Rules, 2011, thequalifications which were prescribed inRule 8 were modified so as to make thepassing of the TET compulsory. This wasas mandated by the notification dated 23August 2010 issued by NCTE. Thenotification of the State Governmentdated 9 November 2011 provided thefollowing academic qualifications forappointment of an Assistant Teacher in ajunior basic school:

"(ii) Assistant Master and AssistantMistresses of Junior Basic Schools

Bachelors degree from a Universityestablished by law in India or a degreerecognised by the Government asequivalent thereto together with any othertraining course recognised by theGovernment as equivalent theretotogether with the training qualificationconsisting of a Basic Teacher's Certificate(BTC), two years BTC (Urdu) VishishtBTC and have passed teacher eligibilitytest conducted by the Government ofUttar Pradesh."

39. These amendments which weremade by the State Government were


intended to ensure that the qualificationswhich were prescribed in the ServiceRules of 1981 accord with the mandatoryrequirement of passing the TET whichwas stipulated by NCTE from 23 August2010.

A18 Amendments to NCTE Act

40. On 12 October 201117, theprovisions of the NCTE Act wereamended by Parliament by Amending Act18 of 2011 which was brought into forcewith effect from 1 June 2012. Theamendments, inter-alia, included anamendment to Section 1(3) to make theAct applicable to the followingcategories:

"(a) Institutions;(b)students and teachers of the

institutions;(c) schools imparting pre-primary,

primary, upper primary, secondary orsenior secondary education and collegesproviding senior secondary orintermediate education irrespective of thefact, by whatever names they may becalled; and

(d) teachers for schools and collegesreferred to in Clause (c)."

41. A definition was inserted inSection 2(ka) of the expression 'school' inthe following terms:

"(ka) "school" means any recognizedschool imparting pre-primary, primary,upper primary, secondary or seniorsecondary education or a collegeimparting senior secondary education, andincludes-

(i) a school established, owned andcontrolled by the Central Government, orthe State Government or a local authority;

(ii) a school receiving aid or grants tomeet whole or part of its expenses fromthe Central Government, the StateGovernment or a local authority;

(iii) a school not receiving any aid orgrants to meet whole or part of itsexpenses from the Central Government,the State Government or a localauthority."

42. These amendments to the NCTEAct were intended to clarify the intent ofParliament that the Act would apply toschools from the stage of pre-primaryeducation through to the senior secondaryor intermediate education covering alsoall stages between. Section 12-A wasintroduced into the NCTE Act to provideas follows:

"12-A. Power of Council todetermine minimum standards ofeducation of school teachers.- For thepurpose of maintaining standards ofeducation in schools, the Council may, byregulations, determine the qualificationsof persons for being recruited as teachersin any pre-primary, primary, upperprimary, secondary, senior secondary orintermediate school or college, bywhatever name called, established, run,aided or recognised by the CentralGovernment or a State Government or alocal or other authority;

Provided that nothing in this sectionshall adversely affect the continuance ofany person recruited in any pre-primary,primary, upper primary, secondary, seniorsecondary or intermediate school orcolleges, under any rule, regulation ororder made by the Central Government, aState Government, a local or otherauthority, immediately before thecommencement of the National Councilfor Teacher Education (Amendment) Act,


2011 solely on the ground of non-fulfilment of such qualifications as maybe specified by the Council:

Provided further that the minimumqualifications of a teacher referred to inthe first proviso shall be acquired withinthe period specified in this Act or underthe Right of Children to Free andCompulsory Education Act, 2009 (35 of2009)."

43. An amendment was also made toSection 32(2) so as to empower NCTE toframe regulations in regard to thequalifications of teachers under Section12-A, by the introduction of clause (dd) insub-section (2) of Section 32.

A19 ODL Training and absorption

44. On 14 July 2012, a GovernmentOrder was issued by the State of UttarPradesh recognising that various ShikshaMitras had obtained graduate degreesduring the course of their employment.The Government Order contemplated thatsuch persons would be imparted trainingthrough the mode of distance education.This was to apply to those candidates whohad obtained their graduate degrees by 25July 2012. On 7 February 2013, the StateGovernment issued a training schedule for64,000 Shiksha Mitras. The GovernmentOrder recorded that 60,000 ShikshaMitras had already received their training.The Government Order further referred tothe existence of an additional 46,000Shiksha Mitras who had passed theintermediate stage. The GovernmentOrder provided for the absorption of1,70,000 Shiksha Mitras (comprised of1,24,000 who had completed theirgraduate degrees and 46,000 who wereexpected to complete their graduation bySeptember 2015).

A20 Amendment to State RTERules

45. On 30 May 2014, the StateGovernment amended the UP RTE Rulesof 2011 by the First Amendment Rules,2014. By the amendment, the StateGovernment introduced a definition of theexpression 'Shiksha Mitra' to cover thoseShiksha Mitras who had been selected andwere working in accordance with theGovernment Orders in junior basicschools conducted by the Basic EducationBoard. Rule 16-A as introduced into theUP RTE Rules of 2011 by way ofamendment, is in the following terms:

"16-A. Notwithstanding anythingcontained in rules 15 and 16, the StateGovernment may, in order to implementthe provisions of the Act, by order makeprovisions for relaxation of minimumeducational qualification for appointmentof such Shiksha Mitras as AssistantTeachers in Junior Basic Schools as areconsidered otherwise eligible."

46. Rules 16-A contains a nonobstante provision. Under it, the StateGovernment assumed the power to relaxthe minimum educational qualificationsprescribed in the case of those ShikshaMitras who were considered to beotherwise eligible so as to facilitate theirappointment as Assistant Teachers injunior basic schools.

A21 Amendment to State ServiceRules

47. On 30 May 2014, the StateGovernment notified the amended ServiceRules of 1981. The amended Rules retainthe definition of the expression "teacher"in Rule 2(o) of the original Rules. The


expression 'teacher' is defined to mean 'aperson employed for impartinginstructions in nursery schools, basicschools, junior basic schools or seniorbasic schools'. The expression 'ShikshaMitra' is defined in Rule 2(v) as follows:

"(v) "Shiksha Mitra" means a personworking as such in junior basic schoolsrun by Basic Shiksha Parishad under theGovernment Orders prior to thecommencement of Uttar Pradesh Right ofChildren to Free and CompulsoryEducation Rules, 2011."

48. In the sources of recruitment inRule 5, a provision is now made in theRules, as amended, for the appointment ofShiksha Mitras. Rule 5, as amended, readsas follows:

"5. Sources of recruitment- Themode of recruitment to the variouscategories of posts mentioned below shallbe as follows:

(a) (i) Mistresses of Nursery School(ii)Assistant Masters and Assistant

Mistresses of Junior Basic SchoolsBy direct recruitment as provided in

rules 14 and 15;By direct recruitment as provided in

rules 14 and 15;orBy appointment of such Shiksha

Mitras as are engaged as Shiksha Mitraand working as such on the date ofcommencement of the Uttar PradeshBasic Education (Teachers) (NineteenthAmendment) Rules, 2014."

49. In Rule 6, the upper age limit inthe case of a Shiksha Mitra is provided assixty years. Rule 8, which defines thequalifications for eligibility for

appointment of an Assistant Teacher in ajunior basic school, has been amended soas to provide as follows:

"(ii)Assistant Master and AssistantMistresses of Junior Basic Schools

(ii) (a) Bachelors degree from aUniversity established by law in India or adegree recognized by the Governmentequivalent thereto together with any othertraining course recognised by theGovernment as equivalent theretotogether with the training qualificationconsisting of a Basic Teacher's Certificate(BTC), two years BTC (Urdu), VishishtBTC and teacher eligibility test passed,conducted by the Government or by theGovernment of India;

(b) a Trainee Teacher who hascompleted successfully six months specialtraining programme in elementaryeducation recognized by NCTE;

(c) A Shiksha Mitra who possessedBachelors degree from a Universityestablished by law in India or a degreerecognized by the Government equivalentthereto and has completed successfullytwo years distant learning BTC course orBasic Teacher's Certificate (BTC), BasicTeacher's Certificate (BTC) (Urdu) orVishist BTC conducted by the StateCouncil of Educational Research andTraining (SCERT)." (emphasis supplied)

50. The striking aspect is theabsence of a requirement for a ShikshaMitra to hold a TET certificate. Thisrequirement is made mandatory byNCTE. In fact in the State Service Rulesof 1981, it has been applied in clause (a)to other teachers holding a bachelor'sdegree and a basic teacher's certificate buthas been consciously omitted in the caseof Shiksha Mitras.


51. Rule 14(6)(a) envisages theappointment of Shiksha Mitras againstsubstantive posts of Assistant Teachers.Rule 14(6)(a) contemplates that allShiksha Mitras shall be appointed againstsubstantive posts of Assistant Teachers injunior basic schools after obtaining acertificate of the successful completion ofthe two years' distance education BTCcourse, or other equivalent coursesstipulated therein. Rule 14(6)(a) providesas follows:

"14(6)(a)-The Shiksha Mitra afterobtaining the certificate of successfulcompletion of two years distant BTC courseor Basic Teacher's Certificate (BTC), BasicTeacher's Certificate (BTC) (Urdu) orVishisht BTC conducted by State Council ofEducational Research and Training (SCERT)shall be appointed as assistant teachers injunior basic schools against substantive post.To appoint the Shiksha Mitras as assistantteachers in junior basic schools, theappointing authority shall determine thenumber of vacancies including the number ofvacancies to be reserved for candidatesbelonging to the Scheduled Castes, theScheduled Tribes, Other Backward Classesand other categories under rule 9."

52. Rule 14(6)(b) provides that theappointing authority shall draw a list ofShiksha Mitras possessing the prescribedqualification in Rule 8. Under Rule14(6)(c), the names of Shiksha Mitras areto be drawn up in an ascending orderaccording to their dates of birth. Thesystem of providing for quality pointmarks, which is mandatory for othercategories, has not been prescribed forShiksha Mitras.

A22 NCTE Regulations, 2014

53. On 12 November 2014, NCTEissued the National Council for TeacherEducation (Determination of MinimumQualification for Persons to be recruitedas Education Teachers and PhysicalEducation Teachers in Pre-primary,Primary, Upper Primary, Secondary,Senior Secondary or Intermediate Schoolsand Colleges) Regulations, 2014. TheRegulations of 2014 provide that forprimary classes (classes I to VIII), theminimum qualifications shall be those ashave been laid down by NCTE by itsnotification dated 23 August 2010, asamended from time to time. Regulation 5empowers NCTE, on receipt of areference from the State Government, torelax the provisions of the Regulationssubject to satisfaction of the existence ofspecial circumstances. However, theproviso to Regulation 5 stipulates that norelaxation shall be granted with regard tothe minimum qualifications forappointment of teachers for classes I toVIII as specified in the Schedule.

54. Now, it is in this backgroundthat we would have to consider the natureof the challenge in these proceedings.

PART B : Submissions

B1 Area of challenge

55. Broadly, the area of challenge inthese proceedings has traversed fourareas, which are:

(i) The nature of the appointment ofShiksha Mitras and the object and purposeof the selection;

(ii) The validity of the notificationwhich has been issued by NCTE on 14January 2011 accepting the request of theState Government for the grant of training


through the open and distance learningmode to graduate Shiksha Mitras;

(iii) The process of relaxation andabsorption of Shiksha Mitras which isstated to have commenced on 14 January2011; and

(iv) The exemption which has beengranted from the passing of the TET bythe State Government by amending theService Rules of 1981.

56. The submissions which havebeen urged on behalf of the petitionerscan now be summarised:

B2 Submissions for the petitioners

(I) The Service Rules framed by theState Government in 1981 to governteachers employed in schools conductedby the Basic Education Board containstatutory requirements in regard to thecreation of the cadre, possession ofqualifications, applicability ofreservations, pay scales, and conditionsfor relaxation of the requirementcontemplated in the Rules. These Rulesuniformly govern the services of allteachers who were employed in juniorbasic schools;

(II) The object and purpose of theShiksha Mitra Scheme which was adoptedby a Government Order dated 26 May1999 would indicate that these wereessentially contractual appointmentswhich were not made against sanctionedposts. In the case of Shiksha Mitras: (a)there was no requirement of obtaining ateacher's training certificate and thequalification prescribed was onlyintermediate in comparison with agraduate qualification required forregularly appointed teachers; (b)appointments were made at the villagelevel, failing which at the unit of the Nyay

Panchayat; and (c) the appointments wereenvisaged to be for a contractual term ofeleven months with a renewalcontemplated in the event of satisfactoryservice. Every person appointed asShiksha Mitra was placed on notice of thefact that the appointment was not in thenature of a regular employment in theservice of the State but was anappointment of a stipulated duration forthe purpose of enabling the personengaged to render community service;

(III) The appointments of ShikshaMitras were clearly de hors the statutoryService Rules of 1981 which have heldthe field at all material times;

(IV) After the enforcement of theRegulations by NCTE on 3 September2001 under the provisions of the NCTEAct, minimum qualifications required forappointment as a primary school teacherwere to be stipulated. Between 3September 2001 and 23 August 2010,when NCTE issued its notification underthe RTE Act of 2009, no Shiksha Mitrafulfilled the training qualificationprescribed under the central regulations.Upon the enforcement of the notificationdated 23 August 2010, every primaryschool teacher was required to complywith the minimum qualificationsprescribed by NCTE. Shiksha Mitras didnot fall within the purview of theexemption granted either by clause (4) orby clause (5) of the notification dated 23August 2010;

(V) The Regulations framed in 2009by NCTE permitting the grant of atraining qualification through the openand distance learning mode, properlyconstrued, apply to a person who isvalidly appointed as a teacher. A 'workingteacher' as defined in Appendix-9 to theRegulations of 2009 would govern aperson whose appointment has been


validly made under the applicablerecruitment rules. In the context of the1981 Service Rules which have held thefield in the State of U P, this would coveronly those teachers who were appointedafter relaxing the norms governingeligibility and qualifications under Rule10;

(VI) The proposal which wassubmitted by the State Government toNCTE for training of untrained ShikshaMitras was for the provision of training to1,24,000 graduate Shiksha Mitras.NCTE's approval dated 14 January 2011was in response to this proposal of theState Government of 3 January 2011 forthe training of graduate Shiksha Mitras.Yet, when the Government issued aGovernment Order dated 27 July 2012, itincorporated, in addition, training for46,000 Shiksha Mitras who were onlyintermediate passed persons and were notcovered by the permission which wasgranted by NCTE. The State violated thepermission which was granted by NCTEwhich did not cover training through theopen and distance learning mode toShiksha Mitras;

(VII) The guidelines which havebeen framed by the Central Governmentunder Section 35(1) of the RTE Act of2009 on 8 September 2010 specificallyprovide that there can be no exemptionfrom the acquisition of a TET as aminimum qualification for eligibility as aprimary school teacher. The notificationissued by NCTE on 23 August 2010makes the holding of a TET certificate amandatory requirement. Initially, whenthe State Government framed RTE Rulesin 2011 under the RTE Act of 2009, theRules followed the Central Rules of 2010.The Central Rules as well as the originalRules of 2011 framed by the StateGovernment were made in view of the

provisions of Section 23(2) of the RTEAct of 2009 which vests the power togrant a relaxation only in the CentralGovernment. Initially, the StateGovernment also amended the ServiceRules of 1981 to bring them intoconformity with the notification dated 23August 2010 issued by NCTE by makingthe holding of a TET qualificationmandatory. However, as a result ofsuccessive amendments which have beenmade to the Service Rules of 1981 as wellas to the UP RTE Rules of 2011, the StateGovernment has arrogated to itself thepower to grant an exemption from theholding of minimum qualifications. Thisis a power which can be exclusivelyexercised by the Central Government andby the Central Government alone. Theassumption of such a power by the StateGovernment under Rule 16-A, as newlyinserted, is ultra vires the provisions ofSection 23(2) of the NCTE Act;

(VIII) The State Government hassimultaneously purported to amend theService Rules of 1981 so as to provide forthe absorption of all Shiksha Mitras. Theabsorption of Shiksha Mitras is inviolation of the principles which havebeen laid down by the Hon'ble SupremeCourt in Secretary, State of Karnataka VsUmadevi (3)18 and by a long line ofprecedents which has emerged thereafter.The State Government has purported toabsorb 1,70,000 Shiksha Mitras in theface of the fact that these appointmentswere (i) made contrary to and de hors theService Rules of 1981 which govern theservices of teachers in junior basicschools; (ii) not made against sanctionedposts; (iii) in breach of the normal rule ofrecruitment and selection which apply toregularly appointed teachers; (iii) madewithout following norms of reservationsin regard to the Schedule Castes,


Scheduled Tribes and Other BackwardClasses and other categories includinghorizontal reservation. The grant ofregularisation or, as the case may be,absorption is fundamentally violative ofArticles 14 and 16 of the Constitution;and

(IX) The Union Government in itscounter affidavit which has been filed inthese proceedings has indicated that therecan be no exemption from passing theTET. NCTE has in its counter affidavitspecifically made a grievance of the factthat the State Government had notinformed it as to whether Shiksha Mitraswere regularly appointed teachers or wereappointed only for a specified duration.

B3 Submissions for the StateGovernment

57. The learned AdditionalAdvocate General, who has addressedarguments on behalf of the State, hasurged the following submissions:

(I) The Scheme which was envisagedby the State Government of appointingShiksha Mitras was in order to implementthe provisions of Article 45 of theConstitution and in pursuance of thepolicy of SSA which was implemented bythe Union Government. This will not fallwithin the mischief of the back door entryprinciple which has been laid down by theSupreme Court;

(II) Shiksha Mitras are teachers likeother teachers in the service of the Stateand are engaged for imparting teaching ininstitutions conducted by the BasicEducation Board since 1999. All ShikshaMitras fall within the definition of theexpression 'teacher' as provided in theService Rules of 1981. Hence, they wouldbe beneficiaries of clauses (4) and (5) of

the notification issued by NCTE on 23August 2010. As against a sanctionedstrength of 3,28,220 teachers, there is aworking strength of 2,32,136 AssistantTeachers including 1,70,000 ShikshaMitras. There are 96,084 vacancies atpresent of which 87,825 vacancies havebeen advertised;

(III) Appointments of Shiksha Mitraswere made in pursuance of therecommendations of Village EducationCommittees which have a statutory statusunder the provisions of Section 11 of theBasic Education Act of 1972;

(IV) Appendix-9 to the Regulationsframed by NCTE in 2009 for open anddistance learning courses provided for theimparting of training to 'workingteachers'. Working teachers would meannot only teachers regularly employed bythe State in pursuance of the ServiceRules of 1981 but would also coverShiksha Mitras. The eligibility asspecified in Appendix-9 is a seniorsecondary certificate. Consequently, therewas no infraction on the part of the StateGovernment in mooting a proposal beforeNCTE for the training of Shiksha Mitras.The correspondence on the record wouldindicate that before the NCTE granted itsapproval on 14 January 2011, the StateGovernment had mooted a proposal on 10August 2010 which was followed up on24 December 2010 and 3 January 2011and by discussions with the officials ofthe Ministry of Human ResourceDevelopment of the Union Government.In seeking permission for the grant oftraining to Shiksha Mitras through theopen and distance learning mode, theState Government duly disclosed thatthese were contractual appointments ofpersons who did not, at the relevant time,hold the qualifications prescribed in theService Rules of 1981. There was no


suppression of fact from the UnionGovernment;

(V) The main objective ofundertaking the training course was todeal with a shortage of teachers in theState of Uttar Pradesh which wasremedied by training 1,70,000 ShikshaMitras;

(VI) Shiksha Mitras engaged by theState Government, albeit on a contractualbasis, were persons who fulfilled thequalifications prescribed in theRegulations of 2001 and in Appendix-9 ofthe Regulations of 2009 framed byNCTE, save and except for the trainingrequirement which they did not possess.Subsequently, the training requirementhas been duly completed in accordancewith the permission granted by NCTE on14 January 2011;

(VII) Approval and relaxation havingbeen granted by a body competent to doso, there is no illegality in theirabsorption;

(VIII) The purpose of the guidelinesissued by the Union Government on 2February 2011 for conducting the TETunder Section 35 has been fulfilled by theState Government by imparting trainingqualifications and hence, there is noillegality in the deviation made by theState Government from the norm ofpassing the TET;

(IX) Shiksha Mitras have worked fornearly 16 years and there was nothingarbitrary in the decision of the StateGovernment seeking to absorb them intoregular service. The mode of recruitmenthas been amended in the Rules so as tobring Shiksha Mitras into regular serviceof the State in pursuance of its Scheme;and

(X) The amendments made to theService Rules of 1981 are not ultra vires.

B4 Submissions of NCTE

58. The learned counsel appearingfor the NCTE has submitted that:

(I) NCTE was not apprised of thetrue nature and character of theappointment of Shiksha Mitras. ShikshaMitras had evidently been appointed inviolation of the Service Rules of 1981 andtherefore their absorption was clearlyunjustified;

(II) NCTE is the body/academicauthority enjoined to prescribe theminimum qualifications required ofteachers working in schools covered bythe RTE Act. NCTE did not and neverintended to exempt teachers in primaryschools from obtaining the TETcertification;

(III) The Central Government by itsorder dated 10 September 2012 hasclarified that TET as a qualification hasnot been relaxed;

(IV) The amendments made in theService Rules of 1981 are clearly beyondthe domain of the state authorities as thepower of relaxation stands reservedexclusively in favour of the CentralGovernment under the provisions of theRTE Act;

(V) Admittedly the appointment ofShiksha Mitras was contractual for aperiod of 11 months and therefore it wasincorrect to describe them as untrainedteachers. Acquiring the TET qualificationis essential with reference to the aims andobjects of the RTE Act and the need foradherence to a national standard andbenchmark liable to be possessed by allpersons aspiring to be appointed asteachers of primary schools; and


(VI) There is no challenge to theinclusion of TET as a qualification eitherby the State or by the Shiksha Mitras.

B5 Submissions of Shiksha Mitras

59. The submissions which havebeen urged before the Court by thelearned Additional Advocate Generalhave been followed and adopted bylearned counsel appearing on behalf of therespondent Shiksha Mitras.

60. The submissions urged by thesupporting learned counsel aresummarised hereafter:

(1) The proviso to Section 12-Awould cover persons, such as the ShikshaMitras in the State of Uttar Pradesh. Theeffect of Section 12-A is that theirservices should not be adversely affectedby the introduction of a statutoryprovision empowering NCTE to lay downminimum qualifications for appointmentof teachers of primary schools;

(2) NCTE obtained the power toframe Regulations under Section 12-A bythe amendment of 2011 and actuallyexercised that power by notifyingRegulations on 16 December 2014.Section 12-A contemplates that theremust be a Regulation under thesubstantive provision. The proviso toSection 12-A protects the continuance ofany person recruited under an order of theState Government whose services wouldnot be adversely affected solely on theground of non fulfillment of qualificationsspecified by NCTE. However, thequalifications would have to be acquiredwithin the period specified in the RTEAct of 2009. Before NCTE notified itsRegulations on 16 December 2014, theShiksha Mitras had obtained their

bachelor's degrees, and the trainingqualifications with permission of NCTE;

(3) There was no imbalance in theprinciple of reservation in the recruitmentof Shiksha Mitras since, broadly, theappointments of Shiksha Mitras followedthe same category for which the post ofGram Pradhan was reserved in the case ofeach Gaon Sabha; 3

(4) Shiksha Mitras were not recruitedthrough the back door but by theprocedure prescribed by the State itself;and

(5) Clause (4) of the notificationissued by NCTE contemplates the grant ofan exemption to persons with a BEd(Special Education) and DEd (SpecialEducation) qualification. These are notqualifications maintained in theRegulations of 2001. Since such personswere basically untrained and have yetbeen given an exemption from therequirement of passing the TET, ShikshaMitras should, by parity of reasoning, beentitled for the same benefit.

61. Moreover, it has also been urgedthat, as a part of the exercise which hasbeen conducted by the Court in theseproceedings, the following issues wouldrequire determination:

(1) Whether the appointment ofShiksha Mitras in pursuance of theGovernment Order dated 26 May 1999was of a statutory character;

(2) Whether the State Governmentdid have the power, by virtue of Section13(1) of the Basic Education Act 1972and having due regard to the provisions ofEntry 25 of the Concurrent List to theSeventh Schedule, to issue theGovernment Order dated 26 May 1999;

(3) Whether the Government Orderdated 26 May 1999 can be regarded as a


valid exercise of power under Article 162of the Constitution, where the ServiceRules of 1981 were silent in regard to theappointment of untrained teachers;

(4) Whether the Village EducationCommittees had a statutory character byvirtue of Section 11 of the U P BasicEducation Act, 1972;

(5) Whether the appointment ofShiksha Mitras can be regarded as beingmade against substantive posts, since thenumber was determined in the ratio ofstudents to teachers in the proportion of1:40;

(6) Whether the permission grantedby NCTE on 14 January 2011 is a validpermission under Section 16(3)(d) of theNCTE Act;

(7) Whether the petitioners could beregarded as being persons aggrieved tochallenge the permission granted byNCTE;

(8) Whether the effort on the part ofthe State to grant training to untrainedteachers can be regarded as a reasonableeffort and not mala fide;

(9) Whether the appointment ofShiksha Mitras has been duly protected bythe proviso to Section 12-A and could bevalidly brought into the regular cadre ofAssistant Teachers by amendment of theService Rules of 1981;

(10) Whether the power of NCTE tolay down minimum qualifications couldonly be exercised by framing Regulationsunder Section 32 of the NCTE Act; and

(11) Would the effect of the insertionof Section 12-A suspend the effect andoperation of the notification dated 23August 2010.

PART C : ANALYSIS

62. The submissions now fall forconsideration.

C1 Nature of appointment ofShiksha Mitras

63. The Uttar Pradesh BasicEducation Act was enacted in 1972 toregulate the imparting of education up tothe eighth standard. The Board of BasicEducation was constituted by the Act toregulate the imparting of basic educationteachers' training and the conduct of basictraining certificate examinations. When itwas enacted, the Act envisaged transfer ofcontrol over basic schools from ZilaParishads in the rural areas and theMunicipal Boards and Mahapalikas in theurban areas to the Basic Education Board.Subsequently, as we have noted, by theamendment which the state legislaturebrought about in 2000, statutory duties inregard to the conduct of basic educationincluding control over basic schools wastransferred to gram panchayats andmunicipalities subject to the over allcontrol of the State Government. Whenthe State Government formulated theUttar Pradesh Basic Education (Teachers)Service Rules 1981, specific provisionswere made in regard to the services ofteachers to be engaged for impartinginstruction in basic schools, junior basicschools or senior basic schools. Thejunior and senior basic schools coveredthe entire canvas of primary educationfrom classes I to VIII. The Service Rulesof 1981 contemplate the creation of aseparate cadre of service for each localarea under Section 4. Consistent with thenorm of government control over basiceducation, the strength of the cadre of theteaching staff for each local area and thenumber of posts in the cadre are requiredto be determined by the Board of BasicEducation with the previous approval ofthe State Government. Recruitment to theposts of Assistant Teachers in junior basic


schools is to take place by directrecruitment as provided in Rule 5(a)(2).Rule 8 spells out the academicqualifications required for appointment ofAssistant Teachers in a junior basicschool. As it was originally framed, therequirement was of an intermediatequalification and a basic teacher'scertificate or a qualification equivalent.Since under the Rules, cadres to governthe service of teachers of basic schoolswere created, a provision is made in Rule9 for reservation for the ScheduledCastes, Scheduled Tribes, OtherBackward Classes as well as for othercategories provided in governmentalorders including dependents of freedomfighters and ex-servicemen. Rule 10stipulates the grant of a relaxation infavour of certain specified categoriesfrom the age and qualification norms laiddown in the rules as well as in regard tothe procedural requirements forrecruitment. The Rules contain specificprovisions in regard to the manner inwhich the appointing authority woulddetermine the number of vacancies, theextent of vacancies reserved, the mannerin which vacancies would be advertised,the placement of candidates for thepurpose of selection, the constitution ofSelection Committees and the manner ofappointment. Provisions are also made inregard to other consequential matters ofan essential nature associated with theconstitution of a service includingseniority, placement on probation,confirmation, scales of pay andsuperannuation. In the case of teachersrecruited through direct recruitment forteaching a language, the Rules make aprovision for a written examination andthe evaluation of candidates on the basisof marks obtained in the examination andquality points. This is the statutory

framework which has consistently heldthe field in the State of Uttar Pradesh atall material times after the Service Rulescame to be framed in 1981.

64. The Shiksha Mitra Scheme wasintroduced by the Government Orderdated 26 May 1999. Clause 1 deals withthe concept of Shiksha Mitra. It providesthat a person possessing educationalqualifications upto intermediate level beengaged by the Village EducationCommittee constituted under the Act of1972 Act on a contractual basis and on thepayment of honorarium taking intoconsideration the local requirement at theGram Sabha level. Such a person shall becalled a Shiksha Mitra. Clause 7 providesthat the engagement of a Shiksha Mitrawould be only for an academic year on acontractual basis and the engagementshall automatically come to an end on 31May.

65. The subsequent GovernmentOrder dated 1 July 2001, however,provides that the term of a Shiksha Mitracan be extended provided the teachingwork and conduct are found to besuitable. This Government Order alsocontains two proformas. The first is inregard to the application to be submittedby a Shiksha Mitra for seekingengagement, while the second is inconnection with the acceptance letter tobe submitted by a Shiksha Mitra. Theapplication to be submitted requiresapplicants to mention that they areapplying for seeking engagement incommunity service. The acceptance letterrequires the applicant to specifically statethat he/she would perform teaching workas a social worker and will not considerhimself or herself to be in theemployment of the State


Government/Board. The applicant hasalso to state that for this social service,he/her would not claim any wages andwould be entitled only to payment ofhonorarium.

66. The essential characteristics ofthe Shiksha Mitra Scheme envisaged,firstly, that each appointment was madeon a contractual basis for a stipulated termof eleven months, renewable subject tosatisfactory performance and on anhonorarium. Secondly, the Scheme, asnotified, contemplated that theengagement of Shiksha Mitras was not inthe regular service of the State, as indeedit could not have been, having due regardto the provisions of the Service Rules of1981 which held the field in regard to theconstitution of a cadre of teachersimparting basic education and regularlyengaged for that purpose. Thirdly, each ofthe persons appointed as Shiksha Mitraswas placed on notice of the fact that thiswas a Scheme envisaging service by theunemployed youth for the benefit of thecommunity against the payment of anhonorarium. Shiksha Mitras were notentitled to the payment of a salary in theregular pay scale but would only receive aMandeya (honorarium). The applicationform which every prospective candidatewas required to fill up in terms of theGovernment Order dated 1 July 2001,envisaged a statement of acceptance thatthe candidate would be bound by theterms and conditions governing theScheme. The consent form required to befilled in by every candidate envisaged thathe/she would not be treated as a regularemployee of the State Government andwould only be entitled to the payment ofhonorarium. Moreover, Clause 3 of Form-II appended to the Government Orderstipulated that the training which was

imparted to a candidate was only toenable him or her to render communityservice in the capacity of a Shiksha Mitra.Fourthly, appointments as Shiksha Mitraswere not against sanctioned posts asdetermined by the Board of BasicEducation with the previous approval ofthe State Government under Rule 4 of theService Rules of 1981. Fifthly, themanner of making appointments and theprocedure for recruitment was not inconformity with the provisions containedin Rules 14, 15, 16 and 17 of the ServiceRules of 1981. Instead, what the ShikshaMitra Scheme envisaged, was thatappointments should be made by VillageEducation Committees at the village level.At the district level, there was aCommittee chaired by the DistrictCollector and consisting, inter alia, of theDistrict Panchayat Raj Officer and theBasic Education Officer. The DistrictLevel Committee was constituted tooversee the implementation of theScheme in the district. Sixthly, thequalification which was prescribed forappointment as a Shiksha Mitra under theGovernment Order dated 26 May 1999was the possessing of an intermediatequalification. Prior thereto, an amendmentwas made in the Service Rules on 9 July1998 by which Rule 8 was amended toprescribe the holding of a graduate degreefor appointment as a regular teacher.Under the Service Rules of 1981, aregular teacher was required to alsopossess a basic teacher's certificate. Thiswas not a requirement for Shiksha Mitrasunder the Government Order. ShikshaMitras did not fulfill the qualifications fora regular teacher under the Service Rulesof 1981. Seventhly, the manner in whichreservations were to be worked out underthe Rules of 1981 was evidently not themanner in which reservations in the


recruitment of Shiksha Mitras wouldoperate. At the highest, what has beenurged before the Court by the AdditionalAdvocate General and supporting counselis that the selection of Shiksha Mitras atthe village level envisaged that a ShikshaMitra to be appointed should belong tothe same category as the Gram Pradhan,thereby resulting in a rough and readyadoption of the norm of reservation. Thisis certainly not the manner in which thepolicy of reservation as envisaged by theState is implemented in the case ofregularly selected candidates, includingby the application of the roster andimplementing horizontal and verticalreservations. Rule 9, it must be noted,envisages reservation not only for theScheduled Castes, Scheduled Tribes andOther Backward Classes, but othercategories also including the dependentsof freedom fighters and ex-servicemen.Moreover, the orders of the StateGovernment also contemplate horizontalreservation across various classes. Theseaspects leave no manner of doubt that theengagement of Shiksha Mitras wasenvisaged under an administrative schemeby the State Government on a contractualbasis with a specified purpose and objectand de hors the governing provisions ofthe applicable Service Rules of 1981.

67. The object and purpose ofengaging Shiksha Mitras, the learnedAdditional Advocate General statedbefore the Court, was to implement theSarva Shiksha Abhiyan in relation to theState of Uttar Pradesh. While notifyingthe SSA policy, the Union Government,in fact, envisaged a mission mode for theprovision of community owned modalitiesfor propagating universal elementaryeducation. SSA acknowledged that Stateshad their own norms for recruitment of

teachers and would consequently be freeto follow their own norms so long as theywere consistent with the normsestablished by NCTE.

68. The fact that the number ofpersons engaged as Shiksha Mitras mayhave been determined on an application ofa teacher-student ratio of 1:40, is not anindicator that the Shiksha Mitras wereappointed to sanctioned posts. They didnot belong to the regular cadre and werecontractual appointees. They were notappointed against sanctioned posts. TheUnion Government, in formulating SSA,envisaged the application of the Gujaratmodel of recruitment of fully trainedteachers on fixed pay, as an interimstrategy in states with large scale teachervacancies. The policy was envisaged toimprove the accountability of teachersvis-a-vis the local community withoutdiluting the standards for selection ofteachers as laid down from time to timeby NCTE. Persons who were engaged asShiksha Mitras in the State of UttarPradesh were engaged on the basis oftheir possessing only the intermediatequalification, without possessing acertificate of training as prescribed byRule 8 of the Service Rules of 1981. Bythe time Sarva Shiksha Abhiyan wascirculated as a policy for implementationby the Union Ministry of HumanResource Development on 31 July 2001,the Regulations of 3 September 2001 hadalso been notified by NCTE. The SSApolicy document, therefore, clearlyenvisaged that there would be no dilutionof the standard for selection of teachers aslaid down from time to time by NCTE.

69. The nature of the appointment ofShiksha Mitras in the State of UttarPradesh came up for consideration before


a Full Bench of this Court in Km SandhyaSingh Vs State of Uttar Pradesh19. TheFull Bench held as follows:

"It could not be disputed by thepetitioners that the scheme for appointmentof Shiksha Mitra came into being throughthe government orders i.e. executiveinstructions. To put it differently, thepetitioners' appointment/selection iscontractual appointment as Shiksha Mitra.Meaning thereby, there is no statutorybacking to the petitioners' claim. Thepetitioners' argument proceeds on thefooting that the post of Shiksha Mitra is acivil post and is governed by the principleof statutory service rules. The scheme itselfprovides that a person shall be allowed tofunction as Shiksha Mitra under a contractfor a fixed period which will come to an endon 31st of May of the next year. Nohonorarium shall be payable for the monthof June. The scheme shows that it willcommence in the month of July of each yearand will end on 31st of May i.e. for elevenmonths. By modification it has beenprovided that if nothing is there against aperson he may continue as Shiksha Mitrafor the next academic session, subject toreceiving a short refresher training. All thiscumulatively shows that the tenure ofShiksha Mitra is a fixed term tenure,maximum up to the period of eleven monthswhich, of course, in view of the subsequentamendments by the Government Order canbe renewed for subsequent academicsessions."

70. The Full Bench cited withapproval the observations contained in ajudgment of a Division Bench of thisCourt presided over by Chief Justice H LGokhale (as His Lordship then was) inSanjay Kumar Singh Vs State of U P20,where it was held as follows:

"Everybody is forgetting that thescheme of Shiksha Mitra is to spreadeducation and it is not a scheme foremployment. What is being given is anhonorarium to the concerned teacher. Theappointment comes to an end at the end ofthe academic year, with right to continueif the performance is good."

71. These observations of theDivision Bench in Sanjay Kumar Singh'scase and of the Full Bench in KmSandhya Singh are we say with respect, acorrect assessment of the Shiksha MitraScheme.

The submission which has beenurged on behalf of the State and by someof the supporting counsel, is that Section11 of the U P Basic Education Act, 1972contemplates the constitution of VillageEducation Committees. This does notrender the Shiksha Mitra Scheme astatutory scheme. The function of VillageEducation Committees as defined in sub-section (2) of Section 11 is to establish,administer, control and manage basicschools in the Panchayat area and todischarge such other functions pertainingto basic education as may be entrusted bythe State Government. This, in ouropinion, does not render the Scheme ofappointing Shiksha Mitras of a statutorynature or character. If such a Scheme wasto be intended to have a statutory flavour,there could have been no escape from therequirement of complying with the normswhich govern the regular teachers of basicschools as prescribed in the Service Rulesof 1981. On the contrary, compliance withthe Service Rules of 1981 was sought tobe obviated by engaging barefootvolunteers across the State on acontractual basis for which anadministrative scheme was envisaged


under the Government Order dated 26May 1999. Similarly, the power of theState Government to issue directions tothe Board of Basic Education in Section13 was not the power which the StateGovernment wielded while issuingdiverse Government Orders that governthe Shiksha Mitra Scheme. The power toissue directions under Section 13 couldnot have been exercised contrary to theprovisions of the Service Rules of 1981which were made by the StateGovernment in exercise of thesubordinate law-making power. Even if itis held that Village Education Committeeswere entrusted with the duty of selectingShiksha Mitras in pursuance of theprovisions of Section 11(2)(g), the factremains that appointments of ShikshaMitras were independent of and notsubject to the discipline of the provisionsof the Service Rules of 1981. Neither wasthe engagement against sanctioned postsnor were the provisions for recruitmentenvisaged in the Service Rules of 1981followed. They were not qualifiedcandidates. Understanding the true natureand purpose of Shiksha Mitras lies at theheart of the dispute in the present case.

72. Having elaborated on this aspect,it would now be necessary to deal withthe regulatory provisions contained,firstly in the NCTE Act and the laterenactment of the RTE Act of 2009.

C2 NCTE Act 1993 and RTE Act2009: The effect of Section 23

73. The NCTE Act, 1993 wasenacted by Parliament in order to achieveplanned and coordinated developed ofteacher education. The expression 'teachereducation' in Section 2(l) coversprogrammes of education, research or

training in order to equip individuals toteach at the pre-primary, primary,secondary and senior secondary stages,and to include non-formal education, part-time education, adult education andcorrespondence education. NCTE, as astatutory body, is constituted inaccordance with the provisions of ChapterII of the Act to ensure planned andcoordinated development of teachers andfor maintenance of norms and standardsof teacher education. The functions ofNCTE under Section 12 are not confinedto primary education alone and this wouldassume significance having due regard tothe ambit and sweep of the NCTE Actwhen it is considered in juxtaposition tothe RTE Act of 2009 which was madespecifically in the context of providing theright of free and compulsory elementaryeducation. The powers of NCTE underthe NCTE Act, 1993 include the grant ofrecognition to teacher educationinstitutions for which provisions are madeunder Chapter IV. By the Act, NCTE isgiven a substantive power to frameRegulations in Section 32. Included in therange of its regulatory powers in clause(d) of sub-section (2) of Section 32 is thepower to lay down norms, guidelines andstandards in respect of the minimumqualifications for a person to be appointedas a teacher and in respect of specifiedcategories of courses or training in teachereducation under clause (e) of Section 12.A broad range of statutory powers isentrusted to NCTE in the legislationenacted by Parliament in 1993. The rangeof its functions is evident from the natureof the subjects brought within the controlof NCTE by Section 12.

74. NCTE framed, on 3 September2001, Regulations in the exercise of itsstatutory powers. In the Regulations


which were notified and published in theGazette of India on 4 September 2001,NCTE laid down qualifications for therecruitment of teachers including at theelementary level. The elementary levelincluded primary school teachers wherethe prescribed qualification was (i) asenior secondary school certificate orintermediate or its equivalent and (ii) adiploma or certificate in basic teacher'straining of a duration of not less than twoyears or a bachelor's degree in elementaryeducation. For the upper primary sections,the prescribed educational qualification isthe same as for the primary level and adiploma or certificate in elementaryteachers training of a duration of not lessthan two years or a graduate degree with aBachelor of education or its equivalent. Ina Note which is appended to the FirstSchedule, NCTE clarified that forteaching in primary schools, a basicteachers training programme of two years'duration is required and that the BEd isnot a substitute. The striking aspect,insofar as the present case is concerned, isthat Shiksha Mitras who were engagedafter 1999 did not when they wereappointed fulfill the requirement whichwas spelt out in the NCTE Regulations of3 September 2001. None of them fulfilledthe requirement of a two year basicteachers training certificate.

75. Parliament enacted the RTE Actof 2009 to implement the provisions ofArticle 21-A of the Constitution whichmandates the State to provide free andcompulsory education to all childrenbetween the ages of six and fourteen. Thedefinition of the expression 'child' inSection 2(c) covers children in this agegroup and the expression 'elementaryeducation' in Section 2(f) makes itabundantly clear that education from

classes I to VIII forms the subject matterof the enactment of 2009.

76. Section 23 of the RTE Act of2009 provides in sub-section (1) foreligibility for appointment as a teacher.Under sub-section (1) of Section 23, to beeligible for appointment as a teacher, aperson has to possess such minimumqualifications as are "laid down" by anacademic authority authorised by theCentral Government by a notification.NCTE was designated as the authorityunder sub-section (1) on 31 March 2010.Sub-section (2) of Section 23 recognisesthat a state may not have adequateinstitutions offering courses or training inteacher education. Sub-section (2) alsoconstitutes an acknowledgement byParliament of a situation where teacherspossessing the minimum qualificationslaid down under sub-section (1) may notbe available in sufficient numbers in astate. Having due regard to thiseventuality, the Central Government wasstatutorily vested with the authority undersub-section (2) to relax the minimumqualifications laid down under sub-section(1) for appointment as a teacher. TheCentral Government was left with thediscretion to define the period over whichthe relaxation is to remain operativesubject to the stipulation that this wouldoperate for a period not exceeding fiveyears. The proviso to sub-section (2) ofSection 23 envisages that a teacher who,at the commencement of the Act, does notpossess the minimum qualifications aslaid down in sub-section (1) wouldacquire them within a period of five years.The provisions contained in sub-section(1) and those in the substantive part ofsub-section (2) and the proviso compriseof a composite statutory scheme. By sub-section (1), an authority which is notified


by the Central Government is to prescribequalifications defining the conditions ofeligibility for appointment as a teacher.Under sub-section (2), the CentralGovernment is permitted to grant arelaxation of those qualifications for aperiod of not more than five years. Whilethe laying down of qualifications isentrusted to the authority under sub-section (1), the power to grant a relaxationis conferred upon the Central Governmentunder sub-section (2). The proviso dealswith those teachers who, on the date ofthe commencement of the Act, did notpossess minimum qualificationsprescribed under sub-section (1) and tosuch teachers a window of five years wasgranted to acquire the minimumqualifications.

77. The Central Governmentauthorised the NCTE as the academicauthority to lay down the minimumqualifications for a person to be eligiblefor appointment as a teacher by anotification dated 31 March 2010 issuedin exercise of the powers conferred bySection 23 (1) of the RTE Act of 2009.NCTE notified the minimumqualifications required for appointment asa teacher in terms of sub-section (1) ofSection 23 by its notification on 23August 2010 defining eligibility forappointment as a teacher to classes I toVIII in a school covered by Section 2(n)of the RTE Act of 2009. The minimumqualifications prescribed by NCTEenvisaged broadly (i) a senior secondarycertificate; (ii) a diploma in elementaryeducation; and (iii) passing of the TET tobe conducted by the appropriategovernment in accordance with NCTEguidelines. These were the qualificationsprescribed for teachers of classes I to Vand corresponding qualifications were

also prescribed in the notification dated23 August 2010 in relation to teachers ofclasses VI to VIII. Both for teachers ofclasses I to V and for those of classes VIto VIII, NCTE made the passing of theTET mandatory. Clause 3 of thenotification provided for a post-appointment training under an NCTErecognized six month special programmein elementary education in the case of twocategories: the first being for those with aBA/BSc degree and BEd qualification,and the second for those with a BEd(Special Education) or DEd (SpecialEducation).

78. While laying down the minimumqualifications in clause (1) of thenotification, NCTE dealt in Para 4 withthe issue of those teachers appointed forclasses I to VIII prior to the date of thenotification. In their case, it was mandatedthat acquisition of minimumqualifications in Para 1 would not benecessary in three categories. The firstcategory was of teachers appointed on orafter 3 September 2001 when theRegulations of 2001 had come into force,in accordance with those Regulations. Theexpression 'in accordance with thatRegulation' meant that in order to avail ofthe benefit of clause (a) of Para 4, ateacher had to be appointed in accordancewith the Regulations of 3 September 2001and after the date of enforcement of theRegulations. To be a teacher appointed"in accordance with that Regulation", aperson had to have both the educationalqualifications prescribed (seniorsecondary school certificate orintermediate or an equivalent) and adiploma or certificate in basic teacherstraining (for primary classes fromstandard I to V.) Similarly, in the case ofa teacher of the upper primary classes for


standards VI to VIII, the teacher wasrequired to possess both a seniorsecondary school certificate orintermediate or its equivalent and either adiploma or certificate in elementaryteachers' training of two years or agraduation with BEd or its equivalent. Inother words, in order to avail of thebenefit of clause (a) of Para 4 of thenotification dated 23 August 2010, themandatory condition was that theappointment had to be made after 3September 2001 in accordance with theRegulations.

79. The second category to which itwas provided that the minimumqualification would not apply, wereteachers of classes I to V with a BEdqualification who had completed a sixmonths' special BTC course approved byNCTE.

80. The third category comprised ofteachers appointed before 3 September2001. These teachers were appointedbefore the Regulations came to be notifiedfor the first time by NCTE under theNCTE Act of 1993. Teachers appointed inaccordance with the prevalent recruitmentrules were governed by clause (c) of Para4 of the notification.

81. The notification dated 23 August2010 was subsequently amended by anotification dated 29 July 2011. Theminimum qualifications for a person to beeligible for appointment as an AssistantTeacher contained in sub-paras (i) and (ii)of Para (I) of the principal notificationwere substituted.

82. Evidently, Shiksha Mitras couldnot either seek the benefit of clause (a) orclause (c) of Para 4 of the notification

dated 23 August 2010. They were notteachers appointed in accordance with theRegulations of 3 September 2001 since,admittedly they did not possess the BTCqualification. Moreover, Shiksha Mitrasdid not have the benefit of clause (c) ofPara 3 since any appointment made priorto 3 September 2001 had to be inaccordance with the prevalent recruitmentrules. The engagements of Shiksha Mitraswere de hors the recruitment rules andwere not in accordance with the ServiceRules of 1981 which apply toappointments of basic teachers in theState of Uttar Pradesh. The proviso tosub-section (2) of Section 23 governspersons who are teachers and who, at thecommencement of the RTE Act of 2009,did not possess the minimumqualifications prescribed under sub-section (1). They were given a period offive years to acquire the minimumqualifications. The proviso would governpersons who were recruited as teachers inthe State of Uttar Pradesh under the Actand the Service Rules of 1981 and canhave no application to Shiksha Mitras.

C3 Amendments of 2011 to NCTEAct

83. Now, at this stage, it would benecessary for the Court to dwell, briefly,on the legislative history which led to theamendments to the NCTE Act of 1993 in2011.

84. In Basic Education Board, UttarPradesh Vs Upendra Rai21, a Bench oftwo learned Judges of the Supreme Courtheld that the NCTE Act deals only withteachers training institutions and hadnothing to do with ordinary educationalinstitutions, such as primary schools, highschools and intermediate colleges. The


view which was taken was thatqualifications for appointment as teachersin 'ordinary' educational institutions, likeprimary schools, could not be prescribedunder the NCTE Act. The correctness ofthe judgment in Upendra Rai was referredto a larger Bench of the Supreme Court inIrrigineni Venkata Krishnanand VsGovernment of Andhra Pradesh22.

85. During the pendency of thereference to the Bench of three learnedJudges of the Supreme Court, Parliamentenacted Amending Act 18 of 2011 toprovide for the insertion of Section 12-Ainto the NCTE Act of 1993. Section 12-Acontemplates that NCTE may byRegulations determine the qualifications ofpersons for being recruited as teachers inany pre-primary, primary, upper primary,secondary, senior secondary or intermediateschools or colleges run, aided or recognisedby the Central Government, StateGovernment or a local authority. Section12-A was introduced by Parliament toexplicitly provide for a power in NCTE of anature that the Act had contemplated in thepower to frame regulations under Section32(2)(d). The Statement of Objects andReasons accompanying the introduction ofthe Bill in Parliament clarified that theintent of Parliament in introducing theamendment was of a clarificatory nature.The proviso to Section 12-A stipulated thatnothing in the Section shall affect adverselythe continuance of any person recruitedunder a rule, regulation or order of theCentral or State Government or local orother authority, immediately before thecommencement of the Amending Act, onthe ground of non-fulfillment of suchqualifications as may be prescribed by theNCTE. However, the minimumqualifications were required to be acquiredwithin the period specified under the NCTE

Act or under the RTE Act of 2009. Theeffect of the proviso was to ensure thatwhile NCTE was recognised to possess aregulatory power to determine thequalifications for recruitment of teachersincluding in primary or upper primaryschools, the insertion of Section 12-Awould, by itself, not affect the continuanceof a person who was recruited in pursuanceof rules, regulations or orders of thegovernment or authority concerned. Section12-A was a provision which was introducedby way of abundant caution so as not toaffect the continuance of such persons.Section 12-A is not a validation of theappointments of Shiksha Mitras nor, for thatmatter, does it elevate the engagements ofsuch persons from a pure contractual levelto anything higher. Section 12-A is intendedto ensure that the objection to the regulatorypower of NCTE over teachers ofeducational institutions other than teachertraining institutions which had foundacceptance in a judgment of two learnedJudges of the Supreme Court in UpendraRai, was placed beyond the pale ofcontroversy. Hence, when the referencebefore a larger Bench of the Supreme Courtcame up for consideration, the Bench ofthree learned Judges held that, as a result ofthe subsequent amendments, the questionswhich were referred to the larger Bench hadbecome academic and did not require anyanswer. Section 12-A does not deal with thenature of the appointments of ShikshaMitras nor does it place them on a higher orsurer legal footing than as contractualappointees.

C4 Training imparted to ShikshaMitras

86. The next aspect of the matterwhich needs to be analysed is the trainingwhich was imparted to Shiksha Mitras in


the State of Uttar Pradesh in pursuance ofthe permission which was granted byNCTE on 14 January 2011. NCTE framedRegulations in 2009 to prescriberecognition norms and procedures.Regulation 3 provides that theRegulations apply to all matters related toteacher education programmes coveringnorms, standards and procedure forrecognised institutions, thecommencement of new programmes andthe addition of sanctioned intake toexisting programmes. Appendix-9 to theRegulations of 2009 lays down standardsfor a diploma in elementary educationthrough the open and distance learningsystem. As the Preamble to Appendix-9indicates, this was intended primarily forupgrading the professional competence of"working teachers" in elementary schoolsand for bringing into its fold thoseteachers who had entered into theprofession without formal teachertraining. NCTE accepted the open anddistance learning system as a viable modefor the training of teachers presentlyserving in the elementary schools and foradditional educational support to theteachers and educational functionariesworking in the school system. Eligibilityis defined in sub-clause (2) of Clause 5 ofAppendix-9 to cover (i) senior secondary(class XII) or equivalent examinationspassed with fifty percent marks; and (ii)two years' teaching experience in agovernment or government recognisedprimary/elementary school.

87. The State Government movedthe Central Government for the grant ofpermission on 24 December 2010 inwhich it disclosed the functioning of 1.78lac Shiksha Mitras of whom 1,24,000were stated to be graduates. The StateGovernment indicated in its letter that

these persons were engaged on a contractbasis and with a stipulation of a minimumqualification of intermediate though,under the service rules, the prescribedqualification was a graduate degree.Subsequently, on 3 January 2011, arevised proposal was submitted whichenvisaged training being imparted to1,24,000 graduate Shiksha Mitras out of atotal complement of 1,70,000. Thepermission which was granted by NCTEon 14 January 2011 was specifically inthe context of the request made on 3January 2011 for granting permission forthe training of 1,24,000 untrainedgraduate Shiksha Mitras. Eventually, whatseems to have transpired was that theState Government issued a GovernmentOrder on 14 August 2012 so as to providefor training to those Shiksha Mitras whohad acquired graduate degrees by 25 July2012. However, it is not in dispute beforethis Court that training was imparted notonly to graduate Shiksha Mitras who werewithin the terms of the permission grantedby NCTE by its letter dated 14 January2011, but also to 46,000 Shiksha Mitrasholding the intermediate qualificationwhich was not within the purview of thepermission which was granted by NCTEon 14 January 2011. NCTE had notpermitted the State of U P to train thenon-graduate Shiksha Mitras through theopen and distance learning methodology.NCTE, we must note, has stated in itscounter affidavit filed in theseproceedings, that it was not specificallyapprised of the nature of the engagementof Shiksha Mitras by the State. Thecounter affidavit which has been filed byNCTE, insofar as is material, reads asfollows:

"That the rationale for including theT.E.T. as minimum qualification for a


person to be eligible for appointment as ateacher is that it would bring nationalstandards and benchmark to qualityteaching before the recruitment process iscompleted for appointing a candidate as atrained teacher.

That it is pertinent to mention herethat since the State Authorities have notclearly sent the report that initialengagement of Shiksha Mitras was for aperiod of 11 months, as such thenomenclature of these Shiksha Mitras asuntrained teacher was not in consonancewith the provisions so issued after theRight of Children to Free and CompulsoryEducation Act, 2009 came into effect."

The State has disputed this.

88. However, the fact which remainsis that the NCTE did not proceed to revokethe permission which was granted by it on14 January 2011 at any stage. The eligibilityqualification prescribed in Appendix-9 isintermediate. Hence, at this stage, this Courtdeems it inappropriate, in the consideredexercise of its writ jurisdiction under Article226 of the Constitution, to issue a directionwhich would have the effect of nullifying orabrogating the training qualifications whichhave been imparted to a large body ofpersons by the State Government. However,this would not preclude NCTE from dulyverifying compliance with the conditionsprescribed by it and particularly whether thetraining imparted is in accord with NCTEnorms and standards.

C5 Amendments to the State RTERules 2011 and the Service Rules of1981

89. That leads the Court to the finalaspect of the matter which relates to theamendment made by the State

Government in the RTE Rules of 2011framed under the RTE Act 2009 and inthe Service Rules of 1981.

90. The basic premise with whichthe discussion on this aspect mustcommence is that under Section 23(2) ofthe RTE Act 2009, the power to grant arelaxation from the minimumqualifications which are laid down byNCTE is vested exclusively in the CentralGovernment. Parliament while enactingthe legislation has carefully envisagedthat minimum qualifications would beprescribed by NCTE under sub-section(1) of Section 23. The nature and extentof the relaxation under sub-section (2) isto be determined by the CentralGovernment. In deciding whether to granta relaxation, the guiding principles arelaid down in the substantive part of sub-section (2). The Central Government hasto determine whether or not the state hasadequate institutions offering courses ortraining in teacher education or teacherspossessing the minimum qualifications aslaid down under sub-section (1).

91. The Central Government hasexercised powers under sub-section (2) ofSection 23 on 10 September 2012. TheUnion Ministry of Human ResourceDevelopment, in its notification, hasgranted a relaxation until 31 March 2014only in respect of persons referred to insub-clause (a) of Clause (1) of Para 3 ofthe notification dated 23 August 2010 asamended. This category covers personswith BA/BSc degrees with at least fiftypercent marks and holding a BEdqualification. While issuing a notificationon 10 September 2012 for the purpose ofrelaxing the qualifications under Section23(2) in regard to a limited category ofpersons, the Central Government has also


clarified that this shall be a 'one timerelaxation' and that no further relaxationunder Section 23(2) shall be granted inthe State of Uttar Pradesh. The UnionGovernment has also directed that theState Government shall take steps toincrease institutional capacity forpreparing persons with specifiedqualifications so as to ensure that onlypersons possessing the qualifications laiddown under the said notification areappointed as teachers for classes I to Vafter 31 March 2014. No relaxation hasbeen granted by the Central Governmentin terms of the provisions of sub-section(2) of Section 23 to obviate complianceby Shiksha Mitras with the minimumqualifications laid down. NCTE has alsoissued Regulations on 12 December 2014under the NCTE Act stipulating that thequalifications for primary and upperprimary teachers shall be those asprescribed by its notification dated 23August 2010 under Section 23(1) of theRTE Act of 2009.

92. Rules were formulated by theCentral Government in 2010 under theRTE Act of 2009. The Rules beingsubordinate legislation could not have anddid not prescribe any norm at variancewith what was prescribed under sub-section (2) of Section 23. Rules 15, 16and 17 of the Rules framed by the StateGovernment in 2011 under the RTE Actof 2009 envisage that (i) the StateGovernment would move the CentralGovernment for relaxation of theprescribed minimum qualifications ifteachers possessing the prescribedminimum qualifications are not available;and (ii) no appointment of a teacher forany school shall be made in respect of aperson not possessing the minimumeducational qualifications prescribed

under Rule 15 without a notification ofthe Central Government under sub-rule(3) of Rule 16.

93. What has happened in the Stateof Uttar Pradesh is that the StateGovernment, in a clear violation of themandate of Section 23(2) which vests thepower to relax the minimumqualifications in the Central Government,has arrogated to itself a power which itlacks, to grant exemption from themandatory qualifications which are laiddown by NCTE in their application toShiksha Mitras in the State. The StateGovernment has, in our view, acted inclear violation of its statutory powers.Parliament has legislated to provide, in nouncertain terms, that any relaxation of theminimum educational qualifications canonly be made by the Central Government.However, Rule 16-A which has beenintroduced by the State Government by anotification dated 30 May 2014 purportsto provide a non-obstante provision whichwill operate notwithstanding anythingcontained in Rules 15 and 16 of the StateRules. Rules 15 and 16 of the State Ruleswere originally formulated in a mannerconsistent with the provisions of Section23(2) and the provisions contained inRules 17 and 18 of the Central Rules of2010. However, as a result of theintroduction of Rule 16-A, the StateGovernment has assumed to itself thepower to make provisions for relaxing theminimum educational qualifications forappointment of Shiksha Mitras asAssistant Teachers in junior basic schools"as are considered otherwise eligible andin order to implement the provisions ofthe Act". There can be no manner ofdoubt that far from implementing theprovisions of the Act, the StateGovernment by its amendment of the


subordinate legislation has purported tonegate the very object and purpose of theRTE Act of 2009.

C6 Extent of the rule-makingpower

94. The provisions of Section 38 ofthe RTE Act of 2009 confer a rule makingpower on the appropriate government. Inexercise of the above powers the Statehad framed the Uttar Pradesh Right ofChildren to Free and CompulsoryEducation Rules, 2011. A reading of sub-section (2) of Section 38 establishes thatthe only clause which could be said totouch upon the issue raised before uswould be clause (l) thereof.

95. Clause (l) confers a power uponthe State to frame rules on the followingsubject matter:

"The salary and allowances payableto, and the terms and conditions of serviceof, teacher, under sub-section (3) ofSection 23.'

Sub-section (3) of Section 23provides as follows:

"(3) The salary and allowancespayable to, and the terms and conditionsservice of, teacher shall be such as may beprescribed."

96. The power to frame a rule likeRule 16-A as inserted by the UttarPradesh Right of Children to Free andCompulsory Education (FirstAmendment) Rules, 2014 is liable to betested in the above background.

97. The power to fix qualifications isconferred upon an authority to bedesignated by the Central Governmentunder sub section (1). The power to relaxas we have found stands conferred upon

the Central Government alone under sub-section (2) of Section 23. The subject ofqualification of teachers and relaxationthereof stands encompassed in sub-sections (1) and (2) of Section 23.

98. In our view, the subject matter ofqualification of teachers cannot fall withinthe expression "salary and allowances" or"terms and conditions of service" asemployed in sub-section (3) of Section23. This is not just because the"qualification of teachers" would not fallwithin the above expressions whenaccorded their plain and literal meaningbut also on account of the fact that thepower to fix such qualifications stoodconferred on two different authoritiesspecified as such in sub-sections (1) and(2) of Section 23. The field thus stoodoccupied completely. Obviously,therefore, when the State framed a ruleunder Section 38(2)(l), the same could nothave been utilized to fix a qualification orto relax one fixed by the authority undersub-section (1). For these reasons also weare unable to sustain the provision madein Rule 16-A.

C7 Extent of State power underArticle 162 to order regularisation

99. In State of UP Vs NeerajAwasthi23, the Supreme Court consideredthe issue of a State direction refusing toaccord approval to a regulation sought tobe framed for regularization of illegalappointments. The Supreme Courtapproved the principles enunciated in thefollowing cases:

(a) A Umarani Vs Registrar, CoopSocieties24 where it was held that:

"45. No regularization is, thus,permissible in exercise of statutory powerconferred under Article 162 of the


Constitution if the appointments havebeen made in contravention of thestatutory rules."

(b) Mahendra L Jain Vs IndoreDevelopment Authority25 where it washeld that:

"... An illegal appointment cannot belegalized by taking recourse toregularization. What can be regularized isan irregularity and not an illegality..."

In Neeraj Awasthi, the SupremeCourt observed that:

"57. If no appointment could bemade by the State in exercise of its powerunder Article 162 of the Constitution asthe same would be in contravention of thestatutory rules, there cannot be any doubtwhatsoever that the Board or for thatmatter the Market Committee cannotmake an appointment in violation of theAct and Regulations framed thereunder."

C8 Experience on the job is not asubstitute for qualification

100. The contention that theexperience gained by Shiksha Mitras overthe course of their engagement shouldobviate the need of obtaining the essentialqualification cannot be accepted for morethan one reason. Firstly, the essentialqualification must be held by the personon the date of entry into the service. If theentry be preceded by a selection process itis liable to be tested with reference to thedate of advertisement. Viewed from anyangle, the Shiksha Mitras did not possessthe requisite qualification on either of therelevant cut off dates. Secondly, theexperience that may have been gained bya person has never been construed as asubstitute for an essential qualificationthat is statutorily prescribed. Acceptanceof this contention would have graveramifications, fall foul of settled

precedent on the subject and be againstthe basic tenets of Article 16 andprinciples governing public employment.

101. While dealing with a similarcontention, the Supreme Court in State ofM P Vs Dharam Bir26 observed:

"31. The plea that the Court shouldhave a "human approach" and should notdisturb a person who has already beenworking on this post for more than adecade also cannot be accepted as theCourts are hardly swayed by emotionalappeals. In dispensing justice to thelitigating parties, the courts not only gointo the merits of the respective cases,they also try to balance the equities so asto do complete justice between them.Thus the courts always maintain a humanapproach. In the instant case also, thisapproach has not been departed from. Weare fully conscious that the respondenthad worked on the post in question forquite a long time but it was only in ad hoccapacity. We are equally conscious that aselected candidate who also possessesnecessary educational qualification isavailable. In this situation, if therespondent is allowed to continue on thispost merely on the basis of his concept of"human approach", it would be at the costof a duly selected candidate who wouldbe deprived of cleared the selection. Infact, it is the "human approach" whichrequires us to prefer the selectedcandidate over a person who does notpossess even the requisite qualification.The Courts as also the Tribunal have nopower to override the mandatoryprovisions of the Rules on sympatheticconsideration that a person, though notpossessing the essential educationalqualifications. should be allowed tocontinue on the post merely on the basis


of his experience. Such an order wouldamount to altering or amending theStatutory provisions made by theGovernment under Article 309 of theConstitution.

32. "Experience" gained by therespondent on account of his working onthe post in question for over a decadecannot be equated with dducationalqualifications required to be possessed by acandidate as a condition of eligibility forpromotion to higher posts. If theGovernment, in exercise of its executivepower, has created certain posts, it is for itto prescribe the mode of appointment or thequalifications which have to be possessedby the candidates before they are appointedon those posts. The qualifications wouldnaturally vary with the nature of posts or theservice created by the Government."

C9 Significance of TET

102. The importance of the TET andits mandatory nature and character havebeen dealt with in a judgment of a FullBench of this Court in Shiv KumarSharma Vs State of U P27. The FullBench has observed as follows:

"...the purpose of a teacher eligibilitytest is to ensure that the candidateclaiming himself to be possessed of suchattributes and abilities, has actuallyacquired his academic and trainingqualifications genuinely. The capacity ofa candidate claiming to be possessed ofthe educational and training qualificationshas therefore to be screened to treat himto be qualified and then eligible for beingappointed as a teacher. This is in tunewith the object of 2009 Act to providegood and quality education at theelementary level with the aid of the bestteachers. If the Council, duly authorisedby the Central Government, has

prescribed this norm which is for thepurpose of ensuring the implementationof the Act, then the argument that theprescription is ultra vires to Section 23 ofthe Act has to be rejected."

103. The Full Bench has held thatthe object of the TET is to ensure that ateacher is qualified in the field which he isabout to enter. Affirming the view whichwas taken in an earlier judgment of aDivision Bench, the Full Bench affirmedthe power of NCTE to prescribequalifications and held that after thecoming into force of the RTE Act of 2009and the prescription of qualifications byNCTE, the State is not a free agent to doas it wills. The failure of the StateGovernment to timely implement thequalifications which were laid down byNCTE, it was held, would not dilute ortake away the impact of the notificationwhich was mandatory. In the view of theFull Bench:

"...In our opinion, however, merelybecause the State incorporated theseprovisions in its rules later on would nottake away the impact of the normsprescribed by the National Council forTeacher Education that stood enforcedw.e.f. 23.8.2010. The delegatedlegislation of the State Government wassubject to the primary legislation of theCentral Government. The framing of rulesas a subordinate legislation is subservientto the provisions framed by the CentralGovernment. The notification dated23.8.2010 therefore has an overridingeffect and it could not have been ignored.If the State Government has proceeded tomake appointments after 23.8.2010without complying with the provisions ofteacher eligibility test then suchappointments would be deficient in suchqualification."


104. The State Government couldnot have been unaware of the law laiddown by the Full Bench of this Court.Yet, the effect of the amendment whichwas brought in by the introduction ofRule 16-A is to negate the prescription ofnorms laid down by NCTE and to allowthe State Government to grant arelaxation. This power is conferred notupon the State Government by the statutebut upon the Central Government.

C10 Validity of amendment to theService Rules of 1981

105. On 30 May 2014 - the sameday on which the UPRTE Rules of 2011were amended, the State Governmentamended the Service Rules of 1981.Significantly, even the Service Rules, asamended, continue with the samedefinition of a teacher in Rule 2(o) tomean 'a person employed for impartinginstructions in nursery schools, basicschools, junior basic schools or seniorbasic schools. By and as a result of anamendment to Rule 5, an additionalsource of recruitment has been providedby allowing the appointment of suchShiksha Mitras as were engaged and wereworking on the date of thecommencement of the amended Rules of2014. By Rule 6, as amended, the upperage limit for the engagement of ShikshaMitras has been enhanced to sixty years.As a result of the amendment of Rule 8,the requirement of passing the TET hasbeen completely done away with in thecase of Shiksha Mitras. For therecruitment of Assistant Teachers fromamongst Shiksha Mitras, it has beenprovided that the only requirement wouldbe the possession of a bachelor's degreeand the completion of a two year distancelearning BTC course or a course

equivalent thereto. The State Governmenthas acted ultra vires the scope of thestatutory powers conferred upon it bylaying down qualifications forappointment of Shiksha Mitras asAssistant Teachers in direct conflict withwhat has been prescribed by NCTE bothin pursuance of its powers under Section23(1) of the RTE Act, 2009 (by thenotification dated 23 August 2010) and inpursuance of its power to frameRegulations under Section 32 (2) of theNCTE Act of 1993 (by the Regulations of12 December 2014 which adopt thenotification dated 23 August 2010 forprimary and upper primary teachers). Theprescription of qualifications by the StateGovernment by an amendment of itsservice rules in conflict with the minimumqualifications prescribed by NCTE is ultravires. NCTE has the sole and exclusiveauthority to prescribe minimumqualifications. The encroachment by theState Government on the domain ofNCTE is illegal and ultra vires.

106. Rule 14(6)(a) provides thatShiksha Mitras, after the completion oftwo years' training through the distanceBTC course, would be appointed asAssistant Teachers in junior basic schoolsagainst substantive posts. The appointingauthority is under a mandate under clause(b) of Rule 14(6) to prepare a list of suchShiksha Mitras who possess theprescribed qualifications. Their names areto be arranged in ascending order on thebasis of their dates of birth.

107. The object and purpose ofintroducing the TET is to ensure that ateacher who embarks upon instructingstudents of primary and upper primaryclasses is duly equipped to fulfil the needsof the students, understands the relevance


of education for a child at that stage andcan contribute to the well roundeddevelopment of the child. Teaching achild is not merely a matter of providinginformation. Deeply embedded in theprocess of imparting education issensitivity towards the psyche of thechild, the ability to understand theconcerns of a young student of that age,the motivations which encourage learningand the pitfalls which have to be avoided.The emphasis on clearing the TET is toensure the maintenance of quality inimparting primary education. Theserequirements which have been laid downby NCTE fulfil an important publicpurpose by ensuring a complement oftrained teachers who contribute to thelearning process of children and enhancetheir growth and development. Theserequirements should not be viewedmerely as norms governing therelationship of a teacher with the contractof employment. These norms are intendedto fulfil and protect the needs of thosewho are taught, namely, young children.India can ignore the concerns of itschildren only at the cost of a grave peril tothe future of our society. The effort of theState Government to by-pass wellconsidered norms which are laid down byNCTE must be disapproved by the Court.We have done so on the ground that theState Government lacks the legislativepower and competence to do so. Equally,fundamental is the concern that arelaxation of the norms prescribed by anexpert body will result in grave detrimentto the development and growth of ouryoung children and the provision ofquality education to them. Providingquality education is crucial for studentsbelonging to every strata of society.Education which is provided in schoolsconducted by the Basic Education Board

should not be allowed to degenerate intoeducation of poor quality which it will, ifthe norms which are prescribed by anexpert body under legislation enacted byParliament in the national interest areallowed to be ignored by the StateGovernment on the basis of parochial orpopulist perceptions. Such an attempt isultra vires the statutory powers of theState and is arbitrary and violative ofArticle 14 of the Constitution.

C11 Validity of absorption

108. The issue before the Court is inregard to the legality of the absorption.Articles 14 and 16 of the Constitutionprovide for equality in matters of publicemployment. The limit on the power ofthe State to grant regularization wasconsidered by a Constitution Bench of theSupreme Court in a judgment in Secretaryof State of Karnataka Vs Umadevi(supra). Emphasizing the principle of the'rule of equality' in public employment,the Constitution Bench Court held asfollows:

"...Thus, it is clear that adherence tothe rule of equality in public employmentis a basic feature of our Constitution andsince the rule of law is the core of ourConstitution, a Court would certainly bedisabled from passing an order upholdinga violation of Article 14 or in ordering theoverlooking of the need to comply withthe requirements of Article 14 read withArticle 16 of the Constitution. Therefore,consistent with the scheme for publicemployment, this Court while layingdown the law, has necessarily to hold thatunless the appointment is in terms of therelevant rules and after a propercompetition among qualified persons, thesame would not confer any right on the


appointee. If it is a contractualappointment, the appointment comes to anend at the end of the contract, if it were anengagement or appointment on dailywages or casual basis, the same wouldcome to an end when it is discontinued."(emphasis supplied)

109. The Supreme Court held thatthere may be cases where certainappointments were not illegal but wereirregular. These are situations where anappointment has been made (i) of dulyqualified persons; and (ii) in dulysanctioned vacant posts and theemployees would have continued to workfor more than ten years without theintervention of the orders of the court ortribunal. In those cases, the judgment ofthe Supreme Court in Umadevi left itopen to the State Governments, the UnionGovernment and their instrumentalities totake steps to regularize, as a one timemeasure, the services of such irregularlyappointed persons. The relevantobservation in that regard is as follows:

"One aspect needs to be clarified.There may be cases where irregularappointments (not illegal appointments)as explained in S.V. NARAYANAPPA(supra), R.N. NANJUNDAPPA (supra),and B.N. NAGARAJAN (supra), andreferred to in paragraph 15 above, of dulyqualified persons in duly sanctionedvacant posts might have been made andthe employees have continued to work forten years or more but without theintervention of orders of courts or oftribunals. The question of regularizationof the services of such employees mayhave to be considered on merits in thelight of the principles settled by this Courtin the cases above referred to and in thelight of this judgment. In that context, the

Union of India, the State Governmentsand their instrumentalities should takesteps to regularize as a one time measure,the services of such irregularly appointed,who have worked for ten years or more induly sanctioned posts but not under coverof orders of courts or of tribunals andshould further ensure that regularrecruitments are undertaken to fill thosevacant sanctioned posts that require to befilled up, in cases where temporaryemployees or daily wagers are being nowemployed. The process must be set inmotion within six months from this date.We also clarify that regularization, if anyalready made, but not sub judice, need notbe reopened based on this judgment, butthere should be no further by-passing ofthe constitutional requirement andregularizing or making permanent, thosenot duly appointed as per theconstitutional scheme."

110. The observations of theConstitution Bench in paragraph 53 of thedecision in Umadevi were elaboratelyexplained in a subsequent decision of aBench of two learned Judges of theSupreme Court in State of Karnataka VsM L Kesari28. The exception which thejudgment contemplated to the generalprinciple which militated againstregularization was laid down as follows:

"It is evident from the above thatthere is an exception to the generalprinciples against `regularization'enunciated in Umadevi, if the followingconditions are fulfilled:

(i) The employee concerned shouldhave worked for 10 years or more in dulysanctioned post without the benefit orprotection of the interim order of anycourt or tribunal. In other words, the StateGovernment or its instrumentality shouldhave employed the employee and


continued him in service voluntarily andcontinuously for more than ten years.

(ii) The appointment of suchemployee should not be illegal, even ifirregular. Where the appointments are notmade or continued against sanctionedposts or where the persons appointed donot possess the prescribed minimumqualifications, the appointments will beconsidered to be illegal. But where theperson employed possessed the prescribedqualifications and was working againstsanctioned posts, but had been selectedwithout undergoing the process of opencompetitive selection, such appointmentsare considered to be irregular." (emphasissupplied)

111. In M L Kesari's case, theSupreme Court emphasized that theperiod of six months as 'a one timemeasure' would have to be considered inits proper perspective. At the end of sixmonths from the date of the decision inUmadevi, cases of several dailywagers/casual employees were stillpending before the Court, as a result ofwhich the one time regularization processwas not undertaken. In many cases,regularization was not undertaken becausecases were pending in courts or due tosheer oversight. The Supreme Court heldthat such persons will not lose their rightto be considered for regularizationbecause the one time exercise wascompleted without considering their casesor because the six months periodstipulated in Umadevi had expired.

112. In Amarendra KumarMohapatra Vs State of Orissa29, theprinciples which were laid down inUmadevi and M L Kesari were applied bythe Hon'ble Supreme Court whileconsidering the validity of a legislative

enactment by which regularization wasgranted. In the case before the SupremeCourt, it was held that degree holderjunior engineers were qualified forappointment as assistant engineers andthey were appointed against sanctionedposts. All of them had worked for morethan ten years and, in some cases, as longas for twenty years and some of them had,in fact, retired from their respectivedepartments. In this background, it washeld that the legislative enactmentgranting regularization did not call forinterference at that late stage. Thus, thevalidity of a legislative provisionproviding for regularisation has also beenjudged on this touchstone. An illegalappointment cannot be regularisedbecause that would infringe Articles 14and 16.

113. The decision of theConstitution Bench in Umadevi as well asthe subsequent decisions havecircumscribed the power of the StateGovernment to grant regularization bymaking a distinction between the illegaland irregular appointments. The SupremeCourt has held that where appointmentsare not made or continued againstsanctioned posts or where the personsappointed did not possess the prescribedminimum qualifications, suchappointments would be considered to beillegal. However, if the person employedhas possessed the prescribedqualifications and was working against asanctioned post but was selected withoutgoing through the process of opencompetitive examination, such anappointment would be considered asirregular.

114. In deciding upon the validity ofthe provisions made by the State


Government in the amended Rules forregularization, it is these decisions whichhave to be applied by the Court.

115. The submission of the learnedAdditional Advocate General was thatShiksha Mitras had continued to work inschools for a long period of 16 years and,therefore, there is no requirement ofasking them to clear the TeachersEligibility Test. It was also submitted thatsince there was a paucity of qualifiedAssistant Teachers and there may not be asufficient number of eligible candidates,the State is justified in grantingappointment to the Shiksha Mitras asAssistant Teachers.

116. These submissions cannot beaccepted.

117. The Supreme Court in YogeshKumar Vs Government of NCT, Delhi30held that mere paucity of candidatesholding a TTC qualification would notjustify a departure from the prescribedqualifications.

118. Teachers Eligibility Test isconducted to ensure that a person has therequired knowledge and aptitude to teachstudents studying in classes I to V. This isan important test which cannot be ignoredeven if a person has been engaged inteaching students of classes I to V for anumber of years as Shiksha Mitra. InDilip Kumar Ghosh Vs Chairman31, theSupreme Court formulated the followingprinciple:

"(i) In the case of the junior basictraining and primary teachers trainingcertificate the emphasis is on thedevelopment of the child. The primaryeducation is up to IVth standard.

Thereafter there is middle education andthen the secondary and higher secondaryeducation. But in the primary school onehas to study the psychology anddevelopment of child at a tender age. Theperson who is trained in B.Ed. Degreemay not necessarily be equipped to teacha student of primary class because he isnot equipped to understand thepsychology of a child at that early stage."

119. The concept of relaxationwhich was explained by the SupremeCourt in Umadevi's case requires that aperson at the time of engagement mustpossess the requisite qualifications underthe service rules. It is, therefore,important that Shiksha Mitras at the timeof initial engagement should havepossessed the requisite qualificationscontained in the service rules. This is alsowhat was observed by the Supreme Courtin Pramod Kumar Vs U P SecondaryEducation Services Commission32. TheSupreme Court held that if the essentialqualification for recruitment to a post isnot satisfied, ordinarily the same cannotbe condoned and an appointment which iscontrary to the Statutes/statutory ruleswould be void in law.

120. From the material which hasemerged before the Court, it is clear thatShiksha Mitras to whom the benefit ofregularization has been granted neitherfulfilled the prescribed minimumqualifications nor were they appointedagainst sanctioned posts. The fact thatShiksha Mitras did not fulfill thequalifications prescribed by NCTE whichhas the unquestioned jurisdiction underthe NCTE Act of 1993 and RTE Act of2009 is evident from the fact that the StateGovernment, by inserting Rule 16-A intothe Rules of 2011 has assumed to itself a


power to relax the minimumqualifications required to be observed, inthe case of Shiksha Mitras. In otherwords, by Rule 16-A, the StateGovernment has created an island ofexclusion for the benefit of ShikshaMitras who, in the exercise of the rule-making power of the State under Rule 16-A, would not have to fulfil the minimumqualifications prescribed by NCTE. TheState Government has sought to get overthe inseparable obstacle that the ShikshaMitras do not fulfil the TET requirementby unlawfully conferring power on itselfto relax the requirement. Havingcommitted that illegality, the State hasproceeded to do away with the TETqualification in its application to ShikshaMitras, by unlawfully amending theservice rules. These amendments havebeen held to be ultra vires and animpermissible encroachment on theexclusive domain of NCTE. Having donethis the State Government hascompounded its illegality byregularising/absorbing the Shiksha Mitrasas Assistant Teachers. As a consequence,qualified candidates fulfilling the NCTEnorms are denied the equality ofopportunity to seek appointment asAssistant Teachers. We have earlier heldRule 16-A to be ultra vires the rule-making authority of the State Governmentsince the power to grant a relaxation fromthe minimum qualifications is vestedexclusively in the Central Government. Inassuming to itself a power to relax theminimum qualification and thereafter bydiluting the minimum qualifications in thecase of Shiksha Mitras, the StateGovernment has patently acted in amanner which is arbitrary, ultra vires thegoverning central legislation and inbreach of the restraint on the limits of itsown statutory powers. By this exercise,

the State Government has sought to grantregularization to persons who failed tofulfil the minimum qualifications and whowere never appointed against sanctionedposts. In these circumstances, the grant oflargesse by the State Government toShiksha Mitras cannot be upheld and theamendment to the Rules is ultra vires andunconstitutional.

121. The Additional AdvocateGeneral submitted that Shiksha Mitraswere appointed in pursuance of a schemeimplemented by the State Governmentand hence their appointments cannot beregarded as a backdoor entry. Thissubmission will not support theabsorption of Shiksha Mitras as AssistantTeachers in the regular service of theState. In Grah Rakshak, Home GuardsWelfare Association Vs State ofHimachal Pradesh33, Home guardsappointed by the States of HimachalPradesh, Punjab and NCT of Delhi soughtregularisation of their services but theirwrit petitions were dismissed by the HighCourt. The Supreme Court held that theenrolment of the Home guards may nothave been a back door engagement, butthat would not entitle them toregularisation of service or the grant ofregular appointments. They were neverpaid a regular salary and were engagedonly as volunteers. They were not regularappointees in the service of the State.They had agreed to the conditions ofengagement, by making declarations.

122. In the present case, it is evidentthat the Shiksha Mitras do not fulfil anyof the norms laid down by the SupremeCourt for regular absorption into theservice of the State. They were at allmaterial times appointed as and continuedto be engaged as contractual appointees.


Their appointments were not againstsanctioned posts. They did not fulfil theminimum qualifications required forappointment as Assistant Teachers.

C12 Locus of the petitioners

123. Admittedly, all the petitionerswere qualified to apply for and beconsidered for appointment as AssistantTeachers. Their right of consideration wasclearly affected and is in fact eclipsed bythe absorption of Shiksha Mitras. Itcannot therefore be said that thepetitioners lacked locus to maintain thewrit petitions.

PART D : OPERATIVE ORDERS

124. For all these reasons, we allowthe writ petitions in the following terms:

(i) The amendment made by the StateGovernment by its notification dated 30May 2014 introducing the provision ofRule 16-A in the Uttar Pradesh Right ofChildren to Free and CompulsoryEducation Rules, 2011 by the UttarPradesh Right of Children to Free andCompulsory Education (FirstAmendment) Rules 2014 is held to bearbitrary and ultra vires and is quashedand set aside;

(ii) The Uttar Pradesh BasicEducation (Teachers) Service (NineteenthAmendment) Rules 2014, insofar as theyprescribe as a source of recruitment inRule 5(2) the appointment of ShikshaMitras; the academic qualifications for therecruitment of Shiksha Mitras in Rule8(2)(c) and for the absorption of ShikshaMitras as Assistant Teachers in juniorbasic schools under Rule 14(6) are setaside as being unconstitutional and ultravires; and

(iii) All consequential executiveorders of the State Government providingfor the absorption of Shiksha Mitras intothe regular service of the State asAssistant Teachers shall stand quashedand set aside.

125. The batch of writ petitions shallstand disposed of in the aforesaid terms.However, there shall be no order as tocosts.

--------

Documents

3 All] Manoj Jaiswal Vs. Union of India & Ors. 1025 a general disturbance of public tranquility ... 1026 INDIAN LAW REPORTS ALLAHABAD SERIES ... Manoj Jaiswal Vs. Union of India &