2 All] Praveen Kumar Sharma (Inre 1106 S/S 2011) Vs. Union of … · 2018-03-14 · 2 All] Praveen...

2 All] Praveen Kumar Sharma (Inre 1106 S/S 2011) Vs. Union of India & Ors. 765

APPELLATE JURISDICTIONCIVIL SIDE

DATED: LUCKNOW 29.07.2015

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

Special Appeal No. 37 of 2015

Praveen Kumar Sharma (Inre 1106 S/S2011) ...Appellant

VersusUnion of India & Ors. ...Respondents

Counsel for the Appellant:Amit Bose

Counsel for the Respondents:A.S.G.

High Court Rules-Chapter VII Rul-V-Special Appeal-Central Reserve PoliceForce Rules 1955-Rule-31(c)-'Deserter'-when declared-scope of disciplinaryproceeding-explained-inspite of fullopportunity-delinquented employeeneither joined duty-nor participated indisciplinary action-even on declaration ofdeserter-not ceased to be member offorce-neither the authorities nor SingleJudge committed any error-to warrantinterference-special appeal dismissed.

Held: Para-12In the present case, the respondentshave proceeded squarely in conformitywith law and even after declaring theappellant as a deserter, adopteddisciplinary proceedings and affordedfullest opportunity of defence to theappellant. A look at the material onrecord makes it further clear that theappellant had not only avoided to jointhe duties but also avoided to participatein the inquiry proceedings. A suggestionabout his treatment for stammering, inour view, remains too remote and hardlyprovides justification for his notparticipating in the inquiry proceedings.The fact of the appellant having not

rejoined after expiry of period of hisleave had not been a matter of dispute.The allegation against him of absencefrom duty, even after expiry of period ofleave and without any just cause, hasbeen duly established in thedepartmental proceedings and had beenrather of undeniable facts.

(Delivered by Hon'ble DineshMaheshwari, J.)

1. The petitioner-appellant, who wasappointed as Constable (Bigular) in theCentral Reserve Police Force ('CRPF') butwas ultimately awarded the punishment ofremoval from service for absenteeism, haspreferred this intra-Court Appeal againstthe order dated 7.1.2015 passed in WritPetition No.1106 (SS) of 2011 whereby,the learned Single Judge has dismissedthe writ petition after finding no merit inchallenge to the orders passed in thedepartmental proceedings.

2. The basic ground of challenge tothe departmental proceedings by thepetitioner-appellant had been that whenan order had already been passeddeclaring him a 'deserter', the respondentswere neither justified nor authorized totake any disciplinary action against him;and hence, no such order of removalcould have been passed in the disciplinaryproceedings.

3. The relevant background aspectsof the matter had been as follows: Thepetitioner-appellant was appointed inCRPF as Constable (Bigular) on16.9.2003. He applied for earned leavethat was granted for the period 12.03.2008to 10.04.2008. However, he failed toreport on duty after expiry of the period ofsanctioned leave. It appears from thematerial placed on record that the

766 INDIAN LAW REPORTS ALLAHABAD SERIES

respondents, under the communicationsdated 18.04.2008, 20.04.2008 and03.05.2008, asked and directed thepetitioner to report on duty at the earliestbut he failed to comply; and even anarrest warrant issued on 23.05.2008remained unexecuted. Ultimately, a Courtof Inquiry was ordered on 25.06.2008 andafter its report, the Commandant passedan order on 23.05.2009 declaring thepetitioner as deserter from the service interms of Rule 31 (c) of the CentralReserve Police Force Rules, 1955 ['theRules of 1955'] which have been framedby the Central Government in exercise ofpowers vested in it under Section 18 ofthe Central Reserve Police Force Act,1949 ['the Act of 1949']. The said orderdated 23.05.2009, while declaring theappellant as deserter, further provided interms of Rule 31 ibid. that the appellantwould not cease to be the member ofForce and whenever he would report orsurrender, shall be treated to be guilty ofthe offence described in Section 10 (m) ofthe Act 1949 and would also be liable tobe punished under Section 11 (1) of thesaid Act.

4. After having declared theappellant as deserter, the departmentissued a charge sheet to him under thememorandum dated 02.06.2009,essentially on the allegation that he hadmisconducted himself for not reporting onduty after availing 30 days' earned leavefrom 12.03.2008 to 10.04.2008 and thus,he was absent from duty without anyleave or permission of the appropriateauthority w.e.f. 11.04.2008. The appellantsubmitted a representation dated12.06.2009 suggesting that he wasundergoing treatment in Guru TejBahadur Hospital at Delhi for stammeringand had furnished Medical Certificates to

the authorities concerned; and that he wasstill under treatment and would report onbeing declared fit. In this communication,the appellant also suggested his temporarychanged address at Ghaziabad.

5. In the matter of inquiry againstthe appellant, the Deputy Commandantwas appointed as Enquiry Officer and it isborne out that notices were sent even tohis suggested changed address too, but theappellant failed to respond and failed toparticipate in the enquiry. Ultimately, theenquiry proceedings were concluded exparte and the Enquiry Officer submittedhis report dated 08.09.2009 finding theappellant guilty of charge of absencewithout leave and overstaying withoutsufficient cause. Under thecommunication dated 15.10.2009, theenquiry report was also forwarded to theappellant by the disciplinary authorityrequiring him to make representation, ifso desired, but the appellant failed torespond. Ultimately, the Commandant,85th Battalion, Central Reserve PoliceForce, Bijapur (Chattisgarh), afterconsidering the entire matter, awarded thepunishment of removal from service tothe appellant by his order dated16.11.2009. The appeal preferred by theappellant was dismissed by the DeputyInspector General of Police, CentralReserve Police Force, Lucknow Range,Lucknow on 04.03.2010 and then, therevision preferred by him was alsodismissed by the Director General on24.11.2010.

6. The appellant filed the writpetition leading to this appeal, seeking toquestion the orders aforesaid. As noticed,basically the ground of challenge by theappellant had been that once he wasdeclared to be a deserter, any other


disciplinary action could not have beentaken against him and order of removalcould not have been passed.

7. The learned Single Judgesurveyed the relevant provisions of theAct of 1949 and Rules of 1955 and then,specifically referred to Rule 31 (c)thereof. The learned Single Judge foundthe contention on the part of the appellantbeing totally devoid of merit in view ofthe plain and clear language of Sub-Rule(c) of Rule 31 ibid. that even on beingdeclared as deserter, an absentee does notcease to belong to the Force. Theconsideration of the learned Single Judge,which also carries reproduction of therelevant Rule 31 of the Rules of 1955,could be taken note of as under:-

"Section 9 of the CRPF Act providespunishment for "more heinous offences".Section 10 of the Act providespunishment "for less heinous offences".Sub-Section (m) of Section 10 of the Actprovides that if a member of the Forceabsents himself without leave, or withoutsufficient cause over-stays leave grantedto him, may be punished withimprisonment for a term which mayextend to one year, or with fine whichmay extend to three months' pay, or withboth. Apart from making "more heinousoffences" and "less heinous offences"punishable, Section 11 of the CRPF Actprovides for minor punishments,according to which, any member of theForce, if found guilty of disobedience,neglect of duty or remissness in thedischarge of duty or he is found guilty ofother misconducts in his capacity as amember of Force, he may be awardedvarious punishments described in Section11 of the Act in addition to or in lieu ofsuspension or dismissal.

Rule 27 of the CRPF Rules containsstatutory prescription relating toprocedure for award of punishment. Rule31 of the CRPF Rules deals withdesertion and absence without leave. Rule31 (a) of the CRPF Rules provides that if amember of the Force is liable for trial underSection 9(f) or Section 10 (m) or fordeserting the Force while not on active dutythen the Commandant shall assemble aCourt of Inquiry consisting of at least oneGazetted Officer and two other members toenquire into the desertion, absence, oroverstay of leave of the member of theForce concerned. The Court of Inquiry isrequired to record evidence and its findings.Sub Rule (c) of Rule 31 provides that theCommandant shall then publish in the ForceOrder the findings of the Court of Inquiryand the absentee shall be declared a deserterfrom the Force from the date of his illegalabsence.

Rule 31 of the CRPF Rules is readsas under:-

"31. Desertion and Absence withoutleave:-(a) If a member of the Force whobecomes liable for trial under clause (f) ofsection 9 or clause (m) of section 10 orfor deserting the Force while not on activeduty under clause (p) of section 10 readwith clause (f) of section 9, does notreturn of his own free will or is notapprehended within sixty days of thecommencement of the desertion, absenceor overstay of leave, then theCommandant shall assemble a Court ofInquiry consisting of at least one GazettedOfficer and two other members who shallbe either superior or Subordinate Officersto inquire into the desertion, absence oroverstay of leave of the offender and suchother matters as may be brought beforethem.


(b) The Court of Inquiry shall recordevidence and its findings. The Court'srecord shall be admissible in evidence inany subsequent proceedings taken againstthe absentee.

(c) The Commandant shall thenpublish in the Force Order the findings ofthe Court of Inquiry and the absenteeshall be declared a deserter from theForce from the date of his illegal absence,but he shall not thereby cease to belong tothe Force. This shall, however, not bar toenlisting another man in the place of thedeserter."

What is relevant to notice, at thisjuncture, to consider the arguments raisedby learned counsel for the petitioner in itscorrect perspective, is the phrase "but heshall not thereby cease to belong toForce" occurring in sub Rule (c) of Rule31 of the CRPF Rules. After publishingthe findings of the Court of Inquiry in theForce Order, the absentee can be declaredas a deserter from the Force. If theprovisions of Rule 31 (c) of the CRPFRules are read appropriately, it wouldmean that such a declaration of a memberof the Force as a deserter will not result inautomatic cessation of his membership ofthe Force. This is amply clear from a barereading of the provisions contained inRule 31(c) of the Rules. In my consideredopinion, no other meaning can beassigned to the aforesaid provisions ofRule 31(c) of the Rules and hence, thesubmission made by the learned counselfor the petitioner that once a member ofthe force is declared to be a deserter, heceases to be a member of the Force andthus, any disciplinary proceedingsresulting in his removal cannot beundertaken, merits rejection. Theprovision contained in Rule 31(c) of theRules are more than explicit, according to

which, mere declaration of a member ofthe Force as a deserter would notresultantly amount to depanelling himfrom the Force, so as to make himimmune from being subjected todisciplinary action or enquiry if he ischarged of some misconduct which isotherwise punishable."

8. Seeking to question the order sopassed by the learned Single Judge, thebasic contention on behalf of the appellantis that when he had been declared to be adeserter by the order dated 23.5.2009, nodepartmental proceedings were permissibleagainst him on the very same charge ofabsence from duty. It is submitted that on atrue interpretation, the meaning and effectof Rule 31 of the Rules of 1995 could notbe that a declared deserter would be deemedto be a member of Force only for thepurpose of passing of a formal order ofdismissal or removal from service on thebasis of a departmental enquiry, whichwould be nothing but farce. It is submittedthat a member of Force, when beingdeclared as deserter, could not be continuedas a Member only for the purpose of formaldepartmental enquiry and for all practicalpurposes, his removal is complete once heis declared to be a deserter; and suchdeclaration virtually amounts to cessation ofhis membership of the Force. It is alsosubmitted that the appellant could not havebeen charged with the offence of or act ofmisconduct of absence from duty once hehad been declared as deserter and at themost, he could have been charged of the actof desertion.

9. Having given thoughtfulconsideration to the submissions madeand having examined the record, we findthe case of the appellant totally bereft ofsubstance.


10. The referred Rule 31 of theRules of 1955 is reproduced in thepassage quoted hereinabove. It is evidentthat this particular provision has beenmade looking to the peculiar nature of theservice, i.e., the Central Reserve PoliceForce and in relation to the particularnature absentees, for the purpose ofassembling the Court of Inquiry toexamine the questions of desertion,absence and overstay and to declare theabsentee as deserter. The declaration thata particular enlisted person has desertedneed to be put on record and to bepublished so as to inform all theconcerned; and then, the Rule enablesenlisting of another person in place of thedeserter so that the depletion ofmanpower in the Force could be balanced.However, it has consciously beenprovided in the said Rule that irrespectiveof such declaration, the deserter wouldnot cease to belong to Force; meaningthereby that merely by way of absence, amember of the Force cannot escape allother responsibilities and liabilities, whichinclude his liability to be put to trial forthe offence of desertion as also theliability to be subjected to disciplinaryproceedings for the delinquency relatedwith absenteeism.

11. The suggestion that once aperson is declared to be a deserter, hecould not be subjected to disciplinaryproceedings remains baseless and ratherstands squarely at contradiction to the truemeaning, intent, purport and effect of theRules of 1955. The proceedings fordeclaring a person as deserter are entirelydifferent and are meant for achievingdifferent purpose; and they cannot betaken to be of substitute of thedisciplinary proceedings, meant for

awarding appropriate punishment fordelinquency.

12. In the present case, therespondents have proceeded squarely inconformity with law and even afterdeclaring the appellant as a deserter,adopted disciplinary proceedings andafforded fullest opportunity of defence tothe appellant. A look at the material onrecord makes it further clear that theappellant had not only avoided to join theduties but also avoided to participate inthe inquiry proceedings. A suggestionabout his treatment for stammering, in ourview, remains too remote and hardlyprovides justification for his notparticipating in the inquiry proceedings.The fact of the appellant having notrejoined after expiry of period of his leavehad not been a matter of dispute. Theallegation against him of absence fromduty, even after expiry of period of leaveand without any just cause, has been dulyestablished in the departmentalproceedings and had been rather ofundeniable facts.

13. In the totality of thecircumstances, it appears that therespondents have taken a rather liberalview of the matter and have only awardedthe appellant punishment of removal fromservice, although in such matters ofabsenteeism, the punishment of dismissalfrom service may be awarded. In anycase, we are clearly of the view that therespondents have rightly adopteddisciplinary proceedings against theappellant; and the orders as passed againsthim call for no interference.

14. The learned Single Judge, in ourview, has not committed any error in


dismissing the baseless writ petition filedby the appellant.

15. Consequently, this Appealstands dismissed.

--------APPELLATE JURISDICTION

CIVIL SIDEDATED: LUCKNOW 29.07.2015

BEFORETHE HON'BLE DINESH MAHESHWARI, J.

HON'BLE RAKESH SRIVASTAVA, J.


Vikas Chandra Srivastava 666(S/S) 2015 ...Appellant

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

Counsel for the Appellant:Arvind Kumar

Counsel for the Respondents:C.S.C.

High Court Rules-Chapter VIII Rule-5-Special Appeal-against judgment ofSingle Judge-as direction of StateGovernment to file Civil Suit-for loss of8.83 Lakhs-even after retirement-writpetition not maintainable being merecommunication-held justified-warrants-no interference-Appeal dismissed.

Held: Para-17In the present case, as noticed, thedepartmental proceedings stoodannulled with the order of the learnedSingle Judge dated 08.01.2010 in WritPetition No. 1127 (SS) of 2007. There areallegations of misfeasance against theappellant; and the respondents assertthat by his acts and omissions, theappellant caused loss to the Governmentthat was required to be recovered.Though, in these proceedings, nocomments are being made finally on themerits of the claim of the respondents,

but in the totality of circumstances, weare clearly of the view that an action inthe writ jurisdiction, so as to evenprevent filing of a Civil Suit, was not tobe entertained; and the learned SingleJudge cannot be faulted in finding thewrit petition to be entirely misconceived.

(Delivered by Hon'ble Dinesh Maheshwari, J.)

1. By way of this intra-CourtAppeal, the petitioner-appellant seeks tochallenge the order dated 9.3.2015 passedin Writ Petition No.666 (SS) of 2015whereby, the learned Single Judge hasdeclined to exercise writ jurisdictionunder Article 226 of the Constitution ofIndia in the appellant's challenge to thecommunications dated 09.09.2013 and16.09.2013, by which, the concernedauthorities were directed to file a CivilSuit for recovery of the amount of losssaid to have been caused by the appellantto the Government.

2. Put in a nutshell, the basicsubmissions of the petitioner-appellant inthe writ petition had been that no suchCivil Suit was maintainable against himand hence, the orders issued for filing ofthe suit suffered from want of authority oflaw; and further, for having been issuedwithout opportunity of hearing, called forinterference in the writ jurisdiction. Thelearned Single Judge, however, found thewrit petition to be rather misconceivedwith the observations that the question ofmaintainability of the suit was to beexamined by the trial Court, where thepetitioner-appellant could file hisobjections. The learned Single Judge,therefore, dismissed the writ petition witha short order that reads as under:-

"Supplementary affidavit filed incourt, today, be placed on record.

2 All] Vikas Chandra Srivastava 666(S/S) 2015 Vs. State of U.P. & Ors. 771

By means of instant writ petition, thepetitioner is challenging the order dated09.09.2013 and 16.09.2013 by whichdirections have been issued to Engineer-in-Chief, Public works Department, to filea suit for recovery of losses caused by thepetitioner to the department.

On a query being made to learnedcounsel for petitioner as to how the presentwrit petition is maintainable, learned counselfor petitioner submitted that the order offiling of civil suit against the petitioner forrecovery towards the losses caused by him tothe department is without authority of lawand the same has been passed withoutaffording any opportunity of hearing to thepetitioner, therefore, the instant writ petitionis maintainable.

Sri Badrul Hasan, learnedAdditional Chief Standing Counsel, whileopposing the writ petition submitted thatthe petitioner will get ample opportunityto contest the suit by raising all pleas ashave been raised by him in the instantwrit petition, therefore, the writ petition isnot maintainable.

I have considered the submission oflearned counsel for rival parties and gonethrough the record as well as theimpugned order.

The State Government has directedfor filing of civil suit for recovery oflosses caused by the petitioner to thedepartment. The question as to whetherthe civil suit would be maintainable ornot, is to be examined by the trial court,where the petitioner may file hisobjection.

In view of above, this Court, whileexercising extra-ordinary jurisdictionunder Article 226 of the Constitution,finds that the writ petition beingmisconceived is not maintainable.

Accordingly, the writ petition isdismissed."

3. Put in brief, the relevantbackground aspects of the matter hadbeen that the appellant served with thePublic Works Department of theGovernment of Uttar Pradesh and retiredfrom service on 31.07.2005 as JuniorEngineer. Prior to his retirement,departmental proceedings were initiatedagainst the appellant by the order dated27.3.2004 for the irregularities, said tohave been committed during the period2002-04; and he was placed undersuspension by the order dated 31.3.2004.The appellant superannuated during thependency of enquiry.

4. It appears that permission tocontinue with the proceedings afterretirement of the appellant underRegulation 351-A of the Civil ServiceRegulations was granted on 10.5.2006.Ultimately, the departmental proceedingswere concluded by an order of theconcerned Chief Engineer dated28.12.2006 whereby, an amount ofRs.8.83 lakhs was ordered to be recoveredfrom the post-retiral dues of the appellantafter he was found liable for the losscaused to the Public Exchequer to theabove extent.

5. Aggrieved by the aforesaid orderdated 28.12.2006, the petitioner-appellantpreferred a Writ Petition [No.1127 (SS) of2007] which was considered and allowedby a learned Single Judge on 08.01.2010,essentially on the ground that the enquiryproceedings were conducted in disregardof the principles of natural justice and assuch, the impugned order suffered fromserious infirmities. The order of recoverywas accordingly quashed with directionsto the respondents to "make the paymentof all the retiral benefits forthwith". Thepetitioner-appellant asserts that this order


dated 08.01.2010 passed in Writ PetitionNo.1127 (SS) of 2007 has attainedfinality.

6. The petitioner-appellant hadstated grievance in the manner that in theteeth of the aforesaid order of this Courtdated 08.01.2010, the respondent-ChiefEngineer addressed a communication tothe State Government on 22.11.2010seeking permission to recover the lossthrough the Civil Court as 'civil liability'of the appellant whereupon, the StateGovernment constituted a Committee whomade a recommendation for auditinspection and, on the basis of the auditreport, the State Government proceeded toissue a direction to recover an amount ofRs.30,69,072/- from the appellant by wayof a Civil Suit; and a communication was,accordingly, sent by the Secretary to theChief Engineer (Development), PublicWorks Department on 09.09.2013; andlater on, consequential communicationwas issued by the Chief Engineer(Litigation) to the Chief Engineer,Faizabad Division, Faizabad on16.09.2013 for filing of the Civil Suit.Pursuant to the aforesaidcommunications, a legal notice dated31.12.2014 was sent by the ADGC(Civil), Faizabad to the appellant andupon receipt of this notice, the appellantfiled the writ petition leading to thisappeal against the aforesaidcommunications dated 09.09.2013 and16.09.2013.

7. The writ petition was essentiallyfounded on the ground that the saidcommunications were wholly withoutjurisdiction and were issued after nine yearsof the retirement of appellant and withoutprior opportunity of hearing to him. Theappellant also filed a supplementary affidavit

in support of the writ petition with thesubmissions that there was no alternativeremedy available to him to challenge to theimpugned orders/directions issued by theState Government and hence, the remedy ofwrit petition had rightly been taken recourseof. It was also submitted that the impugnedorders/directions were wholly withoutjurisdiction as the Service Regulations andConduct Rules do not confer any such poweron the State Government. It was yet furthersubmitted that the impugneddirections/orders had been issued in violationof the principles of natural justice. It was stillfurther submitted that the civil liability couldnot be determined by the Civil Court and thatthe jurisdiction of the Civil Court was barredunder the U.P. Public Services Tribunal Act,1976 ['the Act of 1976']. It was alsosubmitted that directions could not be issuedby the State Government for curtailing orattaching the pension, which is recognized asa right to property by the Hon'ble SupremeCourt.

8. As noticed above, the learnedSingle Judge found the writ petition to berather misconceived, particularly whenthe maintainability of the Civil Suit wasto be examined by the trial Court, wherethe appellant could file his objections.

9. Learned counsel for the appellanthas strenuously argued that the learnedSingle Judge has not appreciated thegrounds urged on behalf of the petitioner-appellant and has erred in treating thepetition as misconceived. Learned counselhas particularly referred to the decision ofthe learned Single Judge of this Courtdated 08.01.2010 in Writ PetitionNo.1127 (SS) of 2007 and submitted thatearlier, the question of loss to theGovernment was dealt with in theimpugned departmental order dated


28.12.2006 and was finally pronouncedagainst the respondents by this Court andthereafter, all the retiral dues were alsopaid to the appellant. Thus, according tothe learned counsel, the respondents arenot entitled to initiate any proceeding andthat too by way of Civil Suit on the samecause of action. Learned counsel has alsosubmitted that the impugnedcommunications dated 09.09.2013 and16.09.2013 could not have beenchallenged by the petitioner-appellant inany other proceedings and in notentertaining the writ petition wouldpractically amount to rendering theappellant remediless in his challenge tothese wholly unauthorized orders.Learned counsel has also submitted thatthe orders impugned, apart from beingcontrary to the final order of this Court,also suffer from violation of the principlesof natural justice inasmuch as theappellant was not afforded anyopportunity of hearing before passing thesame. Learned counsel has also submittedthat the proposed action against theappellant is directly barred by theprinciples of res judicata as also under theAct of 1976 and hence, the matter callsfor interference in the writ jurisdiction.Learned counsel has referred to thedecision of the Hon'ble Supreme Court inthe case of Punjab State Civil SuppliesCorpn. Ltd. Versus Sikander Singh[(2006) 3 SCC 736] and has also referredto Section 6 of the Act of 1976.

10. Having given thoughtfulconsideration to the submissions made onbehalf of the petitioner-appellant andhaving examined the record, we aresatisfied that the writ petition as filed bythe appellant could have only been, andhas rightly been, dismissed asmisconceived.

11. In the first place, we are unableto find any legal right in the appellant toeven question the impugnedcommunications dated 09.09.2013 and16.09.2013 by way of a writ petition. Asnoticed, they had only been intra-departmental communications from oneoffice to the other with a direction that aCivil Suit for recovery of the amount befiled against the appellant. Suchcommunications neither envisaged anyopportunity of hearing to the appellantnor, by themselves, imposed a liability onthe appellant. Pursuant to the saidcommunications, the officers concernedappeared to have made preparations forfiling of a Civil Suit and before doing so,a notice was served upon the appellant,calling upon him to make payment andinforming him that on failure, a Civil Suitwould be filed. These communications bythemselves cannot be consideredfurnishing a cause to the petitioner-appellant to maintain an action by way ofwrit petition. Thus, the submission thatthe petitioner is rendered remediless asregards his challenge to thesecommunications remains baseless and isof no avail.

12. Apart from the above and even ifit be given that upon considering himselfaggrieved, the petitioner-appellant wasentitled to approach this Court in the writjurisdiction, it remains trite that exerciseof writ jurisdiction is essentially that ofdiscretion of the Court that could alwaysbe declined on the relevant facts andfactors.

13. The petitioner-appellant wantedto assert, and the same has been theendeavour before us too, that the recoveryof any amount from him towards thealleged loss by way of a Civil Suit would


be directly hit by the principles of resjudicata in view of the order dated08.01.2010 passed in Writ PetitionNo.1127 (SS) of 2007. For the orderproposed to be passed, we would refrainfrom making final comments on thesuggestion of the petitioner-appellant, butprima facie, it is difficult to accept thesubmissions that merely for thedisciplinary proceedings having beenquashed for the reasons stated in the orderdated 08.01.2010 and retiral dues havingbeen paid, the appellant has acquired totalimmunity from an action in the CivilCourt for recovery of the amount ofalleged loss caused to the Government.However, without any further comment inthis regard, suffice it to observe for thepresent purpose that the question as towhether a particular suit or issue is to betried by the Civil Court, or is not to betried for having been directly andsubstantially in issue in a formalproceeding between the same parties, is tobe determined with reference to severalfactors; and the plea of res judicata isrequired to be determined on the basis ofseveral questions of facts. The foundationof plea of res judicata has to be laid in thepleadings before the Court and thendecision on such a plea is to be invited inaccordance with law. The principles of resjudicata cannot be applied in abstract andthat too before a Civil Suit has in factbeen filed or an action has been taken,where such a plea could be taken anddetermined. The proper stage fordetermination of the question of resjudicata could only be upon filing of a suitand raising of this question in appropriatemanner.

14. Similarly, the other submission,as regards bar over the action per Section6 of the Act of 1976 also appears to be a

pre-mature one. Though prima facie, it isagain difficult to accede that Section 6 ofthe Act of 1976, which bars filing of CivilSuit against a Government or localauthority, as such would bar the action ofthe present nature by the Government tooin the Civil Court, but without finalcomments even in that regard, for thepresent purpose, suffice it say that underthe Code of Civil Procedure, even aquestion of bar of the suit could be raisedin appropriate manner and at theappropriate stage.

15. So far as the referred decision ofthe Hon'ble Supreme Court in the case ofSikander Singh (supra) is concerned, it isdifficult to find any support to the case ofthe appellant therefrom. In the first place,it is noticed that the said decision wasrendered in the proceedings arising out ofa Civil Suit, which was filed by theappellant-Corporation for recovery ofprice of quantity of wheat which wasfound to be short for the negligence of thedefendants; and it had been a commonaction against the two defendants. Thetrial Court found defendant No.1 aloneguilty of misappropriation of the goodsand held the appellant entitled to recoverthe amount towards price of goods andinterest @ 18% per annum. The HighCourt, in appeal, held that the audit reportwas not admissible in evidence as thecontents were not proved and in anyevent, no interest was payable on theamount of damages. The Hon'bleSupreme Court found that in thedepartmental proceedings, the defendantNo.1 was asked by the appellant todeposit requisite number of bags or paythe price thereof while holding himresponsible towards 2/3rd of loss, and thesaid order was complied with and hadattained finality. It was held that such a


matter could not be re-opened. As regardsdefendant No.2, it was noticed that nofinding had been arrived at that he, forany intent and purpose, appropriated anyarticle to his advantage and thus, theHon'ble Supreme Court questioned as tohow he could have been proceeded underthe common law by way of Civil Suit?Yet further, the Hon'ble Supreme Courtobserved that a suit might have beenmaintainable only if he was found to havemisappropriated the goods. The appellanthas chosen to refer to paragraphs 18 and19 of the said decision. However, itappears appropriate to reproduceparagraphs 18 to 20 of the said decisionfor the present purpose as under:-

"18. The Appellant is "State" withinthe meaning of Article 12 of theConstitution. The terms and conditions ofservice by and between the appellants andthe respondents herein are governed by theservice rules and/or terms and conditions ofcontract. If the respondents herein hadcommitted misconduct they could have beenand in fact were departmentally proceededwith. In the said departmental proceedingsappropriate punishments had been imposedupon them. So far as Respondent-defendant1 is concerned, therein his negligence hadbeen held to have contributed to the loss of2/3rd of the shortages and by way of penalty,he was asked by the Appellate Authority todeposit the requisite number of bags ofwheat and/ or pay the price thereof. The saidorder having been complied with attainedfinality, it is binding on the appellant. Thedispute cannot, therefore, be permitted to bereopened.

19. If the Appellant herein intendedto proceed further against theRespondent-defendant 1, it could havedone so by questioning the correctness orotherwise of the said order of the

Appellate Authority before an appropriateforum. Deposit of the requisite number ofbags of wheat and/or price thereofresulted in Respondent-defendant 1'sreinstatement pursuant to an order passedby the High Court as also this Court. Forhis act of misconduct, he had also beendenied back wages. If in the departmentalproceedings, Respondent-defendant 1 hadbeen asked to pay a penalty by way ofrecovery of loss to the extent of which hewas found responsible, we are of theopinion that no civil suit could have beenmaintained for the selfsame cause ofaction.

20. So far as Respondent-defendant 2is concerned, no finding of fact has beenarrived at that he for any intent andpurport appropriated any article to hisadvantage. In the absence of such afinding, we fail to understand as to howunder the common law, he could beproceeded against by way of a civil suitfor recovery of money. A civil suit forrecovery might have been maintainableonly if he was found to havemisappropriated the goods. Admittedly hehas not. He was said to be negligent inperforming his duties."

16. Thus, one of the factual aspectclearly emerging from the said decision isthat as against defendant No.1 therein,recovery of loss had already been orderedand effected; and therefore, the Hon'bleSupreme Court found that the mattercould not have been re-opened. Secondly,in relation to defendant No.2, the Hon'bleSupreme Court clearly observed that asuit for recovery might have beenmaintainable if he was found to havemisappropriated the goods.

17. In the present case, as noticed,the departmental proceedings stood


annulled with the order of the learned SingleJudge dated 08.01.2010 in Writ Petition No.1127 (SS) of 2007. There are allegations ofmisfeasance against the appellant; and therespondents assert that by his acts andomissions, the appellant caused loss to theGovernment that was required to berecovered. Though, in these proceedings, nocomments are being made finally on themerits of the claim of the respondents, but inthe totality of circumstances, we are clearlyof the view that an action in the writjurisdiction, so as to even prevent filing of aCivil Suit, was not to be entertained; and thelearned Single Judge cannot be faulted infinding the writ petition to be entirelymisconceived.

18. Accordingly and in view of theabove, this Appeal fails and is, therefore,dismissed. However, in the interest of justice,we again make it clear that none of theobservations herein would be construed asfinal opinion on the merits of theissues/questions that may be raised in anaction before the Civil Court and suchissues/questions shall be determined by theCivil Court strictly in accordance with law.

--------ORIGINAL JURISDICTION


BEFORETHE HON'BLE ATTAU RAHMAN MASOODI, J.

Service Single No. 145 of 2006

Dinesh Narayan Mishra ...PetitionerVersus

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

Counsel for the Petitioner:Rakesh Kumar Singh


U.P. Civil Services Regulations-Regulation351-A-Recovery from gratuity-based uponshow cause notice-neither charge sheeted-nor disciplinary action initiated-whethersuch recovery can be justified? held-'No'-asper regulation 351-A-after retirementwithout permission of Governor-no suchorder could be passed-even without chargesheet-order quashed.

Held: Para-14Once it is concluded that no disciplinaryproceedings were pending against thepetitioner and the same are incapable ofbeing initiated against him afterretirement, passing of the impugnedorder merely on the strength of showcause notice which stood abated is void-abnitio and the impugned order ofrecovery cannot be enforced against thepetitioner.

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

1. Heard learned Counsel for thepetitioner and learned Standing Counselfor respondents.

2. By means of this writ petition, thepetitioner has assailed the order dated12.12.2005 whereby a recovery of Rs.89728.02 has been imposed on him andproportionate amount of gratuity standswithheld from the post-retiral duesadmissible to the petitioner. There is a prayerfor release of the amount coupled with theprayer for setting aside the impugned order.

3. The impugned order has come tobe passed on the basis of show causenotice issued to the petitioner on08.07.2005 in respect of allegations whichrelate from 1993-94 to 1996-97.Concededly the allegations are stale andrelate to period of time beyond four yearsfrom the date of petitioner's attaining theage of superannuation on 30.11.2005.

2 All] Dinesh Narayan Mishra Vs. State of U.P. & Ors. 777

4. Learned Counsel for the petitionerwhile assailing the impugned order hasmade submissions which are two fold,firstly, that the reply submitted against theshow cause notice on 09.10.2005 has notbeen adverted to at all by the punishingauthority and secondly, the impugnedorder could not have been passed by thedepartmental authority after the date whenthe petitioner had already attained the ageof superannuation and that too withoutinitiation of regular disciplinaryproceeding.

5. On the contrary learned StandingCounsel has submitted that show causenotice was issued to the petitioner prior tohis retirement on 08.07.2005 for thealleged loss, therefore, the punishingauthority was well within his jurisdictionto pass the impugned order, as such, theimpugned order does not suffer from anyjurisdictional error. On the aspect of thematter as to why reply submitted by thepetitioner was not considered, learnedStanding Counsel has pointed out that nosuch reply was filed by the petitioner,therefore, the question of consideration ofsuch a reply did not arise at the time ofpassing of the impugned order.

6. In the context of rival submissionsadvanced, the question that crops up forconsideration is as to whether thedisciplinary proceedings on the strengthof show cause notice dated 08.07.2005could at all be treated to be pending onattaining the age of superannuationagainst the petitioner who retired on30.11.2005 or the show cause notice dated08.07.2015 which was intended to imposeminor penalty after the petitioner'sretirement stood abated and freshproceedings ought to have been initiatedin accordance with Regulation 351-A of

the Civil Service Regulations applicableto the petitioner being a pensioner beforeimposing the penalty of recovery. Forbetter appreciation of the issue involvedin the writ petition, it is necessary toreproduce Rule-3 and Rule-10 of TheUttar Pradesh Government Servant(Discipline and Appeal) Rules, 1999,which envisage the penalties minor andmajor :-

"Rule 3. Penalties.-The followingpenalties may, for good and sufficientreasons and as hereinafter provided, beimposed upon the Government servants:

Minor Penalties:(i) Censure;(ii) Withholding of increments for a

specified period;(iii) Stoppage at an efficiency bar;(iv) Recovery from pay of the whole

or part of any pecuniary loss caused toGovernment by negligence or breach oforders:

(v) Fine in case of persons holdingGroup 'D' posts;

Provided that the amount of such fineshall in no case exceed twenty-fivepercent of the month's pay in which fine isimposed.

Major Penalties:(i) Withholding of increments with

cumulative effect;(ii) Reduction to a lower post or

grade or time scale or to a lower stage in atime scale;

(iii) Removal from the service whichdoes not disqualify from futureemployment;

(iv) Dismissal from the servicewhich disqualified from futureemployment;


Explanation.-The following shall notamount to penalty within the meaning ofthis rule, namely:

(i) Withholding of increment of aGovernment servant for failure to pass adepartmental examination or for failure tofulfil any other condition in accordancewith the rules or orders governing theservice;

(ii) Stoppage at the efficiency bar inthe time scale of pay on account of onesnot being found fit to cross the efficiencybar;

(iii) Reversion of a person appointedon probation to the service during or atthe end of the period of probation inaccordance with the terms of appointmentor the rules and orders governing suchprobation;

(iv) Termination of the service of aperson appointed on probation during or atthe end of the period of probation inaccordance with the terms of the service orthe rules and orders governing suchprobation.

Rule 10- Procedure for imposingminor penalties-

(1) Where the Disciplinary Authorityis satisfied that good and sufficientreasons exist for adopting such a course, itmay, subject to the provisions of sub-rule(2) impose one or more of the minorpenalties mentioned in Rule 3.

(2) The Government Servant shall beinformed of the substance of the imputationsagainst him and called upon to submit hisexplanation within a reasonable time. TheDisciplinary Authority shall, afterconsidering the said explanation, if any, andthe relevant records, pass such orders as heconsiders proper and where a penalty isimposed, reason thereof shall be given.

(3) The order shall be communicatedto the concerned Government Servant."

7. It is undisputed that issuance ofnotice dated 08.07.2005 in terms of Rule-10 was with an intention of imposingminor penalty, however, no penalty wasimposed till the petitioner attained the ageof superannuation and after his retirement,the impugned punishment order ofrecovery has been passed without holdingany fresh enqiry.

8. Once the punishment of recoveryis imposed by a departmental authority, itis necessary to look into the scope of anorder of recovery in the context of minorpenalties envisaged under Clause IV ofRule- 3 which is reproduced as under :-

"Minor Penalties:

(iv) Recovery from pay of the wholeor part of any pecuniary loss caused toGovernment by negligence or breach oforders;"

9. A plain reading of the relevantrule extracted above makes it clear that arecovery order passed against adelinquent employee has necessarily to bepassed for recovery from pay. In theinstant case, although the order ofrecovery has been passed but the saidorder is incapable of being enforcedagainst the petitioner after his retirementin as much as, the petitioner ceased to beon the pay roll from the date of hisretirement and recovery from his paybecame impossible.

10. From a plain reading of theentire set of Minor Penalties prescribedunder the rules, it can be reasonablydeduced that the proceedings in respect of

2 All] Dinesh Narayan Mishra Vs. State of U.P. & Ors. 779

minor penalties have to culminate intofinal order before a government servantattains the age of superannuation. Oncethe scope of minor penalty is of adescription like this, the naturalconclusion is that the proceedingsinitiated in respect of minor penaltyconsequent upon the retirement of agovernment servant stand abated.

11. Now coming to the question asto whether the proceedings of recoverycan be initiated against the Governmentservant after the date of retirement or not,reference to Regulation 351-A isnecessary and the same is extract below:-

Regulation 351-A : The Governorreserves to himself the right ofwithholding or withdrawing a pension orany part of it, whether permanently or fora specified period and the right ofordering the recovery from a pension ofthe whole or part of any pecuniary losscaused to Government, if the pensioner isfound in departmental or judicialproceedings to have been guilty or gravemis-conduct, or to have caused, pecuniaryloss to government by misconduct ornegligence, during his service, includingservice rendered on re-employment afterretirement;

Provided that--

(a) such departmental proceedings, ifnot instituted while the officer was onduty either before retirement or during re-employment-

(i) shall not be instituted save withthe sanction of the Governor,

(ii) shall be in respect of an eventwhich took place not more than four yearsbefore the institution of such proceedings,and

(iii) shall be conducted by suchauthority and in such place or places asthe Governor may direct and inaccordance with the procedure applicableto proceedings on which an order ofdismissal from service may be made.

(b) judicial proceedings, if notinstituted while the officer was on dutyeither before retirement or during re-employment, shall have been instituted inaccordance with Sub-clause (ii)(a), and

(c) the Public Service Commission,U.P., shall be consulted before finalorders are passed.

Provincial Government:

(ii) shall be instituted before theofficer's retirement from service or withina year from the date on which he was laston duty whichever is later;

(iii) shall be in respect of an eventwhich took place not more than one yearbefore the date on which the officer waslast on duty and;

(iv) shall be conducted by suchauthority and in such places whether inIndia or elsewhere, as the ProvincialGovernment may direct;

(2) all such departmental proceedingsshall be conducted, if the officerconcerned so requests in accordance withthe procedure applicable to departmentalproceedings on which an order ofdismissal from service may be made; and

(3) such judicial proceedings, if notinstituted while the officer was on duty,shall have been instituted in accordancewith Sub-clauses (ii) and (iii) of Clause(1).

Note- As soon as proceedings of thenature referred to in this article areinstituted the authority which institutes


such proceedings shall without delayintimate the fact to the Audit Officerconcerned.

Explanation- For the purpose of thisarticle-

(a) departmental proceedings shall bedeemed to have been instituted when thecharges framed against the pensioner areissued to him, or, if the officer has beenplaced under suspension from an earlierdate, on such date; and

(b) judicial proceedings shall bedeemed to have been instituted;

(i) in the case of criminalproceedings, on the date on which acomplaint is made, or a charge-sheet issubmitted to a criminal court; and

(ii) in the case of civil proceedings,on the date on which the plaint ispresented or, as the case may be, anapplication is made, to a civil court."

12. From a perusal of Regulation351-A, it is seen that there are twoessential requirements as a conditionprecedent for the initiation / continuationof disciplinary proceedings againstgovernment servant after attaining the ageof superannuation; firstly, the disciplinaryproceedings for penalty other than minorhave to be pending against theGovernment servant on the date ofretirement or he has to be placed undersuspension as on the date of retirement.The existence of any of the twoeventualities are sufficient for continuingdisciplinary proceedings against theGovernment servant after attaining theage of superannuation. In the instant case,the petitioner was merely issued a showcause notice which stood abated as hasbeen observed herein above, therefore, inabsence of the petitioner being either

placed under suspension or regular chargesheet issued against him, it can be safelyconcluded that no disciplinaryproceedings were pending against thepetitioner as on the date of his retirement.

13. Secondly, the disciplinaryproceedings are permissible to be drawnagainst a pensioner with the sanction ofhis excellency the Governor, provided theallegation levelled against the pensionerpertain to a period of time which does notrelate to a period beyond four years fromthe date of his retirement. In the instantcase, neither there is any sanction of HisExcellency the Governor nor theallegations in the show cause noticepertain to a period of time which fallwithin the scope of statutory rule beingbeyond a period of four years from thedate of petitioner's retirement, therefore,on this account also there is no scope forsubjecting the petitioner to thedisciplinary proceedings as is permissibleunder Regulation 351-A.

14. Once it is concluded that nodisciplinary proceedings were pendingagainst the petitioner and the same areincapable of being initiated against himafter retirement, passing of the impugnedorder merely on the strength of showcause notice which stood abated is void-abnitio and the impugned order ofrecovery cannot be enforced against thepetitioner.

15. The submission of learnedCounsel for the petitioner regarding nonconsideration of his reply to the showcause notice as pleaded by him does notmerit consideration once this Court is ofthe opinion that the impugned orderpassed against the petitioner is whollywithout jurisdiction. .

2 All] Santosh Kumar Singh Vs. State of U.P. & Ors. 781

16. In the result writ petitionsucceed and the impugned order ofrecovery is hereby set aside.

17. Accordingly, the writ petition isallowed and respondents are directed torelease the balance amount of gratuity of Rs.89728.02 in favour of the petitioner alongwith interest as admissible according to theGovernment Orders applicable in this behalf.Necessary compliance of this order passedby this Court be made within a period ofthree months from the date a certified copyof this order is filed before the competentauthority.

18. No order as to cost.--------


DATED: ALLAHABAD 22.07.2015

BEFORETHE HON'BLE DR. DHANANJAYA YESHWANT

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

THE HON'BLE PRADEEP KUMAR SINGHBAGHEL, J.

Special Appeal Defective No. 215 of 2015

Santosh Kumar Singh ...AppellantVersus


Counsel for the Appellant:Sri R.C. Dwivedi


U.P. Intermediate Education Act 1921-Section 16-E-(II)-Rescission of removal ofdifficulties order w.e.f. 25.01.99-power ofmanagement-appointment on short termvacancy-caused to death or leave ofincumbent-held-process of selectioninitiated prior or on the date of

enforcement-shall continue-managementcan appoint against sort term vacancy forlimited period six month or till end ofacademic session-law laid down by inSubhash Chandra Tripathi-affirmed.

Held: Para-20 (a)(b)(c)(d)20. We consequently answer the referencein the following terms:

(a) Despite the rescission of the Removal ofDifficulties Orders by Section 33-E of U PAct No 13 of 1999 with effect from 25January 1999, the power of the Committeeof Management to make appointmentsagainst short term vacancies, where theprocess of appointment had been initiatedprior to 25 January 1999 by the publicationof an advertisement, would continue to bepreserved;

(b) On the enforcement of the provisionsof Section 33-E, the power of aCommittee of Management to make adhoc appointments against short termvacancies would not stand abrogated ina case where the process of selectionhad been initiated prior to 25 January1999;

(c) Under Section 16-E of theIntermediate Education Act, 1921, theCommittee of Management isempowered to make an appointmentagainst a temporary vacancy caused bythe grant of leave to an incumbent for aperiod not exceeding six months or inthe case of death, termination orotherwise, of an incumbent occurringduring an educational session. Anappointment made under sub-section(11) of Section 16-E as provided in theproviso thereto shall, in any case, notcontinue beyond the end of educationalsession during which the appointmentwas made; and

(d) The judgment of the Division Benchin Subhash Chandra Tripathi (supra) isaffirmed as laying down a correctinterpretation of the judgment in A ACalton (supra).


Case Law discussed:(1983) 3 SCC 33; 1995 AWC 1035; (1990) 3SCC 157; (2010) 13 SCC 467; AIR 1991 SC1612; (2011) 9 SCC 613; (2015) 3 SCC 177;[2011 (1) ESC 221 (All) (DB)].

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

1. The present reference to the FullBench has been occasioned by a referringorder of a Division Bench of this Courtdated 20 March 2015. The questionswhich have been referred for decision bythe Full Bench are thus:

(a) Whether even after the rescissionof Removal of Difficulties Orders underSection 33-E of the Uttar PradeshSecondary Education Services SelectionBoard Act, 19821 (U P Act No 5 of1982), with effect from 25 January 1999,the Committee of Management retains thepower to make ad-hoc appointmentagainst short term vacancies only becauseit had published an advertisement for thepurpose prior to 25 January 1999;

(b) Whether on enforcement ofSection 33-E of the Act rescinding theRemoval of Difficulties Orders issuedearlier, the Committee of Managementhas lost all powers to make ad-hocappointment against short term vacancies;

(c) Whether under Section 16-E ofthe Intermediate Education Act 19212,there is a power with the Committee ofManagement to make ad-hoc appointmentagainst short term vacancies and if so thenfor what period; and

(d) Whether the Division Bench inthe case of Subhash Chandra Tripathi VsState of U P3 has laid down the correctlaw.

2. The Act established theSecondary Education Services Selection

Board4 for selection of teachers ininstitutions recognized under the Act of1921. Section 16 of the Act provides thatnotwithstanding anything to the contrarycontained in the Act of 1921 or theregulations made thereunder but subject tocertain specified provisions of the Act, everyappointment of a teacher shall on or after thedate of the commencement of the UttarPradesh Secondary Education ServicesSelection Board (Amendment) Act, 2001 bemade by the Management only on therecommendation of the Board. Section 32provides that the provisions of the Act of1921 and the regulations made thereunder,insofar as they are not inconsistent with theprovisions of the Act or its regulations, shallcontinue to be in force for the purposes ofselection, appointment, promotion, dismissal,removal, termination or reduction in rank ofa teacher. Section 33 of the Act provides thatthe State Government may, for the purposesof removing any difficulty, by a notifiedorder, direct that the provisions of the Actshall, during such period as may be specifiedin the order, have effect subject to suchadaptations, whether by way of modification,addition or omission as it may deem to benecessary or expedient. Section 33-E wasintroduced into the Act by U P Act No 13 of1999 so as to provide for the rescission of theRemoval of Difficulties Orders made underSection 33 of the Act and is in the followingterms:

" 33-E. Rescission of Orders.- TheUttar Pradesh Secondary EducationServices Commission (Removal ofDifficulties) Order, 1981, the UttarPradesh Secondary Education ServicesCommission (Removal of Difficulties)(Second) Order, 1981, the Uttar PradeshSecondary Education ServicesCommission (Removal of Difficulties)(Third) Order, 1982 and the Uttar Pradesh


Secondary Education Services Commission(Removal of Difficulties) (Fourth) Order,1982 are hereby rescinded."

3. Section 33-E was introduced witheffect from 25 January 1999. Prior to theintroduction of Section 33-E, the UttarPradesh Secondary Education ServicesCommission (Removal of Difficulties)Order, 19815 was issued in exercise of thepower conferred by Section 33 to removedifficulties. Para 2 of the Removal ofDifficulties Order provided for thevacancies on which ad hoc appointmentscould be made while Para 3 referred to theduration of ad hoc appointments. TheUttar Pradesh Secondary EducationServices Commission (Removal ofDifficulties) (Second) Order, 19816 wasthereafter notified. Para 2 of Removal ofDifficulties (Second) Order provided theprocedure for filling up short termvacancies, while Para 3 provided for theduration of ad hoc appointments.

4. The issue which has been referredto for adjudication before the Full Benchrelates to a situation where the process ofselection for making an ad hocappointment had commenced prior to 25January 1999 when the Removal ofDifficulties Orders stood rescinded as aresult of the insertion of Section 33-E.

5. A reference was earlier made to aDivision Bench of this Court by a learnedSingle Judge in Subhash Chandra Tripathi(supra) of the following questions:

"(a) Whether in respect short termvacancy, appointment can be made by theCommittee of Management subsequent to25 January 1999 when the power to makead hoc appointment by the Committee ofManagement itself has been withdrawn by

addition of Section 33-E to U P Act No 5of 1982; and

(b) Whether initiation of process byan advertisement prior to 25 January 1999can lead to suggest that even afterstatutory withdrawal of the substantivepower of the Committee of Managementto make ad hoc appointment against shortterm vacancy, it still retains the same after25 January 1999, merely because theprocess of selection was initiated earlier."

6. The Division Bench, by ajudgment dated 12 December 2011answered the reference in the followingterms:

"(a) A short term vacancy for whichthe process of appointment was started tofill it up by the ad hoc appointment by theCommittee of Management of the Collegeprior to 25.1.1999 can be filled up and theappointment can be made by theCommittee of management even after therescission of the Removal of DifficultiesOrders by inserting Section 33-E to the UP Act No 5 of 1982.

(b) The initiation of process by anadvertisement prior to 25.1.1999 by theCommittee of Management to fill up ashort term vacancy by ad hoc appointmentcan be continued and concluded andappointment letters issued even afterinitiation of Section 33E to the UP Act No5 of 1982 w e f 25.1.1999."

7. In taking this view, the DivisionBench relied upon a decision of theSupreme Court in A A Calton Vs Directorof Education7. The Division Bench heldthat in a situation where the selectionprocess had been initiated prior to therescission of the Removal of DifficultiesOrders on 25 January 1999 by theinsertion of Section 33-E, the Committee


of Management would have the power tomake an ad hoc appointment on shortterm vacancies. The Division Bench heldthat, as a matter of interpretation, a viewwhich has stood the test of time and hasbeen applied consistently to cases comingto the Court should not be easilyreconsidered for departure unless it wasprincipally wrong. A large number ofteachers were appointed on ad hoc basison short term vacancies for which theselection process had commenced prior to25 January 1999 and the endeavour of theCourt should not be to unsettle theposition of law which had held the field.The Division Bench took note of the factthat the position in law has in DeshrajSingh Negi Vs State of U P8 beenadopted by a learned Single Judge and inother decisions which should not belightly disturbed.

8. The reference before the FullBench is now by a Division Bench of thisCourt. The questions which have beenformulated for decision are principally thesame as those which were answered bythe Division Bench on a reference beingmade by a learned Single Judge inSubhash Chandra Tripathi (supra).

9. In A A Calton (supra), a SelectionCommittee had been constituted underSection 16-E of the Act of 1921. Theselection was not approved by theRegional Deputy Director of Educationand the matter was again remitted to theSelection Committee. A secondrecommendation of the SelectionCommittee was also disapproved by theRegional Deputy Director after which athird recommendation was made. Theappellant, who was one of therecommended candidates but placedbelow the first candidate, challenged the

selection. The High Court allowed thewrit petition holding that the selectionmade by the Selection Committee on thethird occasion was without jurisdiction.As a result of an amendment made witheffect from 18 August 1975 by U P ActNo 26 of 1975, the power of the Directorto make an appointment under Section 16-F (4) of the Act of 1921 was taken awayin the case of minority institutions. TheSupreme Court held that though thepower was expressly taken away by theamending Act, the provisions of theamending Act did not apply to pendingproceedings under Section 16-F and theamendment was not made applicableretrospectively either expressly or bynecessary implication. The SupremeCourt held as follows:

"It is no doubt true that the Act wasamended by U P Act 26 of 1975 which cameinto force on August 18, 1975 taking awaythe power of the Director to make anappointment under Section 16-F (4) of theAct in the case of minority institutions. Theamending Act did not, however, provideexpressly that the amendment in questionwould apply to pending proceedings underSection 16-F of the Act. Nor do we find anywords in it which by necessary intendmentwould affect such pending proceedings. Theprocess of selection under Section 16-F ofthe Act commencing from the stage ofcalling for applications for a post upto thedate on which the Director becomes entitledto make a selection under Section 16-F (4)(as it stood then) is an integrated one. Atevery stage in that process certain rights arecreated in favour of one or the other of thecandidates. Section 16-F of the Act cannot,therefore, be construed as merely aprocedural provision. It is true that theLegislature may pass laws with retrospectiveeffect subject to the recognised constitutional


limitations. But it is equally well settled thatno retrospective effect should be given to anystatutory provision so as to impair or takeaway an existing right, unless the statuteeither expressly or by necessary implicationdirects that it should have such retrospectiveeffect. In the instant case admittedly theproceedings for the selection hadcommenced in the year 1973 and after theDeputy Director had disapproved therecommendations made by the SelectionCommittee twice the Director acquired thejurisdiction to make an appointment fromamongst the qualified candidates who hadapplied for the vacancy in question. At theinstance of the appellant himself in the earlierwrit petition filed by him the High Court haddirected the Director to exercise that power.Although the Director in the present caseexercised that power subsequent to August18, 1975 on which date the amendment cameinto force, it cannot be said that the selectionmade by him was illegal since the amendinglaw had no retrospective effect. It did nothave any effect on the proceedings whichhad commenced prior to August 18, 1975.Such proceedings had to be continued inaccordance with the law as it stood at thecommencement of the said proceedings. Wedo not, therefore, find any substance in thecontention of the learned counsel for theappellant that the law as amended by the U PAct No 26 of 1975 should have beenfollowed in the present case."

10. The decision in A A Calton(supra) is, therefore, an authority for theproposition that once a process ofselection has been initiated, a subsequentamendment of the law by which thepower to make an appointment hasspecifically been taken away from astatutory authority - in that case from theDirector - would have no application to apending selection process which must be

governed by the law as it stood when theselection process was initiated.Undoubtedly, the Legislature does havethe power to make a law withretrospective effect but unless the law ismade expressly retrospective orretrospective by necessary implication,the position of law as it stood when theselection process was initiated, wouldgovern the selection.

11. In certain other contexts, theSupreme Court has held, for instance, thata selection process has to be governed bythe Rules and Government Orders inexistence on the date on which theprocess is initiated. In N T Devin Katti VsKarnataka Public Service Commission9,the Supreme Court held as follows:

"...Where proceedings are initiated forselection by issuing advertisement, theselection should normally be regulated by thethen existing rules and government ordersand any amendment of the rules or thegovernment order pending the selectionshould not affect the validity of the selectionmade by the selecting authority or the PublicService Commission unless the amendedRules or the amended government orders,issued in exercise of its statutory powereither by express provision or by necessaryintendment indicate the amended Rules shallbe applicable to the pending selections. See PMahendran Vs State of Karnataka10."

12. In State of Bihar Vs MithileshKumar11, the Supreme Court held that achange in the norms of recruitment couldbe applied prospectively and could notaffect those who have been selected forbeing recommended for appointment afterfollowing the norms which were in placeat the time when the selection process wascommenced. The submission to the


contrary was based on the decision inShankarsan Dash Vs Union of India12 tothe effect that mere inclusion in a selectpanel did not confer indefeasible right toappointment. The Supreme Courtexplained the position in law as follows:

"The decisions which have been citedon behalf of the respondent have clearlyexplained the law with regard to theapplicability of the rules which are amendedand/or altered during the selection process.They all say in one voice that the norms orrules as existing on the date when the processof selection begins will control such selectionand any alteration to such norms would notaffect the continuing process, unlessspecifically the same were givenretrospective effect...While a person may notacquire an indefeasible right to appointmentmerely on the basis of selection, in the instantcase the fact situation is different since theclaim of the respondent to be appointed hadbeen negated by a change in policy after theselection process had begun."

13. In a subsequent decision inGovernment of Andhra Pradesh Vs SriSevadas Vidyamandir High School13, theSupreme Court held that a ban onrecruitment to grant-in-aid posts had beenissued after the school in question hadbeen permitted by the State to fill upvacant posts. The Supreme Court heldthat in these circumstances, the Statecould not contend that the process ofrationalization which was introducedsubsequently, would also apply to privateaided schools, where the process ofrecruitment had already been commencedpursuant to the approval granted earlier.

14. The judgment in A A Calton(supra) has been recently followed in adecision of the Supreme Court in Kulwant

Singh Vs Daya Ram14 in the context ofthe principle that vacancies which hadoccurred prior to an amendment of ruleswould be governed by the unamendedrules and not by the amended rules wherethe amended rules are not maderetrospective either expressly or byimplication.

15. The judgment of the DivisionBench in Subhash Chandra Tripathi's casewas based on the law laid down by theSupreme Court in A A Calton (supra). Inthe referring judgment, the DivisionBench has doubted the correctness of thatview based on a judgment of the SupremeCourt in Shankarsan Dash (supra). In theview of the Division Bench, the SupremeCourt has held that even a selection doesnot confer a right of appointment. Hence,the view which has been taken by theDivision Bench is that a mere initiation ofthe process of selection will not result inthe retention of the power of appointmentby the authority concerned even when thepower of appointment had beenwithdrawn under a statutory provision, inthis case Section 33-E. The decision inShankarsan Dash (supra) of a ConstitutionBench of the Supreme Court dealt withthe issue as to whether a candidate whosename appears in the merit list on the basisof a competitive examination acquires anindefeasible right of appointment as agovernment servant merely because avacancy exists. In that context, theSupreme Court held as follows:

"7. It is not correct to say that if anumber of vacancies are notified forappointment and adequate number ofcandidates are found fit, the successfulcandidates acquire an indefeasible right tobe appointed which cannot be legitimatelydenied. Ordinarily the notification merely


amounts to an invitation to qualifiedcandidates to apply for recruitment and ontheir selection they do not acquire any rightto the post. Unless the relevant recruitmentrules so indicate, the State is under no legalduty to fill up all or any of the vacancies.However, it does not mean that the State hasthe licence of acting in an arbitrary manner.The decision not to fill up the vacancies hasto be taken bona fide for appropriate reasons.And if the vacancies or any of them are filledup, the State is bound to respect thecomparative merit of the candidates, asreflected at the recruitment test, and nodiscrimination can be permitted. This correctposition has been consistently followed bythis Court, and we do not find any discordantnote in the decisions in State of Haryana v.Subhash Chander Marwaha15, Miss NeelimShangla v. State of Haryana16, or JitendraKumar v. State of Punjab17"

16. These observations of theSupreme Court would indicate that theissue in Shankarsan Dash (supra) wascompletely distinct. A candidate who ison a select list does not have anindefeasible right to appointment merelybecause a vacancy exists. That is not theissue in the present case. The issue in thepresent case is whether a process ofselection which was initiated prior to theinsertion of Section 33-E which rescindedthe Removal of Difficulties Orders mustbe governed by the law as it then stood atthe time when the process was initiated bythe issuance of an advertisement. Plainly,the issue is not about the right of aparticular candidate to appointment butwhether the selection process should begoverned by the law as it stood when theselection process was initiated. On thisaspect, the consistent position of law hasbeen laid down in the judgment of theSupreme Court in A A Calton (supra).

17. The Division Bench of thisCourt, while deciding the case of SubhashChandra Tripathi has also adverted to ajudgment of another Division Bench inDaya Shanker Mishra Vs DistrictInspector of Schools18. In Daya ShankerMishra's case, the Division Bench heldthat after the insertion of Section 33-E,there should have been some provision forfilling up substantive vacancies bymaking ad hoc appointments. TheDivision Bench held that if an ad hocappointment were not to be made at alland an educational institution requires theservices of teachers, the interest ofstudents would be seriously prejudiced inthe absence of an adequate complement ofteachers for imparting education. InSubhash Chandra Tripathi's case, apartfrom following the law laid down by theSupreme Court in A A Calton's case, thereasoning in Daya Shanker Mishra waspressed into aid as an additional groundfor supporting the conclusion. For thepurposes of this reference to the FullBench, it would be appropriate for theCourt to answer the issues which havebeen raised, based on the consistentposition of law as it emerges from thedecisions of the Supreme Court.

18. Section 16-E of the Act of 1921provides for the procedure for selection ofteachers and heads of institutions. Sub-section (11) of Section 16-E is to thefollowing effect:

"(11) Notwithstanding anythingcontained in the foregoing sub-sections,appointments in the case of a temporaryvacancy caused by the grant of leave to anincumbent for a period not exceeding sixmonths or by death, termination orotherwise of an incumbent occurringduring an educational session, may be


made by direct recruitment or promotionwithout reference to the SelectionCommittee in such manner and subject tosuch conditions as may be prescribed:

Provided that no appointment madeunder this sub-section shall, in any case,continue beyond the end of theeducational session during which suchappointment was made."

19. Sub-section (11) of Section 16-Ehas thus made a specific provision in regardto appointments in the case of temporaryvacancies caused by (i) the grant of leave toan incumbent for a period not exceeding sixmonths; or (ii) by death, termination orotherwise of an incumbent occurring duringan educational session. The object of theprovision is to ensure that where a temporaryvacancy arises as a result of fortuitouscircumstances, such as leave, death,termination or otherwise, the educationalneeds of students should not be disturbed.The purpose of making an arrangement inthe case of a temporary vacancy is to protectthe interest of education so that students arenot left in the lurch by the absence of ateacher in the midst of an academic session.The proviso to sub-section (11), however,stipulates that an appointment which is madeunder the provisions of sub-section (11)shall, in no case, continue beyond the end ofthe educational session during which theappointment was made. The proviso isintended to ensure that the purpose ofappointment against a temporary vacancycaused due to the absence of a teacher in themidst of an academic session is met bycontinuing the appointment during and untilthe end of the academic session but notfurther. This is a provision which has beenmade by the state legislature in its legislatingwisdom. The statutory provision providesboth for the circumstances in which atemporary vacancy can be filled up and the

length of an appointment made against atemporary vacancy. The difficulty whicharises is because the Board, which has beenconstituted under the Act, does not fulfill itsmandate of promptly selecting teachers forregular appointment. The District Inspectorof Schools is in possession of necessaryfactual data in regard to the dates ofappointment and retirement of teachers ofaided institutions. This can be summoned bythe Board even if the management does notcomply with its duty to intimate vacancies.There can be no justification for the Boardnot to discharge its duties with dispatch andexpedition. This is liable to result in asituation where the educational needs ofstudents are seriously disturbed due to theunavailability of duly selected teachers. Adhoc appointments in temporary vacanciesalso cause a state of uncertainty for teachersand lay them open to grave exploitation atthe hands of certain managements ofeducational institutions. Thus, consideringthe matter both from the perspective of theinterest of education as well as the welfare ofteachers, it is necessary that the Board musttake due and proper steps well in advance ofan anticipated vacancy to initiate the processof selection. Similarly, the State Governmentwould do well to streamline the procedurefor making appointments in respect oftemporary vacancies consistent with themandate of Section 16-E (11) so that, whilethe interest of students is protected, theteachers are not exposed to exploitation.

20. We consequently answer thereference in the following terms:

(a) Despite the rescission of theRemoval of Difficulties Orders by Section33-E of U P Act No 13 of 1999 witheffect from 25 January 1999, the power ofthe Committee of Management to makeappointments against short term

2 All] Transport Corporation of India Varanasi Vs. Vijayanand Singh @ Vijaymal Singh & Anr. 789

vacancies, where the process ofappointment had been initiated prior to 25January 1999 by the publication of anadvertisement, would continue to bepreserved;

(b) On the enforcement of theprovisions of Section 33-E, the power of aCommittee of Management to make adhoc appointments against short termvacancies would not stand abrogated in acase where the process of selection hadbeen initiated prior to 25 January 1999;

(c) Under Section 16-E of theIntermediate Education Act, 1921, theCommittee of Management is empowered tomake an appointment against a temporaryvacancy caused by the grant of leave to anincumbent for a period not exceeding sixmonths or in the case of death, termination orotherwise, of an incumbent occurring duringan educational session. An appointmentmade under sub-section (11) of Section 16-Eas provided in the proviso thereto shall, inany case, not continue beyond the end ofeducational session during which theappointment was made; and

(d) The judgment of the DivisionBench in Subhash Chandra Tripathi(supra) is affirmed as laying down acorrect interpretation of the judgment in AA Calton (supra).

21. The reference to the Full Benchis answered in the aforesaid terms. Thespecial appeal shall now be placed beforethe appropriate Bench for disposal in thelight of this judgment.


CIVIL SIDEDATED: ALLAHABAD 01.07.2015

BEFORETHE HON'BLE PANKAJ MITHAL, J.

Second Appeal Defective No. 268 of 2014

Transport Corporation of India Varanasi ...Appellant

VersusVijayanand Singh @ Vijaymal Singh &Anr. ...Respondents

Counsel for the Petitioner:Sri Dharampal Singh, Sri S. Niranjan, SriP.K. Dubey

Counsel for the Respondents:Sri P.C. Pathak, Sri Rajeev Mishra

C.P.C.-Section 100-Second Appeal-Against order rejecting First Appeal -asnot maintainable-in Original Suit on datefixed neither Plaintiff/Appellantappeared nor adduced any evidenceadvanced-Trail Court in accordance withprevious order 17 Rule 2 C.P.C dismissedthe Suit due to want of evidence-meaning thereby dismissed in default-held not a decree within definition ofSection 2(2) C.P.C.-hence appeal underSection 96 not maintainable-no questionof Second Appeal-dismissed as notmaintainable.

Held: Para-26The dismissal of the suit of the trial courtas per the order referred to above wasnot an adjudication of the rights of theparties involved in the suit which can beformally expressed. It was simply anorder of dismissal of the suit without anyadjudication of any lis or rights of theparties. Therefore, the order of the trialcourt dated 24.7.2013 does not conformto the definition of a decree as containedin Section 2(2) C.P.C. In that situation,as it was not a decree, it was not amiableto appeal under Section 96 C.P.C.

Case Law discussed:(1999) 4 SCC 89; (2015) 2 SCC 682; AIR 1977MP 1 (FB)

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

1. The suit of the plaintiff/appellantwas dismissed by the court of Civil Judge


(S.D.), Varanasi on 24.7.2013 for the non-presence of the plaintiff/appellant and forwant of evidence, after rejecting theapplication for adjournment.

2. An appeal preferred against the aboveorder by the plaintiff/appellant was dismissedby the appellate court vide judgment and orderdated 18.10.2014 as not maintainable withobservation to apply under Order 9 Rule 9C.P.C. for recall of the above order.

3. The above two orders have beenassailed by the plaintiff/appellant bymeans of this second appeal.

4. The office of the Stamp Reporterhas reported that the second appeal is notmaintainable.

5. On query being made as to whythe appeal is not maintainable a furtherreport was submitted that the instantappeal is not maintainable in view ofOrder 42 Rule 1 C.P.C.

6. Order 42 Rule 1 C.P.C. simplyprovides that Rules of Order 41 C.P.C. shallapply to the appeals from appellate decrees.It is difficult to comprehend the aboveobjection of the office of the Stamp Reporteras Rule 1 of Order 42 C.P.C. in no wayprohibits further appeal from the orderdismissing the appeal.

7. In view of above, the objection ofthe Stamp Reporter is overruled.

8. I have heard Sri DharampalSingh, Senior advocate on behalf ofplaintiff/appellant and Sri Rajeev Mishrafor the defendants/respondents.

9. Sri Singh has argued that thelower appellate court has manifestly erred

in law in dismissing the appeal as notmaintainable. The suit of theplaintiff/appellant was not dismissed indefault simplicitor but also for insufficientevidence. Therefore, the order dismissingthe suit was appealable and not liable tobe set aside under Order 9 Rule 9 C.P.C.

10. Sri Rajeev Mishra, on the otherhand, contends that in view of Order 17Rule 2 and 3 C.P.C., the order dismissingthe suit in default can be recalled, ifnecessary, under Order 9 Rule 9 C.P.C.and since the order is not in the nature ofdecree the appeal has rightly beendismissed as not maintainable.

11. On the respective submissions ofthe parties, the only question of law involvedin this second appeal is whether the order ofthe trial court dismissing the suit in default andfor want of evidence is appealable underSection 96 C.P.C., and consequently thepresent appeal is maintainable.

12. Learned counsel for the partiesagreed for the final disposal of the appeal atthe stage of admission by dealing with theabove aspect of the matter, as no factualdispute is involved and accordingly addressedthe Court on the above substantial question oflaw as formulated during the course ofarguments & made known to them..

13. The relevant part of the orderdated 24.7.2013 of the trial courtdismissing the suit reads as under:

Þvr% LFkxu izkFkZuki= 158?k fujLr fd;ktkrk gS oknh dk okn oknh dh vuqifLFkfr ,oe~lk{;kHkko esa [kkfjt fd;k tkrk gSA i=koyh nkf[kynQ~rj gksA---ß

14. The trial court by the aboveorder dismissed the suit for absence of the

2 All] Transport Corporation of India Varanasi Vs. Vijayanand Singh @ Vijaymal Singh & Anr. 791

plaintiff/appellant and for want ofevidence.

15. Rule 3 of Order 17 C.P.C.enables the Court to proceed with the suitnotwithstanding failure of either of theparty to produce evidence. It reads asunder:

"3. Court may proceednotwithstanding either party fails toproduce evidence, etc. - Where, any partyto a suit to whom time has been grantedfails to produce his evidence, or to causethe attendance of his witnesses, or toperform any other act necessary to thefurther progress of the suit, for which timehas been allowed, the Court may,notwithstanding such default, -

(a) if the parties are present, proceedto decide the suit forthwith; or

(b) if the parties are, or any of them,is absent, proceed under Rule 2."

16. Under Rule 3 aforesaid where,any party to the suit fails to adduceevidence or to perform any other act forwhich time has been allowed by theCourt, the Court may proceed with anddecide the suit, if the parties are present,or if any one of them is absent, proceedunder Rule 2 of Order 17 C.P.C. Thus,this rule provides for two options to theCourt. The first option to proceed with thesuit and decide it if the parties are present.The second option to proceed under Rule2 if any one of the parties is absent.

17. Rule 2 of Order 17 C.P.C.provides that where on the date of hearingany party fails to appear the Court maydispose of the suit in one of the modesdirected in that behalf by Order 9 C.P.C.or make such order as it thinks fit.

18. In other words, the above rulepermits the Court to proceed under Order9 C.P.C. if the party fails to appear in suiton the adjourned date of hearing.

19. Order 9 Rule 8 C.P.C. in turnprovides that where on the date of hearingof the suit defendant appears and theplaintiff fails to appear, the Court shallmake an order that the suit be dismissed,unless the defendant admits the claim orpart thereof.

20. A conjoint reading of all theabove three provisions would reveal thatwhere the party fails to produce theevidence and is not present, the Court canproceed under Rule 2 of Order 17 C.P.C.which permits the Court to dispose of thesuit in one of the modes prescribed underOrder 9 C.P.C. One of the modesprescribed under Order 9 C.P.C. iscontained under Rule 8 of Order 9 C.P.C.which empowers the Court to dismiss thesuit in default for absence of the plaintiffif the defendant is present.

21. Thus, a suit can be dismissed indefault both for the absence of theplaintiff and for want of production ofevidence on his behalf.

22. In the instant case, the suit wasfixed for evidence of the plaintiff on theadjourned date. On the adjourned date theplaintiff failed to appear to adduce anyevidence. The Court, therefore, proceededin accordance with Rule 3 of Order 17C.P.C. read with Rule 2 of Order 17C.P.C. to dispose of the suit in one of themodes prescribed under Order 9 C.P.C.Since the defendant was present andplaintiff had failed to appear and adduceevidence the suit was dismissed indefault. Therefore, the dismissal of the


suit for want of evidence was essentiallydismissal in default as contemplated byRule 8 Order 9 C.P.C. Accordingly, it wasopen for the plaintiff to have appliedunder 9 Rule 9 C.P.C. for setting aside thedismissal on the fulfilment of theconditions laid down therein.

23. A plain reading of Section 96C.P.C. postulates that the appeal lies againsta decree passed by the Court exercisingoriginal jurisdiction and not against anyjudgment or order. The term 'decree' hasbeen defined in Section 2(2) C.P.C. to meana formal expression of an adjudicationwhich conclusively determines the rights ofthe parties with regard to to all or any of thematters in controversy in the suit.Accordingly, adjudication of a lis involvedin a suit between the parties is necessary toconstitute a decree. In the case of R.Rathinavel Chettiar1 it has been held that adecree must fulfil the following essentialelements:

(i)There must be an adjudication in asuit.

(ii)The adjudication must determinethe rights of the parties in respect of, orany of the matters in controversy.

(iii)Such determination must be aconclusive determination resulting in aformal expression of the adjudication.

24. The aforesaid decision has beenfollowed with approval by the SupremeCourt recently in the case of Rajni Rani2.

25. The reliance placed upon thecase of Budhulal Kasturchand3 is of noassistance. In the aforesaid case the courtwas only concern with the dismissal ofthe suit for default in payment of costs foradjournment. It was not a case ofdismissal of suit simplicitor for default of

the party to appear on adjourned date ofhearing rather in the said case partieswere present.

26. The dismissal of the suit of thetrial court as per the order referred toabove was not an adjudication of therights of the parties involved in the suitwhich can be formally expressed. It wassimply an order of dismissal of the suitwithout any adjudication of any lis orrights of the parties. Therefore, the orderof the trial court dated 24.7.2013 does notconform to the definition of a decree ascontained in Section 2(2) C.P.C. In thatsituation, as it was not a decree, it was notamiable to appeal under Section 96 C.P.C.

27. In view of the aforesaid factsand circumstances, I am of the opinionthat the lower appellate court committedno error in law in dismissing the appeal ofthe plaintiff as not maintainable.

28. In the event the appeal was notmaintainable before the lower appellatecourt, as there was no decree to beappealed against, the second appealbefore this Court would also not bemaintainable.

29. The substantial question of lawinvolved in this appeal is accordinglyanswered and it is held that the order ofthe trial court dismissing the suit forabsence of plaintiff and for want ofevidence is not in the nature of a decreeagainst which an appeal would lie underSection 96 C.P.C. Consequently, nofurther appeal would lie against it underSection 100 C.P.C. to this Court.

30. The appeal is, therefore,dismissed with no order as to costs.

--------

2 All] U.P. Power Corporation Ltd. Lucknow & Anr. Vs. Nitin Kumar & Ors. 793




CHANDRACHUD, C.J.THE HON'BLE MANOJ KUMAR GUPTA, J.


U.P. Power Corporation Ltd. Lucknow &Anr. ...Appellants

VersusNitin Kumar & Ors. ...Respondents

Counsel for the Appellants:Sri J.P. Pandey

Counsel for the Respondents:C.S.C., Sri Siddharth Khare

U.P. Public Service (Reservation for SC/STand other Backward Classes) Act 1994-Section 3 (6)-Petitioner under OBC quota-participated in written examination-gettingmuch higher marks than last candidates ofGeneral candidate-can not be treated asreserved candidate-Learned Single Judgerightly declined to interfere-appealdismissed.

Held: Para-14For these reasons, we are of the viewthat there was no error in the judgmentof the learned Single Judge. The learnedSingle Judge has upheld the right of theappellants to carry out short-listing.However, the appellants have beenfaulted for having excluded candidatesbelonging to the reserved categoriesfrom the short-list of candidates for theunreserved posts which has resulted in asituation where candidates with highermarks failed to get short-listed for theunreserved posts merely because theybelong to a reserved category. The viewof the learned Single Judge anddirections which have been issuedconsequently do not suffer from anyerror.

Case Law discussed:(2009) 5 SCC 1; 2007 (2) ADJ 150 (DB)2;2008 AWC 1391


1. The special appeal has arisenfrom the judgment of a learned SingleJudge dated 16 April 2015.

2. An advertisement was issued by theElectricity Service Commission1 forrecruitment on 2211 posts of TechnicianGrade-II (Trainee) Electrical. Of these posts,the posts reserved for OBC, Scheduled Casteand Scheduled Tribe candidates were asfollows:

(i) OBC - 597 posts;(ii) Scheduled Castes - 464 posts; and(iii) Scheduled Tribes - 44 posts.

3. Thus, out of 2211 posts that wereadvertised, 1105 were reserved. 1106 postswere unreserved and were to be filled up byopen competition. The selection processcomprised of a written test followed by aninterview. The Commission released a list ofcandidates who were declared to besuccessful in the written examination on thebasis of which candidates were to be calledfor an interview. The Commission calledthree times the number of candidates forinterview from each category applying whatis described as a '3x formula'. The petitionerswho filed writ proceedings before the learnedSingle Judge were candidates belonging tothe OBC category. Their grievance was thatthough the last candidate from theunreserved category had secured lowermarks, none of the petitioners were called forthe interview.

4. In the affidavit which has beenfiled on behalf of the Commission, it has


been stated that results of successfulcandidates were declared for the writtentest category-wise. In other words,candidates belonging to the OBC categorywere confined only against the merit listof the OBC category. Consequently, anOBC candidate who may have beenmeritorious enough to be within the short-list for the unreserved posts was notincluded in the short-list on the groundthat such a candidate could only competefor a post in the category to which thecandidate belongs. Hence, theCommission stated that in the process ofshort-listing, candidates were short-listedfor interview category-wise. This is clearfrom the following averments containedin paragraph 8 of the affidavit filed by theSecretary to the Commission in thespecial appeal which reads as follows:

"That it is stated that a counteraffidavit on behalf of the appellants wasfiled in the aforesaid writ petition. It wasspecifically contended on behalf of theappellants in the said counter affidavitthat the candidates had applied forselection on the post of TG-II category-wise and as per law, the results of thesuccessful candidates in the written testwere also declared category-wise andsince the petitioners-Respondents were ofthe OBC category and therefore, they canset up their claims under their owncategory and they have no right under thelaw to over-lap under the differentcategory for which they have neverapplied. It is, thus, a specific stand wastaken on behalf of the appellants that thesuccessful candidates were invited forinterview in the ratio of 3 times of theexisting vacancy of their own category inwhich they had applied for and since thepetitioners have secured less marks andtherefore, they were out of the zone of

consideration in their own category as thecandidates securing higher marks in theirown category i.e. OBC were available.The petitioners can not contend forencroachment of posts which do not fallunder their own reserved category."

5. The learned Single Judge in thecourse of the judgement indicated theconsequence of the procedure of shortlistingwhich was followed by the Commission, inthe following observations:

"...The petitioners have been left outof the field of consideration for beingcalled in the interview only because therewere a large number of candidates in theOBC category who had secured highermarks than the petitioners and byapplying the three times formula it hasresulted in the ouster of the petitionersfrom the field of consideration for beingcalled for interview. On the contrary thepetitioners having secured higher marksin the written test than the last unreservedcategory candidate, were entitled tocompete against the unreserved vacancies/posts solely by virtue of their higher meritand they cannot be relegated to take theseats reserved for the OBC category towhich they belong. OBC candidateshaving lower marks than the petitionerswould have to be adjusted against theseats reserved for OBC..."

6. In the view of the learned SingleJudge, a candidate belonging to aparticular reserved category would beentitled to be considered for short-listingin the unreserved category if the positionon merit of a candidate was such as to fallwithin the number of short-listedcandidates in the unreserved category.Accordingly, a direction was issued bythe learned Single Judge to the appellants

2 All] U.P. Power Corporation Ltd. Lucknow & Anr. Vs. Nitin Kumar & Ors. 795

to apply the formula of shortlistinguniformly to all categories reserved aswell as unreserved.

7. The Power Corporation and theCommission are in appeal.

8. The submission which has beenurged on behalf of the appellants is basedon the provisions of Section 3 (6) of theUttar Pradesh Public Services(Reservation for Scheduled Castes,Scheduled Tribes and Other BackwardClasses) Act 1994. Section 3(6) providesas follows:

"(6) If a person belonging to any ofthe categories mentioned in sub-section(1) gets selected on the basis of merit inan open competition with generalcandidates, he shall not be adjustedagainst the vacancies reserved for suchcategory under sub-section (1)"

9. The submission is that theprinciple which is enunciated in sub-section (6) of Section 3 applies only at thestage of final selection and not at anintermediate stage when a short-list ofcandidates is drawn up for being calledfor interview. At the present stage, it hasbeen submitted that the appellants werejustified in taking recourse to the processof short-listing by confining reservedcategory candidates to their own categoryand necessarily therefore by excludingthem from the unreserved category for thepurpose of shortlisting. That is thesubmission which falls for consideration.

10. Section 3 (6) is a statutoryrecognition of the principle that if acandidate belonging to a reservedcategory is selected on the basis of meritin open competition with general

candidates, such a candidate is to beadjusted not against the vacanciesreserved for the reserved category towhich the candidate belongs but againstthe unreserved seats. This proceeds on thefoundation that where a candidate ismeritorious enough to be placed withinthe zone of selected candidatesindependent of any claim of reservationand purely on the basis of the merit of thecandidate, the candidate ought not to berelegated to a seat against the reservedcategory. The simple reason for thisprinciple is that reservation is a processby which a certain number of posts orseats is carved out for stipulatedcategories such as OBC, ScheduledCastes and Scheduled Tribes. Unreservedseats do not constitute a reservation forcandidates belonging to categories otherthan the reserved categories. Anunreserved post or seat is one in whichevery individual irrespective of thecategory to which the person belongs cancompete in open merit. Hence, theprinciple which is embodied in Section 3(6) is not confined in its application onlyat the stage when the final select list is tobe drawn up. If the submission of theappellants were to be accepted, that wouldresult in seriously absurd consequences.As the learned Single Judge noted, in thepresent case itself, the petitioners whobelong to the OBC category had in factsecured higher marks in the written testthan the last short-listed candidate fromthe unreserved category. However, theywere sought to be excluded from short-listing for the unreserved posts only onthe ground that as a candidate who haddeclared himself or herself to be of areserved category, that candidate wouldhave to be excluded from shortlistingfrom the unreserved category even if onthe basis of the position in merit, such a


candidate would otherwise fall in the listof short-listed candidates in the open orunreserved category. Such a consequencewould not be permissible in law.

11. The principle of law has beenlaid down in the judgment of the SupremeCourt in Andhra Pradesh Public ServiceCommission vs. Baloji Badhavath2 in thefollowing observations:

"One other aspect of the matter must bekept in mind. If category wise statement isprepared, as has been directed by the HighCourt, it may be detrimental to the interest ofthe meritorious candidates belonging to thereserved categories. The reserved categorycandidates have two options. If they aremeritorious enough to compete with the opencategory candidates, they are recruited in thatcategory. The candidates below them wouldbe considered for appointment in thereserved categories. This is now a wellsettled principle of law as has been laid downby this Court in several decisions. (See forexample, Union of India v. Satya Prakash3,SCC Paras 18 to 20; Ritesh R. Shah v. Dr.Y.L. Yamul4, SCR at pp. 700-701 andRajesh Kumar Daria v. Rajasthan PublicService Commission5, SCC para 9.)"

12. In a decision of a Division Benchof this Court in Sanjeev Kumar Singh vs.State of U.P.6, the Division Bench held thatcompetition commences only at the stagewhere all the persons who fulfill the requisiteconditions are short-listed. In that context, itwas also held that a concession in fee orrelaxation in the upper age limit areprovisions not concerned with the process ofselection. The Division Bench observed inpara 53 as follows:

"In a selection which can be termedas open competition with general category

candidates, the candidature of thereserved category candidates as well asthe general category candidates is to betested on the same merit and if in thatcase a reserved category candidatesucceeds in the open competition withgeneral category candidates, he would beplaced amongst the general categorycandidates."

13. The judgment in Sanjeev KumarSingh (supra) was followed by anotherDivision Bench of this Court in ShivPrakash Yadav vs. State of U.P. In thatcase, the learned Single Judge had heldthat once a reserved category candidatehad exercised his option to be treated as areserved category candidate, the provisionof Section 3 (6) of the Act would notapply. This view was held to be erroneousin view of the judgment of the DivisionBench in Sanjeev Kumar Singh's case(supra).

14. For these reasons, we are of theview that there was no error in the judgmentof the learned Single Judge. The learnedSingle Judge has upheld the right of theappellants to carry out short-listing.However, the appellants have been faultedfor having excluded candidates belonging tothe reserved categories from the short-list ofcandidates for the unreserved posts whichhas resulted in a situation where candidateswith higher marks failed to get short-listedfor the unreserved posts merely becausethey belong to a reserved category. Theview of the learned Single Judge anddirections which have been issuedconsequently do not suffer from any error.

15. The special appeal is,accordingly, dismissed. There shall be noorder as to costs.

--------

2 All] Dalip Singh & Ors. Vs. Vikram Singh & Ors. 797




CHANDRACHUD, C.J.THE HON'BLE YASHWANT VARMA, J.


Dalip Singh & Ors. ...AppellantsVersus

Vikram Singh & Ors. ...Respondents

Counsel for the Petitioner:Sri N.B. Nigam

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

U.P. Consolidation of Holdings Act 1953-Section 6(i)-Cancellation of consolidationproceeding-on ground of delay inconclusion of proceeding due to derelictionin duty-learned Single Judge quashednotification and directed to conclude andfinalize the proceeding itself-whether cansuch direction issued? held-'No'-in view oflaw developed by Apex Court in Hari BhajanSingh case-no individual right of any tenureholder effected.

Held: Para-7The principle of law which has been laiddown in the judgment of the DivisionBench and in the judgment of theSupreme Court is that before personshave entered into possession of theholdings allotted to them, they do notacquire any right, title or interest andthey would not lose their rights by theissuance of a notification under Section 6of the Act. That is the position in law.The writ petition challenging thenotification under Section 6 of the Actwas not maintainable since there wereno rights enuring to the benefit of theoriginal petitioners which were takenaway or affected by a notification underSection 6 of the Act.

Case Law discussed:2011 AIR SCW 195; 1976 RD 35


1. The appellants are in appeal againsta judgment and order of the learned SingleJudge dated 27 April 2015. The appellantsclaim to be tenure holders of VillageHanspur, Gutaiyaj Natthapur, TehsilPuwaya, District Shahjahanpur. The villagewas placed under consolidation and anotification was issued under Section 4 of theU.P. Consolidation of Holdings Act, 19531on 5 August 1972. The first, second and thirdrespondents, who are the original petitioners,moved an application before theConsolidation Officer, Shahjahanpur in2011-12 nearly forty years after thecommencement of consolidation proceedingsin 1972 and nearly thirty two years after theframing of a preliminary consolidationscheme in 1980. The Consolidation Officerby an order dated 28 July 2012 rejected theapplication. Appeals were filed against theorder of the Consolidation Officer. TheSettlement Officer (Consolidation) by anorder dated 12 November 2012 remandedthe proceedings back to the ConsolidationOfficer for disposal afresh. On 9 July 2013, anotification was issued by the ConsolidationCommissioner under Section 6(1) of the Actcancelling the notification under Section 4 ofthe Act. The first, second and thirdrespondents filed a writ petition seeking tochallenge the legality of the notificationdated 9 July 2013 and also seeking amandamus to the consolidation authorities toconclude the consolidation proceedingsexpeditiously. The appellants, who are tenureholders, were not parties to the proceedings.The writ petition was allowed by a learnedSingle Judge by a judgment and order dated27 April 2015 in the following terms:


"The writ petition has been filed forquashing the notification dated09.07.2013 by which consolidationoperation has been closed in villageHanspur, Gutaiyaj Natthapur, tehsilPuwaya, District Shahjahanpur. Impugnednotification does not contain any reasonas such the counter affidavit has beencalled for. In the counter affidavit it hasbeen stated that in spite of efforts made bythe consolidation authority they could notbe able to demarcate the chak as well asdeliver possession, although more than 40years have passed, as such the notificationunder section 6 was issued.

The reason given in the counteraffidavit shows that there was derelictionin discharge of statutory duties. Ifconsolidation authorities could notdemarcate the Chaks and deliverpossession over it, then it can not be aground for quashing the consolidationproceeding.

In the result, the writ petition issucceeded and is allowed. Thenotification dated 09.07.2013 issued byConsolidation Commissioner, U.P. isquashed.

District Deputy Director ofConsolidation, Shahjahanpur is directedto ensure the demarcation of the chaksand delivery of possession by deputingnecessary police force in the villages uptoJune, 2015."

2. The submission which has beenurged on behalf of the appellants is that itis a well settled principle of law that anorder passed under Section 6(1) of the Actcancelling a notification under Section 4of the Act does not affect the rights of anyindividual and has no civil consequences,since before persons enter into possessionof the holdings allotted to them, they donot acquire any right, title or interest nor

do they lose any of the rights, title orinterest in their original holdings. Hence,it has been held by the Supreme Courtthat such an order is not even required tobe preceded by an opportunity of beingheard. Reliance was placed on thejudgment of the Supreme Court inHarbhajan Singh Vs. State of HimachalPradesh2 where similar provisions of theHimachal Pradesh Holdings(Consolidation and Prevention ofFragmentation) Act, 1971 wereconsidered. A similar view was taken inan earlier decision of a Division Bench ofthis Court in Agricultural & IndustrialSyndicate Ltd. Vs. State of U.P.3

3. On the other hand, it was soughtto be urged on behalf of the first, secondand third respondents that there was nolawful justification for the issuance of anotification under Section 6 of the Actcancelling the earlier notification underSection 4 of the Act and, as the learnedSingle Judge observed, there was adereliction of duty on the part of theconsolidation authorities in completingthe consolidation operations. In viewthereof, the learned Single Judge has it isurged, correctly issued the impugneddirection.

4. Section 4 of the Act empowersthe State Government, where it is of theopinion that a district or part thereof maybe brought under consolidationoperations, to make a declaration to thateffect through a gazette notification.Thereupon, it is lawful for any officer orauthority empowered by the DistrictDeputy Director of Consolidation, interalia, to enter upon and survey the landwithin such areas; and to do all acts, ifnecessary, to ascertain the suitability ofthe area for consolidation operations.

2 All] Dalip Singh & Ors. Vs. Vikram Singh & Ors. 799

Section 6 of the Act empowers the StateGovernment to cancel at any time anotification made under Section 4 of the Actin respect of the whole or any part of the areaspecified therein. The consequence of theissuance of a notification under sub-section 1is provided in sub-section 2.

5. The provisions of Sections 4 and 6 ofthe Act came up for consideration before aDivision Bench of this Court in Agricultural& Industrial Syndicate Ltd. (supra). TheDivision Bench held that when the Director ofConsolidation issues a notification underSection 4 or Section 6, he performs neither aquasi judicial function nor does he exercise anadministrative power. In the view of theDivision Bench, the power was of a legislativenature. Moreover, it was held that if anotification is issued under Section 6, the landholder has no rights which are affected inconsequence of such a notification. TheSupreme Court in the judgment in HarbhajanSingh (supra) while considering a similarprovision contained in Section 16(1) of theConsolidation Act in the State of HimachalPradesh held as follows:-

"It is, thus, clear that it is only when thepersons entitled to possession of holdingsunder the Act have been delivered possessionof the holdings that they acquire rights, titleand interest in the new holding allotted tothem and the consolidation scheme in the areais deemed to have come into force. Till suchpossession of the allotted land under theconsolidation scheme is delivered to theallottees and the consolidation scheme isdeemed to come into force, the StateGovernment has the power under Section16(1) of the Act to cancel the declarationunder Section 14(1) of the Act."

6. The Supreme Court also held asfollows:

"We have already held that the StateGovernment can issue a notification underSection 16(1) of the Act cancelling thedeclaration under Section 14(1) of the Act inrespect of any area at any time before thepersons entitled to possession of holdingsunder the Act have entered into possession ofthe holdings allotted to them. Since beforethe persons enter into possession of theholdings allotted to them, they do not acquireany right, title and interest in the holdingsallotted to them and they do not lose in anymanner their rights, title and interest in theiroriginal holdings, their rights are not affectedby the issuance of a notification underSection 16(1) of the Act. In other words, anotification under Section 16(1) of the Actissued by the State Government beforedelivery of possession of the allottedholdings to persons has no civilconsequences and, therefore, the StateGovernment is not required to follow theprinciples of natural justice before issuingsuch a notification."

7. The principle of law which has beenlaid down in the judgment of the DivisionBench and in the judgment of the SupremeCourt is that before persons have entered intopossession of the holdings allotted to them,they do not acquire any right, title or interestand they would not lose their rights by theissuance of a notification under Section 6 ofthe Act. That is the position in law. The writpetition challenging the notification underSection 6 of the Act was not maintainablesince there were no rights enuring to thebenefit of the original petitioners which weretaken away or affected by a notificationunder Section 6 of the Act.

8. A counter affidavit was filed in theproceedings before the learned Single Judgeby the Consolidation Officer stating that afterthe notification was issued under Section


4A(2) of the Act on 30 May 1970 forlaunching consolidation operations, theconsolidation authorities made severalattempts to complete the work of demarcationand delivery of possession of chaks but therival groups in the village seriously opposedthe work of demarcation. There was anapprehension of a breach of peace in thevillage, as a result of which it becameimpossible to start and complete the work atthe stage of Section 24 of the Act. The villagewas notified in 1970 and though more than 40years had elapsed, the village consolidationscheme could not be implemented. In thesecompelling circumstances, the District DeputyDirector of Consolidation directed the DistrictConsolidation Authority to submit a report onwhether a consolidation scheme in the villagecould be completed or not. Pursuant thereto,the Settlement Officer (Consolidation) and theConsolidation Officer visited the village. Inthe course of the enquiry, it was found thatduring the pendency of certain writ petitionsbefore this Court, stay orders had been passedand there was serious local opposition to thework of demarcation. Despite the passage ofnearly forty years, the villagers were still inpossession of their original holdings andalmost all the villagers were in favour of theissuance of a notification under Section 6 ofthe Act. The Settlement Officer(Consolidation) reported the matter to theDistrict Deputy Director of Consolidationwho, in turn, forwarded it to the ConsolidationCommissioner for appropriate action. It wason this basis that a decision was taken tocancel the notification under Section 4 of theAct since it was found that there was no needto effect a change, the villagers being inpossession of their plots for almost forty years.

9. The submission which has beenurged on behalf of the appellants has aclear basis in the law which has been laiddown in the judgment of the Supreme

Court as well as in the judgment of theDivision Bench of this Court noted above.The issuance of a notification underSection 6 of the Act cannot be regarded asarbitrary having due regard to the factsand circumstances of the case notedabove. No rights enuring to the benefit ofthe first, second and third respondentsstood affected by the issuance of anotification under Section 6 of the Act.Hence, the order of the learned SingleJudge quashing the notification wasclearly not warranted. The learned SingleJudge, in fact, issued a further direction tothe consolidation authorities to ensure thedemarcation of chaks and the delivery ofpossession with the assistance of policeforce. These directions have causedserious prejudice to the appellants whoare not parties to the proceedings andwould be directly affected by suchdirections.

10. For these reasons, we hold thatthe impugned judgment and order dated27 April 2015 is unsustainable. Thespecial appeal is accordingly allowed bysetting aside the judgment and order ofthe learned Single Judge dated 27 April2015. The writ petition filed by the first,second and third respondents shall, inconsequence, stand dismissed. There shallbe no order as to costs.






State of U.P. & Ors. ...Appellants

2 All] State of U.P. & Ors. Vs. Yogendra Nath Singh 801

VersusYogendra Nath Singh ...Respondent

Counsel for the Petitioner:Sri C.B. Yadav, Addl. Adv. General, SriShashank Shekhar Singh, Addl. C.S.C.,Ramanand Pandey, S.C.

Counsel for the Respondents:Sri A.B. Singh

Constitution of India, Art.-226-Paymentof gratuity and pension-an employee ofDRDA-entitlement not disputed-learnedSingle Judge rightly issued mandamus-special appeal by state government-onground central government not givingnecessary fund-can not be ground to denysuch benefits-direction by Single Judgemodified to the extant having bindingforce-upon agency-appeal disposed of.

Held: Para-5The relationship of employer andemployee is between the respondent andthe DRDA which is a society registeredunder the Act of 1860. Hence, themandamus which has been issued by thelearned Single Judge would operateagainst the society with whom there is arelationship of employer and employee.The purported difficulty which the StateGovernment faces in regard to receivingthe share of the Union Governmenttowards the expenditure cannot, in ourview, affect the entitlement of anemployee or his right to receive thepayment of gratuity from his employeronce the entitlement is not in dispute.Any dispute or difficulty as between theState and the Union Governments has tobe resolved at the governmental leveland cannot be a ground to deny thepayment of gratuity. All that we need toclarify is that the mandamus which hasbeen issued by the learned Single Judgewill operate against the DRDA of whichthe respondent is an employee andwhich is a society under the Act of 1860.

Case Law discussed:

W.P. No. 20025 of 2006; Special Appeal(Defective) No. 687 of 2010


1. This special appeal has arisen froma judgment and order of the learned SingleJudge dated 12 February 2015. By thejudgment in appeal, the learned SingleJudge issued a mandamus to the appellantsfor the payment of gratuity to the originalpetitioner, the respondent to the specialappeal, in terms of a notification dated 6September 1997 under which employees ofregistered societies have been notified to beentitled to gratuity under the Payment ofGratuity Act 19721.

2. The respondent was appointed asa junior clerk and retired from service on30 January 2009. By his writ petition, hesought a mandamus for the payment ofgratuity and post retiral benefits within aspecified period and sought to challengean order passed by the Commissioner,Rural Development on 13 January 2010.The Commissioner, Rural Developmentheld that employees of the District RuralDevelopment Agency2 are not governedby the rules framed under Article 309 ofthe Constitution and are not employees ofthe State and consequently would not beentitled to the payment of gratuity. Beforethis Court, there is no dispute about theentitlement of the respondent to thepayment of gratuity in terms of thenotification dated 6 September 1997issued by the Central Government underSection 1(3)(c) of the Act of 1972. Thenotification was taken note of in ajudgment dated 14 March 2012 of alearned Single Judge of this Court inMatadeen Yadav vs. State of U.P. andothers3. The learned Single Judge, in our


view, correctly held that in order to entitlean employee to the payment of gratuity, itis not necessary that the employee mustbe employed by the State or by theCentral Government. Admittedly, DRDAis a society registered under the SocietiesRegistration Act 18604. The manner inwhich the society was constituted wastaken due note of in a judgment of theDivision Bench of this Court in State ofU.P. & Ors. vs. Pitamber5 decided on 19August 2010. The Division Benchobserved as follows:

"...The respondent herein is workingin the DRDA, which was earlier createdin each district of the State under thedirections of the Government of India forensuring effective implementation of ruraldevelopment programmes. Formalcreation of DRDA was contemplatedunder the Office Memorandum of theGovernment of India dated 24.10.1980,which provided that DRDA will becreated as a Society in each district. TheState Government, vide GovernmentOrder dated 24.11.1980, created DRDAsin each district. The Central Governmentissued an Office Memorandum dated10.03.1981 pursuant to which all DRDAsprepared almost identical Bye-laws. Asregards the structure of DRDAs, DistrictMagistrates are the Head of each DRDAand total funding is being done by theCentral Government and StateGovernment in the ratio of 70 - 30.Applying the test of funding andpervasive control which the State haveover the DRDAs, there can be no disputethat the DRDA is a State within themeaning of Article 12 of the Constitutionof India..."

3. The submission which has beenurged on behalf of the State by the learned

Additional Advocate General is thatDRDA, as an agency, was constituted bythe State Government under the directionsof the Government of India and in termsof an office memorandum dated 24October 1980 which contemplated thatsuch an agency would be created as asociety in each district. The StateGovernment issued a Government Orderon 24 November 1980 for the creation ofDRDAs in every district. The grievanceof the State Government is that though thefunds required by the DRDAs were to beshared in the proportion of 70:30 betweenthe Union and the State Governments, theUnion Government has not been meetingits obligation. In this regard, on 6November 2011, the Union Governmentin the Ministry of Rural Developmentclarified that the DRDAs should managethe expenditure on gratuity etc. from theoverall funds available with them.

4. The learned Additional AdvocateGeneral drew the attention of the Court tothe communications addressed by theState Government to the UnionGovernment, among them, a letter dated 1April 2015 addressed by the ChiefMinister to the Prime Minister regarding arequest for the disbursement of an amountof Rs.26.69 crores and to a letter dated 13May 2015 of the Principal Secretary inthe department of Rural Development tothe Secretary in the Union Ministry ofRural Development seeking release of ashortfall of Rs.32.42 crores for 2014-15and the release of the first installment for2015-16 in the amount of Rs.103.26crores. The submission is that DRDAs inevery district are headed by DistrictMagistrates and though the relationship ofemployer and employee is between eachemployee and the DRDA, ultimately theDistrict Magistrates would look to the

2 All] Smt. Somwati Vs. State of U.P. & Ors. 803

State Government for being placed withfunds for disbursing the liability if any.Consequently, it was submitted thatunless the Central Government bears itspart of the financial expenditure asclaimed by the State, there is no reason orjustification to fasten the liability on theState Government alone.

5. The issue before the Court is as towhether the dispute in regard to the fundingrequirement of the DRDA, can in anymanner, affect the entitlement of anemployee to the payment of gratuity. Theentitlement of an employee to receivegratuity is not in dispute. As an employee ofa registered society, and as held in thejudgment of the learned Single Judge inMatadeen Yadav's case, the respondent wasentitled to the payment of gratuity under theAct of 1972. The relationship of employerand employee is between the respondentand the DRDA which is a society registeredunder the Act of 1860. Hence, themandamus which has been issued by thelearned Single Judge would operate againstthe society with whom there is arelationship of employer and employee. Thepurported difficulty which the StateGovernment faces in regard to receiving theshare of the Union Government towards theexpenditure cannot, in our view, affect theentitlement of an employee or his right toreceive the payment of gratuity from hisemployer once the entitlement is not indispute. Any dispute or difficulty asbetween the State and the UnionGovernments has to be resolved at thegovernmental level and cannot be a groundto deny the payment of gratuity. All that weneed to clarify is that the mandamus whichhas been issued by the learned Single Judgewill operate against the DRDA of which therespondent is an employee and which is asociety under the Act of 1860.

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






Smt. Somwati ...AppellantVersus


Counsel for the Appellant:Sri Mohd. Navi Hussain

Counsel for the Respondents:C.S.C., Sri Ravindra Kumar Gaur

Constitution of India, Art.-226-Writpetition-claim of family pension-dismissalby learned Single Judge on laches-whetherjustified?-held-'No'-as no third party rightsaffected-from delay-the sufferer person isonly petitioner itself-delay not fatal-appealallowed.

Held: Para-6We are of the view that the learnedSingle Judge was manifestly in error indismissing the writ petition on theground of laches. The appropriateremedy would be to direct that the claimof the appellant be duly verified inaccordance with law. We clarify thatauthorities shall duly scrutinize the basisof the claim on merits and if theappellant is entitled to the payment offamily pension, such payment, for aperiod of three years prior to the filingthe writ petition, shall be effected infavour of the appellant. We clarify thatthis would be subject to due verificationof each and every factual avermentwhich is contained in the petition by the


competent authority. This exercise shallbe completed within a period of fourmonths from the date of receipt of acertified copy of this order. The appellantwould be entitled to simple interest atthe rate of 6% per annum.

Case Law discussed:AWC-2008-6-6434


1. The appellant, who sought a writdirecting the payment of family pensionto her as a widow of a deceased employeewho was working as a Peon in the officeof the Town Area Committee, Atmadpur,District Agra, is aggrieved by thedismissal of her petition on the ground oflaches.

2. The case of the appellant is thather husband was a peon in the Town AreaCommittee, Atmadpur, Agra. It has beenstated that he attained the age ofsuperannuation on 31 December 1997.The grievance of the appellant is that afterthe death of her spouse on 5 October2001, she was entitled to payment offamily pension which, however, was notreleased.

3. The writ petition was filed in May2015 for the release of family pension andother benefits to which the appellantwould be entitled to after the death of herhusband. The learned Single Judgedismissed the writ petition holding that itwas barred by laches.

4. The right to receive pension or,for that matter, family pension is acontinuing right. The failure of theemployer to deny such pension wouldconstitute a continuing wrong. A

distinction has to be made between caseswhere a delay in moving the Court resultsin a situation where vested rights of thirdparties are disrupted. Consequently, issuessuch as seniority have to be adjudicated atthe earliest. On the other hand, a mattersuch as pension relates to the employeehimself and where family pension isinvolved, it does not affect rights of thirdparties in spite of delay. Consequently, itis also well settled that a claim to pension,where pension has not been paid, is basedon a continuing wrong and relief can begranted even if there is a delay. However,on the entitlement of arrears, it would beopen to the High Court to restrict therelief by confining the payment of arrearsto a period of three years prior to the dateof the filing of the writ petition.

5. This principle was summarized inUnion of India vs. Tarsem Singh1 by theSupreme Court :

"To summarise, normally, a belatedservice related claim will be rejected onthe ground of delay and laches (whereremedy is sought by filing a writ petition)or limitation (where remedy is sought byan application to the AdministrativeTribunal). One of the exceptions to thesaid rule is cases relating to a continuingwrong. Where a service related claim isbased on a continuing wrong, relief can begranted even if there is a long delay inseeking remedy, with reference to the dateon which the continuing wrongcommenced, if such continuing wrongcreates a continuing source of injury. Butthere is an exception to the exception. Ifthe grievance is in respect of any order oradministrative decision which related toor affected several others also, and if there-opening of the issue would affect thesettled rights of third parties, then the

2 All] Vishwanath Singh Vs. Commissioner Lucknow Mandal Lko & Anr. 805

claim will not be entertained. Forexample, if the issue relates to payment orre-fixation of pay or pension, relief maybe granted in spite of delay as it does notaffect the rights of third parties. But if theclaim involved issues relating to seniorityor promotion etc., affecting others, delaywould render the claim stale and doctrineof laches/limitation will be applied. In sofar as the consequential relief of recoveryof arrears for a past period, the principlesrelating to recurring/successive wrongswill apply. As a consequence, HighCourts will restrict the consequentialrelief relating to arrears normally to aperiod of three years prior to the date offiling of the writ petition."

6. We are of the view that thelearned Single Judge was manifestly inerror in dismissing the writ petition on theground of laches. The appropriate remedywould be to direct that the claim of theappellant be duly verified in accordancewith law. We clarify that authorities shallduly scrutinize the basis of the claim onmerits and if the appellant is entitled tothe payment of family pension, suchpayment, for a period of three years priorto the filing the writ petition, shall beeffected in favour of the appellant. Weclarify that this would be subject to dueverification of each and every factualaverment which is contained in thepetition by the competent authority. Thisexercise shall be completed within aperiod of four months from the date ofreceipt of a certified copy of this order.The appellant would be entitled to simpleinterest at the rate of 6% per annum.

7. By way of abundant caution, weclarify that the direction for the paymentof family pension and interest wouldoperate only if, upon due verification of

the factual averments on the basis ofwhich the claim was set up, the claim isfound to be substantiated by thecompetent authority.

8. The special appeal is,accordingly, allowed.

9. There shall be no order as tocosts.



BEFORETHE HON'BLE DR. DEVENDRA KUMAR ARORA, J.

Misc Singh No. 735 of 2010

Vishwanath Singh ...PetitionerVersus

Commissioner Lucknow Mandal Lko. &Anr. ...Respondents

Counsel for the Petitioner:Anurag Srivastava


Arms Act, 1959-Section 17 (3)-Cancellationof fire arms license-on ground number ofFIR lodged-without considering effect onpublic peace or safety-ignored by DistrictMagistrate as well as appellate authorityheld-unsustainable-quashed.

Held: Para-13, 14 and 1513. As averred above, in the case at hand,the District Magistrate, has not recordedany finding that it was necessary to cancelthe licence for the security of public peaceor for public safety. All that he has done is,have referred to some applications andreports lodged against the petitioner. Themere fact that some reports had beenlodged against the petitioner could not formbasis of cancelling the licence. The order


passed by the District Magistrate and thatpassed by the Commissioner cannot,therefore, be upheld on the basis ofanything contained in Section 17(3) of theAct.

14. Having considered the submissionsmade by the learned counsel for theparties and the case laws, referred toabove, I am of the view that theAppellate Court has committed an errorin not considering the facts in its correctprospective and has also failed toappreciate the grounds mentioned inSection 17(3) of the Arms Act regardingrevocation or for suspending a licence.In the backdrop of the aforesaid facts,the order passed by the AppellateAuthority cannot be legally sustained.

15. For the reasons stated herein-above,the writ petition is allowed and the orderdated 07.01.2010 passed by theCommissioner as also the order dated26.06.2009 passed by the DistrictMagistrate, Raebareli are hereby set aside.The District Magistrate shall pass a freshorder after taking into account all relevantaspects and the prescription provided underSection 17 of the Arms Act.

Case Law discussed:[2013 (31) LCD 1313]; [2014 (4) ADJ 744(LB)], 2011 (29) LCD 1045; 2011 (29) LCD829; 2011 (29) LCD 1041; [2009 (67) ACC157]; [2013 (31) LCD 1460]; [2006 (24) LCD114].

(Delivered by Hon'ble Dr. DevendraKumar Arora, J.)

1. By means of the instant writpetition, the petitioner has sought forquashing of the impugned order dated07.01.2010 passed by the appellateauthority/Commissioner and the orderdated 29.06.2009 passed by oppositeparty no.2/District Magistrate, Raibareli,by which fire arm license of the petitionerhas been cancelled.

2. Submission of learned counsel forpetitioner is that petitioner is a lawabiding person of District Raebareli,where he is engaged in business and isalso a Center Incharge of Dariyapur SugarMill. In the village the family of petitionerand Sri Shiv Narain Singh, due to politicalrivalry, is on inimical terms. It is said thatin the by-election of the year 2000, thefamily members of Sri Shiv Narain Singhwith the help of anti-social elementsgrievously assaulted the brother of thepetitioner, namely, Sri Dal Bahadur Singhfor which an FIR at Case Crime No. 88 of2000 was registered against the accusedpersons. In the year 2005, during electionwhen the wife of the petitioner wascontesting, the family members of SriShiv Narain Singh with the help of anti-social elements badly assaulted thepetitioner on 16.10.2005, FIR of whichwas registered at Case crime No. 64 of2005. It is said that on the very same dayi.e. 16.10.2005 another FIR has againbeen registered at Case Crime No. 66 of2005 against Sri Vinod Singh and otherpersons, who were the family members ofSri Shiv Narain Singh in respect toMarpeat took place in the night of16.10.2005 with the family members ofthe petitioner. Learned counsel forpetitioner also submitted that as a counterblast, a false FIR was lodged at CaseCrime No. 6431 of 2005 against thepetitioner by the wife of Sri Shiv NarainSingh. In the meantime also another falseFIR has been lodged against the petitioneron account of murder of the son of SriShiv Narain Singh.

3. Learned counsel for petitionerfurther submits that Superintendent ofpolice Raebareli-opposite party no.3,wrote a letter dated 30.10.2007 to theStation Incharge, Police Station Jagatpur,


District Raebareli-opposite party no.4seeking information in respect of thematter relating to cancellation of armlicenses of the petitioner on the basis ofsome parameters given therein as perSection 17 of the Arms Act and in replythereto the opposite party no.4 on10.12.2007 submitted incorrect report incontravention to the provisions of Section17(3)(b) of the Arms Act, 1959 andrecommended for cancellation of licenseof the petitioner under the influence andpressure exerted by the rival group.

4. According to petitioner's counselthe petitioner challenged the order dated29.06.2009 by filing an appeal (AppealNo. 603 of 2009-10 Vishwanath Singh vs.District Magistrate Raebareli) before theappellate authority i.e. the Commissioner,Lucknow Division, Lucknow-oppositeparty no.1, but the same was rejected videorder dated 07.01.2010 withoutappreciating the material documentsavailable on record in an erroneous andunjustified manner.

5. It has been vehemently contendedby the learned counsel for petitioner thatunder Section 17(3)(b) of the Act, powerhas been conferred upon the licensingauthority to suspend or revoke a license offire-arm, if he deems necessary to do sofor the security of public peace, but in thepresent case the opposite party no.2 whilepassing the impugned order dated29.06.2009 failed to show at least, prima-facie, that as to how the possession of thearms by the petitioner would endanger thepublic peace. Thus, it is clear that thesame has been passed only on the basis ofrecommendations submitted by theopposite party no.3, who was influencedwith political motivation of Sri ShivNarain Singh.

6. Sri Badrul Hasan, learnedAdditional Chief Standing counsel, whileopposing the writ petition, submitted thatthe impugned orders dated 29.06.2009and 07.01.2010 have been passed inconsonance with provisions of the Act asthe licensing authority after consideringthe material facts on record has given acategorical finding of fact that thepetitioner has violated the terms andconditions of arms license. It is submittedthat the impugned orders are absolutelyvalid and the same are legal, valid andjustified as the same have been passedafter affording due opportunity to thepetitioner. Therefore, the writ petition isliable to be dismissed.

7. Thus, the trivial question involvedin this writ petition is as to whetherlicensing authority is vested with thepower under the Arms Act torevoke/cancel the license of a publicperson mere on involvement in a criminalcase or pendency of a criminal case.

8. To answer the aforesaid question,it would be apt to refer relevantparagraphs of Rakesh Kumar Vs. DistrictMagistrate, Raebareli and others;[2013(31) LCD 1313], wherein it hasbeen held that merely because ofpendency of a criminal case, the arms-licenses of the petitioner cannot becancelled. Relevant paras 12, 13, 14 and15 read as under:

"12. Further, this Court in the caseof Sahab Singh Vs. Commissioner AgraRegion, Agra and others, 2006 (24) LCD374 , in paragraph No. 3 held as under:-

The submission of the petitioner isThat merely because of pendency of acriminal case, the arms licence of the


petitioner cannot be cancelled. in supportof the said submission, learned counselfor the petitioner has placed reliance ontwo decisions of this Court in the case ofHausla Prasad Tiwari v. State of U.P. andIshwar @ Bhuri v. State of U.P. . It hasfurther been submitted that in view of theFull Bench decision of this Court in thecases of Balaram Singh v. State of U.P.and Ors. Kailash Nath v. State of U.P.1985 A.W.C. 493 as well as the DivisionBench decision of this Court in the case ofSadri Ram v. District Magistrate,Azamgarh and Ors. , the arms licence ofthe petitioner cannot be placed undersuspension pending enquiry."

13. In the case of Mulayam Singh v.State of U.P., 2013 (80) ACC 786 inparagraph Nos. 11 and 12 held as under:-

"Para No. 11 - The question as towhether mere involvement in a criminalcase or pendency of a criminal case canbe a ground for revocation of licenceunder the Arms Act, has been dealt withby a Division Bench of this Courtreported in 1978 AWC, 122 (Sheo PrasadMishra vs. District Magistrate). Thedivision Bench relied upon the earlierdecision of another Division Bench of thisCourt in the case of Masi Uddin vs.Commissioner, Allahabad, 1972 ALJ 573wherein it has been held:-

"A licence may be cancelled, inter-alia, on the ground that it is "necessaryfor the security of public peace or forpublic safety, to do so. The DistrictMagistrate has not recorded a findingthat it was necessary for the security ofthe public peace or for public safety torevoke the licence. The mere existence ofenmity between a licencee and anotherperson would not establish the

"necessary" connection with security ofthe public peace or public safety.

In the case before us also the DistrictMagistrate has not recorded any findingthat it was necessary to cancel the licencefor the security of public peace or forpublic safety. All that he has done is tohave referred to some applications andreports lodged against the petitioner. Themere fact that some reports had beenlodged against the petitioner could notform basis for cancelling the licence. Theorder passed by the District Magistrateand that passed by the Commissionercannot, therefore, be upheld on the basisof anything contained in Section 17(3)(b)of the Act."

Para No. 12 - Similar view has beentaken by this Court in various decisionsrelying upon the Division Bench judgmentpassed in Sheo Prasad Mishra( supra).There is no doubt that the DistrictMagistrate and the Commissioner i.e.administrative authorities are bound totake appropriate action in the matter ofgrant of licence and also its cancellationfor the purpose of maintaining peace andharmony in the society. The assessment ofadministrative authorities with regard togrant or cancellation of licence shouldnot be interfered in usual course by theCourt in its extraordinary jurisdictionunless there is illegality or arbitrariness."

14. In the case of Raj Kumar VermaVs. State of U.P. , 2013 (80) ACC 231 thisCourt in paragraph No. 3 held as under:-

"The ground for issue of show-causenotice, suspension and ultimatelycancellation of the licence is that one andprecisely one criminal case wasregistered against the petitioner. The


District Magistrate has also held that thepetitioner has been enlarged on bail. Hehas gone further to observe that if thelicence remained intact, the petitioner,may disturb public peace and tranquility.The same findings have been given by theCommissioner, Unmindful of the fact thatthis Court is repeating the law of the land,but the deaf ears of the administrativeofficers do not ready to succumb the lawof the land. The settled law is that mereinvolvement in a criminal case withoutany finding that involvement in suchcriminal case shall be detrimental topublic peace and tranquility shall notcreate the ground for the cancellation ofArmed Licence. In Ram Suchi vs.Commissioner, Devipatan Divisionreported in 2004 (22) LCD 1643, it washeld that this law was relied upon inBalram Singh vs. State of UP 2006 (24)LCD 1359. Mere apprehension withoutsubstance is simply an opinion which hasno legs to stand. Personal whims are notallowed to be reflected while acting as apublic servant. "

15. Further, in the case of C.P. Sahuv. State, 1984 AWC 145, this Court whileinterpreting the provisions of Section17(3) of the Act held as under:-

"The object of the enquiry that alicensing authority may, while proceedingto consider the question as to whether ornot an arms licence should be revoked orsuspended, like to make, clearly is toenable the licensing authority to come toa conclusion as to whether or not the factsstated in clauses (a) to (e) of Section17(3) exist and as already explained, it isnot obliged to before considering that acase for revocation/suspension of licensehas been made out, associate the licenseein such enquiry, in this view of the matter

it can safely be taken that where alicensing authority embarks upon such anenquiry it is, till then not convinced aboutexistence of the conditions mentioned inclauses (a) to (e) of Section 17(3) , of theAct. So long as it is not so convinced nocase to make an order either revoking orsuspending an arms licence ascontemplated by the section will be madeout."

9. The aforesaid view has beenreiterated in Hridaya Narain Tiwari v.State of U.P. and others; [2014 (4) ADJ744 (LB)], Rama Kushwaha vs. State ofU.P. & others, reported in 2011 (29) LCD1045, Hiramani Singh vs. State of U.P. &others, reported in 2011(29)LCD 829 andRajendra Singh vs. Commissioner,Lucknow Division, Lucknow and others,reported in 2011 (29) LCD 1041, whereinit has been propounded that involvementin criminal case or pendency of criminalcase cannot be a ground forcancellation/revocation of firearm license.

10. In the case of Jageshwar Vs.State of U.P. and others; [2009 (67) ACC157], it has been held that mereinvolvement in criminal case cannot inany way affect the public Security orpublic interest.

11. In Thakur Prasad Vs. State ofU.P. and others reported in [2013 (31)LCD 1460], this court propounded that"Public Peace" or "Public Safety" do notmean ordinary disturbance of law andorder, but the public safety means safetyof the public at large and not safety of fewpersons only. Relevant paras 9, 10 and 11of the said case read as under:

"9. Further, while passing theimpugned order also the licensing


authority has not given any adequatefinding that if petitioner holds the armslicense then the same shall be against thepublic peace or public safety.

"10. Public peace" or "public safety"do not mean ordinary disturbance of lawand order public safety means safety ofthe public at large and not safety of fewpersons only and before passing of theorder of cancellation of arm license asper Section 17(3) of the Act the LicensingAuthority is under an obligation to applyhis mind to the question as to whetherthere was eminent danger to public peaceand safety involved in the case in view ofthe judgment given by this Court in thecase of Ram Murli Madhukar Vs. DistrictMagistrate, Sitapur [1998(16) LCD 905],wherein it has been held that license cannot be suspended or revoked on theground of public interest (Jan-hit) merelyon the registration of an F.I.R. andpending of a criminal case.

11. Further , this Court in the case ofHabib Vs. State of U.P., 2002 ACC 783,held as under:-

"The question as to whether mereInvolvement in a criminal case orpendency of a criminal case can be aground for revocation of the licence underArms Act, has been dealt with by aDivision Bench of this Court in SheoPrasad Misra Vs. District Magistrate,Basti and Ors,. 1978 AWC 122, whereinthe Division Bench relying upon theearlier decision in Masi Uddin v.Commissioner, Allahabad, 1972 ALJ 573,found that mere involvement in criminalcase cannot, in any way, affect the publicsecurity or public interest and the ordercancelling or revoking the licence of firearm has been set aside. The presentimpugned orders also suffer from the

same infirmity as was pointed out by theDivision Bench in the above-mentionedcases. I am in full agreement with theview taken by the Division Bench thatthese orders cannot be sustained anddeserve to be quashed and are herebyquashed.

There is yet another reason thatduring the pendency of the present writpetition, the petitioner has been acquittedfrom the aforesaid criminal case and atpresent there is neither any case pending,nor any conviction has been attributed tothe petitioner, as is evident fromAnnexure SA-I and II to thesupplementary-affidavit filed by thepetitioner. In this view of the matter, thepetitioner is entitled to have the fire-armlicence. It is submitted by petitioner'scounsel that the petitioner has beenacquitted of the charges."

12. At this juncture, it would berelevant to add that Ram Karpal Singh vs.Commissioner, Devi Patan Mandal,Gonda and others ; [2006 (24) LCD 114]is quite applicable in the present case as inthe present case, the District Magistratewhile cancelling the license has notrecorded any finding based on cogentmaterial relating to breach of public peaceor tranquility on account of continuanceof Arms license in petitioner's possession.The mere existence of enmity between alicensee and another person would notestablish "necessary" connection withsecurity of public peace or public safety.

13. As averred above, in the case athand, the District Magistrate, has notrecorded any finding that it was necessaryto cancel the licence for the security ofpublic peace or for public safety. All thathe has done is, have referred to some

2 All] Jai Prakash Singh & Ors. Vs. Additional District Judge Raebareli & Ors. 811

applications and reports lodged againstthe petitioner. The mere fact that somereports had been lodged against thepetitioner could not form basis ofcancelling the licence. The order passedby the District Magistrate and that passedby the Commissioner cannot, therefore,be upheld on the basis of anythingcontained in Section 17(3) of the Act.

14. Having considered thesubmissions made by the learned counselfor the parties and the case laws, referredto above, I am of the view that theAppellate Court has committed an error innot considering the facts in its correctprospective and has also failed toappreciate the grounds mentioned inSection 17(3) of the Arms Act regardingrevocation or for suspending a licence. Inthe backdrop of the aforesaid facts, theorder passed by the Appellate Authoritycannot be legally sustained.

15. For the reasons stated herein-above, the writ petition is allowed and theorder dated 07.01.2010 passed by theCommissioner as also the order dated26.06.2009 passed by the DistrictMagistrate, Raebareli are hereby set aside.The District Magistrate shall pass a freshorder after taking into account all relevantaspects and the prescription providedunder Section 17 of the Arms Act.

16. Costs easy.--------

ORIGINAL JURISDICTIONCIVIL SIDE


BEFORETHE HON'BLE DR. DEVENDRA KUMAR

ARORA, J.

Misc. Single No. 2159 of 2007

Jai Prakash Singh & Ors. ...PetitionerVersus

Additional District Judge Raebareli &Ors. ...Respondents

Counsel for the Petitioner:Rajendra Singh Chauhan

Counsel for the Respondents:C.S.C., Mohammad Adil Khan

C.P.C-Order VI Rule 17- Amendment ofplaint-suit for declaration and possession-claiming right of inheritance-after remandin Second Appeal-by virtue of amendment-putting claim based upon adversepossession-held-when not taken this pleaat earliest possible-after evidence-can notbe allowed-order passed by First Appellatecourt-set-a-side.

Held: Para-20Having examined the instant matter inthe light of the aforesaid legalproposition, it comes out thatrespondents no. 2 and 3 filed a suitclaiming title by succession and sought adeclaration in this regard. As averredabove, earlier the matter went up to thesecond appeal stage and was sent backto the first appellate court for decidingthe appeal afresh. It may be noted thatthe suit of respondent no. 2 had beendismissed by the trial court. When thematter was remanded, the privaterespondents no. 2 and 3 filed anapplication, seeking amendment in thesuit by taking a plea of adversepossession on the basis of observationmade by this Court in the second appeal.In my opinion, the learned AdditionalDistrict Judge, Court No. 1, Raebarelicommitted an error in allowing the saidamendment, overlooking the fact that ithad changed the very nature of the suitby claiming title on the basis of adversepossession and abandoning the earlierplea of title by succession.

Case Law discussed:AIR 1985 SC 817; AIR 1992 SC 1604; JT 1998(4) SC 484; [2002 (20) LCD 192]; AIR 2005


SCW 3827; [2006 (100) RD 522]; AIR 1922Privy Council 249; (2007) 5 SCC 602; [2002(20) LCD 192]; (2007) 5 SCC 602; (2008) 7SCC 85; (2009) 10 SCC 84.


1. At the very outset, it is relevant tomention that during the pendency of thiswrit petition, petitioner no. 1 (Jai PrakashSingh) died and as such his legal heirs,namely, Harish Kumar Singh (son) andSmt. Ram Dulari (wife) have beensubstituted in his place as petitioner nos.1/1 and 1/2.

2. By means of present writ petition,petitioners have challenged the orderdated 24.03.2007 passed by AdditionalDistrict Judge, Court No. 1, Raebareli(opposite party no. 1) in Appeal No.36/80; Jagdamba Singh & another Vs.Jung Bahadur Singh and another, wherebythe opposite party no. 1 has allowed theamendment application moved by theopposite party nos. 2 and 3.

3. Brief facts of the case are thatopposite party no. 2 and 3 filed a suit fordeclaration and possession, on the basis ofsuccessions, before the IVth AdditionalMunsif Magistrate, Raebareli. Afterconsidering the facts and hearing both theparties, the Munsif Magistrate haddismissed the suit for declaration andpossession preferred by opposite party nos.2 and 3 on 29.01.1980 inter alia on theground that it is not proved that Lalla Singhcould legally inherit the rights of Smt.Umrai. It was also held by the trial courtthat the plaintiffs have claimed their rightsonly on the ground of inheritance and noton the ground of adverse possession. It wasalso held that the plaintiffs cannot bedeclared to be owner of the disputed land.

4. Against the aforesaid judgmentand order passed by the trial court, theopposite party nos. 2 and 3 preferred anappeal, which was allowed by oppositeparty no. 1 on the ground that due to longstanding possession, the plaintiffs haveperfected their right by prescription. Itwas further held by the learned AdditionalDistrict Judge/opposite party no. 1 thateven if, the plea of adverse possessionwas not taken, it does not prevent thecourt from declaring that the appellanthave perfected their rights by adversepossession.

5. Feeling aggrieved by the judgmentof first appellate court, the father ofpetitioners had preferred a Second Appealbefore the High Court and the High Courtafter hearing both the parties, has set asidethe judgment and decree passed by firstappellate court on 22.12.2004 and remittedthe matter to first appellate court to decidethe matter afresh after giving opportunity ofhearing to the parties. After passing ofjudgment dated 20.12.2004, the oppositeparty no. 2 and 3 filed an application in thesuit under Order VI Rule 17 C.P.C. foramending the plaint and sought a plea ofadverse possession. Against the saidamendment application, the petitioners hadfiled an objection before the opposite partyno. 1 stating therein that there is inordinatedelay of several long years and throughamendment they want to fill the lacunae,which is not permissible as it will change thebasic nature. It has further been stated in theobjection that two different statement cannotrun concurrently in the pleadings relating tosuccessions and adverse possession, as suchthe amendment application is liable to berejected.

6. Learned counsel for the petitionershas contended that the Court below, without

2 All] Jai Prakash Singh & Ors. Vs. Additional District Judge Raebareli & Ors. 813

considering the facts and legal aspects of thecase, allowed the amendment application inarbitrary manner vide order dated24.03.2007. It is well settled law that anyamendment under Order 6 Rule 17 be madeat an earliest stage. The appellate court oughtto have decided the appeal on the basis ofpleadings and evidence on record, but in theinstant case the appellate court provided toraise new plea not originally pleaded by wayof amendment in an arbitrary manner. Twodifferent pleadings one of succession andanother is of adverse possession cannot runconcurrently, therefore the opposite party no.1 has committed manifest error of law inallowing the amendment application, whichchanged the nature of original suit.

7. Learned Counsel for the contestingrespondent, while opposing the writpetition, has submitted that AdditionalDistrict Judge, Court No. 1, Raebareli(opposite party no. 1) on a consideration ofthe entire facts and law applicable thereto,allowed the application for amendment videorder dated 24.03.2007 on payment of Rs.500/- as cost. It has been submitted thatafter the order dated 24.03.2007, theamendment in the plaint had already beenincorporated by the answering oppositeparties and the cost has already beendeposited in Court but the petitioners havedeclined to receive the cost. The courtbelow on a consideration of the entire factsand circumstances of the case as well as thelaw laid down by the Apex Court and thisCourt, wherein it has been propounded thatrule of procedure are hand made and shouldnot be allowed to be mistress of justice andfurther merits and demerits of the case shallnot be considered while allowing theapplication for amendment, hence theamendment can be allowed at any stage ofthe proceedings, if it does not change thenature of the suit.

8. In order to decide the lis involvedin this petition, it would be proper to referthe legal proposition laid down in variouscase laws on the subject.

9. In Vineet Kumar v. Mangal SainWadhera; AIR 1985 SC 817, the Hon'bleSupreme Court held that normallyamendment is not allowed if it changes thecause of action, but where the amendmentdoes not constitute the addition of a newcause of action, or raises a new case, butamounts to not more than adding to the factsalready on record, the amendment should beallowed even after the statutory period oflimitation.

10. In Jagdish vs. Nathu Singh; AIR1992 SC 1604 the Hon'ble Apex Courtwith regard to amendment in plaint heldas under:

"12. ....the Court may allow to certainextent even the conversion of the nature ofthe suit, provided it does not give rise toentirely a new cause of action. Anamendment sought in a plaint filed forspecific performance may be allowed to bedone without abandoning the said reliefabout amendment seeking for damages forbreach of contract may be permitted."

11. In the case of Shallendr AmarSingh v. Harnam Singh Cornalius decidedon 04.12.1996, this Court observed thatdispossession and adverse possession aretwo different concepts, which are notmutual to each other.

12. In G. Nagamma and others v.Siromanamma and another; JT 1998 (4)SC 484, the Hon'ble Apex Court held thatin an application under Order VI, Rule 17,even an alternative relief can be sought,however, it should not change the cause


of action or materially affect the reliefclaimed earlier.

13. In Ramroop v. the DeputyDirector of Consolidation, Varanasi andothers; [2002 (20) LCD 192], this Courtobserved as under:

"6. It is well settled in law that a newcase based upon the facts, which wereavailable to the plaintiff at the time of filingof original plaint but were not pleaded in theoriginal plaint, cannot be permitted to be setup by way of amendment. A reference in thisregard may be made to the decisions inBasanti Dei v. Vijaya Krushna Patnaik andothers, reported in AIR 1976 Orissa 218,Fakir Charan Mohanty v. Krutibaskar,reported in AIR 1984 NOC 284 and FullBench decision of Madhya Pradesh HighCourt in Lazarus Chhindwara v. Smt. LavinaLazarus, Indore and others, reported in AIR1979 MP 70 (FB) and also a decision of thisCourt in Gayatri Devi v. Om PrakashGautam and others, reported in AIR 1985Alld. 356."

14. In Salem Advocate BarAssociation v. Union of India; AIR 2005SCW 3827, the Apex Court has held thatif the nature of the suit is going to bechanged and it has not been proved on thebasis of pleadings that the plaintiff wasnot aware regarding the fact ordevelopment which was to be amended byamendment application, the amendment isnot permissible.

15. In Rama Shanker Keshari @Patili Vs. Ist Additional District Judge,Sonebhadra and others; [2006 (100) RD522], this Court observed as under:

"9. The decision of the Trial Court iscorrect. The defendants cannot be allowed

to change completely the case made inparagraphs 25 and 26 of the writtenstatement and substitute an entirelydifferent and new case."

16. Nevertheless, one distinct causeof action cannot be substituted for anothernor the subject matter of the suit can bechanged by means of an amendment. Thefollowing passage from the decision ofthe Privy Council in Ma Shwe Mya v.Maung Mo Hnaung, AIR 1922 PrivyCouncil 249, succinctly summarises theprinciple which may be kept in mindwhile dealing with the prayer foramendment of the pleadings:

"All rules of Court are nothing butprovisions intended to secure the properadministration of justice and it is therefore,essential that they should be made to serve andbe subordinate to that purpose, so that fullpowers of amendment must be enjoyed andshould always be liberally exercised, butnonetheless no power has yet been given toenable one distinct cause of action to besubstituted for another, nor to change, by meansof amendment, the subject matter of the suit."

17. In view of the above, the caselaws relied upon by the respondents are ofno avail. Even in the case of UshaBalashaheb Swami and others v. KiranAppaso Swami and others, (2007) 5 SCC602, the Apex Court observed that theproviso to Order 6 Rule 17 of the Code,however, provides that no application foramendment shall be allowed after the trialhas commenced unless the court comes toa conclusion that in spite of due diligence,the party could not have raised the matterbefore the commencement of trial.

18. In view of Order VI Rule 17 ofthe Code of Civil Procedure, no

2 All] Shaheen Parveen & Anr. Vs. The State of U.P. & Ors. 815

application for amendment shall be allowedafter the trial has commenced unless thecourt comes to conclusion that in spite of duediligence the party could not have raised thematter before the commencement of the trial.Moreover, there is no explanation in theapplication for amendment as to why it couldnot be brought on record at the first instanceand why there was such a long delay. In thecircumstances narrated above, the case lawsrelied upon by the respondents are of no helpto them.

19. In veiw of the legal propositionenunciated in Ram Roop Vs. The DeputyDirector of Consolidation [2002(20)LCD192], Usha Balashaheb Swami andothers vs. Kiran Appaso Swami and others(2007)5 SCC 602 and Gautam Sarup vs.Leela Jetly and others (2008)7 SCC 85,Revajeetu Builders and Developers vs.Narayanaswamay and sons and others(2009)10 SCC 84, it is imminently clear thatthe facts, which were within the knowledgeof the plaintiff at the time of filing of originalplaint but were not pleaded in the originalplaint, cannot be permitted to be set up byway of amendment.

20. Having examined the instantmatter in the light of the aforesaid legalproposition, it comes out that respondents no.2 and 3 filed a suit claiming title bysuccession and sought a declaration in thisregard. As averred above, earlier the matterwent up to the second appeal stage and wassent back to the first appellate court fordeciding the appeal afresh. It may be notedthat the suit of respondent no. 2 had beendismissed by the trial court. When the matterwas remanded, the private respondents no. 2and 3 filed an application, seekingamendment in the suit by taking a plea ofadverse possession on the basis ofobservation made by this Court in the second

appeal. In my opinion, the learned AdditionalDistrict Judge, Court No. 1, Raebarelicommitted an error in allowing the saidamendment, overlooking the fact that it hadchanged the very nature of the suit byclaiming title on the basis of adversepossession and abandoning the earlier plea oftitle by succession.

21. For the reasons aforesaid, thewrit petition is allowed and the impugnedorder dated 24.03.2007 passed byAdditional District Judge, Court No. 1,Raebareli (opposite party no. 1) in AppealNo. 36/80; Jagdamba Singh & another Vs.Jung Bahadur Singh and another, ishereby set aside. As the parties arelitigating since the year 1976 when theregular suit was filed, the lower court isdirected to make an earnest endeavour toconclude the proceedings by 31.12.2015.The trial court is further directed not togrant any adjournment at the drop of hatand only genuine and in exceptionalcircumstances, adjournment should bepermitted so that precious time of theCourt is not wasted and long pendinglitigation comes to an end.

22. Costs easy.--------



BEFORETHE HON'BLE AJAI LAMBA, J.

THE HON'BLE ASHOK PAL SINGH, J.

Misc. Bench No. 3519 of 2015

Shaheen Parveen & Anr. ...PetitionersVersus

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

Counsel for the Petitioners:Omkar Singh


Counsel for the Respondents:Govt. Advocate

Constitution of India-Art. 226-FIRQuashing-offence under section 361, 363and 366 IPC-prosecutrix carrying 7month pregnancy- in statements undersection 164 Cr.P.C.-stated to join thecompany on her own-victim may bebelow that 17 years-if separated-unbornchild shall ultimately be sufferer-whenmain prosecution witness not supportingprosecution’s allegations-no betterevidence could be to continue the furtherproceeding-held-amounts to abuse theprocess of Court-quashed.

Held: Para-29The stand of the Prosecuting Agency thatthe victim was a few months below age ofmajority when she joined the company ofthe accused/petitioner No.2, and thereforeoffence has been committed, cannot beaccepted if ground reality is taken intoaccount. It has come on record that theprosecutrix is an expecting mother and iscarrying a pregnancy of 31 weeks. Coupledwith this fact is the statement of theprosecutrix wherein she has said that shewas neither kidnapped nor abducted, ratherhas been living with petitioner No.2 as hiswife. It is the prosecutrix who went in thecompany of the accused, willingly,knowingly, and rather than the accusedtaking the prosecutrix out of the custody ofthe lawful guardian; the victim herself hadeloped with petitioner No.2. In theconsidered opinion of the Court, substantialjustice cannot be sacrificed at the altar oftechnicality, as is being concluded by theInvestigating Agency.

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

1. Shaheen Parveen and Mohd. Sarfarajhave approached this Court to seek a writ inthe nature of CERTIORARI to quash FirstInformation Report bearing Case Crime No.-121 of 2014 under Sections 363/366 of theIndian Penal Code, Police StationMadiyawan, District Lucknow (Annexure-1).

2. Case set up by the petitioners isthat the petitioners having attainedmarriageable age got married. Marriage,however, is not being accepted byrespondent No.4 who happens to be themother of petitioner No.1. Under thecircumstances, aggrieved by the fact thatthe petitioner No.1 got married of her ownaccord, impugned criminal proceedingshave been initiated.

3. Short counter affidavit on behalfof the Prosecuting Agency has been filedtoday alongwith medical examinationreport of the victim/prosecutrix and alsothe statement of prosecutrix recordedunder Section 164 Cr.P.C. on 8.5.2015,which is taken on record.

4. In the short counter affidavit, it hasbeen stated that the prosecutrix/victim iscarrying a pregnancy of 31 weeks (AnnexureNo.-SCA-2). In paragraph 4 of the affidavit,it has been admitted that theprosecutrix/victim did not support theprosecution case in her statement recordedunder Section 164 Cr.P.C. (Annexure No.-SCA-3). The Investigating Agency,however, is concluding that offence has beencommitted, on the ground that at the point intime when the prosecutrix went in thecompany of petitioner no.-2, she was lessthan 18 years of age.

5. We have heard learned Counsel forthe petitioners, Sri Deep Kamal, learnedCounsel for respondent no.-4 and also thelearned Counsel for the Prosecuting Agency.

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

7. Section 363 of the Indian PenalCode inheres that whoever kidnaps any


person from lawful guardianship shall bepunished in terms of sentence provided inthe provision.

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

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

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

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

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

10. At the time of consideringwhether on admitting the allegationsmade in the F.I.R., offence has beencommitted or not, the ingredients of the

offence are required to be considered, incontext of the evidence collected duringthe course of investigation.

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

12. Documents placed collectively asAnnexure SCA-2 indicate that the victim hasbeen found to be above 18 years of age. Thedocument further makes it evident that thevictim is having pregnancy of 31 weeksgestation on 7.5.2015. The document alsomakes it clear that at the time of medicalexamination, the victim gave the history inthe following words :

"The victim had gone last year withthe boy and got married in February, 2014staying with husband and at present, sheis seven months pregnant."

13. Annexure SCA-3 is thestatement of the victim recorded underSection 164 CrPC on 8.5.2015. Whentranslated, statement reads as under :

"I on 10.2.2014, of my own free will, withoutcoercion, left my house and went to Barabanki withSarfaraj and stayed there for one week. On18.2.2014, I got married to Sarfaraj in a Maszid inSulemanpur, and also contracted a Court marriage.My marriage has been solemnized with Sarfaraj ofmy own free will. I want to live with him. I am eightmonths pregnant. Therefore, I want to go with myhusband. My husband has fear of my familymembers."

14. The Investigating Agency isconcluding that at the point in time when thevictim left in the company of the accused,she was a few months less than 18 years,which is the relevant age mentioned in


Section 361 of the Indian Penal Code, aboveextracted. Clearly, the Investigating Agencyis taking a hypertechnical view of the issue.The other relevant facts and circumstances ofthe case are being ignored.

15. The issue whether the victimwas kidnapped or abducted is required tobe examined in context of the statementof the prosecutrix recorded under Section164 Cr.P.C.

16. If the statement of theprosecutrix, above noted, is taken intoaccount, it becomes evident thatingredients of the offence under Sections363/366 of the Indian Penal Code inregard to coercion, kidnapping orabduction allegedly committed bySarfaraj, are not satisfied. The provisionsof Section 363 of the Indian Penal Codeare required to be considered in context ofprovisions of Section 361 of the IndianPenal Code. So as to satisfy theingredients of Section 361 of the IndianPenal Code, it has to be established by theprosecuting agency that theaccused/sarfaraj took or enticed theprosecutrix out of the keeping of thelawful guardian of the prosecutrix,without the consent of theguardian/respondent no. 4. In the case inhand, it is the case of the prosecutrixherself that she of her free will went withSarfaraj, lived with him, wants to livewith him and is expecting his child.Element of coercion and enticement bySarfaraj is absent, although consent of theguardian had not been taken.

17. The writ court, being a court ofequity, must take into consideration allrelevant factors brought before it todeliver substantial justice. Equity justifiesbending the rules, where fair play is not

violated, with a view to promotesubstantial justice. A writ court cannotcontemplate any limitation on its power todeliver substantial justice. It has to beensured that a consumer of justice getscomplete justice, instead of going into thenicety of law. Under the circumstances,the court cannot be a mere onlooker ifinjustice is likely to be caused.

18. Petitioner No.1 thevictim/prosecutrix would be the bestwitness, rather the only witness ofcommission of offence under Sections363/366 I.P.C. Surely, the victim will notsupport the prosecution case, as has beenmade evident by her in her statement,recorded in the course of investigationunder Section 164 Cr.P.C., and thereforethe trial would result in acquittal. Duringcourse of trial, considerable number ofman hours would be wasted inprosecution/ defending and judging thecase. No useful purpose would be servedand the entire exercise of trial would be infutility because the victim has declaredthat she was not victimised or kidnapped.

19. The facts that have 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 matrimonial


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

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

25. So as to show an act ofcriminality on the part of the accused,some kind of inducement held out by theaccused person or an active participationby him in the formation of the intention ofthe minor to leave the house of theguardian, is required to be shown.Conclusion might be different in caseevidence is collected by the 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 ofIndia reported in (1965)1 SCR 243 S.Varadarajan versus State of Madras).

26. When the above noted situation isconsidered in context of the facts andcircumstances of the present case, it wouldbecome evident that the victim (petitionerNo.1) was a few months short of attainingage of 18 years. The said petitioner hadattained age of discretion, however, not ageof majority. Petitioner No.1, the victim inher statement recorded under Section 164CrPC has clearly demonstrated that it wasshe who went of her free will and accord on10.2.2014 with Mohd. Sarfaraj, without anycoercion, and stayed with him, and got


married to him willingly. It is a consensualact on the part of petitioner No.1 allthrough. Such clear stand of the victimmakes it evident that Mohd. Sarfarajrespondent No.2 cannot be attributed withcoercing petitioner No.1, inducing petitionerNo.1 or kidnapping or abducting her incommission of offence, as alleged. Surely, agirl who has attained an age more than 17years and who is already carryingpregnancy cannot be stated to have notattained age of discretion. In suchcircumstances, a technicality in law wouldnot be attracted. The Court has not beenshown any material which would indicatecoercion, inducement or forceful act on thepart of Sarfaraj (petitioner No.2) so as toconclude that offence has been 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, theCourt is convinced that the impugnedproceedings have been initiated in abuse ofprocess of the Court and process of the law.A personal grudge against marriage of choiceof the daughter is being settled by virtue ofinitiating impugned criminal proceedings,which would not be permissible in law. Suchprosecution would abrogate constitutionalright vested in the petitioners to get marriedas per their discretion, particularly whenthere is no evidence to indicate that themarriage is void.

29. The stand of the ProsecutingAgency that the victim was a few monthsbelow age of majority when she joined

the 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.

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

32. The writ petition is allowed.Accordingly, First Information Reportlodged as Case Crime No.-121 of 2014under Sections 363/366 of the IndianPenal Code, Police Station Madiyawan,District Lucknow and all consequentproceedings are hereby quashed.

33. Let a copy of this order beforwarded to Senior Superintendent ofPolice, Lucknow.

--------

2 All] Swapnil Verma & Anr. Vs. Principal Judge, Family Court, Lucknow 821




ARORA, J.

W.P. No. 4019 of 2015 (M/S)

Swapnil Verma & Anr. ...PetitionersVersus

Principal Judge, Family Court, Lucknow...Opp. Party

Counsel for the Petitioners:Ashish Bhatt , Anil Sharma and Desh MitraAnand

Counsel for the Opp. Party:---

Hindu Marriage Act, 1956-Section-13(B)-petitioner-seeking -exemption fromstatutory period divorce petition on mutualconsent-Family Judge refused to pass anyorder on merit ignoring statutory period-neither the Family Judge nor High Curt canissue such direction-held-order passed byFamily Judge-justified.

Held: Para-15It is clear from the judgments of theSupreme Court reproduced herein abovethat in curtailing the statutory period of sixmonths and granting a decree of divorce bymutual consent, the Supreme Court hasexercised power under Article 142 of theConstitution of India. This power is notavailable to any other Court in the land,including this Court. In Anil Kumar Jain v.Maya Jain (supra), the Supreme Court hasclearly held, in no uncertain terms, that thedoctrine of irretrievable breakdown ofmarriage is not available even to the HighCourts which do not have powers similar tothose exercised by the Supreme Courtunder Article 142 of the Constitution ofIndia. Neither can the High Court, nor theCivil Court, can pass orders before theperiod prescribed under the relevant

provisions of the Act, or on grounds notprovided for in Section 13 and 13-B of thestatute. This principle of law has beenreiterated by the Supreme Court in ManishGoel v. Rohini Goel (supra).

Case Law discussed:1995 Supp. (4) SCC 411; AIR 1999 AndhraPradesh 91; AIR 2005 Madhya Pradesh 106;AIR 2005 Delhi 365; (2009) 10 SCC 415;(2010) 4 SCC 393


1. Heard learned counsel for thepetitioners and perused the record.

2. According to the petitioners, theirmarriage was solemnized on 17.6.2010 asper Hindu rites and rituals at MadhubanMarriage Hall Mohan Road, Lucknow andafter marriage, they lived together forsometime and from the wedlock, a baby,namely, Aaradhya, was born, who is atpresent 5 years old. In the year 2012, due tosome quarrel, petitioner No.2-Anjali Vermalodged an FIR against the petitioner No.1.-Swapnil Verma, which was registered asCase Crime No. 302/12 under Sections 498IPC and 3/4 of the Dowry Prohibition Act atpolice station Sikanderpur district Ballia andsince then, petitioners are living separately.

3. It has been stated by thepetitioners that since they did notcohabitated so long and further it isimpossible for them to live together,therefore, they decided to enter intocompromise to take divorce by mutualconsent and filed a petition before thecompetent court. In these backgrounds, on2.7.2015, petitioners have filed a suit formutual divorce under Section 13 (B) ofthe Hindu Marriage Act, 1955 before thePrincipal Judge, Family Court, Lucknow,


which was registered as Suit No. 1553 of2012 but the opposite party-PrincipalJudge, Family Court, Lucknow, has fixedthe suit for 3.1.2016. Therefore, thepetitioner is constrained to approach thiscourt by filing the present writ petition,seeking a writ in the nature of mandamusdirecting the opposite party to concludethe suit No. 1553 of 2012 for mutualdivorce filed under Section 13 (B) ofHindu Marriage Act, 1955 : SwapnilVerma and Anjali Verma, expeditiously.

4. Submission of the learned counselfor the petitioners is that there is nochance of conciliation between thepetitioners and as such, it will be justifiedto issue decree of divorce expeditiouslypreferably in case of similarly agedpersons like petitioners but the oppositeparty has fixed the suit in the month ofJanuary, 2016. His submission is thatsince the relationship of the petitioners arenot recoverable, therefore, a decree ofmutual divorce ought to have been passedby the opposite party on waiving off thestatutory period as provided under Section13 (B) of the Act but the opposite partyhas fixed the suit for hearing on 3.1.2016.

5. To strengthen his arguments,learned counsel for the petitioner hasplaced reliance upon the cases reported in1995 Supp. (4) SCC 411 : Payal Jindal(Mrs) Vs. A.K. Jindal; AIR 1999 AndhraPradesh 91 : In Re: Grandhi VenkataChitti Abbai and another; AIR 2005Madhya Pradesh 106 : DineshkumarShukla Vs. Smt. Neeta; AIR 2005 Delhi365 : Ms. Anita Sharma and another Vs.Nil

6. I have heard learned counsel forthe petitioner and perused the record.

7. A short point for decision in thiswrit petition is whether this Court underArticle 227 of the Constitution of Indiahas power to direct the Principal Judge,Family Court, Lucknow to decide SuitNo. 1553 of 2012, which has been filedby the petitioners for mutual divorceunder Section 13 (B) of the HinduMarriage Act, by waiving off the statutoryperiod as provided under Section 13 (B)of the Act.

8. At this juncture, reference may bemade to the provisions of Section 13B ofthe Act and the same is reproducedhereinbelow :

"13B. Divorce by mutual consent. -

(1) Subject to the provisions of thisAct a petition for dissolution of marriageby a decree of divorce may be presentedto the district Court by both the parties toa marriage together, whether suchmarriage was solemnized before or afterthe commencement of the Marriage Laws(Amendment) Act, 1976, on the groundthat they have been living separately for aperiod of one year or more, that they havenot been able to live together and thatthey have mutually agreed that themarriage should be dissolved.

(2) On the motion of both the partiesmade not earlier than six months after thedate of the presentation of the petitionreferred to in Sub-section (1) and not laterthan eighteen months after the said date, ifthe petition is not withdrawn in themeantime, the court shall, on beingsatisfied, after hearing the parties andafter making such inquiry as it thinks fit,that a marriage has been solemnized andthat the averments in the petition are true,pass a decree of divorce declaring the

2 All] Swapnil Verma & Anr. Vs. Principal Judge, Family Court, Lucknow 823

marriage to be dissolved with effect fromthe date of the decree."

9. A bare perusal of the provisionsof the aforesaid section makes it clear thatsub-section (1) of section 13B is theenabling section for presenting a petitionfor dissolution of a marriage by a decreeof divorce by mutual consent. One of thegrounds provided is that the parties shouldbe living separately for a period of oneyear or more and that they have not beenable to live together. Sub-section (2) ofSection 13B, however, provides theprocedural steps that are required to betaken once the petition for mutual divorcehas been filed and six months haveexpired from the date of presentation ofthe petition before the Court. From furtherperusal of the aforesaid provision of theAct, it also comes out that on a motion ofboth the parties made not earlier than sixmonths after the date of presentation ofthe petition referred to in Sub-section (1)and not later than 18 months after the saiddate, if the petition is not withdrawn inthe meantime, the Court shall, on beingsatisfied, after hearing the parties andafter making such inquiry as it thinks fit,pass a decree of divorce declaring themarriage to be dissolved with effect fromthe date of the decree.

10. From the analysis of the Section13-B, it will be apparent that the filing ofthe petition with mutual consent does notauthorise the court to make a decree fordivorce. There is a period of waiting from6 to 18 months. This interregnum wasobviously intended to give time andopportunity to the parties to reflect ontheir move and seek advice from relationsand friends. In this transitional period oneof the parties may have a second thoughtand change the mind not to proceed with

the petition. The spouse may not be partyto the joint motion under sub-section (2).There is nothing in the Section whichprevents such course. The Section doesnot provide that if there is a change ofmind it should not be by one party alone,but by both.

11. In Anil Kumar Jain v. MayaJain, reported in (2009)10 SCC 415, theSupreme Court has held that it has powerunder Article 142 of the Constitution ofIndia to convert proceedings underSection 13 of the Hindu Marriage Act,1955, into one under Section 13-B andgrant a decree for mutual divorce withoutwaiting for the statutory period of sixmonths, by applying the doctrine ofirretrievable break-down of marriage.However, the Apex Court hascategorically held, in no uncertain terms,that except for the Supreme Court, noHigh Court or Civil Court has the powerto grant relief by invoking the doctrine ofirretrievable break-down of marriage.This is what the Supreme Court has held:

"28. It may, however, be indicatedthat in some of the High Courts, which donot possess the powers vested in theSupreme Court under Article 142 of theConstitution, this question had arisen andit was held in most of the cases thatdespite the fact that the marriage hadbroken down irretrievably, the same wasnot a ground for granting a decree ofdivorce either under Section 13 or Section13-B of the Hindu Marriage Act, 1955.

29. In the ultimate analysis theaforesaid discussion throws up twopropositions. The first proposition is thatalthough irretrievable break-down ofmarriage is not one of the groundsindicated whether under Sections 13 or13-B of the Hindu Marriage Act, 1955,


for grant of divorce, the said doctrine canbe applied to a proceeding under either ofthe said two provisions only where theproceedings are before the SupremeCourt. In exercise of its extraordinarypowers under Article 142 of theConstitution the Supreme Court can grantrelief to the parties without even waitingfor the statutory period of six monthsstipulated in Section 13-B of the aforesaidAct. This doctrine of irretrievable break-down of marriage is not available even tothe High Courts which do not havepowers similar to those exercised by theSupreme Court under Article 142 of theConstitution. Neither the civil courts noreven the High Courts can, therefore, passorders before the periods prescribed underthe relevant provisions of the Act or ongrounds not provided for in Section 13and 13-B of the Hindu Marriage Act,1955.

30. The second proposition is thatalthough the Supreme Court can, inexercise of its extraordinary powers underArticle 142 of the Constitution, convert aproceeding under Section 13 of the HinduMarriage Act, 1955, into one underSection 13-B and pass a decree for mutualdivorce, without waiting for the statutoryperiod of six months, none of the otherCourts can exercise such powers. Theother Courts are not competent to pass adecree for mutual divorce if one of theconsenting parties withdraws his/herconsent before the decree is passed.Under the existing laws, the consent givenby the parties at the time of filing of thejoint petition for divorce by mutualconsent has to subsist till the second stagewhen the petition comes up for orders anda decree for divorce is finally passed andit is only the Supreme Court, which, inexercise of its extraordinary powers underArticle 142 of the Constitution, can pass

orders to do complete justice to theparties."

(emphasis supplied)

12. The above principles of law arereiterated by the Supreme Court inManish Goel v. Rohini Goel, reported in(2010) 4 SCC 393, in the following terms:

"12. In Anjana Kishore v. PuneetKishore, this Court while allowing atransfer petition directed the Courtconcerned to decide the case of divorceby mutual consent, ignoring the statutoryrequirement of moving the motion afterexpiry of the period of six months underSection 13-B(2) of the Act. In AnilKumar Jain, this Court held that an orderof waiving the statutory requirements canbe passed only by this Court in exercise ofits powers under Article 142 of theConstitution. The said power is not vestedwith any other court.

13. However, we have also noticedvarious judgments of this Court taking acontrary view to the effect that in case thelegal ground for grant of divorce ismissing, exercising such powertantamounts to legislation and thustransgression of the powers of thelegislature, which is not permissible inlaw (vide Chetan Dass v. Kamla Devi andVishnu Dutt Sharma v. Manju Sharma).

14. Generally, no Court hascompetence to issue a direction contraryto law nor the Court can direct anauthority to act in contravention of thestatutory provisions. The courts are meantto enforce the rule of law and not to passthe orders or directions which are contraryto what has been injected by law. (VideState of Punjab v. Renuka Singla, State ofU.P. v. Harish Chandra, Union of India v.Kirloskar Pneumatic, University ofAllahabad v. Dr. Anand Prakash Mishra

2 All] Smt. Umman Bibi Vs. Board of Revenue U.P. Lucknow & Ors. 825

and Karnataka SRTS v. AshrafullaKhan)."

13. The ratio of the judgments inAnil Kumar Jain v. Maya Jain (supra) andManish Goel v. Rohini Goel (supra), isthat the order of waiving the statutoryrequirements can only be passed by theSupreme Court in exercise of its powerunder Article 142 of the Constitution ofIndia and that such power is not vested inany other Court.

14. In the background of the abovelegal position propounded by the SupremeCourt, I may now advert to the groundspleaded by the petitioners, in support oftheir prayers to curtail the statutory periodof six months under Section 13-B(2) ofthe Act, and to direct that the petition fordivorce by mutual consent be disposed of,expeditiously. It has been averred in thepetition, and submitted by learned counselfor the petitioners that the parties have notbeen cohabiting with each other orperforming their marital obligations sincethe year 2012. As the marriage has brokendown irretrievably and both thepetitioners have mutually agreed that it bedissolved, the waiting period of sixmonths ought to be curtailed. In thisregard, reliance has been placed upon thejudgments of the Supreme Court and thisCourt, quoted hereinabove.

15. It is clear from the judgments ofthe Supreme Court reproduced hereinabove that in curtailing the statutoryperiod of six months and granting adecree of divorce by mutual consent, theSupreme Court has exercised power underArticle 142 of the Constitution of India.This power is not available to any otherCourt in the land, including this Court. InAnil Kumar Jain v. Maya Jain (supra), the

Supreme Court has clearly held, in nouncertain terms, that the doctrine ofirretrievable breakdown of marriage is notavailable even to the High Courts whichdo not have powers similar to thoseexercised by the Supreme Court underArticle 142 of the Constitution of India.Neither can the High Court, nor the CivilCourt, can pass orders before the periodprescribed under the relevant provisionsof the Act, or on grounds not provided forin Section 13 and 13-B of the statute. Thisprinciple of law has been reiterated by theSupreme Court in Manish Goel v. RohiniGoel (supra).

16. For the reasons aforesaid, I am ofthe considered view that the grievance ofthe petitioners for truncating the statutorywaiting period of six months envisagedunder Section 13-B(2) of the Act, for thereason that their marriage has broken downirretrievably, is, therefore, not within thescope of adjudication of this Court,considering that such power can beexercised only by the Apex Court underArticle 142 of the Constitution of India.

17. So far as the judgments, whichhave been relied upon by the learnedcounsel for the petitioners, the same are ofno avail to the petitioners in the facts andcircumstances of the present case.

18. The writ petition is, therefore,dismissed. There shall be no order as tocosts.



BEFORETHE HON'BLE RITU RAJ AWASTHI, J.



Smt. Umman Bibi ...PetitionerVersus

Board of Revenue U.P.Lucknow & Ors....Respondents

Counsel for the Petitioner:Rakesh Kumar Srivastava, Atul Dixit

Counsel for the Respondents:C.S.C., Yogesh Singh

U.P. Land Revenue Act, Section-219 (2)with Act no. 20 of 1997-Maintainability ofSecond Revision-first revision filed beforecommissioner-during pendency of firstrevision-against same order secondrevision filed before Board of Revenue-first revision before commissioner stooddismissed as withdrawn-before admissionof Second Revision-argument that whenin second revision dated fixed foradmission-pending first revision beforecommissioner was withdrawn-held-whenamended provision put bar of secondrevision-withdrawl without liberty to filefresh-larger Bench of Board rightly-heldnot maintainable-petition dismissed.

Held: Para-14It is immaterial whether the secondrevision preferred by the petitioner hadcome up for admission on 21.2.2015 i.e.,at the time when the first revision wasalready dismissed as withdrawn. Sinceno liberty was sought or given whilewithdrawing the first revision, as such, Iam of the considered opinion that thesecond revision preferred by thepetitioner was not maintainable. Thelarger Bench of the Board of Revenue bythe impugned judgment and order hasrightly come to conclusion that thesecond revision by the petitioner beforeBoard of Revenue was not maintainable.The larger Bench was also right indismissing the revision preferred by thepetitioner as there was no question ofremanding or sending the matter back tothe authority who had made thereference to the larger Bench, once thelarger Bench of the Board of Revenue

had come to conclusion that the secondrevision was not maintainable.

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

1. Notice on behalf of oppositeparties no.1 to 3 has been accepted bylearned Chief Standing Counsel, whereasnotice on behalf of opposite parties no. 4and 5 has been accepted by Mr. YogeshSingh, Advocate.

2. Heard learned counsel for theparties and perused the records.

3. Since a trivial question isinvolved in this writ petition, as such,with the consent of parties' counsel thewrit petition is being decided finally at theadmission stage.

4. The instant writ petition has beenfiled challenging the judgment and orderdated 29.06.2015 passed on reference bylarger Bench of the Board of Revenue inRevision No.89/L.R./2015/District AmbedkarNagar.

5. As per given facts of the case, theTehsildar, Akbarpur, District AmbedkarNagar vide order dated 12.05.2014 haddecided the mutation proceedings underSection 34 of U.P. Land Revenue Act byholding that the petitioner is not thesecond wife of late Abrar Husain. Theorders were passed in favour of oppositeparties no.4 and 5. The appeal preferredby the petitioner under Section 210 ofLand Revenue Act was dismissed by SubDivisional Officer vide judgment andorder dated 29.12.2014. It was thereafterthat the petitioner had preferred revisionunder Section 219 Land Revenue Actinitially before the Commissioner,Faizabad Division, Faizabad on 6.1.2015


(for convenience it is mentioned as 'firstrevision'). An application for withdrawalwas moved on 29.1.2015. The saidapplication was allowed and the revisionwas dismissed as not pressed vide orderdated 29.1.2015.

6. The petitioner had preferredanother revision under Section 219 ofLand Revenue Act before the Board ofRevenue, Lucknow on 12.1.2015 (forconvenience it is mentioned as 'secondrevision'). The second revision, on beingfiled, was directed to be listed foradmission on 21.2.2015. The oppositeparties no.4 and 5 had raised objectionsbefore the Board of Revenue regardingmaintainability of second revision on theground that it is barred under Section 219(2) of Land Revenue Act. The learnedMember of Board of Revenue vide orderdated 21.2.2015 had referred the matter tothe larger Bench for authoritative decisionas he had observed that there wereconflicting judgments on the issue. It wasthereafter that the larger Bench of theBoard of Revenue had considered theissue in question and by the impugnedorder has come to conclusion that in thegiven facts and circumstances the secondrevision preferred by the petitioner wasnot maintainable and has accordinglydismissed the second revision.

7. Learned counsel for the petitionersubmits that the judgment and orderpassed by the larger Bench of Board ofRevenue is patently wrong and illegal. Itis submitted that amendment in Section219 of Land Revenue Act was enactedvide U.P. Act No.20 of 1997 with effectfrom 18th August, 1997. As per theamended Section 219, sub Section (2) ofLand Revenue Act, which is relevant forthe controversy involved in the present

petition, if an application under thissection has been moved by any personeither to the Board, or to theCommissioner, or to the AdditionalCommissioner, or to the Collector or tothe Record Officer or to the SettlementOfficer, no further application by thesame person shall be entertained by anyother of them.

8. The submission is that the firstrevision preferred by the petitioner beforethe Commissioner Faizabad Division,Faizabad was withdrawn as not pressedeven before the second revision wasconsidered for admission by the Board ofRevenue, as such, it cannot be said thatthe revision preferred by the petitionerbefore the Board of Revenue was notmaintainable. It is submitted that thelanguage of Sub-Section (2) of LandRevenue Act clearly provides that "nofurther application by same person shallbe entertained by any other of them".Emphasis is that at the time ofentertainment i.e., the time when the casewas considered by the Board of Revenue,it was to be seen whether any revisionagainst the same impugned order waspending before any other authority or not.Since the petitioner had already got thefirst revision dismissed as withdrawn/notpressed at the time when the secondrevision was considered for admission bythe Board of Revenue, as such, the barimposed under Sectin 219 (2) of LandRevenue Act will not be attracted.

9. Mr. Mohd. Arif Khan, learnedSenior Advocate assisted by Mr. YogeshSingh, learned counsel for oppositeparties no. 4 and 5, on the other handsubmits that it is irrelevant as to when thesecond revision was considered foradmission. The question is as to whether


the second revision preferred by thepetitioner before the Board of Revenuewas at all maintainable or not. It issubmitted that Sub-Section (2) of Section219 of Land Revenue Act clearly providesthat no second application for revision canbe moved by any person, in case he hasalready preferred a revision before theBoard of Revenue or the Commissioner,or the Additional Commissioner, or theCollector or to the Record Officer or tothe Settlement Officer, against the sameorder.

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

11. The sole question involved inthis writ petition is whether the revisionpreferred by the petitioner before theBoard of Revenue could be treated as asecond revision against the impugnedorder dated 12.5.2015 passed by Tehsildarand order dated 29.12.2014 passed by SubDivisional Officer and whether therevision preferred by the petitioner beforethe Board of Revenue was maintainablewhen the petitioner had alreadywithdrawn the earlier revision (firstrevision).

12. In order to decide the aforesaidquestion, it is relevant to first examine therelevant provision i.e., Section 219 ofU.P. Land Revenue Act, 1901. Forconvenience Section 219 of U.P. LandRevenue Act reads as under:-

"[219. Revision.-(1) The Board orthe Commissioner or the AdditionalCommissioner or the Collector or theRecord Officer, or the Settlement Officermay call for the record of any casedecided or proceeding held by any

revenue Court subordinate to him inwhich no appeal lies or where an appeallies but has not been preferred, for thepurpose of satisfying himself as to thelegality or propriety of the order passed orproceeding held and if such subordinaterevenue Court appears to have-

(a) exercised a jurisdiction not vestedin it by law, or

(b) failed to exercise a jurisdiction sovested, or

(c) acted in the exercise ofjurisdiction illegally or with materialirregularity,

the Board or the Commissioner orthe Additional Commissioner or theCollector or the Record Officer, or theSettlement Officer, as the case may be,pass such order in the case as he thinks fit.

(2) If an application under thissection has been moved by any personeither to the Board, or to theCommissioner, or to the AdditionalCommissioner, or the Collector or to theRecord Officer or to the SettlementOfficer, no further application by thesame person shall be entertained by anyother of them.]"

13. Before amendment in Section 219of Land Revenue act the revision was firstpreferred before theCommissioner/Additional Commissioner,as the case may be, under Section 218 ofLand Revenue Act and thereafter revisioncould be filed under Section 219 of LandRevenue Act. Vide U.P. Act No.20 of 1997Section 218 has been omitted and Section219 has been amended. Now secondrevision is barred. Under Sub-Section (2) ofSection 219 of Land Revenue Act it hasbeen specifically provided that if anapplication for revision has been moved by


any person either to the Board or to theCommissioner, or to the AdditionalCommissioner or to the Collector, or to theRecord Officer, or to the Settlement Officerno further application by the same personshall be entertained by any other of them,meaning thereby that in case any person haspreferred any revision under Section 219 ofLand Revenue Act, he is not entitled to fileany other revision against the same orderbefore any other authority. It is the admittedcase of the petitioner that against the orderpassed in appeal under Section 210 of LandRevenue Act dated 29.12.2014, he had firstpreferred a revision under Section 219 ofLand Revenue Act before theCommissioner, Faizabad Division,Faizabad. This revision was preferred on6.1.2015. During pendency of first revision,petitioner had preferred second revisionagainst the same order before the Board ofRevenue on 12.1.2015. It was thereafter thatthe petitioner had moved an application forwithdrawal of first revision before theCommissioner, Faizabad Division, Faizabadon 29.1.2015 which was allowed and thefirst revision was dismissed as not pressedvide order dated 29.1.2015. The secondrevision preferred by the petitioner came upfor admission on 21.2.2015. At that time anobjection regarding maintainability of thisrevision was raised by the opposite parties.Learned Member of Board of Revenueconsidering the submissions had referredthe matter to the larger Bench and it wasthereafter that by the impugned order thelarger Bench of Board of Revenue has heldthat the second revision preferred by thepetitioner was not maintainable.

14. So far as the contention oflearned counsel for the petitioner that thesecond revision preferred by the petitionerhad come up for admission before theBoard of Revenue on 21.2.2015 and at

that time no revision was pending, assuch, it cannot be treated to be a secondrevision and Board of Revenue haswrongly come to conclusion that it wasnot maintainable is concerned, suffice isto observe that the provision underSection 219 (2) of Land Revenue Act arevery much clear. It is specificallyprovided that if an application for revisionhas been preferred before any of theauthorities given, no further applicationby the same person shall be entertained,meaning thereby that once first revisionwas preferred by the petitioner which wasdismissed as withdrawn without seekingany liberty to file revision again, thesecond revision was not maintainable.Even in the application for withdrawal thepetitioner had not disclosed that he haspreferred another revision before theBoard of Revenue and do not want topursue this revision. The application forwithdrawal was filed simply on theground that petitioner does not want topursue the revision and it may bedismissed as withdrawn. The petitionerhad not sought any liberty to file freshrevision, the first revision was, as such,dismissed as withdrawn without providingany liberty to file another revision. It isimmaterial whether the second revisionpreferred by the petitioner had come upfor admission on 21.2.2015 i.e., at thetime when the first revision was alreadydismissed as withdrawn. Since no libertywas sought or given while withdrawingthe first revision, as such, I am of theconsidered opinion that the secondrevision preferred by the petitioner wasnot maintainable. The larger Bench of theBoard of Revenue by the impugnedjudgment and order has rightly come toconclusion that the second revision by thepetitioner before Board of Revenue wasnot maintainable. The larger Bench was


also right in dismissing the revisionpreferred by the petitioner as there was noquestion of remanding or sending thematter back to the authority who hadmade the reference to the larger Bench,once the larger Bench of the Board ofRevenue had come to conclusion that thesecond revision was not maintainable.

15. In view of above, the writpetition fails and is accordinglydismissed.

16. However, it is made clear thatthe petitioner would be at liberty to availany legal remedy available to her in law.In case any such recourse is adopted, thematter may be considered and decidedwithout being influenced by anyobservations made by this Court.



BEFORETHE HON'BLE PRADEEP KUMAR SINGH

BAGHEL, J.

Writ-A No. 4436 of 2009

Awadh Bihari Shukla ...PetitionerVersus


Counsel for the Petitioner:Sri J.P.N. Singh


Constitution of India, Art.-226-Pensionbenefits-petitioner working as collectionpeon-working continuously w.e.f.01.06.1970 retired 31.07.02-claim ofpension denied-on ground of seasonalworking and not in temporary capacity-from original service record a work

'temporary' struck down and substitutedby seasonal (Samayik)-held-keeping inview of Parsidh Narayan and Dhooma Ramcase, as well working in particular payscale with other benefits- as regularemployee-as per G.O. 01.07.89 entitled forpension-necessary direction issued.

Held: Para-23After careful consideration of the matter,I am of the view that for the reasonsstated herein-above, the impugned orderof the Sub-Divisional Magistrate dated12.12.2008 is unsustainable and it needsto be set aside. Accordingly, it is setaside.

Case Law discussed:2006 (1) ESC 611; 1989 ACJ 337; W.P. No.26668 of 2002; W.P. No. 56632 of 2005;Special Appeal No. 743 of 2005; W.P. No.4211 of 2008; Special Appeal No. 508 of 2008;Writ-A No. 42138 of 2007

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

1. The petitioner is a retiredCollection Peon. He is presently 73 yearsold. He has preferred this writ petitionseeking writ of certiorari for quashing ofthe impugned order dated 12.12.2008passed by fourth respondent i.e. Up-Ziladhikari, Tehsil Sikanderpur, DistrictBallia, whereby the claim of the petitionerfor the post retiral benefit includingpension has been rejected on the groundthat he was a Seasonal Collection Peonand not a Collection Peon (Temporary).

2. The petitioner claims that he wasinitially appointed on 01.06.1970 as aCollection Peon in District Ballia. He workedtill the year 1981 with some artificial breaks.He was again appointed on 20.03.1982 as aCollection Peon (Temporary) on substantivepost and worked till the date of his retirementi.e. 31 July 2002 uninterruptedly.

2 All] Awadh Bihari Shukla Vs. State of U.P. & Ors. 831

3. It is stated that the StateGovernment on 01.07.1989 issued aGovernment Order providing therein thattemporary employees, who havecompleted 10 years of regular service, areentitled to get all retiral benefits.

4. The association of the CollectionPeons preferred Writ Petition No.11009 of1998 for a direction upon the concernedauthorities to regularize the services of themembers of the association. The said writpetition was disposed of on 19 March 1998 bydirecting the respondents to consider the claimof the members of the association forregularization. In the meantime, the petitionerretired, reaching the age of superannuation on31 July 2002. When the petitioner'srepresentation for the post retiral benefit andpension was not considered by the competentauthority, he preferred Writ Petition No.38974of 2008 (Awadh Bihari Shukla v. State ofU.P. & others). The said writ petition wasdisposed of on 5 August 2008 with a directionto the concerned authority to consider thegrievance of the petitioner.

5. In compliance of the said order,the petitioner's claim has been rejected bythe impugned order amongst othergrounds that the petitioner was not aCollection Peon (Temporary) but he was aSeasonal Collection Peon, therefore, he isnot entitled for the pension and other postretiral benefits.

6. It is averred by the petitioner thatthe impugned order has been passed byUp-Ziladhikari, who has no authority inthe matter of the Seasonal CollectionPeon as the appropriate authority is theDistrict Magistrate.

7. The petitioner has averred in the writpetition that in the similar circumstances, one

Prasidh Narain Upadhyay had filed WritPetition No.53567 of 1997, which wasallowed by this Court and a direction wasissued to the authority concerned to makepayment of the post retiral benefits to PrasidhNarain Upadhyay and the said order has beencomplied with. It is also averred in the writpetition that the respondents have treated thepetitioner differently and he has beendiscriminated, inasmuch as in respect of twosimilarly placed persons, namely, RamNagina Pandey and Dhooma Singh Yadav,who were also Seasonal Collection Peons,they had also filed Writ Petition No.18230 of2000, both persons retired in the year 2005.This Court vide order dated 28 April 2006had issued direction to the District Magistrateto consider the grievance of the petitionerstherein. The District Magistrate has grantedthe pension and other benefits. A copy of theorder of the District Magistrate is on recordas annexure-8 to the writ petition.

8. This Court had directed theStanding Counsel to produce the originalrecord of the petitioner. In compliancethereof the original record has beenproduced.

9. A perusal of the service record ofthe petitioner, it is evident that in hisservice record, he has been shown asTemporary but such entry has been struckoff by different ink without any initial andin place of Temporary the word SeasonalCollection Peon, i.e. Samyik SangrahChaprasi has been mentioned in one ofthe column. The word "Temporary" hasbeen struck off and Samyik SangrahChaprasi has been transcribed.

10. Learned Standing Counsel wasconfronted with the aforesaid fabricationwhich has been made without any initialof competent authority. He has produced


the instructions which have been receivedfrom Up-Ziladhikari wherein it ismentioned that it was simply a humanerror. The instructions are taken onrecord.

11. Learned counsel for thepetitioner has submitted that the petitionerwas a Seasonal Collection Peon(Temporary) and in Prasidh NarainUpadhyay's case also, the similar attempthad been made that in the service record,it was mentioned that he was a SeasonalCollection Peon.

12. A Division Bench of this Courtin the case of Board of Revenue & othersv. Prasidh Narain Upadhyay, 2006 (1)ESC 611, has taken the view that if atemporary employee has worked for along period whether he has beenconfirmed or not is immaterial, is entitledfor pensionary benefits and the term"qualifying service", which is definedunder Regulation 361 of Section 1 ofChapter XVI of the Civil ServiceRegulations, has been interpreted by theCourt and it has been held that thetemporary employee also is entitled forthe retiral benefit which is available toevery government servant. The DivisionBench has relied on the earlier decision ofthis Court in the case of Dr. Hari ShankarAshopa v. State of U.P. & others, 1989ACJ 337.

13. Learned counsel for thepetitioner has also relied on the followingjudgments:

(i) Writ Petition No.26668 of 2002(Kedar Ram v. State of U.P. & others)

(ii) Writ Petition No.56632 of 2005(Karuna Nidhan Rai v. State of U.P. &others)

(iii) Special Appeal No.743 of 2005(Board of Revenue & others v. PrasidhNarain Upadhay)

(iv) Writ Petition No.4211 of 2008(Girja Prasad v. State of U.P. & others)

(v) Special Appeal No.(508) of 2008(State of U.P. v. Panmati Devi & another)

(vi) Writ-A No.42138 of 2007 (SuryaDev Gond v. State of U.P. & others).

14. Learned Standing Counselsubmits that Rule 5 of the Uttar PradeshCollection Peon's Service Rules, 2004 dealswith the mode of recruitment, whichprovides that fifty per cent collection peonsshall be appointed by direct recruitmentthrough the Selection Committee andremaining fifty per cent posts shall be filledthrough the Selection Committee fromamongst such Seasonal Collection Peonswho have worked satisfactorily for at leastfour Fasals and whose age on the first dayof July of the year in which selection ismade does exiceed 45 years. It is furthersubmitted by learned Standing Counsel thatsince the petitioner has not been engaged interms of the Rule 5, he is not entitled for thepension.

15. In rejoinder, learned counsel forthe petitioner submits that Rule 5 wouldhave applicable in the case of thepetitioner as the Uttar Pradesh Peon'sRegularization Rules, 2005 was notapplicable to the petitioner, who stoodretired in the year 2002 and these rules areprospective in operation.

16. I have considered the rivalsubmission of the learned counsel for theparties and perused the record.

17. Indisputably, the petitioner wasworking since the year 1997 with somebreaks and retired in 2002.

2 All] Awadh Bihari Shukla Vs. State of U.P. & Ors. 833

18. The service record of the petitionerproduced by learned Standing Counselindicates that the petitioner has been given allthe benefits of regular employee such asregular pay-scale, increments and otherbenefits. He was given the pay-scale ofRs.750-940 by the order of the DistrictMagistrate from 01.01.1993 and regularincrement was sanctioned to him by the orderof the District Magistrate from 01.01.1993onwards annually. All these orders of theDistrict Magistrate has been duly counter-signed by the Tehsildar in the service record.

19. From the facts in the case ofPrasidh Narain Upadhyay (supra), whichhas been followed in Girja Prasad (supra),it is evident that in those cases, thepetitioners therein had been working asSeasonal Collection Peon on temporarybasis on substantive post.

20. Learned Standing Counsel hasfailed to satisfy the Court that in the case ofDhooma Singh Yadav and Ram NaginaPandey, the District Magistrate has not passedthe order for the payment of pensionfollowing the judgment passed in PrasidhNarain Upadhyay's case. Thus, there is nojustifiable reason for discriminating thepetitioner with the petitioners in the aforesaidcases as they were also similarly placedpersons.

21. Learned Standing Counsel has alsofailed to satisfy the Court that in the case ofDhooma Singh Yadav, who was alsoSeasonal Collection Peon, the DistrictMagistrate has passed the order whereias inthe case of the petitioner the Sub-DivisionalMagistrate has passed the order.

22. It is stated at the bar that againstthe judgment in Prasidh Narain Upadhyay(supra) a special leave petition was filed,

which was dismissed by the Supreme Court. Itis also stated that against the orders of thelearned Single Judge in the case of GirjaPrasad v. State of U.P. & others (supra) andKedar Ram v. State of U.P. & others (supra),special appeal has been filed but no interimorder has been granted therein.

23. After careful consideration ofthe matter, I am of the view that for thereasons stated herein-above, theimpugned order of the Sub-DivisionalMagistrate dated 12.12.2008 isunsustainable and it needs to be set aside.Accordingly, it is set aside.

24. The matter is remitted to theDistrict Magistrate to pass a fresh order inthe light of the observations made herein-above and in the case of Board ofRevenue & others v. Prasidh NarainUpadhyay (supra), the District Magistrateshall also bear in mind that he has passedthe orders in similar matter in the cases ofDhooma Singh Yadav & Ram NaginaPandey which is annexure-8 to the writpetition. The aforesaid exercise shall becompleted by the District Magistrateexpeditiously within two months from thedate of the communication of the order.He shall pay regard to the fact that thepetitioner is 73 years old person.

25. From a perusal of the servicerecord, it is evident that officer concerned whohas made the correction, there is no initial.The Sub-Divisional Magistrate in hisinstructions has tried to explain it as a humanerror, it appears that Sub-DivisionalMagistrate is not aware about the meaning ofthe word. He has not disclosed that who hasmade the correction in the service record.

26. I find sufficient force in thesubmission of learned counsel for the


petitioner that it is a serious fabrication inthe public record, accordingly, the DistrictMagistrate may hold an enquiry about thesaid fabrication and direct to file an F.I.R.against the person who is found guilty inthe enquiry. However, the DistrictMagistrate shall pass the order in respectof the petitioner's pension at the first stageand will not hold the order on the groundthat the enquiry is pending.

27. The service record and originalrecord is returned to the learned StandingCounsel.

28. The writ petition is allowed.

29. No order as to costs.--------




ARORA, J.


Laloo Singh ...PetitionerVersus

State of U.P. ...Respondent

Counsel for the Petitioner:Pawan Kumar Trivedi, Ajay Mishra, AyodhyaPrasad Singh, Manoj Kumar Singh, Piyush Kr.Singh

Counsel for the Respondent:C.S.C., Suresh Tiwari

Constitution of India, Art.-226-Cancellation offair price shop-without supplying copy ofenquiry report-on the complaint-withoutpersonal hearing-entails civil consequences-principle of Natural Justice- violated-ordersuffer from legal infirmity-not sustainable-quashed.

Held: Para-16Thus from the series of decisions,referred to hereinabove, it clearly comesout that the preliminary enquiry report,inspection report or complaint or anyother document which is utilized by theauthority while cancelling the licence ofa fair price shop licence, same has to besupplied to the licence holder andpersonal hearing is also to be affordedotherwise the proceedings would be inblatant disregard of the principles ofnatural justice. Here in the present case,it is not the case of the opposite partiesthat copy of the report submitted by theNayab Tehsildar was supplied to thepetitioner but he failed to submit hisversion. Needless to say, once again,that every order which entails civilconsequences, must be in consonancewith the principles of natural justice. Thepetitioner raised a plea of violation ofprinciples justice before the appellateauthority too but the same was not dealtwith in a just and proper manner by theappellate authority causing seriousprejudice to the petitioner. Therefore,not only the order of cancellation butalso the order of appellate authoritysuffers from legal infirmities and cannotbe sustained. It may be clarified thatcounsel for petitioner has attacked theimpugned order on various othergrounds, but as the order is faulty beingin blatant disregard of the principles ofnatural justice, I refrain my self fromdealing other grounds.

Case Law discussed:(1993) 3 SCC 259; (1998) 7 SCC 66; 2001 (19)LCD 513; 2006 (24) LCD 1521; 2008 (16) LCD891; [2011 (29) LCD 626].


1. Petitioner, who is a fair price shoplicensee of fair price shop situated invillage panchayat Itahuva, BlocKaiserganj, District Bahraich, aggrievedby the order of cancellation of fair price

2 All] Laloo Singh Vs. State of U.P. 835

shop license dated 16.07.2007 passed bySub Divisional Officer, Kaiserganj,District Bahraich, preffed an appealbefore the Commissioner, Devi PatanMandal Gonda. The appeal No. 268/323so preferred by the petitioner was rejectedvide order dated 27.08.2008 passed by theCommissioner.

2. The aforesaid both the orders areunder challenge in the present writpetition.

3. The main ground of attack of thepetitioner's counsel is that the order ofcancellation of fair price shop license wascancelled by the Sub Divisional Officer,Kaiserganj, without issuing any showcause notice or associating the petitionerin any manner in the enquiry. As wouldbe evident from the perusal of the saidimpugned order dated 16.07.2007 thatsome enquiry was conducted by the NaibTehsildar and on the basis of said enquiry,the Sub Divisional Officer passed theimpugned order. No where in the saidimpugned order it has been mentionedthat Naib Tehsildar while conductingenquiry has recorded the statement of thepetitioner or issued any notice to him forputting his version.

4. Learned counsel for petitioner hascontended that the Sub Divisional Officer,Kaiserganj, District Bahraich hascommitted manifest error in law bycancelling the license of fair price shop ofthe petitioner vide order dated 16.07.2007without providing opportunity of hearingto the petitioner, as such, the impugnedorder has been passed in gross violationof principles of natural justice.

5. It has further been contended bythe learned counsel for petitioner that the

aforesaid plea of non-affording ofopportunity and the order of cancellationbeing ex-parte was specifically raisedbefore the appellate authority i.e. theCommissioner, Devi Patan Mandal,Gonda but the appellate authority rejectedthe appeal in a cursory manner withoutdealing with the pleas raised by thepetitioner. Therefore, the appellate orderis also bad in law and cannot be sustained.

6. On the other hand, learnedstanding counsel while defending theaforesaid two orders, submitted that theorder of cancellation was passed by theSub Divisional Officer, Kaiserganj, on thebasis of report submitted by the NaibTehsildar. It has also brought to the noticeof the Court that the petitioner who wasthe licensee of the fair price shop, hadsuffered paralytic attack and was takingassistance of his son for running the shop.It has also been mentioned in the counteraffidavit that the petitioner has committedirregularities in distribution of scheduledcommodities.

7. Principles of natural justice arethose rules which have been laid down bythe courts as being the minimumprotection of the rights of the individualagainst the arbitrary procedure that maybe adopted by a judicial, quasi-judicialand administrative authority while makingan order affecting those rights. Theserules are intended to prevent suchauthority from doing injustice. Inquirieswhich were considered administrative atone time are now being considered asquasi-judicial in character. Arriving at ajust decision is the aim of both quasi-judicial enquiries as well asadministrative enquiries. An unjustdecision in an administrative enquiry mayhave more far reaching effect than


decision in a quasi-judicial enquiry.[emphasis supplied]

8. Concept of natural justice hasundergone a great deal of change in recentyears. Rules of natural justice are notrules embodied always expressly in astatue or in rules framed thereunder. Theymay be implied from the nature of theduty to be performed under a statute.What particular rule of natural justiceshould be implied and what its contextshould be in a given case must depend toa great extent on the fact andcircumstances of that case, the frameworkof the statute under which the enquiry isheld. The old distinction between ajudicial act and an administrative act haswithered away. Even an administrativeorder which involves civil consequencesmust be consistent with the rules ofnatural justice. The expression "civilrights" but of civil liberties, materialdeprivations and non-pecuniary damagesin its wide umbrella comes everythingthat affects a citizen in his civil life.

9. In D.K. Yadav Vs. J.M.A.Industries; (1993) 3 SCC 259 the ApexCourt while laying emphasis on affordingopportunity by the authority which has thepower to take punitive or damaging actionheld that orders affecting the civil rightsor resulting civil consequences wouldhave to answer the requirement of Article14. The Hon'ble Apex Court concluded asunder: -

"The procedure prescribed fordepriving a person of livelihood would beliable to be tested on the anvil of Article14. The procedure prescribed by a statuteor statutory rule or rules or ordersaffecting the civil rights or result in civilconsequences would have to answer the

requirement of Article 14. Article 14 has apervasive procedural potency andversatile quality, equalitarian in its souland principles of natural justice are part ofArticle 14 and the procedure prescribedby law must be just, fair and reasonable,and not arbitrary, fanciful or oppressive."

10. In National BuildingConstruction Corporation v. S.Raghunathan; (1998) 7 SCC 66, the ApexCourt in unequivocal words that a personis entitled to judicial review, if he is ableto show that the decision of the publicauthority affected him of some benefit oradvantage which in the past he had beenpermitted to enjoy and which helegitimately expected to be permitted tocontinue to enjoy either until he isinformed the reasons for withdrawal andthe opportunity to comment on suchreasons.

11. In M/s Mahatma GandhiUpbhokta Sahkari Samiti vs. State of U.P.and others 2001(19)LCD 513 thecontroversy involved was that the order ofcancellation was passed on the basis ofinquiry conducted by Sub DivisionalMagistrate but the copy of the inquiryreport on which reliance was placed, wasnot furnished to the petitioner. A DivisionBench of this Court held that when reportof inquiry has been relied upon, thatreport has to be furnished to the person,who is affected by the same.

12. The said legal position has beenreiterated and followed in a number ofdecisions rendered by this Court. In thecase of Dori Lal vs. State of U.P. andothers 2006(24)LCD 1521, it has beenheld that the order cancelling the licencepassed without the petitioner beingprovided the copy of the resolution of the

2 All] Laloo Singh Vs. State of U.P. 837

village Panchayat as well as the enquiryreport, if any, and without being affordedopportunity of submitting explanation andhearing, amounts to gross violation ofprinciple of natural justice and hence theorder is liable to be quashed.

13. In Rajpal Singh vs. State of U.P.and others 2008(16) LCD 891, it has beenheld by this Court that non-furnishing ofthe inspection report of the SupplyInspector, which was relied upon forcancellation of the licence, amounts toviolation of principle of natural justice,hence, the order of cancellation as well asthe appellate order was not sustainable inthe eyes of law.

14. Recently, a co-ordinate bench ofthis Court in Sita Devi vs. Commissioner,Lucknow & others [2011(29) LCD 626]held that the action of the authority inpassing the order of cancellation withoutsupplying the copy of the preliminaryenquiry report while proving the chargesagainst the petitioner on the basis of saidenquiry report is hit by the grave legalinfirmity and whole action of theauthority is in great disregard of theprinciples of natural justice.

15. After peeping into thecontentions of both the parties and theseries of case laws, referred to above, Iam of the considered opinion that thecancellation of a agreement/licence of aparty is a serious business and cannot betaken lightly. In order to justify the actiontaken to cancel such anagreement/licence, the authorityconcerned has to act fairly and incomplete adherence to therules/guidelines framed for the saidpurposes including the principles ofnatural justice. The non-supply of a

document utilized against the aggrievedperson before the cancellation of hisallotment of fair price shoplicence/agreement offends the well-established principle that no personshould be condemned unheard.

16. Thus from the series ofdecisions, referred to hereinabove, itclearly comes out that the preliminaryenquiry report, inspection report orcomplaint or any other document which isutilized by the authority while cancellingthe licence of a fair price shop licence,same has to be supplied to the licenceholder and personal hearing is also to beafforded otherwise the proceedings wouldbe in blatant disregard of the principles ofnatural justice. Here in the present case, itis not the case of the opposite parties thatcopy of the report submitted by the NayabTehsildar was supplied to the petitionerbut he failed to submit his version.Needless to say, once again, that everyorder which entails civil consequences,must be in consonance with the principlesof natural justice. The petitioner raised aplea of violation of principles justicebefore the appellate authority too but thesame was not dealt with in a just andproper manner by the appellate authoritycausing serious prejudice to the petitioner.Therefore, not only the order ofcancellation but also the order of appellateauthority suffers from legal infirmitiesand cannot be sustained. It may beclarified that counsel for petitioner hasattacked the impugned order on variousother grounds, but as the order is faultybeing in blatant disregard of the principlesof natural justice, I refrain my self fromdealing other grounds.

17. In view of the above, theimpugned order dated 27.08.2008 passed


by the appellate authority and the order ofcancellation of fair price shop license dated16.07.2007 are hereby quashed. Needless tosay that this order shall not preclude thecompetent authority from passingappropriate order in accordance with law.

18. The writ petition stands allowedin above terms.




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

Misc. Bench No. 6051 of 2015

Prabuddha Nagrik Chetna Manch Gonda[PIL] ...Petitioner

VersusUnion of India & Anr. ...Respondents

Counsel for the Petitioner:Hari Ram Shukla

Counsel for the Respondents:A.S.G., Manish Mathur

Representation of People Act, 1951-Section33(7) Nomination of Candidate-validity ofsuch provision-being contrary to Rule 101-ultravires-held-'No' embargo in contestingmore than one constituency-but thecandidate having largest vote-shall bedeclared.

Held: Para-8Following the view which has already beenexpressed by the Division Bench with whichwe respectfully concur, we see no reason toentertain the challenge to Section 33 (7)which is lacking in substance.


1. The petition invoking thejurisdiction in public interest seeks tworeliefs in regard to the law pertaining toelections to Parliament and the Statelegislature. The first relief is in respect ofRule 64 of the Conduct of Election Rules,19611 under which a candidate to whomthe largest number of valid votes havebeen given, is to be declared to be electedunder Section 66 of the Representation ofthe People Act, 19512. The petitionerseeks a mandamus by this Court to refrainfrom giving effect to the expression "towhom the largest number of valid voteshave been given".

2. The contention of the petitioner isthat Sections 14 and 15 of the Act of 1951contain no provision under which acandidate with the largest number of votesis to be declared to be elected. Section 14provides for a notification of a generalelection to the House of the People. Sub-section (2) of Section 14 empowers thePresident by notification to call upon allParliamentary constituencies to electmembers in accordance with theprovisions of the Act on such dates asmay be recommended by the ElectionCommission. A similar provision iscontained in Section 15 in relation to theState Legislative Assembly.

3. Rule 64 adopts the first past thepost principle since a candidate with thelargest number of valid votes is to bedeclared as elected. The petitioner has notchallenged the constitutional validity ofRule 64. But, technicalities apart, there isno reasonable basis for this Court to cometo the conclusion that the provision isultra vires. The manner in which electionshave to be held and results computed anddeclared is a matter of legislative policy.Rule 64 provides an acceptable mode for

2 All] Prabuddha Nagrik Chetna Manch Gonda [PIL] Vs. Union of India & Anr. 839

declaration of results in a democracy bypostulating that a candidate with thelargest number of valid votes would bedeclared to be elected. This does noteither infringe the provisions of the parentlegislation or for that matter of theConstitution. Hence we see no substancein the challenge.

4. The petitioner has also challengedthe validity of Section 33 (7) of the Act of1951. Under clauses (a) and (b) of Section33 (7), a person cannot be nominated as acandidate for an election for more thantwo constituencies at a general election tothe House of the People or, as the casemay be, the Legislative Assembly of theState.

5. Article 101 of the Constitutionprovides as follows:

"101. Vacation of seats.-- (1) Noperson shall be a member of both Housesof Parliament and provision shall be madeby Parliament by law for the vacation by aperson who is chosen a member of bothHouses of his seat in one House or theother.

(2) No person shall be a memberboth of Parliament and of a House of theLegislature of a State, and if a person ischosen a member both of Parliament andof a House of the Legislature of a State,then, at the expiration of such period asmay be specified in rules made by thePresident, that person's seat in Parliamentshall become vacant, unless he haspreviously resigned his seat in theLegislature of the State.

(3) If a member of either House ofParliament--

(a) becomes subject to any of thedisqualifications mentioned in clause (1)or clause (2) of Article 102, or

(b) resigns his seat by writing underhis hand addressed to the Chairman or theSpeaker, as the as may be, and hisresignation is accepted by the Chairmanor the Speaker, as the case may be,

his seat shall thereupon becomevacant:

Provided that in the case of anyresignation referred to in sub clause (b), iffrom information received or otherwiseand after making such inquiry as he thinksfit, the Chairman or the Speaker, as thecase may be, is satisfied that suchresignation is not voluntary or genuine, heshall not accept such resignation.

(4) If for a period of sixty days amember of either House of Parliament iswithout permission of the House absentfrom all meetings thereof, the House maydeclare his seat vacant:

Provided that in computing the saidperiod of sixty days no account shall betaken of any period during which theHouse is prorogued or is adjourned formore than four consecutive days.

6. The constitutional validity ofSection 33 (7) has been upheld by aDivision Bench of this Court in Raja JohnBunch vs. Union of India & others3 in ajudgment delivered on 28 April 2014. TheDivision Bench observed as follows:

"Article 101 does not contain anyprohibition or restriction on a personcontesting an election or filing a nominationfrom more than one constituency. Clause (1)of Article 101 provides that a person shallnot be a member of both the Houses ofParliament. Clause (2) of Article 101provides that no person shall be a member ofParliament and of a House of the Legislatureof a State. If such an eventuality occurs, then,upon the expiry of the period specified in therules made by the President, the seat held in


Parliament would become vacant, unless theperson has previously resigned his seat in theLegislature of the State.

Sub-clause (b) of Clause (3) ofArticle 101 allows a member of eitherHouse of Parliament to resign his seat bywriting under his hand addressed to theChairman or the Speaker, as the case maybe. The seat becomes vacant upon theacceptance of the resignation by theChairman or the Speaker.

Consequently, a plain reading of Article101 would indicate that it does not place anyrestriction on the number of constituenciesfrom which a person may file his/hernomination during the course of a generalelection. Such a restriction is imposed in sub-section (7) of Section 33 of the Representationof the People Act, 1951. There is nothinginconsistent between Article 101 and Section33 (7). Under Section 70, if a person is electedto more than one seat in either House ofParliament or of the Legislature of a State, hehas to resign from all but one of the seatswithin the prescribed time failing which all theseats shall become vacant.

The submission is that the provision bywhich a candidate may contest or file hisnomination from more than one seat (subjectto a maximum of two) results in a situationwhere the constituency would beunrepresented once the candidate resignsfrom the seat. This circumstance would not,in our view, render a provisionunconstitutional. A seat may fall vacant for avariety of reasons including, amongst them,the disqualifications which are contained inArticle 102 of the Constitution. The seatwhich falls vacant has to be filled up inaccordance with law.

As a matter of fact, Article 101 (3)(b) contemplates that a seat wouldbecome vacant when the resignation of amember of either House of Parliament

from his seat is accepted by the Chairmanor the Speaker, as the case may be."

7. The Division Bench observed thatthe Election Commission of India in 2004suggested amendments to the law toprovide that a person cannot contest frommore than one constituency at a time.However, the Division Bench noted thatthese are matters of legislative policy. TheDivision Bench held as follows:

"In a cases pertaining to the enactment ofa particular law or policy, the Court would notbe justified in issuing a writ of mandamusdirecting that the law should be amended. Amandamus to that effect cannot be issued bythe High Court under Article 226 of theConstitution. No direction can be issued to alegislative body to enact a law or to amend anexisting law. The alternate reliefs which havebeen sought in the petition are all basicallymatters of legislative policy. The ElectionCommission of India, which is vested with theauthority under Article 324 of the Constitutionof superintendence, direction and control overelections, has formulated its suggestions forelectoral reforms. The matter must rest there,insofar as this Court is concerned. We find noreason to entertain the petition or to accept thesubmission that Section 33 (7) and Section 70of the Representation of the People Act, 1951are contrary to Article 101 of the Constitution.We also decline to entertain the other reliefswhich have been pressed in the alternate."

8. Following the view which hasalready been expressed by the DivisionBench with which we respectfully concur,we see no reason to entertain the challenge toSection 33 (7) which is lacking in substance.

9. For these reasons, there is no merit inthe petition which is, accordingly, dismissed.There shall be no reason as to costs.

--------

2 All] Smt. Rina Kumari Vs. State of U.P. & Ors. 841



BEFORETHE HON'BLE SUDHIR AGARWAL, J.

THE HON'BLE SHASHI KANT, J.

Criminal Misc. Writ Petition No. 10792 of2015

Smt. Rina Kumari ...PetitionerVersus


Counsel for the Petitioner:Sri Rohit Pandey

Counsel for the Respondents:A.G.A.

Constitution of India, Art.-226-Petitionerseeking transfer of investigation from CivilPolice to CBCID-offence under Section 452,376, 506 IPC read with Section 3 (i)XiiSC/ST-conduct of Police from stage oflodging FIR-even supporting the FIR versionu/s 161 Cr.P.C.-submitting final reportwithout statement of 164 Cr.P.C.-learnedMagistrate while rejecting final report-passing structure against I.O.-consideringconduct of I.O.-state government to transferinvestigation to CBCID-petition allowed.

Held: Para-42, 4342. We direct Chief Secretary, U.P.Government; Principal Secretary (Home),U.P. Government; and, Secretary(Appointment), U.P. Government toimmediately look into the matter, takeappropriate steps and finalize scheme(s) soas to make U.P. Police Force, a real law andorder enforcing machinery which shouldappear to be working and bring confidenceof people, back. It should also reflect uponthe steps taken by aforesaid officials inrespect of matters of non-registration ofreports by police officials wheneverinformation of occurrence of a cognizableoffence is conveyed. The steps taken shallalso show, how aforesaid officials have

ensured compliance of directions given bythis Court as well as Apex Court in RoopRam Vs. State of U.P. (supra) and LalitaKumari Vs. Government of U.P. (supra). Incase of lapses on the part of concernedpolice officials, how steps would be taken topunish the guilty officials should also be apart of the scheme. They shall also submit aprogress report, on expiry of six monthsfrom the date of delivery of this judgment,showing steps taken by them in this regardand the consequences thereof. They shallmake inquiry and inform the Court aboutthe officers who have disobeyed Court'sorder regarding registration of firstinformation report so that separateproceeding of contempt may be drawnagainst them.

43. In the present case since conduct ofInvestigating Officer is suspicious andlacks independence and fairness, wedirect the State Government to transferinquiry to C.B.C.I.D., who shall proceedwith investigation and complete thesame within a period of three months.

Case Law discussed:2009 (5)ADJ 707; 2014 (2) SCC 1; (1991) 4SCC 406; (1980) 3 SCC 526; (1995) 3 SCC757; (2004) 5 SCC 26.

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

1. This writ petition under Article 226of the Constitution of India has been filed bySmt. Rina Kumari seeking a mandamuscommanding respondent no. 2, i.e.,Superintendent of Police, Rampur to transferinvestigation of Case Crime no. 278-C/2014,under Sections 452, 376, 506 I.P.C. and3(1)XII SC/ST Act, Police Station Milak,District Rampur from the presentInvestigating Officer, Dr. Tej Veer Singh,Circle Officer, Milak, Rampur to any otherofficer and to direct a fair investigation.

2. The facts, in brief, are that thepetitioner fell victim to criminal act of


respondent no. 5, Bal Kishan son ofSohan Lal, who forcibly entered the houseof petitioner on 06.05.2014 at about 6.00pm, and, committed rape at knife point.When she raised alarm, respondent no. 5ran away, assaulting petitioner. She wentto police station but no report wasregistered, whereupon she had no optionbut to move application under Section156(3) Cr.P.C. before the concernedMagistrate. Ultimately, under his order,the report was lodged on 10.06.2014 at13.00 hours against respondent no. 5.

3. Petitioner's statement underSection 161 Cr.P.C. was recorded byInvestigating Officer only on 07.08.2014in which she confirmed the offence ofrape committed by respondent no. 5 andfortified the information given in firstinformation report. Her statement underSection 164 Cr.P.C. was recorded beforeMagistrate on 12.09.2014 where also sheconfirmed her allegations levelled againstrespondent no. 5. Despite that theInvestigating Officer, on the basis ofsome affidavits of some persons,submitted a final report no. 17 of 2015 on15.10.2014.

4. The petitioner filed protestpetition after receiving notice on23.02.2015. The Judicial Magistrate/Additional Civil Judge (Junior Division),Court No. 1, Rampur heard the matter andmaking strictures against InvestigatingOfficer, rejected final report. He directedfor further investigation in the matter videorder dated 07.04.2015. Since thereafter,the Investigating Officer has not doneanything in the matter, being in collusionwith respondent no. 5 and, therefore,petitioner apprehend that presentInvestigating Officer is biased. He is notdoing fair and partial inquiry therefore, it

should be transferred to some otherofficer with a further direction tocomplete it expeditiously.

5. While entertaining above writpetition on 04.05.2015, this Courtrequired the Investigating Officer toappear alongwith case diary to showprogress and the kind of investigation hehas done in the matter.

6. On 18.05.2015 Dr. Tej VeerSingh, Circle Officer, appeared beforethis Court. He filed an affidavit, sworn onthe same date i.e. 18.05.2015 in which hestated that though the victim, i.e.,petitioner and her sister-in-law (Nand),Mamta, both supported first informationreport, but some independent persons,namely, Brij Lal, Jageer Singh andMukhtiyar Singh and five others statedthat they have not heard any hue and cryand no such incident had taken place.There was a dispute with respect to landover which the alleged 'Gher' wasconstructed. The accused respondent no. 5is the real brother of father-in-law ofpetitioner and was implicated in a falsecase. The Investigating Officer in para 20,21 and 22 of his affidavit specifically saidas under:

"20. That after doing investigationwithout being biased in a very fairmanner the deponent was of the view thatno such incident had taken place ratheryounger brother of Bal Kishan who isfather in law of the informant haslaunched false prosecution to grab theproperty of his own brother.

21. That the accused Bal Kishan is50 years old and has good reputation inthe village and none of the independentwitnesses have supported the version ofthe first information report.


22. That the deponent whileconcluding the investigation gave hisspecific opinion that from theinvestigation as done by him in the periodof 04 months he could not find anyreliable evidence against accused, BalKishan and the story as developed by theinformant in the first information report isnothing but all tissue of lies and launchedonly with intention to harass andblackmail the accused for grabbing hisproperty. The deponent after doingunbiased investigation prepared finalreport on 15.10.2014 while exoneratingthe accused, Bal Kishan."

7. He also made adverse commentsover the order passed by JudicialMagistrate on 07.04.2015 declining toaccept final report. In para 27 of theaffidavit, the Investigating Officer said:

"27. That at this stage it will be notout of place to mention here that the orderdated 07.04.2015 the Magistrate does notseem to have perused the case diaryproperly and has wrongly written that thestatement under Section 164 Cr.P.C. wasnot copied in the case diary, although it isvery well present in the Parcha no. 6dated 12.09.2014."

8. He further said that on 17.04.2015he himself has requested theSuperintendent of Police, Rampur toassign further investigating to some otherofficer.

9. This Court enquired from Dr. TejVeer Singh, Investigating Officer, as towhy report was not lodged by policewhen the victim, i.e., petitioner went tolodge her report on the date of incident,particularly when matter relates to aserious offence under Section 376 IPC

considering directions given by this Courtin Roop Ram Vs. State of U.P. 2009(5)ADJ 707 and Apex Court in LalitaKumari Vs. Government of U.P., 2014(2)SCC 1, but he could give no reply.

10. We also inquired from him,when the victim herself had supported hercase in repeated statements given, eitherunder Section 161 Cr.P.C. or 164 Cr.P.C.,how he could say that there was noevidence whatsoever and only on thebasis of some strangers statements, whohad not seen any such incident for thereason that statement of persons who arenot witnesses of any incident cannotprove that no such incident took place,particularly when there were two persons,namely, the victim as well as her sister-in-law who fortified first information reportin their statements, but here also he couldgive no reply whatsoever.

11. We also could not understand asto why no attempt was made to havemedical examination of victim on the dateof incident when she had gone to policestation to lodge first information reportand what medical examination wouldreveal after several months of incident.The suggestion of Investigating Officerthat victim was not cooperating, does notappear to be correct for the reason that inher statement given before InvestigatingOfficer as well as in the Court underSection 164 Cr.P.C., she has reiterated thesame facts as mentioned in report andthere is no variation whatsoever. Evenbefore this Court she has maintained herversion.

12. Moreover, photocopy of casediary contains 10 parchas dated10.06.2014, 11.06.2014, 13.06.2014,04.08.2014, 07.08.2014, 12.09.2014,


23.09.2014, 12.10.2014, 14.10.2014 and15.10.2014.

13. Parcha no. 7 dated 23.09.2014shows that Investigating Officer receivedby post eight affidavits of MukhtiyarSingh son of Sri Fauji Singh; Indrapal sonof Sri Khem Karan; Brijlal son of SriMast Ram; Zorawar son of Sri Indraman;Tota Ram son of Sri Umrao; Jageer Singhson of Sri Nihal Singh; Ram Das son ofSri Sukhan; and, Bandu Ram son of SriMunna Lal, which were almost in similarlanguage and noted down in the saidparcha. He also received a copy of saledeed, also noted down in the said parcha.The deponents of affidavits said to appearbefore Investigating Officer on14.10.2014. Sri Mukhtiyar Singh,Indrapal, Brijlal, Zorawar, Tota Ram,Jageer Singh, Ram Das and Bandu Ramverified the facts stated in their affidavits,earlier sent by post.

14. The entire report, nowhereshows any attempt on the part ofInvestigating Officer to find out, whoarranged those affidavits to be sent bypost and what was the occasion therefor.When he recorded statement of accusedafter receiving said affidavits and havingthe statements of deponents of affidavits,who verified the same, what sanctity canbe attributed to a statement in negativewhen affirmance was already there.

15. Since the matter is pending forfurther investigation, we are refrainingourselves from making such observationswhich may influence investigation andprejudice either of the parties but cannotdesist from observing that InvestigatingOfficer, Dr. Tejveer Singh has shown acomplete negligence in an inquiry whereserious allegation of offence of rape is

involved. He has failed to show prudentand scientific investigation in the matter.

16. From very beginning he appearsto have a particular mind set that accused,being elder brother of father-in-law of thevictim, may not have committed such anoffence; and there appears to be aproperty dispute. The InvestigatingOfficer has proceeded as if he wasdeciding a civil dispute. He hascompletely ignored straight and relevantevidence available to him.

17. We reiterate our prima facieobservations that the conduct of InvestigatingOfficer, in the case in hand, is clearly partisanand inclined to protect the accused. Thecomplainant-victim has been dealt with in amost illegal and discarded manner. This isfrom the very beginning, when she visitedpolice station for lodging report but denied bypolice, compelling her to approach Magistrateunder Section 156(3) Cr.P.C. and it is hisorder under which the report was lodged aftermore than a month of the date of incident.

18. In a case where heinous crime ofrape is involved, an immediate andearliest investigation can provide crucialand relevant evidence which may witheraway with passage of time. Unfortunatelypolice herein has shown a conduct whichhas helped accused. This conductapparently defy the directions of thisCourt as well as Apex Court whereunderthey were under obligation to register areport and proceed for investigationwithout any further delay.

19. The second attempt is made bypolice by submitting final report in the matterwhich was rejected by Judicial Magistrateconcerned, making aspersions againstInvestigating Officer. We are surprised to see


that Investigating Officer has the audacity ofcondemning order of Judicial Magistrate, inhis affidavit filed before this Court,contending that Judicial Magistrate hasomitted to consider some vital aspects whilerejecting final report. This conduct ofInvestigating Officer is self speaking andmanifests his commitment to help theaccused by gong to any extent.

20. We are also surprised to see theway in which police officers are makinginvestigation in matters involving heinouscrime. We find virtually a completeapathy on their part. If somethinghas/could happen on its own, one maythank to his luck but police would not beable to turn anything of its own efforts. Itis like a woodcraft structure. Conduct ofInvestigating Officer prima facie showshis biased attitude towards accused.

21. This situation we find almost inevery third case, coming before thisCourt. Probably it is this laxity on the partof police which is causing increase ofcrime rate, extremely, in State of U.P.Virtually every person in this State isafraid that anything may happen at anytime anywhere. There is lack ofconfidence in law enforcing machinery.The law and order situation is veryvulnerable.

22. Learned Additional AdvocateGeneral, present in the Court, at one pointof time finds himself optionless but toconcede about deteriorating condition oflaw and order in the State of U.P. and alsofailure on the part of Police, not only inprevention of crime but also detection/investigation and prosecution. It reminds usa situation where a legal luminary in ApexCourt (Hon'ble V.R. Krishna Iyer, J.) had toobserve, "Who can police the Police".

23. Police Force is meant for protectionof people. Its sole aim and purpose is tomaintain law and order by preventing crime.If committed, to investigate out and book theguilty person, and get punished in accordancewith law. There is no other agency in the Stateexcept 'Police' who has this statutory as wellas constitutional obligation for protection ofpeople.

24. Unfortunately, it is still living incolonial State of affairs when Police used tobe deployed against public to crush theirgenuine demands. Police, at that time,reflected glorified image of ruling ColonialState. It treated inhabitants of country asslaves and that is why always tried, not toallow them to raise their voice, against rulingEmpire. More than half a century back, Indiaattained its independence. Still nothing hasnoticeably improved. Though we are nowgoverned by Constitution, given by the peopleof India to itself so as to function, ''for thepeople', ''by the people', ''of the people' butPolice has not mend its ways.

25. Today people are frightened morewith Police than criminals. There is virtually alack of confidence with this Uniformed Force.Judicial cognizance can be taken of severalheinous crimes, committed almost daily, many atimes with the nexus ofPoliticians/Criminals/Police personnel makingcommon and innocent people, target.Criminality on the part of Police is highlydangerous, being a double edged weapon. Whenthey commit crime, they are themselves beinginvestigating agency, naively cover up thematter. The Courts of law, ultimately andordinarily, fail to punish guilty for want ofproper evidence for which the agency isresponsible.

26. In criminal prosecution, eyes andear of courts of law, basically, is the


Prosecuting Agency. When agency itself isindulged in a cover up mission, it is almostimpossible to bring guilty person to book andpunish. Police officials have become sodaredevil that they do not hesitate incommitting day light, daring offences, andthereby to stick to it, may be for the reasonthat they are well equipped with the systemof covering it up. The situation is reallyalarming and needs immediate remedialmeasures. The public dissatisfaction anddistress cannot wait indefinitely if it is notattended now. It may be too late in the day. Itmay burst in a people's revolution, we arewitnessing in some other parts of the world.

27. In Delhi Judicial ServiceAssociation Vs. State of Gujarat & Ors.,(1991) 4 SCC 406 where brutal behaviourof police in arrest and assault of a ChiefJudicial Magistrate of Nadiad wasconsidered in contempt petition as well aswrit petitions entertained directly, theCourt observed:

"Aberrations of police officers andpolice excesses in dealing with the law andorder situation have been the subject ofadverse comments from this Court as well asfrom other courts but it has failed to haveany corrective effect on it.." (Para 39)

28. Hon'ble Krishna Ayer, J in PremShankar Shukla Vs. Delhi Administration,(1980) 3 SCC 526 observed:

"If today freedom of the forlornperson falls to the police somewhere,tomorrow the freedom of many may fallelsewhere with none to whimper unlessthe court process invigilates in time andpolices the police before it is too late."

29. In a concurring judgment inDhananjay Sharma Vs. State of Haryana

& Ors. (1995) 3 SCC 757 Hon'ble FaizanUddin, J in para 58 observed:

"58. It is in common knowledge that inrecent times our administrative system ispassing through a most practical phase,particularly, the policing system which is notas effective as it ought to be and unless somepractical correctional steps and measuresare taken without further delay, the dangerlooms large when the whole orderly societymay be in jeopardy. It would, indeed, be asad day if the general public startsentertaining an impression that the policeforce does not exist for the protection ofsociety's benefits but it operates mainly for itsown benefit and. once such an impressioncomes to prevail, it would lead to disastrousconsequences." (emphasis added)

30. The Court took judicial notice inpara 57 of the judgment that everymorning, one opens newspapers and goesthrough its various columns, feels verymuch anguished and depressed, readingreports of custodial rapes, deaths,kidnapping, abduction, fake policeencounters and all sorts of other offencesand lawlessness by police personnel, ofwhich countless glaring and concreteexamples are not lacking.

31. In Daroga Singh & Ors. Vs.B.K. Pandey (2004) 5 SCC 26 the Courtremarked object with which the PoliceForce was created and said that police isthe executive force of State to which isentrusted the duty of maintaining law andorder and of enforcing regulations forprevention and detection of crime. It isconsidered by society as an organisedforce of civil officers under the commandof State, engaged in the preservation oflaw and order in society and maintainingpeace by enforcement of laws and


prevention and detection of crime. One,who is entrusted with the task ofmaintaining discipline in society, must, firstitself be disciplined. Police is an agency towhich social control belongs. Therefore thePolice has to come up to the expectations ofsociety. Then the Court reminded itself,policing role, the country witnessed duringBritish Raj, and, in para 44, said:

"44. We have not been able to forgetthe policing role of the police of BritishRaj wherein an attitude of hostilitybetween the police and the policed underthe colonial rule was understandable. It isunfortunate that in one of the largestconstitutional democracies of the worldthe police has not been able to change itsthat trait of hostility."

32. We have no manner of doubt thatPolice Force constitutes real backbone ofState's power to maintain law and order. Butit would be possible only when agencyworks with real devotion and honesty to itsconstitutional and legal obligation, insteadof satisfying its petty material demands.Come what may, still Police is Police. It canmake wonders and miracles. No one has thecapacity or courage to Police the Police.Harden criminals can be shown whollyinnocent and innocent, honest and simpleones may be depicted a hardcore criminal.Irrespective of nature of crime committedand brought to its notice, still may not feelany anxiety to bring culprits to Courts witheffective prosecution so as to ensureappropriate punishment to them. It maymanage to set the State in a way thatcriminals may ensure their freedom bythreatening victims etc. and makingwitnesses to loose their life and heart forsupporting prosecution. The public at largehas no control over it. State has to take careof this situation.

33. The real problem lies with officialsresponsible for investigation. It appears thatthey lack basic knowledge and technique.Everything proceeds in a casual fashion.Time and again, Courts have shown theirdisappointment with the ways, Police hasworked out a case but it has made no impactupon Police Force. Unfortunately,observations and expectations of Courts havegone in vain. The Police Force have notmend its ways. Most of the matters do notcome to the Court. When somebody dares totake up a matter to Court, only then theextent to which Police act ruthlessly andarbitrarily, is experienced by Courts also.The situation is really very grim anddisappointing. It is high time when Stateshould look into large spectrum of reforms tocorrect Police and policing in State, elsethings may render uncontrollable.

34. We find no hesitation andconstrain to observe that the way in whichpolice has proceeded in this matter, lesssay is better. Virtually there is noeffective investigation whatsoever, tilldate. If this is the situation in a case wherea girl has been subjected to a heinouscrime of rape, what one can expect inother matters. It is now high time wherethe State Government and officialsholding high position in Department ofHome and other relevant ones, shouldwake up from slumber and take remedialcorrective measures to make Police Forcemore effective, active and peopleoriented.

35. Besides above, there is anotherserious aspect on which the Police hasshown virtually a contemptuous attitudeto the Court.

36. This Court seriously deprecatedgeneral practice followed by police


officials in denying to register firstinformation reports, despite informationgiven regarding occurrence of acognizable offence. This was noticed inRoop Ram Vs. State of U.P. (supra) andin paras 26, 27, 28, 29 and 30 of thejudgment, Court said:

"26. However, this matter does not endhere. It is true that for an orderly society, theimportance of an effective and efficientpolice force dedicated to the public service isof utmost importance and is the necessity ofthe time. It is a matter of common knowledgethat the people run from pillar to post afteroccurrence of a serious crime for mereregistration of the report but the concernedpolice authorities failed to realise traumaand harassment of such people and simplyignore the observance of their statutory dutydespite of the same being declaredmandatory and is the law of the land settledby the Apex Court. Crime detection andadjudication are two separate thoughinseparable wings of justice delivery system.The former is the basic obligation of thepolice and latter is in the hands of judiciary.Though the Code provides for an alternativeremedy of approaching the Superintendent ofPolice and thereafter to the Magistrateconcerned under Section 156(3) but suchremedy instead of providing any solace andrelief to the harried lot, on the contrary isadding to their sufferance due to persistentlacklusture attitude of police compelling acommon man to run from one authority toanother for a simple cause of registration ofan information constituting commission of acognizable offence, so that the police maymake investigation according to theprocedure prescribed in the Code.

27. The subordinate courts are alreadyheavily burdened with the huge number ofsuch cases where the people havingapproached the police authorities in vain,

then had approached the Magistrateconcerned under Section 156(3). Even thisCourt is now being burdened for the onlyreason that the information has not beenregistered by the police under Section 154.What normally ought to have been anexception has turned out to be a routineexercise. A very large number of applicationsare being filed under Section 156(3) of theCode before the Magistrates concerned andconsequential proceedings are comingfrequently to this Court also. Huge time isconsumed only in such matters though itcould have been utilized for other matters ofsubstance and that too only for the reasonthat the police has shown blatant slacknessin observance of its statutory obligations. Itappears that the police is convenientlyomitting to remind itself that its fundamentaland basic duty is to prevent occurrence ofany crime and if it has already occurred, toinvestigate and detect the crime so as tobring the accused to justice. The first step inthis regard is as soon as the information of acognizable offence is received, it mustregister the same and thereafter to proceedto investigate the matter in accordance withlaw.

28. This Court also take judicialnotice of the fact that the tendencydeveloped with the police authorities inrefusing to register F.I.R. is not for anyvalid reason, as said above, but perhapsfor administrative reasons namely toshow to the higher authoritiesimprovement of law and order in the areawithin their jurisdiction on the groundthat number of F.I.R. registration has gotdown drastically comparing to thecorresponding past or in respect to theperiod when some other police officerswere posted thereat. It appears that theState Government and the higherauthorities of the police department, whileassessing the performance of a police


Officer-in-charge of a police station, takeinto consideration whether F.I.R.'s havereduced comparing to the predecessor inoffice as a major factor to judge the positionof law and order. The basic data taken intoaccount by the State Government or thehigher authorities of the police department isthe number of F.I.R. of cognizable offenceregistered in the concerned police station.Probably this has led the tendency in theconcerned police authorities to refuserecording of F.I.R. and thereby creatingartificially good record showing reduction incrime rate due to lesser recording of F.I.R. Ittotally ignores the fact that due to non-registration of F.I.R. in a large number ofcases, pertaining to cognizable offence, thepeople are compelled to approach theMagistrate by filing applications underSection 156(3) of the Code. Thisdemonstrates that the declaration of law bythe Apex Court as well as this Court thatpolice is under a statutory obligation toregister F.I.R. has gone down on blind eyeswith the police authorities as well as theGovernment. The situation has not shownany improvement in the method offunctioning of the police authorities in suchmatters despite of repeated observations bythe Court.

29. The Court cannot overlook thefact that criminal justice system in theState is already over burdened. A largenumber of vacancies of judicial officers insubordinate courts are lying for one orthe other reason. Mere inaction on thepart of police authorities in observance oftheir statutory duty and/or faulty systemof investigation is adding further to thealready over burdened justice system.This has gone to an extent that the peoplewho are arrested in the early younger ageare still awaiting for their trial etc.,though have attained advanced old age.In many of the matters, large number of

accused have died but the Courtproceedings could not have beencompleted and even not commenced insome of the cases. In many others the trialetc., suffers due to death of materialwitnesses due to prolonged time taken inthe Courts. At this stage, it would beprudent to notice some of theobservations/ directions of the Apex Courtin Lalita Kumari v. Government of UttarPradesh and Ors. . Paras 4 and 5 theApex Court held:

4. It is a matter of experience of oneof us (B. N. Agrawal, J.), while acting asJudge of the Patna High Court, ChiefJustice of the Orissa High Court andJudge of this Court that inspite of law laiddown by this Court, the police authoritiesconcerned do not register F.I.Rs. unlesssome direction is given by the ChiefJudicial Magistrate or the High Court orthis Court. Further, experience shows thateven after orders are passed by theCourts concerned for registration of thecase, the police does not take thenecessary steps and when matters arebrought to the notice of the inspectingJudges of the High Court during thecourse of inspection of the Courts andSuperintendents of Police are taken totask, then only F.I. Rs. are registered. In alarge number of cases investigations donot commence even after registration ofF.I. Rs. and in a case like the present one,steps are not taken for recovery of thekidnapped person or apprehending theaccused person with reasonable dispatch.At times it has been found that whenharsh orders are passed by the membersof the judiciary in a State, the policebecomes hostile to them, for instance, inBihar when a bail petition filed by apolice personnel, who was the accusedwas rejected by a member of the BiharSuperior Judicial Service, he was


assaulted in the court room for whichcontempt proceeding was initiated by thePatna High Court and the erring policeofficials were convicted and sentenced tosuffer imprisonment.

5. On the other hand, there areinnumerable cases that where thecomplainant is a practical person, F.I. Rs.are registered immediately, copies thereofare made over to the complainant on thesame day, investigation proceeds withsupersonic jet speed, immediate steps aretaken for apprehending the accused andrecovery of the kidnapped persons and theproperties which were the subject-matter oftheft or dacoity. In the case before usallegations have been made that the StationHouse Officer of the police station concernedis pressurising the complainant to withdrawthe complaint, which, if true, is a verydisturbing state of affairs. We do not know,there may be innumerable such instances.

30. It is high time now that this Courtmust endeavour to find out some ways tomake the police authority adhere to theirstatutory duties. The time perhaps hasripened when this Court in exercise of itsinherent power must look into this diseasein a more serious manner and find outways by issuing appropriate directions tothe concerned authorities, which mayresult in compelling the police authoritieseither to observe their statutory dutiesfaithfully or to face consequences."

37. Having said so this Court issuedcertain directions in para 32, which readas under:

"(i) When a Police Officer-in-chargeof the police station or any other PoliceOfficer, acting under the direction of theOfficer-in-charge of police station refusesto register an information disclosing acognizable offence, the informant may

either approach the Superintendent ofPolice under Section 154(3) or theMagistrate concerned under Section156(3) of the Code ;

(ii) If the informant approaches theSuperintendent of Police, who finds thatthe refusal of registration of F.I.R. by thePolice Officer-in-charge of the policestation was unjust or for reasons otherthan valid, and where he directs forinvestigation, he shall initiate disciplinaryproceedings against the Officer-in-chargeof the police station for such non-observance of statutory obligationtreating the same to be a seriousmisconduct justifying a major penalty andcomplete the proceedings within threemonths from the date he passes an orderfor investigation into the matter ;

(iii) Where, the informantapproaches the Magistrate concernedunder Section 156(3) of the Code and theMagistrate ultimately finds thatinformation discloses a cognizableoffence and direct the police to proceedfor investigation, he shall cause a copy ofthe order sent to Superintendent of Police/Senior Superintendent of Police(hereinafter referred to as the S.P./S.S.P.)of the concerned district and suchS.P./S.S.P. shall cause a disciplinaryinquiry into the matter to find out theperson guilty of such dereliction of duty,i.e., failure to discharge statutoryobligation, i.e., registration of aninformation disclosing cognizable offencetreating the said failure as a seriousmisconduct justifying major penalty andshall complete the disciplinaryproceedings within three months from thedate of receipt of the copy of the orderfrom the concerned Magistrate. Aftercompleting the disciplinary proceedings,the S.P./S.S.P. concerned shall informabout the action taken against the


concerned police Officer-in-charge of thepolice station to the Magistrate concernedwithin 15 days from the date of actiontaken by him but not later than fourmonths from the date of receipt of thecopy of the order from the Magistrateconcerned ;

(iv) The Magistrate concerned shallreview the cases in which the copy of theorders passed under Section 156(3) of theCode has been sent to concerned S.P./S.S.P.quarterly and when it is found that theconcerned S.P./S.S.P. has also failed tocomply with the above directions of thisCourt, he shall sent a copy of his orderalongwith the information about non-compliance of this Court's order/directionby the concerned S.P./S.S.P. to the DirectorGeneral of Police, U. P., Lucknow and thePrincipal Secretary (Home), U. P.,Lucknow who shall look into the matter andtake appropriate action as directed aboveagainst the police Officer-in-charge of thepolice station concerned as well as theS.P./S.S.P. concerned for his inaction alsointo the matter within three months andcommunicate about the action within nextone month to the Magistrate concerned. ThePrincipal Secretary (Home), U. P.,Lucknow and the Director General ofPolice, U. P., Lucknow shall also submit areport regarding number of the casesinformed by the concerned Magistrate in acalendar year and also the action taken bythem as directed above by the end ofFebruary of every year to the RegistrarGeneral of this Court ; and (v) Besidesabove, non-compliance of the abovedirections of this Court shall also be treatedto be a deliberate defiance by the concernedauthorities above mentioned constitutingcontempt of this Court and may be taken upbefore the Court concerned havingjurisdiction in the matter, whenever it isbrought to the notice of this Court."

38. The matter pending before ApexCourt in Lalita Kumari Vs. Government ofU.P. (supra) came to be disposed of finallyvide judgment dated 12.11.2013. In para111 of the judgment the Court said:

"111. In view of the aforesaiddiscussion, we hold:

(i) Registration of FIR is mandatoryunder Section 154 of the Code, if theinformation discloses commission of acognizable offence and no preliminaryinquiry is permissible in such a situation.

(ii) If the information received doesnot disclose a cognizable offence butindicates the necessity for an inquiry, apreliminary inquiry may be conductedonly to ascertain whether cognizableoffence is disclosed or not.

(iii) If the inquiry discloses thecommission of a cognizable offence, the FIRmust be registered. In cases wherepreliminary inquiry ends in closing thecomplaint, a copy of the entry of such closuremust be supplied to the first informantforthwith and not later than one week. Itmust disclose reasons in brief for closing thecomplaint and not proceeding further.

(iv) The police officer cannot avoid hisduty of registering offence if cognizableoffence is disclosed. Action must be takenagainst erring officers who do not registerthe FIR if information received by himdiscloses a cognizable offence.

(v) The scope of preliminary inquiryis not to verify the veracity or otherwise ofthe information received but only toascertain whether the information revealsany cognizable offence.

(vi) As to what type and in whichcases preliminary inquiry is to beconducted will depend on the facts andcircumstances of each case. The categoryof cases in which preliminary inquiry maybe made are as under:


(a) Matrimonial disputes/familydisputes

(b) Commercial offences(c) Medical negligence cases(d) Corruption cases(e) Cases where there is abnormal

delay/laches in initiating criminalprosecution, for example, over 3 months delayin reporting the matter without satisfactorilyexplaining the reasons for delay.

The aforesaid are only illustrationsand not exhaustive of all conditions whichmay warrant preliminary inquiry.

(vii) While ensuring and protectingthe rights of the accused and thecomplainant, a preliminary inquiryshould be made time bound and in anycase it should not exceed 7 days. The factof such delay and the causes of it must bereflected in the General Diary entry.

(viii) Since the General Diary/StationDiary/Daily Diary is the record of allinformation received in a police station, wedirect that all information relating tocognizable offences, whether resulting inregistration of FIR or leading to an inquiry,must be mandatorily and meticulouslyreflected in the said Diary and the decisionto conduct a preliminary inquiry must alsobe reflected, as mentioned above."

39. The Apex Court also thus heldthat whenever information of a cognizableoffence is given to a police officerregistration of report is mandatory.Despite aforesaid authorities, in thepresent case, concerned police officialsinitially declined to register FirstInformation Report of a cognizableoffence under Section 376 I.P.C. whichcompelled the informant to approachMagistrate concerned under Section156(3) Cr.P.C. and when Magistratepassed order, only then report wasregistered.

40. Despite repeated query, theofficials of respondent-State, present in theCourt, could not tell any reason as to whyreport was not registered by police wheninformant conveyed information regardingoccurrence of a cognizable offence. Thisconduct of police officials of concernedpolice station is not only illegal but shows ablatant flagrant disobedience and non-compliance of directions of this Court aswell as Apex Court, in the aforesaiddecisions. To utter dismay of this Court,even superior field officers as well asdepartmental officers starting from CircleOfficer upto Principal Secretary, Home,have not evolved any mechanism to ensurethat Court's directions are not disobeyed bysubordinate police officials and if there issuch violation, appropriate action is takenby competent superior officers.

41. It appears that entire policedepartment virtually has no respect to theorders of Courts and feel happy to functionby way of total inaction, apathy to grievancesof public at large and to the issues of law andorder, heinous crime etc. This situation alsodemands immediate corrective as well aspunitive measures, else the things may gobeyond control.

42. We direct Chief Secretary, U.P.Government; Principal Secretary (Home),U.P. Government; and, Secretary(Appointment), U.P. Government toimmediately look into the matter, takeappropriate steps and finalize scheme(s)so as to make U.P. Police Force, a reallaw and order enforcing machinery whichshould appear to be working and bringconfidence of people, back. It should alsoreflect upon the steps taken by aforesaidofficials in respect of matters of non-registration of reports by police officialswhenever information of occurrence of a

2 All] Shiv Kumar alias Mukhiya Vs. State of U.P. & Ors. 853

cognizable offence is conveyed. The stepstaken shall also show, how aforesaid officialshave ensured compliance of directions givenby this Court as well as Apex Court in RoopRam Vs. State of U.P. (supra) and LalitaKumari Vs. Government of U.P. (supra). Incase of lapses on the part of concerned policeofficials, how steps would be taken to punishthe guilty officials should also be a part ofthe scheme. They shall also submit aprogress report, on expiry of six months fromthe date of delivery of this judgment,showing steps taken by them in this regardand the consequences thereof. They shallmake inquiry and inform the Court about theofficers who have disobeyed Court's orderregarding registration of first informationreport so that separate proceeding ofcontempt may be drawn against them.

43. In the present case since conductof Investigating Officer is suspicious andlacks independence and fairness, wedirect the State Government to transferinquiry to C.B.C.I.D., who shall proceedwith investigation and complete the samewithin a period of three months.

44. We dispose of the writ petitionin the manner as aforesaid and with thedirection as given hereinabove.

45. A copy of this order shallforthwith be furnished to Chief Secretary,U.P. Government; Principal Secretary(Home), U.P. Government; and, Secretary(Appointment), U.P. Government, forcommunication and compliance.



BEFORETHE HON'BLE BAL KIRSHNA NARAYANA, J.

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Civil Misc. Habeas Corpus W.P. No. 11547 of 2015

Shiv Kumar alias Mukhiya ...PetitionerVersus


Counsel for the Petitioner:Sri I.K. Chaturvedi

Counsel for the Respondents:A.G.A., A.S.G.I.(2015/0403), Sri Firoz Ahmad

Constitution of India, Art.-226-HabeasCorpus Petition-challenging detentionorder-passed by D. M-exercising power u/s3(2) of N.S. Act-no pertinent of relevantmaterial placed-complicity of petitioner notproved-crime so committed not in daringmanner to disturb public order ortranquility-detention order quashed.

Held: Para-26We have very carefully gone through thecounter affidavits filed by the State andUnion of India, there is nothing thereinwhich may indicate that the prosecution hasbeen enable to collect any further evidencewhich may indicate at the complicity of thepetitioner in the commission of the crimewhich has been made the basis for passingthe impugned detention order apart from thestatement of witness Sunder.

Case Law discussed:(2010)9 Supreme Court Cases 618; (1987) 3SCC 502; (1989) 4 SCC 556; (1990) 1 SCC 35;(1996) 11 SCC 393; (2007) 7 SCC 378; 2012(2) SCC 176; (2012) 2 SCC 386;

(Delivered by Hon'ble B.K. Narayana, J.)

1. Heard Sri I.K.Chaturvedi, learnedcounsel for the petitioner, learned AGAfor the respondent nos. 1,2 and 3 and SriFiroz Ahmad, learned counsel for theUnion of India/ respondent no.2.

2. Pleadings between the partieshave been exchanged and the matter isripe for final disposal.


3. By means of this writ petition thepetitioner has challenged the detentionorder dated 04.08.2014/14.08.2014 passedby the District Magistrate, Banda,respondent no.3 (Annexure-10) by whichhe in exercise of his power under Section3(2) of the National Security Act, 1980(hereinafter referred to as the Act) hasordered that the petitioner be detained inDistrict Jail, Banda stating the grounds ofdetention as required under Section 8 ofthe Act as well as the order dated23.09.2014 passed by the State Govt.confirming the detention order dated04.08.2014/14.0.2014 (Annexure 15) tothe writ petition.

4. The brief facts of the case asemerging from the pleadings of the partiesare that an FIR was lodged by oneChandra Bhushan, resident of villageBaurali Azam on 06.02.2014 at 6.20 p.m.against unknown persons at P.S. Bisanda,District Banda stating therein that Km.Sandhya who was daughter of his relativeRam Naresh Patel, aged about six years,had come to his house along with hergrand mother to participate in a religiousceremony (yagya) organised in his house,had gone missing on 31.01.2014 at about4.00 p.m. from his house in villageBaurali Azam.

5. The aforesaid FIR was registeredas case crime no. 22 of 2014, underSection 363 IPC, at P.S. Bisanda, DistrictBanda.

6. The dead body of the deceasedSandhya was recovered from a well in thevillage on 08.02.2014. Inquest was conductedon 08.02.2013 between 7.30 p.m. to 9.30 p.m.and post mortem was performed on09.02.2014 at 2.00 p.m. and since thedeceased's post mortem report indicated that

the she before being thrown into the well wasthrottled to death after being subjected to rape,case crime no. 22 of 2014 which was earlierregistered under Section 363 IPC wasconverted under sections 363, 376, 302, 201IPC and Section 4 of Prevention of Childrenfrom Sexual Offences Act, 2012. Theinvestigation of the case continued for severalmonths without making any headway despitethe frequent change of Investigating Officers.The name of the petitioner as an accused inthe aforesaid case surfaced for the first time inthe statement of one Sunder recorded by theInvestigating Officer on 18.05.2014 in whichhe stated that on the date of the incident hehad seen the deceased sitting on the lap of thepetitioner in his guava grove at 5.15 p.m.. Onthe basis of his last seen evidence, theInvestigating Officer submitted charge sheetagainst the petitioner on 26.05.2014 and senthim to jail. The bail application moved by thepetitioner moved before the Special Judge/Additional Sessions Judge, Court No.1 Bandawas rejected by him by his order dated14.07.2014. Thereafter the petitioner moved aapplication for bail before the High Courtwhich was registered as bail application no.41263 of 2014.

7. While the petitioner was confinedin jail in connection with the aforesaidcase, the impugned order of preventivedetention was passed by the respondentno.3 on 04.08.2014 against the petitionerand served upon him in District JailBanda along with the grounds ofdetention under Section 8 of the NationalSecurity Act. The order of preventivedetention dated 04.08.2014/14.08.2014passed by respondent no.3 apart fromnarrating the facts already statedhereinabove further reflected that thesame was passed on the basis of report ofS.P., Banda which itself was based uponthe confidential report of the local


intelligence unit forwarded to him byInspector In-charge stating that thepetitioner who was accused in case crimeno. 22 of 2014, under Section 302, 201and 376 IPC had moved a bail applicationbefore the High Court and there wasevery likelihood of his being released onbail and in case he was released on bailthere was strong possibility of hisinvolving himself in illegal activities andhence his detention under the Act wasimperative in order to maintain publicorder. The impugned order also reflectsthat after the dead body of the victim Km.Sandhya was found in a well and it cameto light that before being murdered, shehad been raped the members of the publicbecame very angry and demanded DistrictMagistrate to get the case solved soon andan atmosphere of fear had gripped thecommunity. Public order had beendisturbed and with a view to maintain lawand order, heavy police force had to bedeployed at the post mortem house.Angry villagers had organised ademonstration in front of the D.M.'sresidence information whereof waspromptly given to the superior officersthrough R.T. Set and additional policeforces were requisitioned from otherpolice stations. As a result of the heinousoffence of rape and murder of a minor girlcommitted by the petitioner and hissubsequent act of throwing her dead bodyin the well, the tranquillity of thecommunity was totally disturbed and anatmosphere of fear had prevailed.

8. The petitioner filed arepresentation before the State of U.P.through Secretary Home Secretary, Stateof U.P. and before the Union of Indiathrough Home Secretary and also beforethe District Magistrate, Banda on12.08.2014. In his representation the

petitioner had categorically stated that thepetitioner who was an old man aged about60 years was absolutely innocent and hehad falsely been implicated as an accusedin the case crime no. 22 of 2014 by thelocal police as a measure of vendataagainst his uncle Shishupal who had filedseveral complaints before the higherauthorities against the local policehighlighting the inaction on the part of thelocal police in the investigation of thecase in hand and their deliberate attemptto shield Reshma and her husband Arjunwhose names had figured as primesuspects in the concerned case duringinvestigation, by introducing a got upwitness Sunder after 2-1/2 months of theincident who gave evidence of last seenagainst the petitioner in his statementrecorded under Section 161 Cr.P.C. TheState Govt. approved the detention orderdated 04.08.2014/ 14.08.2014 passed bythe District Magistrate, Banda vide orderdated 13.08.2014 (Annexure-13). TheCentral Govt. also rejected the petitioner'srepresentation by order dated 03.09.2014(Annexure-14). The petitioner appearedbefore the Advisory Board and thereafteron the basis of the opinion of theAdvisory Board tendered under Section11 of the Act, the State Govt. passed anorder on 23.09.2014 for detention of thepetitioner in jail for twelve monthscommencing from 04.08.2014.

9. Learned cousnel for the petitionersubmitted that the subjective satisfactionof the respondent no.3 (detainingauthority) recorded in the impugneddetention order is based upon insufficient,non existent and irrelevant grounds whichhas totally invalidated the same andfurther more since the respondent no.3(detaining authority) has exercised hispower under Section 3(2) of National


Security Act illegally and arbitrarily, theimpugned order cannot be sustained andaccordingly is liable to be quashed.

10. Per Contra learned AGAsubmitted that the petitioner has beenaccused of having committed the heinousoffence of raping a minor girl andthereafter committing her murder andthrowing her dead body in a well. Hefurther submitted that the act of thepetitioner affected the community andlead to disturbance of current life of thecommunity so as to amount to disturbanceof public order and it did not effectmerely an individual leaving thetranquillity of the society undisturbed.The satisfaction of the detaining authorityis based on the relevant materials placedbefore him showing that the act of thepetitioner was such that it disturbed thetempo of life of the community, there wasdisturbance in the village as well as in theplaces nearby. He next submitted that thedetaining authority upon being apprisedthat the petitioner had moved bailapplication for his release before theHon'ble High Court and there was everylikelihood of the petitioner being releasedon bail and since at the very prospect ofthe petitioner being enlarged on bail, afeeling of fear had gripped the villagersand if he was actually released on bail, hewould again indulge in anti-socialactivities and hence to prevent suchprejudicial activity in future, the detainingauthority had rightly passed the detentionorder against the petitioner and the samewarrants no interference by this Court.

11. We have carefully consideredthe submissions made by the learnedcounsel for the parties, perused thepleadings of the parties as well as theother material brought on record and the

case laws cited before us to which we willrefer as and when the context requires.

12. The Apex Court in the case ofPebam Ningol Mikoi Devi Vs. State ofManipur and others reported in (2010) 9Supreme Court Cases 618 has examinedthe scope of Judicial review of thesubjective satisfaction of detainingauthority. Paragraph 21 of its verdictrendered in the aforesaid case, which isrelevant for our purpose is beingreproduced herein below"

"21. To decide the correctness orotherwise of the detention order, twoissues of importance arise before thisCourt. The first is, regarding thedocuments and material on which reliancewas placed by the detaining Authority inpassing the detention order. Secondly,with those materials, the detainingauthority was justified in arriving at afinding that the detenu should be detainedunder the National Security Act withoutany trial. In matters of this nature, thisCourt normally will not go into thecorrectness of the decision as such butwill only look into decision makingprocess. Judicial review, it may be noted,is not an appeal from a decision butreview of the manner in which thedecision was made. The purpose ofreview is to ensure that the individualreceives a fair treatment."

13. We now proceed to examinesome of the decisions of the Apex Courtwhich may have relevance in determiningin what manner such subjectivesatisfaction of the Authority must bearrived at, in particular on Section 3(2) ofthe National Security Act. In Fazal Ghosiv. State of Uttar Pradesh, (1987) 3 SCC502, this Court observed that: "The


District Magistrate, it is true, has statedthat the detention of the detenus waseffected because he was satisfied that itwas necessary to prevent them fromacting prejudicially to the maintenance ofpublic order, but there is no reference toany material in support of thatsatisfaction. We are aware that thesatisfaction of the District Magistrate issubjective in nature, but even subjectivesatisfaction must be based upon somepertinent material. We are concerned herenot with the sufficiency of that materialbut with the existence of any relevantmaterial at all." (emphasis supplied) (Para3).

14. In Shafiq Ahmed v. DistrictMagistrate, Meerut, (1989) 4 SCC 556,the Apex Court opined :- "Preventivedetention is a serious inroad into thefreedom of individuals. Reasons, purposesand the manner of such detention must,therefore, be subject to closest scrutinyand examination by the courts." (emphasissupplied) (Para 5).

This Court further added:

"...there must be conduct relevant tothe formation of the satisfaction havingreasonable nexus with the action of thepetitioner which are prejudicial to themaintenance of public order. Existence ofmaterials relevant to the formation of thesatisfaction and having rational nexus tothe formation of the satisfaction thatbecause of certain conduct "it isnecessary" to make an order "detaining"such person, are subject to judicialreview." (emphasis supplied) (Para 5).

15. In State of Punjab v. SukhpalSingh, (1990) 1 SCC 35, the Apex Courtheld:

"...the grounds supplied operate as anobjective test for determining the questionwhether a nexus reasonably existsbetween grounds of detention and thedetention order or whether someinfirmities had crept in." (emphasissupplied) (Para 9).

16. In State of Rajasthan v. TalibKhan, (1996) 11 SCC 393, the ApexCourt observed that:

"...what is material and mandatory isthe communication of the grounds ofdetention to the detenu together withdocuments in support of subjectivesatisfaction reached by the detainingauthority." (emphasis supplied) (Para 8).

17. The legal position what emergesfrom these rulings is that, there must be areasonable basis for the detention order,and there must be material to support thesame. The Court is entitled to scrutinizethe material relied upon by the Authorityin coming to its conclusion, andaccordingly determine if there is anobjective basis for the subjectivesatisfaction. The subjective satisfactionmust be two fold. The detaining authoritymust be satisfied that the person to bedetained is likely to act in any mannerprejudicial to the security of the State orfrom acting in any manner prejudicial tothe maintenance of the public order andthe authority must be further satisfied thatit is necessary to detain the said person inorder to prevent from so acting.

18. In order to determine the validityof the impugned detentionorder in thelight of the principles laid down in theaforesaid decisions, it will be necessary toexamine the materials relied by thedetaining authority while passing the


impugned deteintion order. Thedocuments relied upon by the DistrictMagistrate mentioned in the grounds ofdetention are :-

1. Copy of the FIR lodged by oneChandra Bhushan on 06.02.2014, whichwas entered at G.D. No.27 at about 6.20p.m. by S.I.- V.K. Shukla.

2. The report made by ChandraBhushan Patel regarding recovery of thedead body of the victim from a well invillage on 08.02.2014 which was enteredat G.D. No. 29 at 6.10 p.m. on08.02.2014.

3. Certified copy of the inquestreport and other documents preparedduring inquest.

4. Post mortem report of thedeceased.

5. News items published in10.02.014 editions of daily newspapersHindustan and Dainik Jagran.

6. Statements of the informantChandra Bhushan recorded under Section161 Cr.P.C.

7. Statement of witness Sunderrecorded under Section 161 Cr.P.C..

8. Copy of the site plan.9. Report of the sponsoring authority,

Superintendent of Police, Banda dated30.07.2014.

19. We are conscious of the fact thatthe grounds stated in the order ofdetention are sufficient or not, is notwithin the ambit of the discretion of thecourt and it is the subjective satisfactionof the detaining authority which isimplied. However, the Apex Court inparagraph no. 28 of its judgment in thePebam Ningol Mikoi Devi (supra), hasobserved that if one of the grounds orreasons which lead to the subjectivesatisfaction of the detaining authority

under the National Security Act is nonexistent, misconceived and irrelevantorder, the order of detention would be invalid.

20. The Apex Court in the case ofMohd. Yousuf Rather Vs. State of Jammu& Kashmir and Ors. (AIR 1979 SC 1925)has observed that under Article 22(5), adetenu has two rights (1) to be informed,as soon as may be, of the grounds onwhich his detention is based and (2) to beafforded the earliest opportunity ofmaking a representation against hisdetention. The inclusion of an irrelevantor non-existent ground among otherrelevant grounds is an infringement of thefirst right and the inclusion of an obscureor vague ground among other clear anddefinite grounds is an infringement of thesecond right. No distinction can be madebetween introductory facts, backgroundfacts and `grounds' as such; if the actualallegations were vague and irrelevant,detention would be rendered invalid.

21. We have very carefully scannedthe grounds of detention and thedocuments relied on by the detainingauthority while passing the order ofdetention against the petitioner, and in ourconsidered opinion grounds on which thedetention order has been passed have noprobative value and were extraneous tothe scope, purpose and object of theNational Security Act for the followingreasons.

22. The documents mentioned at sl.no. 1, 2,3, 4 and 5 do not contain anyreference to the petitioner as thepetitioner's name as an accused in casecrime no. 22 of 2014 had not surfaced tillthe dates on which the aforesaiddocuments had come to the existence.


Chandra Bhushan, informant in casecrime no. 22 of 2014, whose statementrecorded under Section 161 Cr.P.C. andwhich finds mention at sl. no. 6 hereinabove has not named the petitioner as anaccused in the FIR. Similarly thedocument mentioned at sl. no. 8, site planof the alleged place of incident was alsowholly irrelevant for the purpose ofsubjective satisfaction of detainingauthority. Same is the position withregard to the report of the sponsoringauthority dated 30.07.2017 which ismentioned at sl. no.9 and which containsthe same facts on the impugned detentionis founded. The reliance placed by thedetaining authority on the statement madeby the only witness of the incident to theInvestigating Officer after more than 2-1/2 months of the occurrence (sl. no.7)without any explanation for his failure tocome forward promptly or at least withina reasonable period, cannot be said to besufficient to form the subjectivesatisfaction of the detaining authority as itis settled law that the statements underSection 161 Cr.P.C. cannot be taken assufficient grounds in the absence of anysupportive or corroborative grounds.Section 161 Cr.P.C. statements are notconsidered as substantive evidence butcan only be used to contradict thewitnesses in the course of the trial as isevident from the wordings of Section162(1) Cr.P.C. and has been so held timeand again by the Apex Court.

23. In Rajendra Singh v. State ofUttar Pradesh, (2007) 7 SCC 378, theApex Court laid down that:

"A statement under Section 161Cr.P.C. is not a substantive piece ofevidence. In view of the proviso to Sub-section (1) of Section 162 Cr.P.C., the

statement can be used only for the limitedpurpose of contradicting the makerthereof in the manner laid down in thesaid proviso. Therefore, the High Courtcommitted a manifest error of law inrelying upon wholly inadmissibleevidence..."

24. Even if for the sake of argumentit is assumed that the statement of Sundermade to the Investigating Officer underSection 161 Cr.P.C. relied by thedetaining authority while formingsubjective satisfaction, the facts stated bySudner in his statement under Section 161Cr.P.C. do not suggest any positive ordirect involvement of the petitioner in thecommission of crime which was latermade the basis for passing of order ofpreventive detention against him. Thewitness Sunder had simply told theInvestigating Officer in his statement thaton the date of the incident he had seen thevictim sitting on the lap of the petitionerat about 5.20 p.m. and he suspected thatthe petitioner may have committed themurder of the victim. He has nowherestated that he had either seen thepetitioner raping the victim or throwingher dead body into the well in the villageafter throttling her to death. Apart fromthe aforesaid last seen evidence of Sunderwhich saw the light of the day after aninordinate delay and explained of morethan 2-1/2 months, there is nocorroborative or supportive materialindicating at this complicity in thecommission of the crime in question.There is further neither any allegation norany material on record showing that thecrime in question was committed by thepetitioner in a daring manner and in fullview of the public in a crowded place soas to disturb the public order ortranquillity of the locality.


25. Furthermore, as alreadyobserved none of the other documentssubstantiate the involvement of the detenuin unlawful activities as alleged in thedetention order.

26. We have very carefully gonethrough the counter affidavits filed by theState and Union of India, there is nothingtherein which may indicate that theprosecution has been enable to collect anyfurther evidence which may indicate atthe complicity of the petitioner in thecommission of the crime which has beenmade the basis for passing the impugneddetention order apart from the statementof witness Sunder.

27. Thus, it is clear that there was nopertinent or relevant material on the basisof which, the detention order could bepassed.

28. In the instant case the offencesalleged to have been committed by thepetitioner are under the provisions of theIndian Penal Code for which the normallaw is sufficient to deal with the offence,if proved. The detaining authority, in ouropinion has wrongly taken the easy wayout and has resorted to an order ofpreventive detention, in order to avoidinvestigation of the case in which thepetitioner was made an accused more than2-1/2 months after the incident, on thebasis of extremely weak circumstantialevidence.

29. The Apex Court in the case ofYumman Ongbi Lembi Leima Vs. Stateof Manipur and others, 2012 (2) SCC 176,the Apex Court has held as hereunder:-

"27. As has been observed in variouscases of similar nature by this Court, the

personal liberty of an individual is themost precious and prized right guaranteedunder the Constitution in Part III thereof.The State has been granted the power tocurb such rights under criminal laws asalso under the laws of preventivedetention, which, therefore, are requiredto be exercised with due caution as wellas upon a proper appreciation of the factsas to whether such acts are in any wayprejudicial to the interest and the securityof the State and its citizens, or seek todisturb public law and order, warrantingthe issuance of such an order. Anindividual incident of an offence underthe Indian Penal Code, however heinous,is insufficient to make out a case forissuance of an order of preventivedetention."

30. Paragraphs 4,5, 8 and 9 of thejudgement rendered by the Apex Court inthe case of Mungauala Yadamma Vs.State of Andhra Pradesh and othersreported in (2012)2 SCC386, in which theApex Court has examined the parameterswithin which order of preventiondetention can be passed are quoted hereinbelow:-

"4. On behalf of the appellant, it hasbeen urged that the ground taken forissuance of the detention order wasimproper and not available in view of thereasoned judgment of this Court in Rekhav. State of T.N. Where a similar questionhad arisen and in para 23 of the judgment,a three-Judge Bench of this Court was ofthe view that criminal cases were alreadygoing on against the detenue undervarious provisions of the Penal Code,1860, as well as under the Drugs andCosmetics Act, 1940, and that if he wasfound guilty, he would be convicted andgiven appropriate sentence. TheirLordships also indicated that in their


opinion, the ordinary law of the land wassufficient to deal with the situation, andhence, recourse to the preventivedetention law was illegal.

5. It has been submitted by Mr. AnilKumar Tandale, learned advocateappearing for the appellant, that in theinstant case also all the offences allegedto have committed by the husband of theappellant, were under the provisions ofthe Andhra Pradesh Prohibition Act,1995, for which the normal law wassufficient to deal with the offence, ifproved. He submitted that the detainingauthority had wrongfully taken the easyway out and had resorted to an order ofpreventive detention in order to avoidhaving to investigate the cases filedagainst the appellant.

8. In fact, recently, in YummanOngbi Lembi Leima v. State of Manipurwe had occasion to consider the sameissue and the three-Judge Bench had heldthat the personal liberty of an individual isthe most precious and prized rightguaranteed under the Constitution in PartIII thereof. The State has been granted thepower to curb such rights under criminallaws, as also under the laws of preventivedetention, which, therefore, are requiredto be exercised with due caution as wellas upon a proper appreciation of the factsas to whether such acts are in any wayprejudicial to the interest and the securityof the State and its citizens, or seek todisturb public law and order warrantingthe issuance of such an order.

9. No doubt, the offences alleged tohave been committed by the appellant aresuch as to attract punishment under theAndhra Pradesh Prohibition Act, but that inour view has to be done under the said lawsand taking recourse to preventive detentionlaws would not be warranted Preventivedetention involves detaining of a person

without trial in order to prevent him/her fromcommitting certain types of offences. Butsuch detention cannot be made a substitutefor the ordinary law and absolve theinvestigating authorities of their normalfunctions of investigating crimes which thedetenue may have committed. After all,preventive detention in most case is for ayear only and cannot be used as aninstrument to keep a person in perpetualcustody without trial. Accordingly, whilefollowing the three Judge Bench decision inRekha case we allow the appeal and set asidethe order passed by the High Court dated20.7.2011 and also quash the detention orderdated 15.2.2011, issued by the Collector andDistrict Magistrate, Ranga Reddy District,Andhra Pradesh."

31. The Apex Court in paragraphnos. 13, 14, 15, 18, 29, 33 and 34 of itsverdict given in the case of Rekha Vs.State of Tamilnadu through Secretary toGovernment and another, reported in(2011)5 SCC 244, which are being quotedherein below has again dealt with thecircumstances under which the power ofpreventive detention can be exercised:-

"13. In our opinion, Article 22(3)(b)of the Constitution of India which permitspreventive detention is only an exceptionto Article 21 of the Constitution. Anexception is an exception, and cannotordinarily nullify the full force of themain rule, which is the right to liberty inArticle 21 of the Constitution.Fundamental rights are meant forprotecting the civil liberties of the people,and not to put them in jail for a longperiod without recourse to a lawyer andwithout a trial. As observed in R Vs.Secy. Of State for the Home Dept.

14. Article 21 is the most importantof the fundamental rights guaranteed by


the Constitution of India. Liberty of acitizen is a most important right won byour forefathers after long, historical,arduous struggles. Our Founding Fathersrealised its value because they had seenduring the freedom struggle civil libertiesof our countrymen being trampled uponby foreigners, and that is why they weredetermined that the right to individualliberty would be placed on the highestpedestal along with the right to life as thebasic right of the people of India.

15. Right to liberty guaranteed byArticle 21 implies that before a person isimprisoned a trial must ordinarily be heldgiving him full opportunity of hearing,and that too through a lawyer, because alayman would not be able to properlydefend himself except through a lawyer.

18. In State of of Maharashtra & Ors.Vs. Bhaurao Punjabrao Gawande, (2008)3 SCC 613 (para 23) this Court observed :

"...Personal liberty is a precious right.So did the Founding Fathers believe because,while their first object was to give unto thepeople a Constitution whereby a governmentwas established, their second object, equallyimportant, was to protect the people againstthe government. That is why, whileconferring extensive powers on thegovernment like the power to declare anemergency, the power to suspend theenforcement of fundamental rights or thepower to issue ordinances, they assured tothe people a Bill of Rights by Part III of theConstitution, protecting against executiveand legislative despotism those human rightswhich they regarded as fundamental. Theimperative necessity to protect these rights isa lesson taught by all history and all humanexperience. Our Constitution makers hadlived through bitter years and seen an alienGovernment trample upon human rightswhich the country had fought hard topreserve. They believed like Jefferson that

"an elective despotism was not theGovernment we fought for". And, therefore,while arming the Government with largepowers to prevent anarchy from within andconquest from without, they took care toensure that those powers were not abused tomutilate the liberties of the people. (videA.K. Roy Vs. Union of India (1982) 1 SCC271, and Attorney General for India Vs.Amratlal Prajivandas, (1994) 5 SCC 54."

29. Prevention detention is, bynature, repugnant to democratic ideas andan anathema to the rule of law. No suchlaw exists in the USA and in England(except during war time). Since, however,Article 22(3)(b) of the Constitution :14: ofIndia permits preventive detention, wecannot hold it illegal but we must confinethe power of preventive detention withinvery narrow limits, otherwise we will betaking away the great right to libertyguaranteed by Article 21 of theConstitution of India which was won afterlong, arduous, historic struggles. Itfollows, therefore, that if the ordinary lawof the land (Indian Penal Code and otherpenal statutes) can deal with a situation,recourse to a preventive detention lawwill be illegal.

33. No doubt it has been held in theConstitution Bench decision in HaradhanSaha's case (supra) that even if a person isliable to be tried in a criminal court forcommission of a criminal offence, or isactually being so tried, that does not debarthe authorities from passing a detentionorder under a preventive detention law.This observation, to be understoodcorrectly, must, however, be construed inthe background of the constitutionalscheme in Articles 21 and 22 of theConstitution (which we have alreadyexplained). Articles 22(3)(b) is only anexception to Article 21 and it is not itselfa fundamental right. It is Article 21 which

2 All] Alok Kumar Mishra & Anr. Vs. State of U.P. & Anr. 863

is central to the whole chapter onfundamental rights in our Constitution.The right to liberty means that beforesending a person to prison a trial mustordinarily be held giving him opportunityof placing his defence through his lawyer.It follows that if a person is liable to betried, or is actually being tried, for acriminal offence, but the ordinarycriminal law (Indian Penal Code or otherpenal statutes) will not be able to dealwith the situation, then, and only then, canthe preventive detention law be takenrecourse to.

34. Hence, the observation in para 34in Haradhan Saha's case (supra) cannot beregarded as an unqualified statement thatin every case where a person is liable tobe tried, or is actually being tried, for acrime in a criminal court a detention ordercan also be passed under a preventivedetention law."

32. Thus in view of the forgoingdiscussions, we have no hesitation inholding that the impugned detention ordercannot be sustained and is liable to bequashed.

33. This habeas corpus writ petitionis accordingly allowed and the impugneddetention order dated 04/14.08.2014(Annexure-10) as well as the order of theState Government dated 23.09.2014confirming the detention order dated04/14.08.2014 are hereby quashed. Thepetitioner shall be released forthwith if heis not wanted in any other case.

34. There shall however be no orderas to costs.


CRIMINAL SIDEDATED: ALLAHABAD 10.07.2015

BEFORETHE HON'BLE MRS. VIJAY LAKSHMI, J.

Criminal Misc. Application No. 18749 of 2015(U/S 482 CR.P.C.)

Alok Kumar Mishra & Anr. ...ApplicantsVersus

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

Counsel for the Applicants:Sri R.P. Mishra

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

Cr.P.C.-Section 482-Summoning orderseeking direction for quashing-fromallegations of complaint-can not be saidno offence made out-disputed questionof facts-can not be seen by High Court-applicant can raise this question indischarge application-rejected directionfor expeditious disposal of bail as perSupreme Court direction given.

Held: Para-6From the perusal of the material on recordand looking into the facts of the case, at thisstage, it cannot be said that no offence ismade out against the applicant. All thesubmissions made at the Bar relate to thedisputed questions of fact, which cannot beadjudicated upon by this Court underSection 482 Cr.P.C. At this stage, only primafacie case is to be seen in the light of thelaw laid down by Supreme Court in cases ofR.P. Kapur Vs. State of Punjab, AIR 1960 SC866, State of Haryana Vs. Bhajan Lal, 1992SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastlyZandu Pharmaceutical Works Ltd. Vs. Mohd.Saraful Haq and another (para 10) 2005SCC (Cr.) 283. The disputed defence of theaccused cannot be considered at this stage.Moreover, the applicant has got a right ofdischarge under section 239 or 227/228Cr.P.C. as the case may be through a properapplication for the said purpose and she isfree to take all the submissions in the saiddischarge application before the Trial Court.


Case Law discussed:AIR 1989 SC 1; AIR 1960 SC 866; 1992 SCC(Cr.) 426; 1992 SCC (Cr.) 192; 2005 SCC (Cr.)283; 2005 Cr.L.J. 755; 2009 (3) ADJ 322 (SC).

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

1. Heard learned counsel for theapplicants and learned AGA and perusedthe record.

2. The applicants have invoked theinherent jurisdiction of this court undersection 482 Cr.P.C. by praying forquashing of the summoning order dated25.2.2015 passed by the A.C.J.M. CourtNo. 9, Allahabad, as well as the entireproceedings of Case No. 136 of 2011,Azaj Ahmad Vs. Sri Rajesh KumarMishra and another, under section 406,323 and 504 I.P.C. P.S. Handia, DistrictAllahabad.

3. Learned counsel for the applicantshas submitted that there is no material toconnect the applicants with the allegedcrime. There is no witness of theoccurrence but they have wrongly beensummoned without any basis, hence theimpugned summoning order as well as theentire proceeding of the Complaint Casebe quashed.

4. The record shows that thecomplainant and the witnesses have beenexamined under section 200 and 202Cr.P.C. and they have supported theprosecution story. At the initial stage ofsummoning only prima-facie case is to beseen. Therefore, looking into the prima-facie evidence on record, it cannot be saidthat no offence is made out against theapplicant. The legal position is wellsettled that if an offence is disclosed, thecourt will not normally interfere.

5. So far as the inherent powers ofthe court are concerned, it has beenreiterated by Hon'ble Apex Court in acatena of judgements that whileexercising its inherent powers undersection 482 Cr.P.C., the Court would notembark upon an enquiry whether theallegations in the complaint are likely tobe established by the evidence or not. TheHigh Court would have to proceedentirely on the basis of the allegationsmade in the complaint or the documentsaccompanying the same per se; it has nojurisdiction to examine the correctness orotherwise of the allegations. (State ofBihar Vs. Murad Ali Khan and othersAIR 1989 SC 1).

6. From the perusal of the material onrecord and looking into the facts of the case,at this stage, it cannot be said that no offenceis made out against the applicant. All thesubmissions made at the Bar relate to thedisputed questions of fact, which cannot beadjudicated upon by this Court under Section482 Cr.P.C. At this stage, only prima faciecase is to be seen in the light of the law laiddown by Supreme Court in cases of R.P.Kapur Vs. State of Punjab, AIR 1960 SC866, State of Haryana Vs. Bhajan Lal, 1992SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastlyZandu Pharmaceutical Works Ltd. Vs.Mohd. Saraful Haq and another (para 10)2005 SCC (Cr.) 283. The disputed defence ofthe accused cannot be considered at thisstage. Moreover, the applicant has got a rightof discharge under section 239 or 227/228Cr.P.C. as the case may be through a properapplication for the said purpose and she isfree to take all the submissions in the saiddischarge application before the Trial Court.

7. Thus on the basis of the aforesaiddiscussions, the instant application

2 All] Abhilasha Mishra Vs. State of U.P. & Ors. 865

appears to have no force and it is liable tobe dismissed.

8. The application is, accordingly,dismissed.

9. However, it is directed that incase the applicants appear before the courtconcerned within thirty days from todayand apply for bail, the same shall be heardand disposed of expeditiously, if possible,on the same day by the courts below inview of the settled law laid by the SevenJudges' decision of this Court in the caseof Amrawati and another Vs. State of U.P.reported in 2005 Cr.L.J. 755 approved byHon'ble Apex Court in 2009 (3) ADJ 322(SC) Lal Kamlendra Pratap Singh Vs.State of U.P.



BEFORETHE HON'BLE ARUN TANDON, J.

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ-A No. -36228 of 2015

Abhilasha Mishra ...PetitionerVersus


Counsel for the Petitioner:Sri S.K. Singh, Sri D.K. Singh, Sri G.K.Singh, Sri S.K. Mishra, Sri V.K. Singh

Counsel for the Respondents:C.S.C., Sri A.K. Yadav

Constitution of India, Art.-226-'Principleof Resjudicata'-dismissal of PILquestioning appointment of Chairmanand member of Selection Board-petitioner being candidate for selectionof principal in Intermediate College-seeking quo warranto-the chairman and

members of Board-being clerk and L.T.Grade teachers-even not qualified forpost of principal-can not consider theeligibility and suitability in interview-Court can not be mute spectator-to allowthe government to break the back boneof education-held-petition maintainable.

Held: Para-30We would like to observe that considerationfor entertaining a PIL and grant of interimorders therein proceed on different footing.The present writ petition has been filed by acandidate, who is to face interview, forissuing a writ of quo warranto, this petitionhas no concern with the earlier petitionsfiled, as this is for a different relief. Wefurther find that issues raised in the petitionhave important significance for the cause ofeducation in the State, the writ petitionmust, therefore, be entertained. Theobjection of the State, in this regard, standsrejected.

Case Law discussed:[2013 (8) SCC 20]

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

1. Following questions having vitalsignificance for the cause of education inthe State of Uttar Pradesh, arise for ourconsideration in the present writ petition:-

(i) What should be the minimumqualifications for appointment ofChairman and Members of U.P.Secondary Education Service CommissionBoard, even in respect of personsspecified under Section 4 (iv) of the Act,should it be at par with the qualificationfor persons specified under clause (i) (ii)& (iii) of Section 4 on the principle of'Ejusdem Generis' ?

(ii) Whether, respondent nos. 4 to 6who were working as L.T. Grade Teacheri.e. on a post which is at the lowest ladderof the faculty posts is a recognisedIntermediate College could be appointed


as Chairman and Member of theSecondary Education Service SelectionBoard, for making make selection on thepost of Principal/ Lecturer/ AssistantTeacher in a recognised aidedIntermediate institution?

2. While entertaining this petition on3.7.2015, time was granted to the learnedcounsel appearing for State to verify thecredentials of respondent nos. 4 to 6, onthe strength of which they came to beappointed as officiating Chairman andMembers of the Board.

3. Learned Chief Standing Counselalongwith the Advocate General of theState have appeared and have passed onthe instructions received in the matterfrom the Principal Secretary of the State,which are taken on record. This order isbeing passed relying upon the facts soadduced before us by the State.

4. Petitioner before this Hon'bleCourt is an applicant for the post ofPrincipal in a recognised and aidedintermediate college. She has approachedthis Court for issuing a writ of quowarranto questioning the appointment andcontinuance of respondent Nos. 4, 5 & 6as officiating Chairman and members ofthe U.P. Secondary Education ServiceSelection Board, Allahabad, on theground that the appointment of these threepersons who were only working as L.T.Grade Teachers on the relevant date isperse arbitrary and based on misreadingof the intent of Section 4 of U.P. Act No.5 of 1982.

5. The qualification prescribed forappointment of Chairman and Membersof the Board, as contained in Section 4 (1)to (3) of the U.P. Act No. 5 of 1982 and

reproduced in the writ petition are asfollows:-

" 4. Composition of the Board:- (1)The Board shall consist of a Chairmanand ten members who shall be appointedby the State Government.

(2) A person shall not be qualifiedfor appointment as Chairman unless he,-

(a) is or has been a Vice-Chancellorof any University established by law; or

(b) is or has been in the opinion ofthe State Government an outstandingofficer of the Administrative Service notbelow the rank of Secretary to the StateGovernment or Director of Education,Uttar Pradesh;

(c) is in the opinion of the StateGovernment, an eminent person havingmade valuable contribution in the field ofeducation.

3.Of the Members,-(a) two shall be persons who are

educationists having made significantcontribution in the field of education.

(b) two shall be persons who are orhave been, in the opinion of the StateGovernment, an outstanding officer of theState Education Service not below therank of Additional Director;

(c ) other shall be persons, who,-(i) have worked as a Professor in any

University established by law in UttarPradesh or as a Reader of any DegreeCollege recognised by, or affiliated to,such University for a period of not lessthan ten years; or

(ii) have worked as a Principal ofany institution recognised under theIntermediate Education Act, 1921 for aperiod not less than ten years; or

(iii) are, in the opinion of the StateGovernment, an eminent educationisthaving made valuable contribution in thefield of education.


(iv) is in the opinion of the StateGovernment, an eminent person havingmade vaulable contribution in the field ofeducation.

4. Every appointment under thisSection shall take effect from the date onwhich it is notified by the State Government."

6. We may, at the very outset, recordthat the Chief Standing Counsel made anallegation against the petitioner hasdeliberately quoted unamended Section4(3)(c)(iv) of the Act and that the correctprovision reads as under:-

"(iv) is interested in the field ofeducation and a graduate from arecognized University."

Submission is that in view of thelanguage of sub clause (iv), the onlyqualification for appointment of Memberis that he has to be a graduate from arecognised University and has interest inthe field of education.

7. Sri G.K. Singh, learned SeniorAdvocate, assisted by Sri S.K. Mishra,Advocate informed the Court that Section 4of the Act has been quoted from an authenticbook of a renowned publisher there may besome mistake in the book itself, which isneither deliberate nor intentional. We directthe learned counsel for the petitioner to makenecessary corrections today itself so as tobring it in conformity with the amendmentmade in the year 2008.

8. We may now turn to the basicissue, as raised in the present petition.

9. U.P. Act No. 5 of 1982 wasintroduced for constituting, a Service

Selection Board, as a substitute for themechanism of selection of Principal andTeachers in a recognised aidedintermediate colleges in the State of UttarPradesh under the U.P. IntermediateEducation Act.

10. The U.P. Intermediate EducationAct, 1921 ( hereinafter referred to as Act1921) contemplated nomination of subjectexperts for every selection committee to beconstituted. These subject experts were to bethe persons, who had academic qualificationand experience in the field of education.Reference may be had to the provisions ofSection 16-F of the Act 1921. Sub section (4)to Section 16-F of the Act 1921 provided forthe panel to be drawn by the Director in suchmanner as may be prescribed. It had to berevised once in every 3 years. Regulation 14of Chapter-II of the Regulations framedunder Act, 1921 lays down the category ofpersons, who can be included in the panel ofexperts to be prepared by the Director.Regulation 14 is being quoted below:-

"14. The panel of Experts referred toin sub-section (4) of Section 16-F shall bedrawn by the Director for each regionseparately for the selection of heads ofinstitutions and for the selection ofteachers from amongst the categories ofpersons given below after they have beengiven their consent in writing to act asExperts:-

(a) Persons who may be appointed asexperts for the selection of heads ofinstitution-

(i) Principals of Degree Colleges,Training Colleges, Agricultural Collegesand Polytechnics including CentralSchools;


(ii) Gazetted Officers of theEducation Department not below theP.E.S. level, whether serving or retired;

(iii) Professors and Readers ofUniversities and Degree Colleges;

(iv) Lecturers of Universities andDegree Colleges provided they haveworked as such for at least ten years.

(v) Any other person consideredsuitable by the Director;

(b) persons who may be appointed asexperts for the selection of teachers-

(i) Principal or Headmaster of anyIntermediate College, High Schools orGovernment Normal School, whetherserving or retired;

(ii) Gazetted Officer of the EducationDepartment not below the rank of aDeputy Inspector of Schools, whetherserving or retired;

(iii) Lecturers of Degree Colleges,Training Colleges or Polytechnics andGazetted Officers of EducationDepartment of at least five years'standing;

(iv) Any other person consideredsuitable by the Director.

The number of experts on each regionalpanel shall be such as may be considerednecessary by the Director, provided thatexperts appointed for the selection ofteachers of Intermediate classes shall beexperts in that subject (i.e they shouldpossess the minimum qualificationsprescribed by the Board for a teacher ofIntermediate classes in the subjectconcerned). The regional panel shall remainvalid for three years but the Directors mayadd to or remove any person from the paneleven during the above period. Name of oneperson may be included in more than onepanel where necessary."

11. It will be seen from a simplereading of the aforesaid provisions that

the Act,1921 contemplated that persons notbelow the rank of Principal of Degreecollege, training college, agriculture collegeand gazetted officer of the educationdepartment not below the rank of additionaldirector, professor of any university or aReader, Lecturer (with 10 years experience)of any degree college recognised by oraffiliated to such University, or any otherperson having made valuable contribution inthe field of education and considered suitableby the Director could be included in thepanel for the post of Principal/ Head of theinstitution.

12. In the case of teachers suchpersons could be empanelled who had tobe a principal of an Intermediateinstitution, Gazetted Officer or Lecturerof Degree College. Clause-4 authorisedthe Director to induct any other person asconsidered suitable by him.

13. Section 4 of the U.P. Act No. 5of 1982, which lays down thequalification for the Chairman andMembers of the Selection Commission,has been quoted above. The qualificationfor appointment as Chairman under SubSection (2) of Section 4 are that he (i) isor has been a Vice-Chancellor of anyUniversity established by law; (ii) anoutstanding officer of administrativeservice not below the rank of Secretary tothe State or Director of Education U.P.;(iii) an eminent person having madevaluable contribution in the field ofeducation.

14. Similarly, for the office ofMember, qualifications prescribed ; (a)educationists having made significantcontribution in the field of education; (b)an outstanding officer of the StateEducation Service not below the rank of


Additional Director; (c) Professor of aUniversity established by law or a Readerof a degree college recognised by oraffiliated to a University for not less thanten years; Principal of any Intermediateinstitution recognised under the Act of1921 for not less than ten years; (d) aneminent educationists having madevaluable contribution in the field ofeducation, and lastly (e) a graduate havinginterest in education, as provided inClause-iv.

15. This clause according to Stateconstitutes a separate class in itself andthe other clauses providing qualificationwould have no bearing.

16. We are, prima-facie, not inclinedto accept this argument, as it would runcounter to the scheme of the Act itself.

17. Provisions contained in Sub-sections (2) and (3) of Section 4 providefor the qualifications required to bepossessed by a person before beingappointed as Chairman and Member ofthe Board. We are of the view thatprinciples of 'Ejusdem Generis' wouldclearly be attracted in the instant situationand Sub-clause (iv) would have to be readas being of the same kind or nature, andfor same class or category which apply tothe previous clauses. The Apex Court inNirma Industries Vs. SEBI [2013 (8)SCC20] in Paras 63 to 66 has held as follows:-

"63. The term "ejusdem generis" hasbeen defined in Black's Law Dictionary,9th Edn. as follows :

"A canon of construction holdingthat when a general word or phrasefollows a list of specifics, the generalword or phrase will be interpreted to

include only items of the same class asthose listed."

64. The meaning of the expressionejusdem generis was considered by thisCourt on a number of occasions and hasbeen reiterated in MaharashtraUniversity of Health Sciences and Ors.Vs. Satchikitsa Prasarak Mandal & Ors.[9] The principle is defined thus : "TheLatin expression "ejusdem generis" whichmeans "of the same kind or nature" is aprinciple of construction, meaningthereby when general words in a statutorytext are flanked by restricted words, themeaning of the general words are taken tobe restricted by implication with themeaning of the restricted words. This is aprinciple which arises "from the linguisticimplication by which words havingliterally a wide meaning (when taken inisolation) are treated as reduced in scopeby the verbal context". It may be regardedas an instance of ellipsis, or reliance onimplication. This principle is presumed toapply unless there is some contraryindication [see Glanville Williams, TheOrigins and Logical Implications of theEjusdem Generis Rule, 7 Conv (NS)119]."

65. Earlier also a Constitution Benchof this Court in Kavalappara KottarathilKochuni vs. State of Madras[10]construed the principle of ejusdemgeneris wherein it was observed asfollows : " ........ The rule is that whengeneral words follow particular andspecific words of the same nature, thegeneral words must be confined to thethings of the same kind as those specified.But it is clearly laid down by decidedcases that the specific words must form adistinct genus or category. It is not aninviolable rule of law, but is onlypermissible inference in the absence of anindication to the contrary."


66. Again this Court in anotherConstitution Bench decision in the case ofAmar Chandra Chakraborty Vs. Collectorof Excise[11] observed as follows :

". ... The ejusdem generis rule strives toreconcile the incompatibility betweenspecific and general words. This doctrineapplies when (i) the statute contains anenumeration of specific words; (ii) thesubjects of the enumeration constitute a classor category; (iii) that class or category is notexhausted by the enumeration; (iv) thegeneral term follows the enumeration; and(v) there is no indication of a differentlegislative intent."

18. We are, prima-facie, of theopinion that the requirement of eminencein the field of education as provided insub clauses (i), (ii) and (iii) would have tobe read in clause (iv) of Section 4 (3) (c)of the Act also. Only a person havingeminence in the field of education, asillustrated by various sub sections ofSection 4 could be appointed as Chairmanand Member of the Board. The contraryinterpretation suggested by the ChiefStanding Counsel would be detrimental tothe system of education in the State.

19. In our opinion the phrases "madevaluable contribution in the field ofeducation" and "interested in filed ofeducation" must mean some contributionin the field of education which is tangibleand which can be evaluated by experts inthe filed of education to see as to whetherthat particular man satisfied therequirement of the said phrases or not. Itcannot be based on complete subjectivesatisfaction. Some objective material forthe purpose has to be seen.

20. The qualifications for the officeof member has been whittled down by the

State Government under the 2008amendment as a result whereof we arefaced with a situation in which respondentnos.4 to 6 are functioning as theofficiating Chairman and Members of theBoard.

21. It is relevant to note that therespondent no.4, Smt. Anita Yadav, whowas only a LT grade teacher in K.K. Intercollege, is now acting as Chairman of theSelection Board for selecting Principals ofrecognised inter colleges i.e. a post, forwhich she herself is prima-facie noteligible to even apply. She is stated to bedouble M.A. She is untrained nor she haspassed TET examination.

22. The other members of theCommission i.e. Smt. Ashalata Singh wasinitially appointed as subject expert andthereafter Lecturer in Intermediate College,for which selection was made by thecommittee of Management of a privatecollege. Meaning thereby that she has notfaced any selection conducted by the ServiceSelection Board or by the Public ServiceCommission. She is stated to have beenregularised as Lecturer in the year 2007 andshe has now been appointed as Member forholding selection for the Post of Principal of arecognised Intermediate College, a post shehas never held nor is qualified to hold.

23. So far as respondent no. 6, LalitKumar Srivastava, is concerned, heworked as Clerk in the office of DistrictInspector of School upto the year 2003,where after he is stated to be appointed asL.T. Grade Teacher, before beingappointed as Member of the Board in theyear 2013. Even he is to select Principalsand Lecturers, although he himself is notqualified for the posts. His period ofappointment has been extended again on


12.6.2015 for further two years. Sri LalitKumar Srivastava who is stated to be postgraduate, is not even trained, and thus,prima-facie, ineligible to be appointedeven as L.T. Grade Teacher.

24. None of these three ( Chairmanand two members), as on date, prima-facie can be selected for the post ofPrincipal in a recognised Intermediatecollege for want of qualification, but theirony is that they have been authorised toselect Principals and Lecturers forrecognised Intermediate Colleges.

25. The Court, in the facts of the presentcase, is constrained to inquire as to whetherconsiderations other than the interest ofeducation pervial in the mind of the concernedofficials of the department of education in theState, while appointing Respondent Nos. 4 to 6.Response is required from the PrincipalSecretary / Chief Secretary of the State. Weregret to observe that the entire education inState is being ruined because of incompetentpersons being appointed to hold selection forthe post of Principals/ Lecturers and L.T. GradeTeachers of the recognised intermediatecollege. The Court will not be a mute spectator.The State cannot be permitted to break thebackbone of education system on which ourdemocratic polity professes to thrive. We arecompelled to interfere not only in law but forwider cause of education in the State itself.

26. Has the State of U.P. become sobankrupt in the matter ofacademias/administrative officers that it has toappoint persons as Chairman/ Members of theSelection Board who have made absolutely nocontribution in the field of education, is theother question which was to be answered.

27. Learned Chief Standing Counselsubmitted that this petition may not be

entertained, as a previous PIL PetitionNo.11684 of 2014 had been dismissed on26.11.2014, vide following orders:-

"This petition lacks bona fide. Itappears that it is a proxy petition at theinstance of ex-secretary of EducationBoard as on her papers enquiry has beenasked for.

In view of the above, PIL isdismissed."

28. Another PIL Petition No.12548of 2014 was filed and following orderswere passed on 18.12.2014:-

"Shri Ankit Srivastava, Advocate,appearing for respondent nos.2 and 3,prays for and is allowed three weeks' timeto seek instructions in the matter,particularly in respect of proceedings, ifany drawn, against the respondent nos.4and 5 by the State Government. LearnedStanding Counsel, representing Staterespondents, may also seek instructionswithin same period.

List in the 3rd week of January,2015.

Prayer for interim relief is rejected."

29. An SLP was preferred againstthe order dated 18.12.2014, which wasrejected on 22.1.2015. It is submitted bythe Chief Standing Counsel that in viewof the aforesaid orders, present petition benot entertained.

30. We would like to observe thatconsideration for entertaining a PIL andgrant of interim orders therein proceed ondifferent footing. The present writ petitionhas been filed by a candidate, who is toface interview, for issuing a writ of quowarranto, this petition has no concernwith the earlier petitions filed, as this is


for a different relief. We further find thatissues raised in the petition haveimportant significance for the cause ofeducation in the State, the writ petitionmust, therefore, be entertained. Theobjection of the State, in this regard,stands rejected.

31. We may also record that a responseto the facts as stated in the writ petition andthe prima-facie findings which have beenrecorded by this Court, shall be made bymeans of a personal affidavit by the ChiefSecretary of the State of U.P.. The originalrecords on the basis of which these threepersons were appointed as Chairman andMembers of the Selection Board, shall beproduced before this Court by an officer, notbelow the rank of Joint Secretary on the nextdate.

32. Learned Chief Standing Counselprays for and is allowed 3 weeks' time tofile Counter Affidavit. Issue notice torespondent nos.4 to 6, who may also filecounter affidavit within the same period.Steps be taken within five days. Petitionerwill have one week thereafter to fileRejoinder Affidavit.

List this petition on 10.8.2015.

In the meantime, respondent Nos.4, 5& 6 are restrained from holding anyselection in their capacity as Chairmanand Members of the Board. However,their salary is not being interfered with, atthis Stage.



BEFORETHE HON'BLE ARUN TANDON, J.

THE HON'BLE SURYA PRAKASH KESARWANI, J.

WRIT-C No. 38663 of 2008

Rameshwar & Anr. ...PetitionersVersus


Counsel for the Petitioner:Sri Vishnu Sahai, Sri B. Dayal, SriMahendra Bahadur Singh, Sri C.K. Parekh

Counsel for the Respondents:C.S.C., Sri Pradeep Kumar, Sri R.P. Singh

U.P. Land Acquisition Act-Section 18-Reference-maintainability-on allegation of fraud-even-ifcompensation received-reference can not berejected-order quashed-with consequentialdirection given.

Held: Para-9We are of the considered opinion that incases where execution of agreementunder the Rules, 1997 is questioned onallegations of fraud, the application forreference need be entertained andreferred to the Court concerned forexamined at the first instance as towhether the agreement is vitiated byfraud or not. It is only when the firstissue is answered in affirmative that theother questions namely adequacy ofcompensation to the petitioners can begone into.

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

1. Land holdings of the petitionersbefore this Court was admittedly acquiredunder the provisions of the LandAcquisition Act, 1894 (herein afterreferred to as the 'Act, 1894') on31.10.2001 issued under Section 4 of theAct, 1894 followed by notification dated31.01.2002 under Section 6 of the Act,1894. Possession of the acquired land wastaken on 23.03.2002.

2. From the records of the presentpetition it is apparent that before the

2 All] Rameshwar & Anr. Vs. State of U.P. & Ors. 873

Award could be made in respect of theacquired land, the petitioner is stated to haveentered into an Agreement with therespondent authority under the U.P. LandAcquisition (Determination of Compensationand Declaration of Award by Agreement)Rules, 1997 (herein after referred to as the'Rules, 1997'). In terms of the Agreemententered into between the parties, acompensation of Rs.69,32,848/- was paid tothe petitioner on 22.03.2002. This money isstated to have been accepted by the petitionerunder protest.

3. The Award was made on21.07.2002. Within one month of the saidAward, the petitioners made anapplication wherein it was stated that theyhad been asked to sign/put thumbimpression on certain blank papers byrespondent authorities on the assurancethat the money which is to be paid tothem is only 80% of the totalcompensation as and when the Award ismade, the remaining 20% shall also bepaid to them. But after publication of theAward, the petitioners found that suchassurance was false and that the moneywhich has been received by them is beingtaken as the entire compensation. Thisaccording to the petitioner amounts tofraud and poor farmers like the petitionershave been deceived by the respondents inthe matter of compensation.

4. The petitioners, therefore, madean application before the Special LandAcquisition Officer on 23.08.2003 for areference being made under Section 18 ofthe Act, 1894. This application of thepetitioners has been rejected under theimpugned order dated 23.06.2008.

5. Counsel for the petitioners at thevery outset stated that it is no doubt true

that the persons who accept compensationin terms of the Rules, 1997 have no rightto make any application under Section 18of the Act, 1894 for a reference but wherethe payment of compensation is vitiatedon the ground of fraud then suchrestriction in the making of theapplication for reference would not beapplicable. It is his case that theReference Application had to be grantedby the officer concerned and it was for thecompetent court to decide the correctnessor otherwise of the allegations made bythe petitioner qua the amount paid underthe Rules, 1997 being vitiated because offraud or not. Therefore, the orderimpugned is bad.

6. Shri Ramendra Pratap Singh,counsel for the respondents disputes thecorrectness of the stand so taken. He submitsthat the petitioners had accepted the moneyin terms of the Agreement as early as on22.03.2002. For fifteen months they keptsilent and there was no protest in the matterof compensation so paid. It is only when theAward was made on 21.07.2003 that thepetitioners have grown wiser and startedclaiming additional amount on a concoctedstory. He has placed reliance upon a DivisionBench judgment of this Court in the case ofRam Chander and others vs.Collector/Special Land Acquisition Officer,Varanasi reported in 2003 (6) AWC, 5222for the proposition no application forreference under Section 18 of the Act, 1894could be maintained by a person who hadaccepted the compensation under the Rules,1997 without protest. He, therefore, submitsthat, in the facts of the case, there is no errorin the order refusing to make the reference.

7. In support of the proposition hehad also referred to the judgment of theApex Court in the case of State of


Karnataka vs. Sangappa DyavappaBiradar and Others reported in 2005 (4)SCC, 264.

8. Having heard learned counsel forthe parties and having gone through therecords of the present writ petition, we areof the considered opinion that the legalposition with regards to the personaccepting compensation in terms of theAgreement under Rules, 1997 having noright to maintain a reference applicationunder Section 18 of the Act, 1894 is wellsettled from the judgment relied upon bythe counsel for the respondent. But at thesame time if there are allegation of fraud,what is the remedy available to the tenureholders?

9. We are of the considered opinionthat in cases where execution ofagreement under the Rules, 1997 isquestioned on allegations of fraud, theapplication for reference need beentertained and referred to the Courtconcerned for examined at the firstinstance as to whether the agreement isvitiated by fraud or not. It is only whenthe first issue is answered in affirmativethat the other questions namely adequacyof compensation to the petitioners can begone into. If the first issue is answered innegative, the amount of compensationpaid in terms of the agreement would befinal and binding between the parties.

10. For the reasons recorded above,the order passed by the authority dated23.06.2008 (Annexure-4 to the petition)cannot be legally sustained and is herebyquashed. Let the petitioners make areference application under Section 18 ofthe Act, 1894 within one month fromtoday along with a certified copy of thisorder. The authority competent to hear the

reference shall first adjudicate the issue asto whether the alleged agreement enteredinto between the parties under the Rules,1997 is vitiated because of fraud or not. Incase the answer to the said issue is inaffirmative then the authority concernwould proceed to hear the reference onmerits. If the answer is in negative thechapter shall stand close and theapplication under Section 18 of the Act,1894 shall stand rejected accordingly.

11. So far as the number of plots isconcerned, we are not expressing anyopinion. The parties are at liberty toagitate their claim in the referenceapplication.

12. Writ petition is allowed subjectto the observations/direction made hereinabove.



BEFORETHE HON'BLE TARUN AGARWALA, J.

THE HON'BLE AMAR SINGH CHAUHAN, J.

C.M.W.P. No. 57528 of 2013

Balveer Singh ...PetitionerVersus


Counsel for the Petitioner:Sri Upendra Upadhyay

Counsel for the Respondents:C.S.C., Sri Brij Kumar Yadav, Sri MunnaBabu, Sri Ram Murat Singh

Constitution of India, Art.-226-Allotment offair price shop-clause 10 of G.O. 31.10.2002-allotment in favor of respondent-4-challenged-she being illiterate and withoutproposal of open meeting of Gram Sabha-

2 All] Balveer Singh Vs. State of U.P. & Ors. 875

ignoring compassionate ground-held-even onindividual consideration-without openmeeting allotment not sustainable-necessarydirection issued.

Held: Para-13 & 1413. Therefore, even in the matter of anindividual consideration of compassionategrant of license under clause 10 of G.O. Of2002, it is necessary to hold an openmeeting of the Gaon Sabha. It is only aftersuch a resolution is passed that the samehas to be considered by the Tehsil LevelCommittee and then a decision to be takenby the Sub Divisional Magistrate.

14. Thus, in view of the aforesaid factualaspects and also the law and settledlegal propositions discussed above, weare of the view that the order impugneddated 31.8.2013 passed by the SubDivisional Magistrate, Kayamganj,District Farrukhabad, respondent no. 4 isnot sustainable in nature and the presentwrit petition deserves to be allowed.

Case Law discussed:[2014 (8) ADJ 593 (DB) 693].

(Delivered by Hon'ble Amar Singh Chauhan, J.)

1. This writ petition has been filedfor the quashing of the order dated31.8.2013 passed by the Sub DivisionalMagistrate, Kayamganj, DistrictFarrukhabad, whereby respondent no. 4,Smt. Ramwati widow of late SaudanSingh, resident of village Kadiuli, BlockNawabganj, District Farrukhabad wasselected as New Fair Price Shop dealer ofGram Sabha Kadiuli, Block Nawabganju,District Farrukhabad.

2. Shorn of details, the facts of thematter are that vacancy of fair price shopdealer in village Kadiuli, BlockNawabganj, District Farrukhabad aroseafter the death of fair price shop dealer SriSaudan Singh on 17.8.2013. The

petitioner alongwith some other residentof the village were interested in gettingthe license of fair price shop and theyapproached the Gram Sabha for sending aproposal for allotment of a fresh dealer.The Gaon Sabha sent a fresh proposal toU.P. Zila Adhikari seeking permission forappointing a new fair price dealer on23.8.2013, duly forwarded by theconcerned B.D.O. On the same date.

3. The S.D.M./U.P. Zila Adhikari,Kayamganj, District Farrukhabad, videorder dated 31.8.2013 selected respondentNo. 4, Smt. Ramwati widow of lateSaudan Singh, a new fair price shopdealer of Gram Sabha Kadiuli,Nawabganj, Farrukhabad.

4. By means of this writ petition theimpugned order has been challenged ontwo grounds, firstly because respondentno. 4 is an illiterate lady and has got norequired educational qualification,provided by the Government order dated31.10.2002. Secondly, the Gram Sabhahas not passed any resolution in favour ofthe respondent no. 4, Smt. Ramwatiwidow of Saudan Singh who died on17.8.2013. Under the Government orderdated 31.10.2002, there is provision forallotting the fair price shop to the heir ofthe deceased licensed dealer provided hisreputation was otherwise not suspect.-

5. It is argued by the learned counselfor the petitioner that the reputation ofdeceased dealer is disputed as is clearfrom the proposal proceedings of GramSabha which is marked as Annexure-1. Inthis respect, we do not agree with theproposal as it mentions only thereputation of the family members of fairprice shop dealer whereas reputation ofdealer is to be taken into account as per


Government order dated 17.8.2002 whichhas not been done.

6. Sri Upendra Upadhyaya, learnedcounsel for the petitioner contended thatthe impugned order is unjust, illegal,improper and against the provisions ofGovernment order, because respondentNo. 4, Smt. Ramwati is an illiterate ladyand is not eligible in any manner forgetting the fair price shop license. Insupport of his argument, he has placedreliance on the certified copy of Pariwarregister, as well as certificate of GramPradhan and certificate of educationdepartment, in which Smt. Ram Wati hasbeen shown as illiterate.

7. Sri Ram Murat Singh, the learnedcounsel appearing for respondent no. 3and the learned Standing counsel,submitted that as per provisions ofGovernment order of 2002:

"GRAMEEN KSHETRON MAIRATION KI DUKANO KA CHAYANNIMMANLIKHIT ARHATAYA EVAMSHARTON KO DRASHTIGAT RAKHTEHUYE KIYA JAYEGA:

(Ka)...........(Kha).................(Ga) SHIKSHIT HO TAAKI who

DUKAN KA HISAB KITAB SAHI ROOPSE RAKH SAKE."

8. On the basis of the aboveprovision, it has been argued on behalf ofrespondent no. 3 that Smt. Ramwati is aliterate lady as she has made hersignatures on the papers and affidavitsubmitted by her before the S.D.M.Thereafter the then U.P. Zila Adhikariconsidering the fact that she is a literatelady, appointed Smt. Ramwati as fairprice shop dealer on 31.8.2013. In our

opinion word 'SHIKSHIT' has been usedin the provision with a view that theperson concern so appointed as dealer canmaintain the accounts properly.

9. Secondly, the learned counsel forthe petitioner has laid much emphasis onthe point that the Gram Sabha has notpassed any resolution in favour of therespondent no. 4, Smt. Ramwati till dateand the respondent no. 3 has suo motoappointed the respondent no. 4 as fairprice shop dealer of the Gram Sabha.Therefore, there is violation of provisionof meeting of Gram Sabha. He hastherefore, argued that the respondent no. 2is not justified in bypassing the GramSabha and directly appointing therespondent no. 4 as new fair price shopdealer of Gram Sabha.

10. As per record the Gaon Sabhasent a proposal to U.P. Zila Adhikariseeking permission for appointing a newfair price shop dealer on 23.8.2013, but onrecord there does not appear to be anyopen meeting of the Gaon Sabha havingbeen held. The learned counsel for therespondent no. 3 has submitted that theinquiry has been conducted on thecomplaint of the Gaon Sabha and it wasfound that the conduct of the dealer wasotherwise not suspect. Therefore, aftercompleting the formalities by Smt.Ramawati, heir/widow of dealer SaudanSingh, she was appointed as new fairprice shop dealer. He further submits thatthere is no requirement of any openmeeting of the Gaon Sabha for the saidpurpose as the respondent no. 4 fallswithin a different category ofcompassionate claim, hence there is norequirement of the formalities of themeeting of the Gaon Sabha. In thisconnection case law of Shiv Kumar Vs.

2 All] Harendra Singh Vs. State of U.P. & Ors. 877

U.P. Zila Adhikari Chakiya [2014 (8)ADJ 593 (DB) 693] has been cited.

11. So far as the second issue oftaking a decision in the open meeting ofthe Gaon Sabha is concerned, we areunable to agree with the proposition of thelearned Standing counsel and the counselfor the contesting respondent that no suchmeeting is necessary.

12. It has been observed by theDivision Bench of this Court in the caseof Shiv Kumar VS. U.P. Zila AdhikariChandauli that;

"A bare perusal of Clause 4.4. of theGovt. order dated 3.7.1990, it is evidentthat any fair price shop license would beopened only after a resolution is passed inthe open meeting of the Gaon Sabha. It isonly on the collective opinion of such ameeting that such allotment can be made.After such a resolution is passed, thesame has to be processed through theTehsil Level Committee for rural area........ as defined in Clause 5 of the G.O.Dated 17.8.2002.... The allotment has tobe made as per the terms and conditionscontained in Clause 10 of the said G.O.which also envisages the grant of licenseon compassionate basis."

13. Therefore, even in the matter of anindividual consideration of compassionategrant of license under clause 10 of G.O. Of2002, it is necessary to hold an open meetingof the Gaon Sabha. It is only after such aresolution is passed that the same has to beconsidered by the Tehsil Level Committeeand then a decision to be taken by the SubDivisional Magistrate.

14. Thus, in view of the aforesaidfactual aspects and also the law and

settled legal propositions discussed above,we are of the view that the orderimpugned dated 31.8.2013 passed by theSub Divisional Magistrate, Kayamganj,District Farrukhabad, respondent no. 4 isnot sustainable in nature and the presentwrit petition deserves to be allowed.

15. Hence, the writ petition succeedsand is allowed and the order dated31.8.2013 is hereby quashed. It is directedthat an open meeting of the Gram Sabhabe convened and the proposal given bythe Gram Sabha be considered by theTehsil Level Committee whereafterconsidering the reputation of the deceasedlicense holder as desirable and also thedisqualification, the S.D.M. shall proceedto get the matter processed in accordancewith the law. It is also directed that theaforesaid exercise be completedexpeditiously, preferably within a periodof one month from today so that thevillagers may not be put to anyinconvenience for distribution of fairprice ration.

16. No order is passed as to cost.--------




BAGHEL, J.

Writ-A No. 58341 of 2010

Harendra Singh ...PetitionerVersus


Counsel for the Petitioner:Sri Bhola Nath Yadav, Sri Raj KumarYadav, Sri Santosh Yadav, Sri TarunAgarwal, Sri Vinod Kumar Yadav.



Constitution of India, Art.-14-Compassionateappointment-claimed for post of S.I. Excise-rejected on ground once accepted on postof Junior Clerk-appointment can not beclaimed as matter of right-secondlymisinterpreting the G.O. treating ban onfresh appointment-be fulfilled through100% promotion from constable-held-asban relied by authorities-merely a requestof department to the government-andwhen similarly situated dependents givenappointment on post of S.I.-no jurisdictionfor different treatment to petitioner-orderquashed-necessary direction given.

Held: Para-9 & 119. From the material on the record I amsatisfied that the State Government hasnot issued any order imposing the banon compassionate appointment on thepost of Sub-Inspector Excise. In fact, itwas a request of the ExciseCommissioner to the State Governmentfor imposing such ban and the ExciseCommissioner himself, as stated inparagraph-6 of the supplementaryaffidavit, took a decision to make thecompassionate appointment on the saidpost.

11. From the aforesaid facts it ismanifest that the petitioner has beentreated differently and the action of therespondent authorities violates Article14 of the Constitution. In the result, theimpugned order dated 11th February,2011, annexed as Annexure-CA-3 to thecounter affidavit, is set aside and thematter is remitted to the secondrespondent to consider the cause of thepetitioner and pass the appropriate orderin accordance with law expeditiously.

Case Law discussed:(2002)9 SCC 445


1. The petitioner's father late KhemRaj Yadav was working as a Stenographerin the Excise Department. He died inharness on 31st January, 2008. Thepetitioner made an application forcompassionate appointment on the post ofSub-Inspector Excise. However, hisrequest for the said post was denied on theground that there is a ban oncompassionate appointment on the saidpost and he was offered the post of JuniorClerk vide order dated 27th March, 2008.A copy of the said order is on the recordas Annexure-5 to the writ petition.

2. It is stated that in the compellingcircumstances the petitioner gave hisconsent for appointment on the post ofJunior Clerk. However, he found that inthe case of late Shailendra Kumar Singh,Sub-Inspector Excise, who died inharness, his wife Smt. Jyoti Singh wasappointed on the post of Sub-InspectorExcise under the U.P. Recruitment ofDependant of Government ServantsDying in Harness Rules, 1974.

3. The petitioner initially preferred thiswrit petition for a direction upon therespondents to appoint him on the post ofSub-Inspector Excise. Later on, by theamendment in the writ petition, a relief hasbeen sought to quash the order dated 11thFebruary, 2011, which was passed pendingconsideration of this writ petition, wherebyhis representation has been rejected on theground that once the petitioner has acceptedthe offer to be appointed on the post ofJunior Clerk, he cannot claim higher post ofSub-Inspector Excise. It is also mentioned inthe order that the petitioner has no right toclaim the post as a matter of right.

4. A counter affidavit has been filedon behalf of the respondent authorities

2 All] Harendra Singh Vs. State of U.P. & Ors. 879

wherein it is stated that the ExciseCommissioner, Uttar Pradesh vide hiscommunication dated 21st November, 1997recommended the State Government not tomake compassionate appointment on the postof Sub-Inspector Excise because the said postis a sensitive post and further promotions tothe posts of Excise Inspector, Assistant ExciseCommissioner and Deputy ExciseCommissioner are also made from the Sub-Inspectors Excise. The same request wasreiterated vide a Demi- Official letter dated28th August, 1999. It is further submitted thatin view of the recommendation of the ExciseCommissioner no compassionate appointmentwas made on the post of Sub-Inspector Excisetill 15th September, 2010 when the ExciseCommissioner took a decision to makecompassionate appointment on the said postand accordingly, the sixth respondent wasgiven the compassionate appointment on thepost of Sub-Inspector Excise.

5. Learned Standing Counsel has drawnthe attention of the Court to the GovernmentOrders dated 05th August, 2011 and 21stDecember, 2011 issued in pursuance of therecommendations of the VIth PayCommission that the post of the Sub-InspectorExcise is now out of the category of posts, onwhich compassionate appointment can bemade. Paragraph-5 of the Government Orderdated 05th August, 2011 reads as under:

"(5) mi vkcdkjh fujh{kd ds inksa ij 10 o"kZdh lsok okys gkbZLdwy mRrh.kZ vkcdkjh flikfg;ksa,oa rkM+h i;Zos{kdksa esa ls 'kr&izfr'kr inksUufr dhO;oLFkk j[kh tk;A"

6. I have heard learned counselappearing for the parties and perused thematerial on record.

7. The petitioner has claimed theappointment on the post of Sub-Inspector

Excise on compassionate ground as hisfather died in harness while working inthe said department. The petitioner wasoffered the appointment on the post ofJunior Clerk on the ground that on thepost of Sub-Inspector Excise noappointment on compassionate groundcan be made as a restriction has beenimposed on compassionate appointmenton the said post. The petitioner claims thatin view of the said direction, under thecompelling circumstances he joined thepost of the Junior Clerk. It is a trite lawthat once a person accepts theappointment on compassionate ground, hecannot claim the appointment on higherpost because the appointment oncompassionate ground cannot be claimedas a matter of right.

8. In the case in hand, the grievanceof the petitioner is that the respondentauthorities have violated the fundamentalright of the petitioner guaranteed underArticle 14 of the Constitution as adiscriminatory treatment has been metedout to him by denying the appointment onthe post of Sub-Inspector Excise on theground of a ban imposed by the StateGovernment, but a similarly placedperson has been offered appointment onthe same post in spite of the said ban. Thefact of discrimination has beenelaborately pleaded by the petitioner inthe writ petition. In paragraph-6 of thesupplementary affidavit sworn by theDeputy Excise Commissioner in theoffice of the Excise Commissioner, U.P.at Allahabad the respondent authoritieshave admitted the fact that the sixthrespondent has been appointed on the postof Sub-Inspector Excise. The saidappointment has been justified on theground that the ban, which was imposedon the request of the Excise


Commissioner, was operative only till15th September, 2010 when the ExciseCommissioner took a decision to makecompassionate appointment on the saidpost and accordingly, the sixth respondentwas appointed.

9. From the material on the record Iam satisfied that the State Governmenthas not issued any order imposing the banon compassionate appointment on thepost of Sub-Inspector Excise. In fact, itwas a request of the Excise Commissionerto the State Government for imposingsuch ban and the Excise Commissionerhimself, as stated in paragraph-6 of thesupplementary affidavit, took a decisionto make the compassionate appointmenton the said post.

10. Reliance has been placed by thelearned counsel for the petitioner on ajudgment of the Supreme Court in thecase of Surya Kant Kadam Vs. State ofKarnataka and others, (2002) 9 SCC 445,wherein the Supreme Court directed therespondents to consider the case of thepersons for appointment on the post ofSub-Inspector (Excise) even though theyhad been offered appointment oncompassionate appointment on the lowerpost of Clerk. The Supreme Courtobserved as under:

"The learned counsel for theappellant contended that even thoughRespondents 3 and 4's appointment couldnot be assailed on the ground of belatedapproach by the appellant but the prayerwith regard to consideration of theappellant for the post of Sub-Inspector ofExcise could not have been rejected bythe Tribunal. The learned counselappearing for the State Government, onthe other hand, contended that against the

earlier order when the Tribunal denied therelief of considering the case of theappellant for the post of Sub-Inspector ofExcise, the appellant having not movedthis Court, the same has become final andtherefore should not be interfered with bythis Court. There is some force in theaforesaid contention of the learnedcounsel for the State. But havingconsidered the facts and circumstances ofthe present case and admittedlyRespondents 3 and 4, who were similarlysituated like the appellant and who weregiven compassionate appointment laterthan the appellant, having been appointedas Sub-Inspector of Excise, the appellanthas a justifiable grievance. It is true thatthe appointment on compassionate groundin the State of Karnataka is not governedby any statutory rules but by a set ofadministrative instructions and as such isnot enforceable in a court of law. But thegrounds on which the appellant makes outthe case for consideration of his case, isthe violation of Article 14 anddiscriminatory treatment meted out to theappellant. It is undisputed that the date onwhich the appellant was given acompassionate appointment as SecondDivision Assistant/ Clerk he had thenecessary qualification for beingappointed as Sub-Inspector of Excise. It isalso undisputed that Respondents 3 and 4were given appointment initially asSecond Division Assistant/Clerk but laterthan the appellant. When the State,therefore, thought it fit to change the postof Respondents 3 and 4 and appointedthem to the post of Sub-Inspector ofExcise, unless there is any justifiablereason existing, there is no reason as towhy the appellant should be treated withhostile discrimination. In the aforesaidcircumstances, we set aside the impugnedorder of the Tribunal rejecting the prayer

2 All] Chandrika Vs. State of U.P. & Ors. 881

of the appellant for being considered forthe post of Sub-Inspector of Excise andwe direct that the State Government mayconsider the case of appointment of theappellant as Sub-Inspector of Excise. Beit stated, in the event he is appointed itwould be prospective and he will not beentitled to any retrospective benefit. Theappeals are allowed accordingly."

11. From the aforesaid facts it ismanifest that the petitioner has beentreated differently and the action of therespondent authorities violates Article 14of the Constitution. In the result, theimpugned order dated 11th February,2011, annexed as Annexure-CA-3 to thecounter affidavit, is set aside and thematter is remitted to the secondrespondent to consider the cause of thepetitioner and pass the appropriate orderin accordance with law expeditiously.

12. The writ petition is, accordingly,allowed.

13. No order as to costs.--------



BEFORETHE HON'BLE RAN VIJAI SINGH, J.

C.M.W.P. No. 66919 of 2014

Chandrika ...PetitionerVersus


Counsel for the Petitioner:Sri B.P. Mishra, Sri Manvendra KumarYadav

Counsel for the Respondents:C.S.C., Sri Tarik Maqbool Khan

Constitution of India, Art.-226-Settlement of fisheries rights-petitionerparticipated in auction bid-beingdeclared highest bidder for Rs. 60,900/-deposited on 16.07.2014-subsequentaction by entertaining application fromstranger and cancellation of highest bid-without jurisdiction-when cancellationitself illegal entire subsequent exerciseitself illegal-quashed.

Held: Para-8The matter may be examined fromanother angle also, once the auctionproceeding was over, it was not open forthe revenue authorities to accept theapplication, requiring the person todeposit the money in order to earn morevenue. The settlement of fishery righthas to held strictly in accordance withthe terms and conditions of theadvertisement and the government orderdated 17.10.1995. The action of therevenue authorities in entertaining theapplications after the auction was over isbeyond their jurisdiction and contrary tothe aim and object of the GovernmentOrder dated 17.10.1995 and the FullBench decision of this Court in the caseof Ram Kumar (supra) and conditions ofthe advertisement.

Case Law discussed:(2005(99) RD 823

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

1. Heard Sri B.P. Mishra, learnedcounsel for the petitioner, learnedStanding Counsel appearing for the State-respondents and learned counsel for theGaon Sabha.

2. By means of the present writpetition, the petitioner has prayed forissuing a writ of mandamus directing therespondent no. 1 to decide the petitioner'sapplication dated 11.8.2014 and approvethe bid of the petitioner for the pond indispute.


3. The facts giving rise to this caseare that with respect to pond over KhasraNos. 304 and 305 measuring about 0.267hectare and 0.3240 hectares respectivelysituated in Village Khairahva Jangal,Nautanwa, District Maharajganj, anadvertisement was made in the newspaper Rashtriya Sahara dated 25.6.2014,fixing 11.7.2014 for settlement of fisherylease. Pursuant thereto, two personsparticipated, out of which, the petitioner'sbid was Rs. 60,900/-. The petitioner wasrequired to deposit 1/4th amount, whichhe deposited, but no lease was executed.Thereafter, the petitioner filed anapplication on 11.8.2014 requesting theauthority concerned to execute the leasepursuant to the auction held on 11.7.2014.When nothing was done, the petitionerhas approached this Court through thepresent writ petition.

4. In this writ petition, on10.12.2014, learned standing counsel wasdirected to seek instructions. Pursuantthereto, after number of dates, instructionwas obtained and considering the same,on 1.4.2015 this Court has passed thefollowing order:

"Pursuant to the earlier order of thisCourt, learned standing counsel hassought instructions informing the Courtthat after the bid was over, one SriBibhuti Yadav and Sri Ram Milan hadapproached the auction officer andoffered some more amount for theperformance of the lease. On this,petitioner's bid has been cancelled.

Learned standing counsel is directedto get the personal affidavit of SubDivisional Officer concerned, swearingthe contents of the instructions onaffidavit within a period of 10 days.

As prayed, put up this case on17.4.2015 in the additional cause list.

By that date, learned standingcounsel shall file the required personalaffidavit and on next date of listing, theconcerned Sub Divisional Officer shallremain present before this Court alongwith complete records of the auctionproceedings in order to assist the learnedstanding counsel. "

5. Pursuant to the aforesaid order,Sri Jay Chandra Pandey, Sub DivisionalOfficer, Nautanwa, Maharajganj has filedhis personal affidavit. For the purpose ofthis case, perusal of paragraphs 5, 6 and 7of the aforesaid affidavit would benecessary to be looked into, which arereproduced, herein, under :-

"5. That it may be submitted herethat Sri Mangru son of Rupai and SriChandrika son of Jokhu have taken partin the auction, and the petitioner was thehighest bidder for Rs. 60,900/-.

6. That after the auction, Sri VibhutiYadav and Sri Ram Milan moved theirapplications on 15.7.2014 and 16.7.2014before the then Sub Divisional Officer,mentioning that the auction has been donein low money and without givinginformation, which caused loss to gaonsabha. It is further submitted that Sri RamMilan wished to lease the land at Rs.80,000/-, on the basis of which, the thenTehsildar on 18.7.2014 produced a reportthat Rs. 20,000/- may be deposited by SriRam Milan son of Santu as securityamount and the auction may again beinitiated by cancelling the auction dated11.7.2014, upon which thet then SubDivisional Officer agreed on 28.7.2014,and directed to proceed in furtherance. Atrue copy of the applications dated

2 All] Chandrika Vs. State of U.P. & Ors. 883

15.7.2014 and 16.7.2014, and a true copyof the letter dated 18.7.2014, is being filedherewith and marked as ANNEXURENOS. 1, 2 & 3 to this personal affidavit.

7. That subsequent to above, Sri RamMilan on 28.7.2014 deposited the amountof Rs. 20,000/- in the Naib Nazir RegisterNo. 4, as such, the auction dated11.7.2014 has been cancelled vide orderdated 28.7.2014 of the Sub DivisionalOfficer."

6. From the perusal of the aforesaidparagraphs, it is apparent that pursuant tothe advertisement made in RashtriyaSahara on 25.6.2014, the petitionerparticipated in the auction proceeding andoffered Rs. 60,900/- on 11.7.2014 anddeposited the required amount. After theauction was over Sri Vibhuti Yadav andSri Ram Milan moved applications on15.7.2014 and 16.7.2014 respectivelystating therein that they are ready to payRs. 80,000/-. The Tehsildar as well as theSub Divisional Officer, instead ofproceeding with the auction held on11.7.2014, entertained the applicationssubmitted by Vibhuti Yadav and RamMilan and required them to deposit Rs.20,000/- for initiating fresh proceeding. Itis thereafter, the auction, held on11.7.2014, was cancelled 28.7.2014. Itwould also appear from the record thatRam Milan had deposited Rs. 20,000/- on28.7.2014.

7. It is not in dispute that the fisheryleases are settled in accordance with theprovisions contained in the GovernmentOrder dated 17.10.1995 and the law laiddown by the Full Bench of this Court inthe case of Ram Kumar and Others Vs.State of U.P. and Others (2005 (99) RD823). In the Government Order dated17.10.1995, preferences have been given

for execution of fishery lease, accordingto which first priority is to be given toKewat, Mallha, Nishad, etc. Thepetitioner belongs to Kewat by caste andhe has participated in the proceeding on11.7.2014. Once the proceeding was over,it was not open for the revenue authoritiesto entertain any application of thirdperson on the ground that some moreamount has been offered. The object ofthe Government Order dated 17.10.1995is the upliftment of the poorest personbelonging to the Machhua community andnot to earn more revenue otherwise therewould have been provision for openauction. The State Government itselfknowingly and willingly has issued theGovernment Order dated 17.10.1995 forsuch purpose negating the open auctionfor improving the economic condition of aparticular community which has beenapproved by the Full Bench of this Courtin the case of Ram Kumar (supra).Therefore, if the lease is allowed to beexecuted in favour of persons belongingto other castes or of the same caste fallingunder higher income group that willdefeat the object of the Government Orderdated 17.10.1995 and that will be againstthe law laid down by the Full Bench ofthis Court in the case of Ram Kumar(supra).

8. The matter may be examinedfrom another angle also, once the auctionproceeding was over, it was not open forthe revenue authorities to accept theapplication, requiring the person todeposit the money in order to earn morevenue. The settlement of fishery right hasto held strictly in accordance with theterms and conditions of the advertisementand the government order dated17.10.1995. The action of the revenueauthorities in entertaining the applications


after the auction was over is beyond theirjurisdiction and contrary to the aim andobject of the Government Order dated17.10.1995 and the Full Bench decision ofthis Court in the case of Ram Kumar(supra) and conditions of theadvertisement.

9. In view of the foregoingdiscussions although the petitioner has notsought quashing of the subsequent auctionof the revenue authorities, but under thefacts and circumstances of the case, theorder dated 28.7.2014 passed by the SubDivisional Officer, Nautanwa,Maharajganj, cancelling the earlierauction held for settlement of fisherylease (in which the petitioner has offeredRs. 60,900/-) and the subsequentproceeding, if any being illegal andarbitrary, deserves to be quashed.

10. In the result, the writ petitionsucceeds and is allowed. The impugnedorder dated 28.7.2014 and theconsequential proceeding, if any, ishereby quashed. The Sub DivisionalOfficer, Nautanwa, Maharajganj isdirected to proceed in accordance withlaw and pass an appropriate orderregarding approval /disapproval of theproceeding dated 11.7.2014 within aperiod of two weeks from the date ofproduction of certified copy of the orderof this Court. In case, it is approved, it iswell and good and in case, it isdisapproved reason for the same may berecorded in the form of order.




CHANDRACHUD, C.J.

THE HON'BLE MANOJ KUMAR GUPTA, J.

C.M.W.P. No. 68402 of 2014

Ganesh Prasad ...PetitionerVersus

Union of India & Ors. ...Respondents

Counsel for the Petitioner:Shri U.K. Singh, Advocate, Sri ChandraBhan Gupta, Advocate

Counsel for the Respondents:C.S.C., ASGI/2014/11256

Consumer Protection Act 1986-Section10(2)-Superannuation age of member ofDistrict forum 60 years-while upper age ofconsumer forum 67 years likewise nationalforum 70 years-being discriminatory-ultravires held-sole wisdom of legislature-state forum presided by Judge High Court-and national forum by Supreme CourtJudge-member of district forum-can notclaim treatment of other state or nationalforum-petition dismissed.

Held: Para-8These are all matters which are in therealm of policy for the legislative body inconsidering as to whether there shouldbe a uniform age of retirement for allmembers of the District Fora at par withwhat has been prescribed for theNational Commission or otherwise,whether there should be a distinction.We find no ground to hold that theprovision is ultra vires or violative ofArticle 14 of the Constitution.


1. The petitioner was appointed as amember of the Consumer DisputesRedressal Forum1 of Kanpur under theConsumer Protection Act, 19862 on 4March 2011 for a period of five years oruntil the age of sixty-five years,whichever is earlier. The petitioner

2 All] Ganesh Prasad Vs. Union of India & Ors. 885

attained the age of sixty years on 31December 2014, following which his termcame to an end. These proceedings wereinitiated on 17 December 2014 forseeking a declaration that Section 10 (2)of the Act is ultra vires and for amandamus determining the maximum agefor a member of the District Forum tohold office until the age of seventy. Thepetitioner incidentally has also challengedthe provisions for the tenure and the ageof retirement of members of theConsumer Disputes RedressalCommission3 under Section 16 (3) andhas similarly sought a mandamus forcontinuance until the age of seventy.

2. Section 10 (1) of the Act providesfor the composition of the District Forumand, insofar as is material, provides asfollows:

"10. Composition of the DistrictForum.- (1) Each District Forum shallconsist of--

(a) a person who is, or has been, or isqualified to be a District Judge, who shallbe its President;

(b) two other members, one of whomshall be a woman, who shall have thefollowing qualifications, namely:-

(i) be not less than thirty-five yearsof age,

(ii) possess a bachelor's degree froma recognised university,

(iii) be persons of ability, integrityand standing, and have adequateknowledge and experience of at least tenyears in dealing with problems relating toeconomics, law, commerce, accountancy,industry, public affairs or administration:"

3. Section 10(2) provides that everymember of the District Forum shall holdoffice for a term of five years or until the

age of sixty-five years, whichever isearlier. However, a member would beeligible for re-appointment for anotherterm of five years or until the age of sixty-five years, whichever is earlier. Theprovisions in regard to the StateCommission are contained in Section 16.Section 16 (1), insofar as is material,provides as follows:

"16. Composition of the StateCommission.- (1) Each State Commissionshall consist of -

(a) a person who is or has been aJudge of a High Court, appointed by theState Government, who shall be itsPresident;

Provided that no appointment underthis clause shall be made except afterconsultation with the Chief Justice of theHigh Court;

(b) not less than two, and not morethan such number of members, as may beprescribed, and one of whom shall be awoman, who shall have the followingqualifications, namely:-

(i) be not less than thirty-five yearsof age;

(ii) possess a bachelor's degree froma recognised university; and

(iii) be persons of ability, integrityand standing, and have adequateknowledge and experience of at least tenyears in dealing with problems relating toeconomics, law, commerce, accountancy,industry, public affairs or administration:

Provided that not more than fiftypercent of the members shall be fromamongst persons having a judicialbackground."

4. Under Section 16(3), everymember of the State Commission holdsoffice for a term of five years or until theage of sixty seven years, whichever is


earlier but a member is eligible for re-appointment for another term of five yearsor until the age of sixty seven years,whichever is earlier. The composition ofthe National Consumer DisputesRedressal Commission4 is governed bySection 20 which, inter alia, provides asfollows:

"20. Composition of the NationalCommission.- (1) The NationalCommission shall consist of -

(a) a person who is or has been aJudge of the Supreme Court, to beappointed by the Central Government,who shall be its President;

Provided that no appointment underthis clause shall be made except afterconsultation with the Chief Justice ofIndia.

(b) not less than four, and not morethan such number of members, as may beprescribed, and one of whom shall be awoman, who shall have the followingqualifications, namely: -

(i) be not less than thirty-five yearsof age;

(ii) possess a bachelor's degree froma recognised university; and

(iii) be persons of ability, integrityand standing and have adequateknowledge and experience of at least tenyears in dealing with problems relating toeconomics, law, commerce, accountancy,industry, public affairs or administration:

Provided that not more than fiftypercent of the members shall be fromamongst the persons having a judicialbackground."

5. Section 20(3) provides that everymember of the National Commission shallhold office for a term of five years or untilthe age of seventy years, whichever isearlier, but a member is eligible for re-

appointment for another term of five yearsor until the age of seventy, whichever isearlier.

6. The Presiding Officer of theDistrict Forum is a person who is or hasbeen or is qualified to be a District Judge.The Presiding Officer of the StateCommission is a person who is or hasbeen a Judge of the High Court. ThePresiding Officer of the NationalCommission is a person who is or hasbeen a Judge of the Supreme Court.Having due regard to the fact that DistrictJudges are to be Presiding Officers of theDistrict Fora, the maximum age for thePresiding Officer has been fixed as sixty-five. Correspondingly, the maximum agein respect of the State Commission issixty-seven since the Presiding Officer ofthe State Commission is a Judge of theHigh Court who would retire from theHigh Court at sixty-two. Correspondingprovisions have been made in respect ofthe members of the National Commissionin Section 20.

7. The submission which has beenurged on behalf of the petitioner is thatthe qualifications for membership of theDistrict Forum, the State Commission andthe National Commission are similar and,hence, there is no justification to make adistinction in the age of retirement for themembers of those bodies. The petitionerseeks a mandamus of this Court that allmembers of the District Fora should retireat the age of seventy.

8. A mandamus cannot be issued bythe High Court directing Parliament or alegislating body to frame law in aparticular way. Consequently, it wouldnot be open to the Court to mandate that amember of the District Fora under the Act

2 All] Ganesh Prasad Vs. Union of India & Ors. 887

or, for that matter, of any other judicialbody, should retire on the attainment of aparticular age of superannuation. This isclearly a matter of legislative policy. Theissue before the Court is really narroweras to whether there is any discrimination,which is violative of Article 14, in theprovisions of Section 10 when comparedto those of Section 20. The Actcontemplates that the District Fora bepresided over by a District Judge or by aperson who is qualified to be a DistrictJudge. The corresponding provisions ofSection 16 for the State Commissionrequire the President to be a person who isor has been a Judge of the High Court andof Section 20, a person who is or has been aJudge of the Supreme Court. In the case ofthe appointment of the President of the StateCommission, consultation is required withthe Chief Justice of the High Court, whereasin the case of the President of the NationalCommission, consultation is required withthe Chief Justice of India. In makingprovisions for the age of superannuation ofthe members of the District Forum,Parliament was entitled to make suchprovisions as would dovetail with theprovision made in regard to the PresidingOfficer of the District Forum. Sixty-fiveyears has been fixed uniformly for all themembers of the District Fora or a term offive years, whichever is earlier, having dueregard to the fact that a District Judge woulddemit office from the State judicial serviceat the age of sixty. Parliament, in itslegislative wisdom, is entitled to make adistinction between the age ofsuperannuation and the term of office forthe members of Tribunals within ahierarchy of Tribunals. Again, whether sucha distinction should be made or whetherthere should be uniformity of all conditionsof service, is a matter of legislative policyand prescription. The High Court cannot

hold that fixing the term of the members ofthe District Fora as five years or until amember attains the age of sixty-five,whichever is earlier, is discriminatory or isviolative of Article 14 of the Constitution.Though, in a broad sense, the members ofthe District Forum, State Commission andthe National Commission discharge judicialfunctions, the nature of their responsibilitiesvaries. The jurisdiction of the DistrictForum under Section 11, the jurisdiction ofthe State Commission under Section 17 andthe jurisdiction of the National Commissionunder Section 21 are different. Thepecuniary limits of the jurisdiction of theDistrict Fora in Section 11 is where thevalue of the goods or services and thecompensation, if any, claimed does notexceed rupees twenty lakhs. Thecorresponding provision for the StateCommission in Section 17 is betweenrupees twenty lakhs and rupees one crore,whereas that of the National Commission inSection 21 is where the claim exceedsrupees one crore. Moreover, the StateCommission exercises appellate jurisdictionover the District Forum, whereas theNational Commission exercises appellatejurisdiction over the State Commission.These are all matters which are in the realmof policy for the legislative body inconsidering as to whether there should be auniform age of retirement for all membersof the District Fora at par with what hasbeen prescribed for the NationalCommission or otherwise, whether thereshould be a distinction. We find no groundto hold that the provision is ultra vires orviolative of Article 14 of the Constitution.

9. For these reasons, we find nomerit in the writ petition which isaccordingly dismissed. There shall be noorder as to costs.

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BAGHEL, J.

C.M.W.P. No. 74060 of 2010

Rishi Deo Pandey & Ors. ...PetitionersVersus

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

Counsel for the Petitioners:Sri Nitya Prakash Tiwari, Sri D.K. Singh,Sri Indrasen Singh Tomar, Sri VivekKumar Birla, Sri V.K. Singh

Counsel for the Respondents:C.S.C., Sri Uma Nath Pandey

U.P. Secondary Education Services SelectionBoard Act 1982-appointment on post of L.T.Grade teacher-after publication of vacancyin two newspapers-duly approved by DIOS-subsequently confirmed by RegionalCommittee-appointment made in 1991-getting salary thereafter-can not bedisturbed-as Division Bench classificationabout applicability of requirement of RadhaRaizada case prospectively.

Held: Para-23After careful consideration of the matter,I find that the submission of the learnedcounsel for the petitioners meritsacceptance. Accordingly, I am of theview that the petitioners, who wereworking continuously since 1991 withthe approval of the DIOS and theRegional Level Committee, nointerference is called for in theircontinuance. With regard to the case ofGajraj Singh, the DIOS has rightly heldthat he has raised his claim after 15years.

Case Law discussed:[(1983) 3 U.P.L.B.E.C 1722];(1994)3 U.P.L.B.E.C1551.


1. Three petitioners, who areworking as Assistant Teachers, havejoined this writ petition seeking issuanceof writ of certiorari quashing the ordersdated 14.6.2010 and 3.12.2010respectively, whereby the DistrictInspector of Schools1 had stopped thesalary of the petitioners and later on foundthat their appointment was illegal.

2. Essential facts are that theNational Inter College, Harraiya, DistrictBasti2 is a recognized and aidedinstitution. The said institution isimparting education upto the level ofIntermediate classes. It receives financialaid from the State funds. The institution isgoverned by the provisions the U.P. ActNo. II of 19213 as well as U.P. Act No. 5of 19824

3. It is averred in the writ petitionthat six posts of the LT Grade AssistantTeacher fell vacant. The Committee ofManagement sent requisition to the U.P.Secondary Education Services SelectionBoard5 through DIOS on 5.6.1989,2.5.1990 and 27.4.1991 to fill up the saidvacancies. When no select list was sent bythe Board, the Committee of Managementinitiated the recruitment process for theappointment on adhoc basis in terms ofthe provisions of the Commission Act,1982.

4. The vacancies were advertised on6.6.1991 in a newspaper 'DainikGramdoot' in addition to theadvertisement on the notice board. A copyof the newspaper is on record asAnnexure-3. The petitioners claim thatthey were found suitable on the basis of

2 All] Rishi Deo Pandey & Ors. Vs. The State of U.P. & Ors. 889

their qualification and quality pointmarks. The Committee of Managementsent papers to the DIOS for financialapproval. When no communication wasreceived, it issued the appointment letter.It is stated that the petitioners have sentrepeatedly representations for their salaryon the ground that there is a deemedapproval of their appointment as therewas no communication from the office ofthe DIOS turning down the resolution ofthe Committee of Management for theappointment of the petitioners.

5. The petitioners having no otheroption, preferred a writ petition no. 36189of 2002 before this Court which wasdisposed of on 23.2.2005 issuing adirection upon the DIOS to consider therepresentation of the petitioners. TheDIOS after affording an opportunity to theconcerned parties, accorded the approvalvide his order dated 29.4.2006 till theregular selected candidates join the post.In compliance of the order of the DIOS, itis stated that the petitioners arecontinuously receiving their salaryregularly.

6. It appears that one DhirendraKumar Singh has also claimed that he wasalso appointed as adhoc teacher in thesame institution, preferred a writ petitionno. 27015 of 2002.This Court dismissedhis writ petition vide order dated19.3.2009. The Court directed theRegional Committee constituted underGovernment Order dated 19.12.2000, tolook into the matter of payment of salaryto other seven persons who along with thepetitioners were alleged to have beenappointed by the Committee ofManagement on 7.7.1991 and weregetting salary under the orders of theDIOS.

7. In compliance thereof, theRegional Level Committee passed anorder on 22.3.2010 and it found that thepetitioners are receiving their salary andtheir appointment was approved by theDIOS who had also affirmed the saidorder vide his communication dated11.2.2010 to the Regional LevelCommittee.

8. In pursuance of the order of theRegional Level Committee, thepetitioners continued to workuninterruptedly and they were also paidtheir salary regularly. It appears that oneSri Gajraj Singh preferred a writ petitionin 2005 claiming that he was alsoappointed as adhoc teacher since 1992.The said writ petition was dismissed bythis Court vide its order dated 3.3.2007.Dissatisfied with the order of this Court,he preferred a Special Appeal, which waswithdrawn by him with a liberty toapproach the DIOS. After withdrawal ofthe Special Appeal, Gajraj Singhpreferred a representation before theDIOS, who rejected his claim on3.11.2009 on the ground that his claim isbarred by laches as his appointment wasmade in 1982 but first time he approachedthe Hon'ble Court and the appropriateauthority after a lapse of more than 15years.

9. Sri Gajraj Singh being aggrievedwith the order dated 3.11.2009, preferreda writ petition no. 26178 of 2010 beforethis Court that one Yashwant Singh, whois similarly placed person, is receivingsalary but the petitioner's case has beenrejected. This Court vide order dated10.5.2010 directed the petitioner thereinto implead Sri Yashwant Singh. TheCourt has also issued a direction to theDIOS to appear before the Court on


19.5.2010 along with all relevant recordspertaining to the payment of the petitionerand Yashwant Singh along with hisaffidavit explaining how the salary isbeing paid to Yashwant Singh.

10. Against the said order, SriYashwant Singh preferred a Special AppealNo. 928 of 2010 but the said appeal wasdismissed on the ground that no interim orderhas been passed by the learned Single Judgestopping his salary, therefore, there is no finalorder. It appears that in pursuance to the orderpassed by this Court on 10.5.2010 wherebythe DIOS was directed to produce the recordand file his personal affidavit, the DIOSpassed the impugned order dated 14.6.2010stopping the salary of all the petitioners.

11. From the record, it appears thatthe petitioners have preferred a SpecialAppeal Defective No. 921 of 2010 beforethis Court challenging the order of theDIOS. This Court observed that it will beopen to the appellants to move before thelearned Single Judge for impleading themas parties for varying the orders by properapplication or to challenge the order dated14.6.2010 by filing a fresh writ petition.With the said observation the said appealwas disposed of on 8.10.2010. In themeantime, the DIOS by the impugnedorder has held that the entire selectionprocess held in the year 1991 was vitiatedon the ground that no advertisement wasmade in the newspaper. There is nodocument indicating the constitution ofthe Selection Committee and thus, theappointment of the petitioners wascontrary to law. A counter affidavit hasbeen filed wherein the reasons mentionedin the impugned order has been reiterated.

12. Heard Sri H.P. Sahi, Advocateholding brief of Sri V.K. Singh, learned

counsel for the petitioner, learnedStanding Counsel and perused the record.

13. Learned counsel for thepetitioners submits that the petitioners'appointment was made in the year 1991following the procedure for appointmenton adhoc basis after issuing anadvertisement in a local newspaper andthe notice on the board. He furthersubmits that the appointment of thepetitioners was approved by the DIOS andthe Regional Level Committee. Thus, itwas not open to the DIOS to cancel theirappointment.

14. Learned Standing Counselsubmits that the order of the DIOS is voidas advertisements were not published inthe newspaper and the procedure was notfollowed. He has also invited the attentionof the Court to the various paragraphs ofthe counter affidavit.

15. Undisputedly, in the institutionsix vacancies of the Assistant Teachersarose. The Committee of Managementsent their requisition to the Board forappointment. This fact has not beendenied in the counter affidavit. When nocandidate was made available from theBoard, the Committee of Managementappointed the petitioners on adhoc basisafter issuing an advertisement in a singlenewspaper and on notice board. Thepapers relating to their appointment weresent to the DIOS, who has accordedapproval on 26.4.2006, which is on recordas Annexure-7 to the writ petition.

16. It is also not disputed that since29.4.2006, all the petitioners are receivingtheir salary from the Salary PaymentAccount and they are continuouslyworking in the institution. Two other

2 All] Rishi Deo Pandey & Ors. Vs. The State of U.P. & Ors. 891

teachers also approached this Court and inone of the petitions, this Court haddirected the Regional Level Committee toconsider their case. This Court has alsotaken a note of the fact that the petitionerswere also appointed in the same selection.

17. The Regional Level Committeeconsidered the entire matter and came tohold that the petitioners' appointmenthave been made with the approval of theDIOS. The Regional Level Committeehas got verification from the then DIOS,who was working at that time as a JointDirector. The then DIOS has verified thefact that the petitioners' appointment wereapproved by him, thus, the RegionalLevel Committee accepted theirappointments as valid.

18. As regards the case of GyanendraKumar, his matter was sent to the DIOS,who had found that he has claimed his salaryafter 15 years, therefore, on the ground ofdelay, Gyanendra Kumar's case was rejectedby the DIOS. Later on the DIOS, incompliance of the interim order has stoppedthe salary of the petitioners vide its orderdated 10.5.2010. This Court has only askedthe DIOS to explain the fact and did not issueany direction to stop the salary of thepetitioners. It appears that the DIOS haspassed an order stopping the salary of thepetitioners to save his neck. In my view, theDIOS has transgressed his jurisdiction byentering into validity of the appointment ofthe petitioners, which could not have beenreopened by him in view of the fact that incompliance of the order of this Court, theRegional Level Committee has found thatthe appointments of the petitioners are validand legal.

19. It would be relevant to mentionthat DIOS was one of the members of

Committee in the Regional LevelCommittee which has been constitutedunder the Government Order dated22.12.2000, therefore, the DIOS could nothave upturned the order of the RegionalLevel Committee in which he was amember.

20. Regard being had to the fact thatthe Regional Level Committee had alsoearlier passed an order in compliance ofthe order of this Court, the proper coursebefore the DIOS was to send the matter tothe Regional Level Committee to considerthe matter afresh. Moreover, this Courtvide its order dated 10.5.2010 did notissue any direction to the DIOS to go intothe validity of the order passed by theRegional Level Committee.

21. The petitioners are workingsince 1991 with the approval of the DIOS.In-so-far the finding of the DIOS thatthere was no evidence that advertisementwas issued in the two newspapers, thepetitioners have relied upon a judgmentrendered in the case of Ashika PrasadShukla Vs. District Inspector of Schools,Allahabad and another [(1998) 3U.P.L.B.E.C. 1722]. A Division Bench ofthis Court took the view that the statutoryprovision provides only the advertisementon the notice board. However, the FullBench in the case of Radha Raizada Vs.Committee of Management (1994) 3U.P.L.B.E.C. 1551 had laid-down the lawthat for fair and proper selection, it isincumbent upon the Committee ofManagement to issue advertisement intwo newspapers although there is nostatutory requirement for publication ofthe advertisement in two newspapers.

22. In view of the said law whichwas laid-down for the first time in the


year 1994 and later on a Division Benchin 1998 has explained the law that therequirement held in the case of RadhaRaizada (Supra) would be prospective innature.

23. After careful consideration ofthe matter, I find that the submission ofthe learned counsel for the petitionersmerits acceptance. Accordingly, I am ofthe view that the petitioners, who wereworking continuously since 1991 with theapproval of the DIOS and the RegionalLevel Committee, no interference iscalled for in their continuance. Withregard to the case of Gajraj Singh, theDIOS has rightly held that he has raisedhis claim after 15 years.

24. For the foregoing reasons, thewrit petition deserves to be allowedand,accordingly, it is allowed. Theimpugned orders dated 14.6.2010 and3.12.201 are set aside.

25. However, the matter is remittedback to the DIOS to verify whether thepetitioners are continuously working inthe institution. If it is found that they arecontinuously working and they have beenpaid their salary, no interference would bemade in their working.

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