1ALL] Imran alias Abdul Quddus Khan V. State of U.P. and others 1

25,*,1$/ -85,6',&7,21 Master of Arts can be dubbed as ‘Goonda’ &5,0,1$/ 6,'( primarily for the reason that he adopted an '$7(' 7+( $//$+$%$'   agitational approach to espouse the cause of the students of the college with a view to get %()25( 7+( +21·%/( 23 *$5* - the memorandum of their demand accepted by 7+( +21·%/( 9. &+$7859(', - the college authorities. The thumb nail sketch of the case is as follows: &ULPLQDO 0LVF :ULW 3HWLWLRQ 1R  RI  2. Imram alias Abdul Quddus Khan, a ,PDUDQ DOLDV $EGXO 4XGGXV .KDQ«3HWLWLRQHU student of Master of Arts in Bundelkhand 9HUVXV College, Jhansi has been issued a show cause 6WDWH RI 83 DQG RWKHUV «5HVSRQGHQWV notice by Sri Bhagwat Prasad Misra, District Magistrate Jhansi under the provisions of &RXQVHO IRU WKH 3HWLWLRQHU Section 3 of the U.P. Control of Goondas Act, 6KUL 63 6KDUPD 1970 (Act No. VIII of 1971) (hereinafter referred to as ‘the Act’) case no. 65 of 1999. &RXQVHO IRU WKH 5HVSRQGHQWV This show cause notice has been challenged $*$ on the ground that it has been issued by the

83 &RQWURO RI *RRQGD $FW  6HFWLRQ  District Magistrate on insufficient and :ULW 3HWLWLRQ FKDOOHQJLQJ WKH VKRZ FDXVH perfunctory material and there has been total QRWLFH LVVXHG XQGHU VHFWLRQ  RI $FW 1R 9,,, non-application of mind to the stringent RI  LV PDLQWDLQDEOH JXLGHOLQHV LVVXHG WR provisions of law and since the notice has DOO WKH 'LVWULFW 0DJLVWUDWHV VR WKDW WKH\ PD\ been issued in an arbitrary, perfunctory and EH FDXWLRXV HQRXJK DQG VKRXOG QRW LVVXH cursory manner to repress the legitimate 1RWLFHV LQ D URXWLQH FDVXDO DQG PHFKDQLFDO PDQQHU ZLWKRXW DSSO\LQJ WKHLU PLQGV DQG demands of the students, it may be quashed. REVHUYLQJ WKH SURYLVLRQV RI ODZ 3. The learned A.G.A. took notice on +HOG ± behalf of the District Magistrate/State and vehemently urged that a writ petition against a 6KRZ FDXVH QRWLFH FDQ EH LVVXHG RQO\ LI WKH ‘show cause notice’ is not maintainable. The 'LVWULFW 0DJLVWUDWH LV VDWLVILHG RI WKH WZLQ FRQGLWLRQV RQ EDVLV RI WKH PDWHULDO EURXJKW submission was repelled and appears to be EHIRUH KLP  WKDW D SHUVRQ DQVZHUV WKH against the well established legal position. GHVFULSWLRQV RI µ*RRQGD¶ DV GHILQHG LQ 6HFWLRQ  E RI WKH $FW  DQG WKH FRQWURO 4. Normally, a writ petition against a show DQG VXSSUHVVLRQ RI VXFK D µ*RRQGD¶ LV cause notice is not maintainable as has been QHFHVVDU\ IRU WKH PDLQWHQDQFH RI µSXEOLF held in Executive Engineer, Bihar State RUGHU¶ 3DUD  &DVH /DZ 'LVFXVVHG  Housing Board Vs. Ramesh Kumar Singh and $,5 6& 3  others (A.I.R. 1996 SC-691) wherein, the 83&U 5XOLQJ  3  apex court was concerned with the 83&U 5XOLQJ  3 )% entertainment of the writ petition against a 6&&  3 show cause notice issued by the competent 6&&   3  authority. In that case there was no attack $,5 $OOG 3  against the vires of the statutory provisions governing the matter and no question of By the Court infringement of any fundamental right guaranteed by the Constitution was alleged or 1. The neat point for determination in the proved. It could also not be said in that case present writ petition under Article 226 of the that the notice was ex facie ‘nullity’ or totally Constitution is whether a bona fide student of 2 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

‘without jurisdiction’ in the traditional sense this stage. The scanning of this question does of that expression that is to say, that even the not call for any further material. commencement or initiation of the proceedings on the face of it and without 7. The crucial point for consideration in anything more, was totally unauthorized. In the present case is whether in the light of the the backdrop of these facts, the apex court facts and circumstances, as mentioned in the observed as follows :- show cause notice, a copy of which is Annexure 6 to the writ petition, the District “ ………In such a case, for entertaining a Magistrate was justified in labelling the writ petition under Article 226 of the petitioner as Goonda and clamping upon him Constitution of India against a show cause with a notice. notice, at that stage, it should be shown that the authority has no power or jurisdiction, to 8. Before taking up the legal question it enter upon the enquiry in question. In all other would be advantageous to advert to the cases, it is only appropriate that the party definition of ‘Goonda’ as contained in Section should avail of the alternative remedy and 2 (b) of the Act, which is as follows :- show cause against the same before the authority concerned and take up the objection “2. Definitions : ………. regarding jurisdiction also, then. In the event (a)…………………. of an adverse decision, it will certainly be (b) “ Goonda” means a person who open to him, to assail the same either in appeal or revision, as the case may be, or in (i) either by himself or as a member or appropriate cases, by invoking the jurisdiction leader of a gang, habitually commits or under Article 226 of the Constitution of attempts to commit, or abets the commission India.” of an offence punishable under Section 153 or Section 153-B or Section 294 of the Indian 5. Learned counsel for the petitioner urged penal Code or Chapter XV, or Chapter XVI, that in view of the law laid down by a full Chapter XVII or Chapter XXII of the said Bench decision of this Court in Bhim Singh Code; or Tyagi V. State of U.P. – 1999 U.P. Criminal Rullings-417, in which the earlier decision of (ii) has been convicted for an offence this court in Ramji Pandey V. State of U.P. punishable under the Suppression of Immoral and others (1982) U.P. Cr. R 1 (F.B.) has been Traffic in Women and Girls Act, 1956; or relied upon and approved and in the light of the observations of the apex court in the case (iii) has been convicted not less than of Whirlpool Corporation V. Registrar of thrice for an offence punishable under the Trade Marks, Mumbai and others 1998) SCC- U.P. Excise Act, 1910 or the Public Gambling 1, alternative remedy does not affect the Act, 1867 or Section 25, Section 27 or Section jurisdiction of the High Court under Article 29 of the Arms Act, 1959; or 226 of the Constitution of India, the present writ petition is maintainable. (iv) is generally reputed to be a person who is desperate and dangerous to the 6. We have heard Sri S.P. Sharma, learned community; or counsel for the petitioner as well as Sri Mahendra Pratap, Additional Government (v) has been habitually passing indecent Advocate at some length. Since purely a legal remarks or teasing women or girls; or question is involved in the present case, we propose to decide the writ petition finally at (vi) is a tout; 1ALL] Imran alias Abdul Quddus Khan V. State of U.P. and others 3

9. The preamble to the Act gives a clue to Explanation: ‘Tout’ means a person who- the intention which impelled the law makers to enact the legislation. It makes it clear that (a) accepts or obtains, or agrees to the Act was brought on the Statute book with accepts or attempts to obtains, or agrees to a view to make special provisions for the accept or attempts to obtain from any person control and suppression of Goondas with a for himself : or for any other person, any view to the maintenance of ‘public order’. A gratification whatever as a motive or reward bare reading of the various provisions of the for inducing, by corrupt or illegal means any Act makes it clear that there are two pre- public servant or member of Government, requisites which are required to be fulfilled Parliament or of State Legislature, to do or before issuing a show cause notice under forbear to do anything or to show favour or Section 3 of the Act, firstly, a person should disfavour to any person or to render or fall within the definition of the expression attempt to render any service or disservice to ‘Goonda’ and secondly, it is necessary to any person, with the Central or State control and suppress him with a view to the Government, Parliament or State Legislature, maintenance of ‘public order. If either of the any local authority, corporation, Government two prerequisites are missing, the District Company or public servant: or Magistrate shall not be entitled to initiate action under the Act. (b) procures in consideration of any remuneration moving from any legal 10. Let us now take up the first point practitioner interested in any legal business or whether the petitioner answers the description proposes to any legal practitioner or to any of a ‘Goonda’ as defined in Section 2 (b) of person interested in legal business to procure, the Act. For this purpose, it would be in consideration of any remuneration moving necessary to wade through the recitations, or from either of them, the employment of legal say the grounds as unfolded from the practitioner in such business; or impugned show cause notice issued by the District Magistrate. Rendered in English, in (c) for the purposes mentioned in the prefatory clause of the notice, it has been explanation (a) or (b), frequents the precincts substantially mentioned as follows: of civil, criminal or revenue courts, revenue or other offices, residential colonies or “……Sri Imram son of Mohd. Aslam residences or vicinity of the aforesaid or resident of …………district Jhansi, who railway or bus stations, landing stages, normally resides in Mohalla………is a lodging places or other places of public resort; ‘Goonda’ meaning thereby, he is habituated to or commit crimes covered by Chapters XVI, XVII and XXII of the Indian penal Code and (vii) is house-grabber. that he has acquired the general reputation of being desperate criminal, dangerous person to Explanation- ‘House –grabber’ means a the society.” person who takes or attempts to take or aids or abets in taking unauthorized possession or A sweeping allegation has come to be made in having lawfully entered unlawfully remains in the second clause that the activities of the possession, of a building including land, petitioner in district Jhansi are such that he garden, garages or out-houses appurtenant to a causes damage to the person and property of building.” the citizens and criminally intimidates, insults, and annoys them or plans to commit the aforesaid crimes and there is reason to 4 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 believe that the petitioner is engaged in under the provisions of Section 3 (3) of the committing the offences punishable under Act. Chapters XVI, XVII and XXII of the Code. 11. A reading of the various allegations In the third clause, it is mentioned that in made in the impugned notice would reveal respect of the above allegations no person is that all of them are vague, general and prepared or comes forward to stand as a inconcrete. On the basis of the sweeping witness against the petitioner on account of allegations, the petitioner has been termed as fear of hurt to his person and damage to his ‘goonda’ and has been required to show cause property. A mention has been made with as to why he should not be directed to remove regard to the two incidents-firstly, dated himself outside the district for a specified 14.10.1999 about which Sub Inspector Ved period. Prior to the issuance of the impugned Ram had submitted a beat information that on notice, no case was ever registered against the account of enhancement in the amount of fee, petitioner. He is not involved in any criminal the petitioner and his companion incited case. The petitioner is a bona fide student of students, attempted to disturb the peace and M.A.-IInd year (Politics) in the college as tranquility in the college campus and being would be evident from the documents brought over-awed, the Principal, Professors and on record as Annexures 1 and 2. The Principal clerical staff of the college are feeling unsafe of the college had recently issued a character and insecure; secondly, Constable Mani Ram, certificate dated 2.8.1999, Annexure 4 to the while he was on patrol duty on 23.10.1999, writ petition. He has certified that the work, registered a beat information that the conduct and character of the petitioner is good petitioner along with his companion and he wished him well for his future. assembled in front of the gate of the college and were making preparations to intimidate 12. As said above, the Act was enacted the Principal and Professors and to created an with a view to make special provision for the atmosphere of unrest in the campus; that he control and suppression of ‘Goondas’ with a was also planning that the Principal should be view to the maintenance of ‘public order’. so much terrorized that he may not be in a Unless a person is a ‘goonda’ with in the position to object the conduct of the unruly meaning of Section 2 (b) of the Act, no show crowd of students. It was further mentioned in cause notice can be served upon him. The the notice that some unknown student had definition of the expression ‘goonda’ has been sent an application, obviously anonymous, extracted above. A bare reading of this addressed to the District Magistrate that on definition would indicate that a person before account of criminal activities of the petitioner he is termed as a ‘goonda’ should either by and his companions, the college atmosphere himself or as a member or leader of a gang, was terror-stricken and that Sri S.P. Pathak, habitually commits or attempts to commit or Principal and other Professors and Ministerial abets the commission of an offence staff were not prepared to lodge an F..I.R. or punishable under Section 153, or Section 153- complain against the conduct of the petitioner B or Section 294 or Chapter XV, XVII, or or to stand as a witness against him and his XXII of the Indian Penal code or has been companions; that the petitioner along with his convicted for an offence punishable under the associates tease the passing by girls in front of Suppression of Immoral Traffic in Women the crossing of the college. On the basis of the and Girls Act 1956 or under the U.P. Excise aforesaid allegations, the District Magistrate Act, Public Gambling Act or under certain required the petitioner to show cause by 18th Sections of the Arms Act, is generally reputed November,1999 as to why an order of to be a person who is desperate and dangerous externment against him should not be passed to the community or has been habitually 1ALL] Imran alias Abdul Quddus Khan V. State of U.P. and others 5 passing indecent remarks or teasing women or meaning to the word ‘habitually’ as denoting girls or is a tout. Except for the bald ‘repetitive’ and that on the basis of a single averments made in the show cause notice act cannot be said to be forming the habit of issued by the District Magistrate there is no the person. That is to say, the act complained material, whatsoever, incorporated in the of must be repeated more than once and be notice to support the various grounds. inherent in his nature. The minority view is that a person in habitual criminal who by 13. Ex facie, a person is termed as a force of habit or inward disposition inherent ‘goonda’ if he is a habitual criminal. The or latent in him has grown accustomed to lead provisions of section 2 (b) of the Act are a life of crime. In simple language, the almost akin to the expression ‘anti social minority view was expressed that the word element’ occurring in section 2 (d) of Bihar ‘habitually; means ‘by force of habit’. The Prevention of Crimes Act, 1981. In the minority view is based on the meaning given context of the expression ‘anti social in stroud’s Judicial Dictionary, Fourth Ed. element’ the connotation ‘habitually commits’ Vol. II– 1204-habitually requires a came to be interpreted by the apex court in the continuance and permanence of some case of Vijay Narain Singh V. State of Bihar tendency, something that has developed into a and others (1984) 3 SCC-14. The meaning put propensity, that is, present from day to day. to the aforesaid expression by the apex court Thus, the word- ‘habitual’ connotes some would squarely apply to the expression used degree of frequency and continuity. in the Act, in question. The majority view was that the word ‘habitually’ means ‘repeatedly’ 14. The word ‘habit’ has a clear well or ‘persistently’. It implies a thread of understood meaning being nearly the same as continuity stringing together similar repetitive ‘accustomed’ and cannot be applied to single acts. Repeated, persistent and similar but not act. When we speak of habit of a person, we isolated, individual and dissimilar acts are prefer to his customary conduct to pursue, necessary to justify an inference of habit. It which he has acquired a tendency from connotes frequent commission of acts or frequent repetitions. In B.N. Singh V. State of omissions of the same kind referred to in each U.P.AI.R. 1960-Allahabad –754 it was of the said sub-clauses or an aggregate of observed that it would be incorrect to say that similar acts or omissions. Even the minority a person has a habit of anything from a single view which was taken in Vijay Narain’s case act. In the Law Lexicon – Encyclopedic Law (supra) was that the word ‘habitually’ means Dictionary, 1997 Ed. by P. Ramanatha Aiyer, ‘by force of habit’. It is the force of habit the expression ‘habitual’ has been defined to inherent or latent in an individual with a mean as constant, customary and addicted to a criminal instinct with a criminal disposition of specified habit; formed or acquired by or mind, that makes a person accustomed to lead resulting from habit; frequent use or custom a life of crime posing danger to the society in formed by repeated impressions. The term general. If a person with criminal tendencies ‘habitual criminal’, it is stated may be applied consistently or persistently or repeatedly to any one, who has been previously more commits or attempts to commit or abets the than twice convicted of crime, sentenced and commission of offences punishable under the committed to prison. The word ‘habit’ means specified chapters of the Code, he should be persistence in doing an act, a fact, which is considered to be an ‘anti social element’. capable of proof by adducing evidence of the There are thus two views with regard to the commission of a number of similar acts. expression ‘habitually’ flowing from the ‘Habitually’ must be taken to mean repeatedly decision of Vijay Narain’s case (supra). The or persistently. It does not refer to frequency majority was inclined to give a restricted 6 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 of the occasions but rather to the invariability of externment under the Act is required to be of the practice. passed against persons who cannot readily be brought under the ordinary penal law and who 15. The expression ‘habitual criminal’ is for personal reasons cannot be convicted for the same thing as the ‘habitual offender’ the offences said to have been committed by within the meaning of section 110 of the Code them. The legislation is preventive and not of Criminal Procedure, 1973. This preventive punitive. Its sole purpose is to protect the Section deals for requiring security for good citizens from the habitual criminals and to behavior from ‘habitual offenders’. The secure future good behavior and not to punish expression ‘habitually’ in the aforesaid the innocent students. The Act is a powerful section has been used in the sense of tool for the control and suppression of the depravity of character as evidenced by ‘Goondas’; it should be used very sparingly in frequent repetition or commission of offence. very clear cases of ‘public disorder’ or for the It means repetition or persistency in doing an maintenance of ‘public order’. If the act and not an inclination by nature, that is, provisions of the Act are recklessly used commission of same acts in the past and without adopting caution and desecretion, it readiness to commit them again where there is may easily become an engine of operession. an opportunity. Its provisions are not intended to secure indirectly a conviction in case where a 16. Expressions like ‘by habit’ ‘habitual’ prosecution for a substantial offence is likely ‘desperate’ ‘dangerous’ and ‘hazardous’ to fail. Similarly the Act should not obviously cannot be flung in the face of a man with be used against mere innocent people or to laxity or semantics. The court must insist on march over the opponents who are taking specificity of facts and a consistent course of recourse to democratic process to get their conduct convincingly enough to draw the certain demands fulfilled or to wreck the rigorous inference that by confirmed habit, the private vengeance. petitioner is sure to commit the offence if not externed or say directed to take himself out of 17. In the instant case, it appears that the the district. It is not a case where the college fee was substantially enhanced; there petitioner has ever involved himself in were certain discrepancies in the admission of committing the crime or has adopted crime as students to M.A. Previous and L.L.B. classes; his profession. There is not even faint or the college teachers had adopted a recalcitrant feeble material against the petitioner that he is attitude of not attending the classes regularly. a person of a criminal propensity. The case of In order to curb the aforesaid maladies, and to the petitioner does not come in either of the adopt remedial measures, the students of the clauses of Section 2 (b) of the Act, which college united to get their grievances defines the expression ‘Goonda’. Therefore, ventilated by preparing a demand note with to outright label bona fide student as ‘goonda’ which they met the Principal of the College was not only arbitrary capricious and on 12.10.1999 under the leadership of the unjustified but also counter productive. A present petitioner, Rashid Khan, Yashendra bona fide student who is pursing his studies in Singh Rajput, in a delegation. They have the Post Graduate course and has never seen mentioned in the demand note. Annexure 5 to the world of the criminals is now being forced the writ petition, that in case their demands to enter the arena. The intention of the Act is are not fulfilled they would abstain to attend to afford protection to the public against the classes and close the fee counter and that hardened or habitual criminals or bullies or the students shall then be compelled to stage dangerous or desperate class who menace the dharna and demonstrations in the campus. The security of a person or of property. The order demand note was signed by a body of 1ALL] Imran alias Abdul Quddus Khan V. State of U.P. and others 7 students, the number of which swelled to 65. students, which may have irked the School The students have adopted a lawful and authorities or administration, a show cause democratic method to get their demands notice wholly without jurisdiction was issued fulfilled. There is absolutely nothing on not realizing the implications that the future record that the students under the leadership career of a bona fide student of Post Graduate of the present petitioner had committed the class and who has to pass out the college in acts of violence or , in any manner, the near future would be seriously jeopardized threatened, intimidate, insulted or annoyed and marred. The show cause notice issued by their Principal, Professors, and the clerical the District Magistrate not only suffers from staff. The notice itself indicates that none of the infirmity of lack of jurisdiction but is these persons have come forward to complain bereft of propriety. It is true, that the District against the petitioner and others. The Magistrate has the responsibility to maintain petitioner cannot be expected to have such a ‘public order’ and to initiate action to control monstrous capacity as to manoeuver that the and suppress the ‘Goondas’ but he is not Principal of the college and other Professors unbridled. His actions must have a flavour of and Lecturers would submit to his criminal law and unless he has an umbrella of law to acts without any demur or objections. There is protect his actions, this court would not also no material on record to indicate that hesitate to step-in to correct and quash the there has occasioned a ‘public disorder’ and illegal, arbitrary whimsical and uncalled for for the maintenance of which it was necessary action of the District Magistrate. to brand the petitioner as; Goonda’ and to initiate action against him for his externment. 19. The instance of an order and the The nature of the menace posed by the circumstances in which the show cause notice petitioner would have been the determinative have come to be issued, in the situations like factor in the case. the present one, may be multiplied. More often than not, the orders passed by the 18. Our Constitution does not give a carte District Magistrate are being assailed, not in blench to any organ of the State to be the sole vain, before this court primarily on the ground arbiter in the matter of maintenance of that the District Magistrate, without applying security and public order. It would be too the mind and observing the provisions of law, perilous a proposition to say that the District are issuing show cause notices under the Act Magistrate was the sole judge of the steps in routine, casual and mechanical manner. required to be taken for the maintenance of Before parting, therefore, it may be mentioned public order. In the instant case, the District that because of the litigation cropping up from Magistrate has blatantly transgressed the time to time due to unwarranted and illegal limits of his jurisdiction and has issued a steps taken by the District Magistrates show cause notice without applying his mind concerned in flagrant violation of the to the twin aspects required to be established provisions of the Act, an endeavour has been before issuing a notice to a person for made above to indicate the circumstances in externment. As said above, firstly, the person which a show cause notice can be issued- to concerned should answer the description of a reiterate- it can be issued only if the District ‘Goonda’ as defined under Section 2 (b) of Magistrate is satisfied of the twin conditions the Act and secondly, it was necessary to of the basis of the material brought before him control and suppress him with a view to the (1) that a person answers the descriptions of maintenance of ‘public order’. Unfortunately, ‘Goonda’ as defined in Section 2 (b) of the the District Magistrate has not taken note of Act, (2) and that control and suppression of the provisions of the Act and with a view to such a ‘Goonda’ is necessary for the repress the legitimate activities of the maintenance of ‘public order’- so that the 8 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

District Magistrate may be cautious enough to DQ DSSOLFDWLRQ XQGHU VHFWLRQ   RI WKH $FW deal with the persons who are sought to be ZDV ILOHG LW ZDV WKH GXW\ RI WKH 5HQW &RQWURO DQG (YLFWLRQ 2IILFHU WR KDYH FRQVLGHUHG WKH externed under the Act in accordance with law IDFWRUV DQG FLUFXPVWDQFHV LQ DFFRUGDQFH leaving no scope for unnecessary litigation. ZLWK 6HFWLRQ   RI WKH $FW $V LW ZDV QRW GRQH WKH RUGHU SDVVHG E\ 5&(2 LV LOOHJDO 20. In the conspectus of the above facts, +HOG the impugned notice dated 26th October,1999 $GPLWWHGO\ WKHUH ZDV QR UHQW DJUHHG is without jurisdiction and cannot be EHWZHHQ WKH ODQG ORUG DQG WKH WHQDQW 7KH UHQW ZDV IL[HG E\ WKH 'LVWULFW 0DJLVWUDWH sustained. It would be proper to nip the evil in XQGHU VHFWLRQ   RI WKH $FW DQG WKDW ZDV the bud. The writ petition, therefore, succeeds SUHVXPSWLYH UHQW :KHQ DSSOLFDWLRQ XQGHU and is allowed. The impugned show cause VHFWLRQ   RI WKH $FW ZDV ILOHG D SUD\HU notice dated 26th October, 1999 issued by the ZDV PDGH IRU IL[LQJ 5V SHU PRQWK DV District Magistrate, Jhansi- respondent no.2, UHQW DQG FRXUW ZDV FRQYLQFHG WKDW 5V  Annxure 6 to the writ petition is hereby FDQQRW EH IL[HG WKHQ LW VKRXOG KDYH FRQVLGHUHG WKH IDFWRUV DQG FLUFXPVWDQFHV quashed. PHQWLRQHG XQGHU 6HFWLRQ   RI WKH $FW $V LW KDV QRW EHHQ FRQVLGHUHG DQG WKH UHQW KDV 21. The Registrar of this Court is directed EHHQ IL[HG RQ WKH EDVLV RI WKH SD\PHQW PDGH to ensure that a copy of this judgement is sent E\ WKH ODVW WHQDQW WKH MXGJHPHQW LV LOOHJDO to all the District Magistrates in the State with 3DUD  promptitude. A copy of the judgement should &DVH /DZ 'LVFXVVHG  $5&  also be sent to the Chief Secretary,   $5&  Government of Uttar Pradesh, Schivalaya,  $5&  Lucknow, who in his turn, shall issue   $5& necessary instructions to all concerned so that By the Court the observation made above are faithfully followed. 1. This petition under Article 226 of the  Constitution of India, has been filed by the 25,*,1$/ -85,6',&7,21 petitioner, who is tenant of the premises in &,9,/ 6,'( dispute, i.e. premises No. 2166/2, Dampier '$7(' $//$+$%$'  Nagar, Mathura, which was allotted to him on 27.4.1978. The petitioner has prayed for %()25( quashing the order dated 16.8.1980 passed by 7+( +21·%/( 6+,7/$ 3' 65,9$67$9$ - 7+( +21·%/( 6+,7/$ 3' 65,9$67$9$ - the respondent no. 1, which is Annexure-5 to the writ petition and order dated 20.11.1981 &LYLO 0LVF :ULW 3HWLWLRQ 1R  RI  so far as it relates to the dismissal of the

&KDQGDQ 6LQJK «3HWLWLRQHU appeal of the petitioner passed by the 9HUVXV respondent no. 1. ,VW $GGLWLRQDO 'LVWULFW -XGJH 0DWKXUD DQG RWKHUV « 5HVSRQGHQWV 2. The brief facts, as stated by the petitioner in the petition are that the house in &RXQVHO IRU WKH 3HWLWLRQHU question was assessed at Rs.30/- in the year 6KUL 5& 6ULYDVWDYD 1970. It is stated that the presumptive rent at 6KUL 3UDGHHS &KDQGUD the time of allotment of the aforesaid building was fixed at Rs.175/- by the Rent Control & &RXQVHO IRU WKH 5HVSRQGHQWV Eviction Officer while making allotment in 6& favour of the petitioner. The allegations of the petitioner are that since the presumptive rent 8UEDQ %XLOGLQJV 5HJXODWLRQ RI /HWWLQJ 5HQW was exhorbitant, therefore, the petitioner filed DQG (YLFWLRQ $FW, 6HFWLRQ    :KHQ 1ALL] Chandan Singh V. Ist A.D.J., Mathura. and others 9

an application before the Rent Control & 5. I have heard learned counsel for the Eviction Officer, Mathura under Sections 8/9 parties and have perused the record. From the of U.P. Act No. XIII of 1972, hereinafter judgement of the Rent Control & Eviction referred to as the Act only. The application of Officer it is apparent that he considered the the petitioner was contested by the land-lord- rent paid by Sri Harish Chandra, Sales Tax respondent no. 3. The petitioner and the Officer, who was earlier tenant and was respondents in support of their respective paying Rs.175/- per month as rent. This claim filed written statements of the witnesses payment was made by the Sales Tax Officer and of their own. The land-lord filed an on the basis of the agreement between him affidavit of one Sri H. Chandra, Sales Tax and land-lord, and fixed Rs.175/- as monthly Officer, who was previous tenant of the rent. The appellate court affirmed the same accommodation in question. An application finding. The appellate court considered the was filed by the petitioner with a request to explanation given under Section 16(9) of the cross examine Sri Harish Chandra, the earlier Act and held that in view of this provision the tenant. But this application of the petitioner District Magistrate is required to pass order was rejected. The Rent Control & Eviction that the tenant should pay the presumptive Officer has fixed Rs.175/- as monthly rent by rent. The explanation further says that the order dated 16.8.1980. The petitioner, presumptive rent will not be less than the rent aggrieved by this order filed an appeal. The which was payable by the last tenant. In this land-lord also filed an appeal and stated that case the last tenant was Sri Harish Chandra, the rent at least Rs.200/- be fixed. The District Sales Tax Officer, who was paying Rs. 175/- Judge dismissed both the appeals on per month as rent and this rent was settled by 20.1.1981. The petitioner has only challenged agreement, paper no. 17/2. The agreement this order. remained in force for one year and thereafter the rent was increased to Rs. 200/- per month. 3. Heard learned counsel for the petitioner The appellate court found that the disputed and learned Standing Counsel. accommodation is an old building and the rent fixed by the Rent Control & Eviction Officer 4. Sri R.C. Srivastava, learned counsel is perfectly correct, therefore, he dismissed appearing on behalf of the petitioner has both the appeals. vehemently urged that the two authorities below having not considered while 6. Before discussing the argument of the determining the rent of the premises in dispute learned counsel for the parties it is necessary the principle laid down in sub-section (2) of to see the provisions which are relevant for Section 9 of the Act have committed manifest the present case. It is apparent that application error of law. He has further submitted that the was filed by the petitioner under Sections 8 authorities below have not taken into and 9 of the Act. The relevant provisions of consideration the provisions of Section 9(2-A) Sections 8 and 9 of the Act are quoted below: of the Act in determining the rent. His further submission is that the Rent Control & “8. Disputes regarding amount of standard Eviction Officer has not considered the rent. Etc. evidence of the petitioner which conclusively proved that the standard rent of the premises (1)Where a dispute arises with regard to in dispute could not be more than Rs.40/- or the amount of the standard rent or the amount Rs.45/- per month. His further argument is of enhancement in rent permissible under that the Rent Control and Eviction Officer has section 5 or Section 6 or to the date with not considered the provisions of the Act. effect from which such enhancement shall take effect, or the amount of taxes payable by 10 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 tenant under Section 7, or to the amount of date of letting, whichever is later (hereinafter proportionate rent payable by the tenant after in this section referred to as the said date); a part of the building or any land appurtement (b) the cost of construction, maintenance there to is released under Section 16 or and repairs of the building; Section 21, or to the amount of rent payable (c) the prevailing rents for similar by the original tenant for the new building buildings in the locality immediately before allotted to him under sub-section (2) of the said date; Section24, the District Magistrate shall, on an (d) the amenities provided in the building application being made in that behalf, by ; order (determine such dispute), (e) the latest assessment, if any, of the building; (2) Where the assessment of a building (f) any other relevant fact which appears in occupied by a tenant is lower than the agreed the circumstances of the case to be material. rent payable there for, the District Magistrate, (2-A) Subject to the provisions of sub- on an application of the tenant or of his own section (2), the District Magistrate shall motion, may, after giving to the land lord an ordinarily consider ten percentum per annum opportunity of being heard, direct the local on the market value of the building (including authority concerned to enhance the its site) on the said date to be the annual assessment in accordance with the agreed rent standard rent thereof, and the monthly with effect from the date from which the standard rent thereof, and the monthly agreed rent, has been payable or the date of standard rent shall be equal to one-twelfth of commencement of this Act, whichever is the annual standard rent so calculated). later, and there upon, notwithstanding anything contained in the law relating to that (3) Every order made under sub-section local authority, the assessment shall be (1) shall, subject to the result of any appeal corrected accordingly, preferred under Section 10, be final.”

(3) Every order under sub-section (1) or Section 16(9) of the Act is also relevant which sub-section (2) shall, subject to the result of is quoted below: any appeal preferred under section 10, be final.” “16(9)- The District Magistrate shall, while making an order under clause (a) of sub- “9. Determination of standard rent- (1) in section (1), also require the allottee to pay to the case of a building to which the old Act the landlord an advance, equivalent to- was applicable and which is let out at the time Where the building is situated in a hill of the commencement of this Act in respect of municipality, one-half of the yearly which there is neither any reasonable annual presumptive rent, and rent nor any agreed rent or in any other case In any other case, one month’s presumptive where there is neither any agreed rent nor any rent, and on his failure to make or offer the assessment in force, the District Magistrate payment within a week thereof, rescind the shall, on an application being made in that allotment order. behalf, determine the standard rent. Explanation: In this sub-section the expression “presumptive rent” means an (2) In determining the standard rent the amount of rent which the District Magistrate District Magistrate may consider – prima facie considers reasonable having (a) the respective market-value of the regard to the provisions of sub-section (2) and buildings and of its site immediately before (2-A) of Section 9, provided that such amount the date of commencement of this Act or the 1ALL] Chandan Singh V. Ist A.D.J., Mathura. and others 11 shall not be less than the amount o rent which month's presumptive rent, and on his failure to was payable by the last tenant, if any.” make or offer the payment within a week thereof, rescind the allotment order. The Section 3(k) of the Act is also relevant explanation given is in this sub-section the which is quoted below: expression "presumptive rent" means an “3(k)-“standard rent” subject to the amount of rent which the District Magistrate provisions of Section 6, 8 and 10, means- prima facie considers reasonable having (i) in the case of building governed by the regard to the provisions of sub-section (2) and old Act and let out at the time of (2-A) of Section 9, provided that such amount commencement of this Act- shall not be less than the amount of rent which (a) where there is both an agreed rent was payable by the last tenant, if any. payable therefor at such commencement as According to Section 9 of the Act when there well as a reasonable annual rent (which in this is neither any reasonable annual rent nor any Act has the same meaning as in Section 2(f) agreed rent or in any other case where there is of the old Act, reproduced in the Schedule) neither any agreed rent nor any assessment in the agreed rent of the reasonable annual rent force, the District Magistrate shall, on an plus 25 per cent thereon, whichever is greater application being made in that behalf, ; determine the standard rent. Section 16(9) and (b) where there is no agreed rent, but there Section 9 if read together will make it clear is a reasonable annual rent, the reasonable that the presumptive rent can be fixed which rent plus 25 per cent thereon. should not be less than the rent which was (c) Where there is neither agreed rent nor payable by the last tenant. But while reasonable annual rent, the rent as determined determining the standard rent the court has to under Section 9. see various aspects as mentioned in sub- (ii) in any other case, the assessed letting section (2) of Section 9 of the Act. Section 8 value, for the time being in force, and in the of the Act under which application was filed absence of assessment, the rent determined deals with the dispute with regard to the under Section 9.” amount of standard rent or to the amount of enhancement in rent. So section 8 of the Act 8. The question which has arisen in the also mentions the standard rent. case is as to what should be the basis for fixing rent under Section 8 and 9 of the Act. 9. Sri R.C. Srivastava, senior counsel As is admitted to the petitioner that at the time appearing on behalf of the petitioner has of allotment the District Magistrate has fixed submitted that when application under section Rs.175/- as presumptive rent which was not 9(2) of the Act was filed it was the duty of the agreed by the petitioner and he has filed Rent Control & Eviction Officer to have application under sections 8 and 9 of the Act considered the factors and circumstances in to fix the rent and has prayed for fixing accordance with Section 9(2) of the Act and Rs.40/- per month as rent. Therefore, it is as it was not done the order passed by the necessary to see the relevant sections of the Rent Control and Eviction Officer is illegal. Act. A bare perusal of Section 16(9) of the In this respect he has submitted that the rent Act would show that the District Magistrate paid by the earlier tenant cannot be the basis shall, while making an order under clause (a) for fixing standard rent. His submission is that of sub-section (1), also require the allottee to the case reported in 1980, A.R.C. page 192 pay to the landlord an advance, equivalent to has not been correctly considered by the where the building is situated in a hill authority below. Learned counsel for the municipality, one-half of the yearly petitioner has placed reliance in a case presumptive rent and in any other case, one reported in 1984(1) A.R.C., page 552-Smt. 12 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

Shakila Khatoon Versus I Addl. District Judge Judge, Mathura, dated 20.11.1981 and the wherein the court held that the rent should be Rent Control & Eviction Officer, Mathura, determined in accordance with the provisions dated 16.8.1980 are hereby quashed and the of Section 9(2) of the Act. He has further matter is being sent back to the Rent Control placed reliance in a case reported in 1984 (2) & Eviction Officer, Mathura to decide the A.R.C., page 332- Smt. Prem Kumari Gupta application filed by the petitioner afresh Versus District Judge Saharanpur and others. keeping in view the provisions of Section 9(2) Sri R.C. Srivastava, learned senior counsel of the Act. There will be no orders as to cost. appearing on behalf of the petitioner has  further placed reliance in a case reported in 1982, A.R.C. page 243- Alkesh Mittal Versus 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( Gendan Lal Mittal. '$7(' $//$+$%$' 

10. Sri Manish Tiwari, learned counsel %()25( appearing on behalf of the respondents has 7+( +21·%/( *30$7+85 - submitted that as presumptive rent was fixed 7+( +21·%/( %+$*:$1 ',1 - in accordance with the provisions of Section 16(9) of the Act the authorities below were &LYLO 0LVF :ULW 3HWLWLRQ 1R  RI  justified for fixing standard rent on the basis of the rent paid by the last tenant. Therefore, 06 %DUHLOO\ )ORXU 0LOOV 3YW /WG DQG no errors were committed by the Rent Control DQRWKHU 3HWLWLRQHUV 9HUVXV authorities or by the appellate court. 8 3 6WDWH (OHFWULFLW\ %RDUG DQG RWKHUV «5HVSRQGHQWV 11. After hearing learned counsel for the parties I am of the view that there is much &RXQVHO IRU WKH 3HWLWLRQHUV force in the argument of Sri R.C. Srivastava. 6UL $UXQ 7DQGRQ Admittedly, there was no rent agreed between 6UL 9%8SDGKD\D the landlord and the tenant. The rent was fixed by the District Magistrate under section 16(9) &RXQVHO IRU WKH 5HVSRQGHQWV of the Act and that was presumptive rent. 6UL 6XGKLU $JUDZDO When application under section 9(2) of the 6& Act was filed a prayer was made for fixing Rs.40/- per month as rent and court was &RQVWLWXWLRQ RI ,QGLD $UWLFOH   ([LVWHQFH convinced that Rs.40/- cannot be fixed then it RI DOWHUQDWLYH UHPHG\$VVHVVPHQW %LOO RI (OHFWULFLW\ &KDOOHQJHG ,W LV RQO\ SURYLVLRQDO should have considered the factors and LQ QDWXUH DQG )LQDO %LOO VKDOO EH SDVVHG DIWHU circumstances mentioned under Section 9(2) JLYLQJ DQ RSSRUWXQLW\ RI KHDULQJ $JDLQVW of the Act. As it has not been considered and )LQDO %LOO DQ DSSHDO OLHV XQGHU (OHFWULFLW\ the rent has been fixed on the basis of the 5HJXODWLRQV:ULW GLVPLVVHG RQ WKH JURXQG RI payment made by the last tenant the judgment 6WDWXWRU\ DOWHUQDWLYH UHPHG\ is illegal. Therefore, the orders passed by both +HOG 7KH SHWLWLRQHUV KDYH DQ HIILFDFLRXV DQG the authorities are hereby quashed and the DOWHUQDWLYH UHPHG\ RI ILOLQJ DQ REMHFWLRQ WR matter is being sent back to the Rent Control WKH DVVHVVPHQW ELOO DQG DOVR ILOLQJ DQ DSSHDO & Eviction Officer to redetermine the DJDLQVW WKH ILQDO ELOO ,Q WKHVH FLUFXPVWDQFHV standard rent as provided under section 9(2) LW LV QRW D ILW FDVH IRU H[HUFLVH RI RXU of the Act. GLVFUHWLRQDU\ MXULVGLFWLRQ XQGHU $UWLFOH  12. Accordingly, the writ petition RI WKH &RQVWLWXWLRQ DW WKLV VWDJH 3DUD  &DVH /DZ GLVFXVVHG succeeds and is allowed. The judgments and $,5  6&  orders passed by the I Additional District 1ALL] M/s Bareilly Flour Mills(P.) Ltd. & another V. U.P. S.E.B. and others 13

By the Court Ghanshyam and Sri Munshi Lal , employees of UPSEB went to the premises of petitioner 1. This petition under Article 226 of the no. 1 for the purpose of M.R.I. They found Constitution has been filed praying for the that a cable had been directly connected from following relief’s:- the 11 KVA line to the transformer installed there and the cable which connects the meter 1. issue a writ, order or direction in the to the transformer had been disconnected. The nature of certiorari calling for the record result of this directly connecting the main 11 and quashing the proceedings initiated KVA line to the transformer was that no under assessment order dated 1.9.1999 electricity was passing through the meter and 2. issue a writ , order or directions in no consumption of the same was being the nature of mandamus commanding the recorded therein. The petitioner no. 1 was thus respondents not to assess or realise any committing theft of the electricity. Sri J.P. amount from the petitioner in pursuance of Gupta, Assistant Engineer gave information the assessment order dated 1.9.1999 which about it to his superior officers. Subsequently, in turn is based on the alleged ex-parte on 24.8.1999 the electricity connection of checking report dated 23.8.1999 petitioner no.1 was disconnected. The or in alternative Divisional Engineer (Executive Engineer). 3. issue a suitable writ, order or Electricity Distribution Division, Bareilly, direction in the nature of mandamaus, thereafter sent an assessment bill for an directing the respondents that the amount of Rs. 77,23,095.00 dated1.9.1999 to assessment proceedings in the present case the petitioner no.1. The petitioner seeks be finalised by the Executive Engineer quashing of this assessment bill. posted out side Bareilly. 3. We have heard Sri V.B. Upadhaya, 2. The petitioner no. 1 M/s Bareilly Flour Senior Advocate assisted by Sri Arun Tandon Mills (Pvt.) Ltd. is a company incorporated for the petitioners and Sri Sudhir Agrawal for under the Companies Act and it has respondents no. 1 to 3 and have perused the established a unit in village Zerh tehsil record. Faridpur in the district of Bareilly. It has been sanctioned a load of 500 K.V.A. by U.P. State 4. Learned counsel for the petitioners has Electricity Board (for short UPSEB) in the contended that the petitioner no. 1 had been year 1989. The UPSEB has installed an sanctioned a load of 500 KVA in the year Electronic Secured Meter which is an 1989. Subsequently, on 20.5.1999 the electronic device for measuring the amount of petitioner no. 1 moved an application for electricity which is supplied to the petitioner reduction of load from 500 KVA to 150 KVA no.1. This Electronic Secured Meter is and thereafter Executive Engineer, Electricity supplied by a company and the reading in the Distribution Division, directed the Sub- same is recorded by a nominee of the Divisional Officer to check the installation of company who conducts an inspection once in petitioner no.1 and to ascertain the number of a month along with an Engineer of UPSEB. motors installed therein for the purpose of This process of recording the consumption of reduction of load. The petitioner was electricity is commonly known as M.R.I. At informed that as per the M.R.I. of sub-station, 15.20 hours on 23.8.1999, a team consisting the consumption of electricity appeared to be of Sri Atul Rastogi, nominee of the company more than one recorded at the meter installed which had supplied the Electronic Secured in the Flour Mill and consequently an Meter, Sri J.P. Gupta, Assistant Engineer objection was raised that on the basis of (Meter), Sri M.I. Haider (J.E.), Sri M.R.I. of the sub-station from where 14 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 electricity was supplied to many industries, no no. 1 had committed theft of electricity. bill should be raised against the petitioners. Regarding the assessment bill, it has been On the basis of the complaint of the urged that the same has been prepared by Sri petitioners, the Zonal Chief Engineer Shashi Kant, Executive Engineer (Revenue) constituted a Committee consisting of and ‘he was not a member of the team which Superintending Engineer, three Executive had conducted the inspection and no Engineers and Assistant Engineers, who made allegation of any kind has been made against physical inspection of the Flour Mill on him in the writ petition. Sri Agrawal has 18.8.1999 and after being satisfied that there further submitted that the assessment bill is was no misutilisation or misapplication of the only provisional in nature, which has to be electrical energy submitted a sealing report finalised after giving an opportunity of dated 18.8.1999. This showed that no theft of hearing to the consumer and against the final electricity was being committed by the bill, an appeal lies under the Regulations and, petitioner. Learned counsel has further therefore, this Court should not exercise its contended that a report about the alleged theft discretionary jurisdiction under Article 226 of was also lodged with the police who, after the Constitution at the present stage. The investigation, has submitted a report to the question whether a theft was being committed effect that no theft of the electricity had been by directly connecting a cable with 11 KVA committed. Lastly, it has been contended that line with the transformer installed in the Flour the inspection is alleged to have been done in Mill is a pure question of fact. It is not the presence of Sri R.P. Singh possible for this Court to record any finding (Superintending Engineer) as well as officers on this question while exercising jurisdiction and employees of Vigilance Cell and under Article 226 of the Constitution. It is for consequently the Executive Engineer who had the concerned Authority of UPSEB to sent the assessment bill cannot act fairly while consider the material and circumstances of the finalising the assessment bill as he cannot case and record a finding on this question. disregard the report of Sri R. P. Singh, The report of the police station, Faridpur, Superintending Engineer, as he is a superior submitted to S.S.P. Bareilly, copy of which officer. It is thus urged that this Court should has been filed as Annexure-9 to the writ intervene in the matter and quash the petition, has hardly any evidentiary value. The assessment bill as from the material on record only reason given therein is that it is not the commission of theft by the petitioner no. 1 possible to run a Mill by directly connecting a is not established. cable with 11 KVA line. There port dated23.8.1999 given by Sri J.P. Gupta, 5. Sri Sudhir Agrawal, learned counsel for Assistant Engineer, which has also been the contesting respondents has however signed by Sri Atul Rastogi, nominee of the submitted that the report of Sri J.P. Gupta, company which had supplied the Electronic Assistant Engineer, which had also been Secured Meter, Sri M.I. Haider, Sri Ghan signed by Sri Atul Rastogi, nominee of the shyam and Sri Munshi Lal, mentions that they company which has supplied the Electronic had personally seen that cable had been Secured Meter, besides Sri M.I.Haider, J.E., connected from the 11 KVA line to the Sri Ghanshyam and Sri Munshi Lal clearly transformer of the Flour Mill bypassing the showed that a cable had been directly meter. Besides above the M.R.I. done in the connected with the 11 KVA line to the sub-station from where electricity is supplied transformer installed in the Flour Mill by – to petitioner no. 1 and the number and passing the meter. Learned counsel has also capacity of the motors installed therein can contended that there is other strong evidence also give clinching evidence on the point which conclusively establishes that petitioner whether theft of electricity was being 1ALL] M/s Bareilly Flour Mills(P.) Ltd. & another V. U.P. S.E.B. and others 15 committed or not. This question has therefore headed by Area Chief Engineer (Level-1). As to be examined by the experts of the mentioned earlier, only an assessment bill has department and it is not possible for this Court been issued to the petitioner on 1.9.1999 and to record a finding in favour of petitioner only this itself mentions that if the petitioners on the basis of the sealing report dated objects to the same they may file a written 18.8.1999 and the police report. objection alongwith proof within 15 days failing which the assessment bill shall be 6 . Annexure-11 to the writ petition is a deemed to be final. The petitioners had an copy of the assessment bill dated 1.9.1999 and opportunity to file an objection against the it has been sent to petitioner no. 1 by an assessment bill and thereafter a final bill Executive Engineer of UPSEB. The bill itself would have been prepared. Against the final mentions that if the petitioner has any the petitioners have aright to file an appeal. objection to the assessment bill it may file a Thus, the statute itself provides an efficacious written objection alongwith proofs within 15 and alternative remedy to challenge the days of the receipt of the assessment bill assessment bill dated 1.9.1999. failing which the same shall be deemed to be final. This assessment bill has been prepared 7. Learned counsel for the petitioners has under clause 22 of Electricity Supply urged that at the time of the inspection Sri (Consumers) Regulations, 1984. Clause B of R.P. Singh, Superintending Engineer as well this Regulation relates to theft of energy and it as officers and employees of Vigilance Cell provides that where there is evidence that a were present and therefore no useful purpose consumer had dishonestly abstracted, will be served by filing objection to the consumed, used or wasted energy the supplier assessment bill and consequently the may estimate the value of the electrical energy alternative remedy provided under the so abstracted, consumed or used as per guide Regulations is illusory in character. In support lines given in Annexure-1 and may also of this submission, reliance is placed on Ram disconnect the supply without notice. and Shyam Company Versus State of Haryana Towards the end of the Regulations, AIR 1985 SC 1147. In our opinion, the Annexure-1 has been given which provides contention raised has no substance. The the guidelines for assessment. The assessment assessment bill has been issued under the bill appears to have been prepared in signature of Sri Shashi Kant, Executive accordance with the Regulations contained in Engineer (Revenue). No allegation has been Annexure-1.Regulation 23 (I) provides that made against him in the writ petition nor it is the Executive Engineer shall finalise all the alleged that he was present at the time of the assessment cases after giving an opportunity inspection. The authority cited is clearly to the consumer to state his point of view. distinguishable on facts as in the said case the Sub-clause (ii) of clause 23 lays down that if order for grant of mining lease was passed by the consumer is dissatisfied with the an Authority on the dictate of Chief Minister assessment so made, he may prefer an appeal. and in the said circumstance it was held that Under the amended Regulations, if the an appeal to the State Government would be assessment bill is upto Rs.2 lakhs, the appeal ineffective. There is no reason to doubt that lies to a Circle Level Committee headed by Sri Shashi Kant, Executive Engineer Superintending Engineer, if the assessment (Revenue) would not act fairly while bill is above Rs.2 lakhs and is upto Rs.10 finalising the assessment bill if an objection to lakhs, it lies to a Zonal level committee the same is filed by the petitioners. That apart headed by a Chief Zonal Engineer and if the against the final bill, the petitioners will have assessment bill exceeds Rs. 10 lakhs the a right of appeal to Area Level Committee, appeal lies to an Area Level Committee which is headed by an Area Chief Engineer 16 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

(Level-1). In our opinion, the petitioners have LQFXPEHQW RQ DOO WKH DXWKRULWLHV WR H[SODLQ an efficacious and alternative remedy of filing GHOD\ LQ FRQVLGHUDWLRQ RI UHSUHVHQWDWLRQ 7KH\ DOO KDYH WR DFW DV RQH XQLW WR HQVXUH an objection to the assessment bill and also HDUO\ GHFLVLRQ RQ WKH UHSUHVHQWDWLRQ RI WKH filing an appeal against the final bill. In these GHWHQX circumstances, it is not a fit case for exercise of our discretionary jurisdiction under Article +HOG 226 of the Constitution at this stage. 5HTXLVLWH FDUH KDV QRW EHHQ WDNHQ E\ UHVSRQGHQW QR  LQ VHQGLQJ WKH 8. In view of the discussions made above, UHSUHVHQWDWLRQ RI WKH SHWLWLRQHU WR WKH the writ petition is dismissed on the ground of &HQWUDO *RYHUQPHQW DQG WKHUH LV QR YDOLG alternative remedy. It is however directed that DQG MXVWLILHG H[SODQDWLRQ RI GHOD\ ZLWK HIIHFW if the petitioners file an objection to the IURP  WR   ,Q RXU RSLQLRQ LW assessment bill within 15 days from today, the UHQGHUV WKH FRQWLQXHG GHWHQWLRQ RI WKH Executive Engineer concerned shall entertain SHWLWLRQHU WR EH LOOHJDO DQG WKH SHWLWLRQHU LV HQWLWOHG WR UHOLHI 3DUD  the same and finalise the assessment case after giving an opportunity to the petitioners to &DVH /DZ GLVFXVVHG  state their point of view and in accordance   6&&  with law. By the Court 9. Office is directed to issue a certified copy of this order on payment of usual 1. By means of this writ petition, the charges within three days. petitioner has challenged detention order  dated 22.7.99 passed against him by respondent no . 2—District Magistrate, 25,*,1$/ -85,6',&7,21 &5,0,1$/ 6,'( Jyotibba Phuley Nagar, under section 3 (2) of '$7('  $//$+$%$' 129(0%(5   the National Security Act and his continued detention thereunder. %()25( 7+( +21·%/( 2 3 *$5*  - 2. Counter—affidavit and rejoinder 7+( +21·%/( 9 . &+$7859(', - affidavit have been exchanged between the parties. We have heard Mr. D.S. Misra, +DEHDV &RU :ULW 3HWLWLRQ 1R RI  learned counsel for the petitioner, Mr. Mahendra Pratap, learned A.G.A. appearing $VODP .KDQ «3HWLWLRQHU of behalf of respondent no. 1,2 & 3 and Mr. 9HUVXV 6XSHULQWHQGHQW 'LVWULFW -DLO 0RUDGDEDG Shesh Mani Misra representing respondent RWKHUV 5HVSRQGHQW no. 4—Union of India.

&RXQVHO IRU WKH 3HWLWLRQHU 3. Learned counsel for the petitioner has 6KUL '6 0LVUD challenged the impugned detention order only on the ground that there was inordinate delay &RXQVHO IRU WKH 5HVSRQGHQWV in sending the petitioner’s representation 6KUL 0DKHQGUD 3UDWDS dated 7.8.99 to the Central Government which $*$ was received there on 24.8.99.

&RQVWLWXWLRQ RI ,QGLD $UWLFOH   DQG 4. We have considered the respective 6HFWLRQV   DQG  RI 1DWLRQDO 6HFXULW\ submissions made by learned counsel for the $FW'HOD\ LQ GHFLGLQJ WKH UHSUHVHQWDWLRQ ZKHQ TXHVWLRQ RI OLEHUW\ LV LQYROYHG LW LV parties on this point.

1ALL] Aslam Khan V. Superintendent, District Jail, Moradabad and others 17

5. Mr. Mahesh Kumar Gupta, Jailor, Home Ministry rejected the representation of district Jail, Moradabad in his counter— the detenu on 25.8.99. affidavit in paragraph 5, has admitted that representation of the petitioner was received 9. On the basis of the averments made in on 7.8.1999 and the said representation was the counter-affidavit as indicated above, sent to the District Magistrate, Jyotiba Phuley learned counsel for the petitioner submitted Nagar on the same day through Special that there is no explanation of delay with messenger. affect from 7.8.99 to 15.8.99 and from 15.8.99 to 24.8.99. 6. In paragraph 11 of his counter-affidavit, Mr. Ram Saran Singh, District Magistrate, 10. It is significant to point out here that Jyotiba Phuley Nagar, has submitted that the the idea behind section 8 of the National representation of the petitioner was received Security Act is that the detenu should have the in his office and the deponent called for police earliest opportunity of making representation report. After receiving the police report, the against the detention order to the appropriate deponent prepared his parawise comments authorities and indeed a duty is cast on the and sent it to the State Government without authorities concerned also to take all possible any fail. steps for consideration of the representation of the detenu at the earliest without any loss of 7. Mr. R.A. Khan, Under Secretary, Home time. & Confidential Department, U.P. Civil Secretariat, Lucknow in paragraph 4 of his 11. In the present case, the District counter—affidavit, has stated that the Magistrate, Jyotiba Phuley Nagar ought to petitioner’s undated representation alongwith have stated in his counter-affidavit that on parawise comments was forwarded by the what date the representation has been received District Magistrate, Jyotiba Phuley Nagar vide and on what date he has forwarded it to the his letter dated 15.8.99 which was received by State Government or Central Government. the State Government on 16.8.99. The But his counter-affidavit is silent on the point District Magistrate, Jyotiba Phuley Nagar and even the mode of delivery has also not directly sent the representation and parawise been disclosed in his counter-affidavit. While comments to the Advisory Board as well as to the Jailor in his counter-affidavit has admitted the Secretary, Ministry of Home Affairs, New that the representation of the petitioner has Delhi vide his letter dated 15.8.99. been received on 7.8.99 and on the same day he forwarded the same to the District 8. On behalf of the Union Of India, a Magistrate. But the District Magistrate, counter-affidavit has been filed by Mr. Sushil Jyotiba Phuley Nagar has not explained the Kumar, under Secretary, Ministry of Home delay in forwarding the representation of the Affairs, Government of India, New Delhi , petitioner dated 7.8.99 to the Central and in paragraph 7 thereof he has stated that a Government and thus the delay in forwarding representation dated Nil from the detenu the petitioner’s representation with effect alongwith parawise comments of the from 7.8.99 to 24.8.99 remains unexplained, detaining authority was received by the Though there is no delay on the part of the Central Government in the concerned desk of Central Government in deciding the Ministry of Home Affairs on 24.8.99 through representation because the representation was District Magistrate, Jyotiba Phuley Nagar on receive in the Ministry of Home Affairs behalf of State of Uttar Pradesh vide letter no. (Central Government) on 24.8.99 and the 1451(2) /JA/99 dated 15.8.99 and the Union same was rejected on 25.8.99.

18 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

12. At this juncture, observations made by detention of the petitioner to be illegal and the the Constitution Bench of the Apex Court in petitioner is entitled to relief. K. M.Abdullah Kunhi Versus Union of India and others (1991 (1) S.C.C.-476, are relevant 14. For the reasons stated above, this which read as under: Habeas Corpus Petition is allowed and the continued detention of the petitioner is found “It is a constitutional mandate to be illegal. The respondents are directed to commanding the concerned authority to set the petitioner at liberty forthwith if his whom the detenu submits his representation to detention is not required in any other case. consider the representation and dispose of the same as expeditiously as possible. The word  “ as soon as may be” occurring in clause (5) of Art. 22 reflects the concern of the Framers 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( that the representation should be expeditiously '$7(' $//$+$%$' 129(0%(5   considered and disposed of with a sense of urgency without an avoidable delay. %()25( However, there can be no hard and fast rule in 7+( +21·%/( 0& $*$5:$/ - this regard. It depends upon the facts and 7+( +21·%/( 6 5$)$7 $/$0 - circumstances of each case. There is no period prescribed either under the constitution &LYLO 0LVF :ULW 3HWLWLRQ 1R  RI  or under the concerned detention law, within which the representation should be dealt with. 0V 6. *XSWD &RPSDQ\ «3HWLWLRQHU The requirement, however, is that there 9HUVXV ,QFRPH 7D[ 2IILFHU RWKHUV«5HVSRQGHQWV should not be supine indifference, slackness or callous attitude in considering the &RXQVHO IRU WKH 3HWLWLRQHU representation . Any unexplained delay in the 6KUL $ 8SDGK\D\ disposal of representation would be breach of 6KUL 9% 8SDGK\D the constitution imperative and it would render the continued detention impermissible &RXQVHO IRU WKH 5HVSRQGHQWV and illegal”. 6& 6KUL %KDUDW -L $JDUZDO 13. When question of liberty is involved and that too by means of preventive detention, ,QFRPH 7D[ $FW 6HFWLRQ   $Q it is incumbent of all the authorities to explain $VVHVVPHQW FDQ EH UHRSHQHG RQO\ LI WKH delay in consideration of the representation. DVVHVVLQJ RIILFHU KDV UHDVRQV WR EHOLHYH WKDW They all have to act as one unit to ensure WKH LQFRPH KDV HVFDSHG DVVHVVPHQW DQG QRW RQ WKH GLFWDWHV RI WKH &RPPLVVLRQHU %XW WKH earlier decision of the representation of the SHWLWLRQHU KDV WR WDNH D VSHFLILF JURXQG LQ detenu. Every step is required to be taken by WKH ZULW SHWLWLRQ +H FDQ QRW VXFFHHG RQ WKH each part of the machinery concerned to EDVLV RI DQ\ DYHUPHQW LQ WKH FRXQWHU facilitate and ensure earliest decision on the DIILGDYLW representation of the detenu. In the present case, the requisite care has not been taken by +HOG² 7KDW WKH SHWLWLRQHU KDYLQJ QRW DGYDQFHG VXFK respondent no. 2 in sending the representation D FRQWHQWLRQ LQ WKH ZULW SHWLWLRQ KH FDQQRW of the petitioner to the Central Government OHJDOO\ DQG MXVWLILDEO\ UDLVH VXFK D and there is no valid and justified explanation FRQWHQWLRQ 7KH SHWLWLRQHU¶V FDVH KDV WR EH of delay with effect from 7.8.99 to 24.8.99. VROHO\ H[DPLQHG RQ ZKDW LV VWDWHG LQ WKH In our opinion, it renders the continued ZULW SHWLWLRQ 7KH VWDWHPHQW PDGH LQ WKH FRXQWHU DIILGDYLW LV QRW DQ DGPLVVLRQ RI DQ\ DYHUPHQWV PDGH E\ WKH SHWLWLRQHU LQ WKH ZULW 1ALL] M/s S.K. Gupta & Co. V. The Income Tax Officer and others 19

SHWLWLRQ 7KHUHIRUH WKDW VWDWHPHQW LV RI QR the order passed by the CIT (Appeals). The FRQVHTXHQFH 3DUD  Tribunal dismissed the revenues appeal and $,5  6& 3  ,75   3  allowed the appeal by the assessee and ,75   3  quashed the assessment on the ground that in the circumstances of the case, no assessment By the Court could be made on the AOP.

1. By this petition under Article 226 of the 4. During the time taken in the aforesaid Constitution of India the petitioner challenges proceedings, the assessment proceedings that a notice dated 26.3.1998 issued under Section had commenced on the basis of the notice 148 of the Income Tax Act 1961 for dated 5.10.1990 under Section 148 of the Act assessment year 1987-88, copy of which is became barred by time. Consequently, the annexure 5 to the writ petition. assessing officer issued a fresh notice under Section 148 on 26.3.1998 and it is this notice 2. We have heard Sri V.B. Upadhya, which is under challenge in the present writ Senior Advocate assisted by Sri A. Upadhya, petition and the grounds of challenge have Advocate, learned counsel for the petitioner been mentioned in paragraph 26 of the writ and Sri Bharat Ji agarwal, Senior Advocate petition which is as under: for the respondents. “A- Because, the Original notice under 3. The proceedings relate to assessment section 148 having not been quashed and year 1987-88 for which a return of income Return in pursuance of that notice having was filed and an assessment was made under been filed, the Department has no jurisdiction Section 143 (1) of the Income Tax Act. to issue subsequent notice dated 26.3.1998 on Thereafter on 5.10.1990 the assessing officer the same facts for the same Assessment year issued a notice under section 148 which was i.e.1987-88, during the pendency of the earlier received by the assessee on10.10.1990. In proceedings. compliance with the said notice a return of income was filed on 16.11.1990. The B-Because, the notice having been issued petitioner claimed the status of a registered with a view to circumven the period of firm. On 27.3.1991 the assessment was limitation, is therefore illegal, arbitrary and completed in the status of an association of without jurisdiction. persons (AOP). On 22.4.1991 the assessing officer i.e. the respondent no.1 passed an C-Because, no subsequent notice can be order under Section 154 of the Act stating that issued on the same facts and on the same there had been a mistake in mentioning the ground for the same Assessment year i.e. status of the assessee in the assessment order 1987-88.” and that in place of AOP. URF (un-registered firm) be read throughout the assessment order. 5. The respondents have filed a counter The assessee appealed and the CIT (Appeals) affidavit which is sworn by one Shiv Ran who allowed the appeal on the ground that an Singh Chahal in which it is stated that a assessment on an AO P could not be made search was conducted at the business premises without issuing a notice to the AOP. He, of the assessee as well as the residential therefore, set aside the assessment directing premises of the partners and some that the assessment be made again, in incriminating material was found and seized. accordance with law. Thereafter cross appeals The history of the case, as stated above, is were filed before the Tribunal by the admitted and it is stated that an application department as well as by the assessee against under Section 256 (1) has been filed against

20 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 the aforesaid order of the Tribunal. It is stated observed that in every case, the Income Tax that the Commissioner of income Tax directed Officer must determine for himself what is the that the assessment for the year under effect and consequence of the law mentioned consideration may be reopened under Section in the audit note and whether in consequence 147 and in compliance of the directions of the of the law which has now come to his notice Commissioner, the case was reopened with he can reasonably believe that income has the approval of the Commissioner of Income escaped assessment and that the opinion Tax and the impugned notice under Section rendered by the audit party in regard to the 148 was issued and was duly served. It is law cannot, for the purpose of such belief, add stated that the impugned notice was served on to or colour the significance of such law. In the partnership firm. It is also stated that the short, the true evaluation of the law in its notice under Section 148 was issued to assess bearing on the assessment must be made the income which was surrendered by the directly and solely by the Income-Tax Officer. assessee itself during the course of search and Some other authorities were also cited on this seizure operation. In the rejoinder affidavit it point but since the legal position is settled and is stated that from the counter affidavit itself it is not disputed, it is not necessary to refer to is apparent that the assessment was reopened them here. under the dictates of the Commissioner of Income Tax while Section 147 of the Act 7. In raising the aforesaid argument the provides that an assessment can be reopened learned counsel for the petitioner has only if the assessing officer has reason to attempted to make capital out of an unguarded believe that the income has escaped statement made in the counter affidavit that assessment. the Commissioner directed that the assessment may be reopened under Section 6. Under Section 147 of the Income Tax 147. It is to be borne in mind that in the writ Act if the Assessing Officer has reason to petition the petitioner has not set up a case believe that any income chargeable to tax has that before issuing the impugned notice the escaped assessment for any assessment year, Income Tax Officer did not apply his own he may ……assess or reassess such mind to the facts of the case and did not income…..Thus, the law equires that the himself come to have the reason to believe assessing officer should have the that income chargeable to tax has escaped reason/reasons to believe and sub-section (2) assessment and it is for this purpose that we of Section 148 provides that before issuing a have reproduced above the grounds of attack notice for an intended assessment/ that have been set up by the petitioner in the reassessment under Section 147 the assessing writ petition. Therefore, we are of the view officer shall record his reasons for issuing a that the petitioner having not advanced such a notice under Section 147 and he has to have contention in the writ petition, he cannot his own reasons to believe that any income legally and justifiably raise such a contention. chargeable to tax has escaped assessment. The petitioner’s case has to be solely There is no dispute on this proposition of law examined on what is stated in the writ and it was so held by the Hon’ble Supreme petition. The statement made in the counter Court in Indian & Eastern Newspapers affidavit is not an admission of any averments Society vs. Commissioner of Income Tax made by the petitioner in the writ petition. AIR 1979 SC 1960 in which a question had Therefore, that statement is of no arisen whether proceedings under Section 147 consequence. We may mention that even in could be initiated on the basis of report by an the rejoinder affidavit, no assertion to that internal audit party. In paragraph 13 of the effect is made on behalf of the petitioner. judgment, the Hon’ble Supreme Court What has been stated is that from contents of 1ALL] M/s S.K. Gupta & Co. V. The Income Tax Officer and others 21 the counter affidavit, it is apparent that the was that the assessment may be reopened assessment for the year 1987-88 was reopened meaning thereby the Commissioner merely under Section 147 of the Act under the indicated a direction to the assessing officer in dictates of the Commissioner. which he may proceed and the ultimate decision was left to the assessing officer. 8. In case the petitioner wanted to contend that the Income Tax Officer had no material 10. As stated above, before issuing a on the basis of which he could have the notice under Section 148 of the Act, the requisite reason to believe or that he did not assessing officer has to record his reasons. He apply his own mind to the material on record has to seek the approval of the Commissioner. and issued the notice under Section 148 solely Therefore, it cannot be presumed that the under the orders of the Commissioner, it was assessing officer did not apply his mind and necessary for him to amend the petition by did not make up his own belief. Whenever incorporating therein the requisite averments such a contention is raised, the burden is on and preferably annex to the writ petition a the assessee to show that the assessing officer copy of the reasons recorded by the assessing did not act according to law. For that purpose officer. Had he done so, the respondents he may take the assistance of the court and would have had an effective opportunity to require the production of the relevant records controvert the allegation and annex to the and he may also obtain certified copies of the counter affidavit the alleged direction of the requisite documents. Such a plea cannot be Commissioner., the reasons recorded by the raised a random as in the case before us. We, assessing officer for having a reason to therefore hold that it is not permissible to the believe and for proposing to issue notice assessee to raise the aforesaid contention and under Section 148 and the necessary in any case we further hold that it is not correspondence between the assessing officer established that the assessing officer did not and the Commissioner for obtaining the himself examine the matter and arrived at his latter’s approval for the issue of a notice that own belief and that he acted solely on any was statutorily required to be obtained. In our command from the Commissioner. view, therefore, the petitioner is not legally entitled to raise such a condition. 11. The second contention raised on behalf of the petitioner is that when the 9. Even if the petitioner is allowed to rely Tribunal quashed the assessment, the earlier on the aforesaid averments in the counter notice issued by the assessing officer under affidavit, no sound basis is laid for the Section 148 and the return file by the assessee argument that the assessing officer did not revived and, therefore, the assessing officer himself have the reason to believe that income could have proceeded on those documents if it has escaped assessment. “Direct” according was permissible under the law. Reliance is to Webster’s New Collegiate Dictionary placed on a judgment in S.P. Cochhar Vs Indian Ed. Means “ to show or point out the Income Tax Officer (1984) 145ITR255 in way for” and “direction” means “guidance or which it was held that where an assessment is supervision of action or conduct”. Direction pending, a notice under Section 148 cannot be also means “something imposed as an issued. Reliance is also placed on CIT vs. P. authenticative instruction or order”. Krishnankutty Menon(1990) 181 ITR 237. In Therefore, direction does not necessarily that case reassessment proceedings had been mean a command and the language used in initiated under Section 147 (b) and during the the counter affidavit shows that the so-called pendency of the reassessment, further notices direction was merely a guidance because under Section 147 (a) were issued. It was according to the counter affidavit the direction held that when the assessment was open, no

22 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 valid notice under Section 147(a) could be income after issuing a notice under Section issued. This proposition of law was also not 148. It is not a case of circumventing the challenged on behalf of the revenue. period of limitation but is a case where However, what is evident is that due to the because of the certain circumstances, the time taken in the earlier round of statute itself allows the assessing officer an proceedings., the limitation for making an opportunity to bring to tax escaped income assessment of the basis of the return of although the period originally prescribed had income, filed in pursuance of the notice dated expired. It was also contended that the 5.10.1990, has expired and, therefore, it impugned notice, copy of which is at page 38 cannot be said that either the said notice or the of the paper book as annexure 5, did not return of income had revived and could be specify whether it was issued to the AOP or to treated to be pending. Such a situation has the partnership firm. No. such ground has been taken care of by sub-clause (b) of been set up in the writ petition. The notice Explanation 2 to Section 147. Explanation 2 has been issued to M/s S.K. Gupta Co. which states that for the purposes of section 147, the as admitted in the petition itself, is a following shall also be deemed to be cases partnership firm and was being assessed to tax where income chargeable to tax has escaped from before at general index register no. S assessment namely:- 302/W1. This number is mentioned in the notice itself making it quite clear that it has (a)……………… been issued to the partnership firm. The (b) Where a return of income has been conduct of the assessing officer in making the furnished by the assessee but no assessment order under Section 154 also indicated that he has been made and it is noticed by the wanted only to assess a partnership firm and Assessing Officer that the assessee has not an AOP. Therefore, in any case there is understand the income or has claimed no infirmity in the notice on this account as excessive loss, deduction, allowance of relief well. in the return; 13. No other point was raised in this writ (c)………………… petition and for the reasons discussed above, the same is hereby dismissed with costs to the 12. Thus in view of this Explanation and respondents. The interim order, if any is the fact that because of the events, narrated discharged. above, no assessment was made on the ------assessee partnership firm, it becomes a case where income chargeable to tax has escaped $33(//$7( -85,6',&7,21 assessment. As stated is paragraph 7 of the &,9,/ 6,'( '$7(' $//$+$%$'  counter affidavit, the income was not stated by the assessee in the return that was filed in %()25( pursuance of the earlier notice under Sec. 148 7+( +21·%/( 5$9, 6'+$9$1 - on 16.11.1990. The income declared in the 7+( +21·%/( $ &+$.5$%$57, - said return was only Rs. 99,620/- while as stated in paragraph 16 of the counter affidavit 6SHFLDO $SSHDO 1R RI  during the course of search and seizure operations, the assessee had offered an 5DQELU 6LQJK «$SSHOODQW 9HUVXV additional income of Rs, one lac. Therefore, 'LVWULFW ,QVSHFWRU RI 6FKRROV -DORQH DW 2UDL all the conditions mentioned in clause (b) DQG RWKHUV «5HVSRQGHQW reproduced above were satisfied in this case and the assessing officer could reassess the &RXQVHO IRU WKH $SSHOODQW 1ALL] Ranbir Singh V. D.I.O.S., Jalone at Orai and others 23

approved by the Deputy Director of 6KUL $3 6DKL Education, Jhansi Region, Jhansi, on 31 December 1983. It was by an ad interim order &RXQVHO IRU WKH 5HVSRQGHQWV dated 17 July 1992 in writ petition no.28805 6& of 1992 that there was a direction, regard 6KUL 9% 6LQJK being had to certain circumstances that the District Inspector of Schools, Jalaun, was &RQVWLWXWLRQ RI ,QGLD $UWLFOH  ,QGXFWLRQ required to take over the institution forthwith RI QHZ OLIH PHPEHU ± ',26 HPSRZHUHG E\ and operate the accounts of the institution. WKH &RXUW WR KROG HOHFWLRQ RI WKH PDQDJHPHQW DQG WR KDQG RYHU WKH DIIDLUV WR Subsequently, by another order of 10 October WKH QHZO\ HOHFWHG ERG\ ± ',26 LQGXFWHG  1993, a direction was issued to the District QHZ OLIH PHPEHUV KHOG ±',26 LV QRWKLQJ Inspector of Schools to take over the PRUH WKDQ DQ DXWKRULVHG FRQWUROOHU KHQFH management of the institution. By the FDQ QRW EH SHUPLWWHG WR DFW EH\RQG LWV VFRSH subsequent order he had also been required to  conduct an election of the office bearers of the +HOG 3HUPLWWLQJ LQGXFWLRQ RI QHZ PHPEHUV E\ DQ Committee of Management within one month DXWKRULVHG &RQWUROOHU RU IRU WKDW PDWWHU WKH in accordance with the provisions of the 'LVWULFW ,QVSHFWRU RI 6FKRROV LQ D VLPLODU scheme of administration. The Court also VLWXDWLRQ ZRXOG EH SXWWLQJ VXFK DQ DXWKRULW\ directed that once the election is over, the LQWR D SRZHU DQG SRVLWLRQ ZKLFK HYHQ WKH management is to be handed over to the duly ODZ GLG QRW VSHOO RXW ,QGXFWLRQ RI QHZ elected Committee of Management. Not to be PHPEHUV LV EHVW OHIW WR EH ILOWHUHG DQG LQGXFWHG E\ WKH JHQHUDO ERG\ DQG WKH unnoticed is that the order was to the effect as &RPPLWWHH RI 0DQDJHPHQW DV WKH VFKHPH RI indicated by the Court, even otherwise to be DGPLQLVWUDWLRQ PD\ SURYLGH %XW IRU DQ understood, that the election was to be carried $XWKRULVHG &RQWUROOHU DV D FRUSRUDWLRQ ±VROH out in accordance with law. WR WDNH WKH UHVSRQVLELOLW\ RI FKDQJLQJ WKH IHEULF RI WKH FRPPLWWHH RI PHPEHUV RI D 2. In so far as the issue is concerned, VRFLHW\ RU D WUXVW PD\ EH WRR VZHHSLQJ D SRZHU ZKLFK LV QRW FRPSDWLEOH ZLWK WKH there, apparently, is no dispute amongst the SURYLVLRQV RI WKH $FW DIRUHVDLG 3DUD  parties at Bar, whether appellant, the &DVHV 5HIHUUHG respondent or even the State respondents. The :3  RI  6KLY 3UDWDS 6LQJK 9 ''( issue is that, while the conduct of an election GHFLGHG RQ  was in process with the District Inspector of Schools sitting over as Incharge to run the By the Court management of the institution, could he induct new members; in the instant case life 1. This special appeal is the third case members? Submissions have been made at the relating to the same issues about elections Bar on behalf of the appellant, Ranbir Sing within a society known as the Mahatma and the respondent, S.K. Misra, the Gandhi Shiksha Pracharini Samiti, Kudari, respondent Committee of Management, District Jalaun. This society runs an institution whatever be its status, and the District known as the Mahatma Gandhi Uchchttar Inspector of Schools. The issue as noticed Madhyamik Vidyalaya , Khudari district remains. The contentions of parties are also in Jalaun. This institution is recognised under the affidavits exchanged on the stay application U.P. Intermediate Education Act, 1921 and of the appellants. the regulations framed under the Act, aforesaid. The institution has a scheme of 3. The District Inspector of Schools in his administration which saw amendments and it affidavit, in paragraph 8 submits that point is accepted that the scheme of administration involved is, to the effect, whether the District together with the amendments had been

24 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

Inspector of Schools had powers to induct 6. The Court has referred to the two orders new members, while holding the charge of the by which the District Inspector of Schools had institution as a Manager. Unfortunately, in been required to replace the Committee of this affidavit affirmed on 24 May 1996, the Management and, thereafter, conduct an District Inspector of Schools required a petty election, in accordance with law, and hand clerk to make submission before the High over the management to the elected Court. But, the District Inspector of Schools Committee of Management and its office seems to be conscious of the powers he may bearers. The issue, apparently, sprang up have been so vested with when the High when the District Inspector of Schools, Court appointed him to take charge of the permitted the induction of 31 life members. Management of the educational institution. This gave rise to writ petition no.35059 of 1995: S.K. Mishra and another v.The District 4. However, as between counsel for the Inspector of Schools, Jalaun, at Orai, and appellant, Mr. A.P. Sahi and counsel for the others. On this writ petition came a decision contesting respondent, Mr.V.B. Singh, the dated 14 December 1995. In so far as the contention has been that the matter may be relevant parts of the judgement are concerned, seen as analogous to under Section 16-D of the extracts are: the Act, aforesaid. On the proposition on “…..There is no doubt that the authorised whatever may be the powers which may vest controller can never be treated as substitute in an Authorised Controller of an institution, for the management committee or the general until such time when a Committee of body of an Association or Institution. The Management has been lawfully constituted to authorised controller is not appointed within replace it, the powers of the District Inspector the scheme of administration of the of Schools, in the present case, could not be Institution. He is appointed by reason of more unless spelled out by the High Court. statutory provisions only to fill up the void The premises of the issue is accepted by the and restore the management of the Institution parties. according to the scheme of administration by directing him to hold the election. The 5. In so far as the contention of the authorised controller is not given power by District Inspector of Schools is concerned, reason where of he can induct members in an submitted through a clerk on an affidavit, the association of persons or bring about changes Standing Counsel, Mr. U.K. Pandey has been in the structure of the association much to the more than fair to submit that the District chagrin and prejudice of the members. Inspector of Schools can have no more powers than an Authorised Controller may 7. The authorised controller, who are not have and in so far as the other aspects are directed to hold the election according to concerned, has straight away conceded that a scheme of administration by order dated power which has not been spelled out, the 10/10/1995 was never empowered under the District Inspector of Schools may not have. scheme of administration to induct members. Consequently, learned Standing Counsel An authorised controller can never be submitted, the District Inspector of Schools, authorised to take upon himself the function in the present case, cannot assume a power to of an association with an element of induct new members while the committee of democracy. He simply manages the Management is superseded. While this administration as stop gap measure. He can proposition of learned Standing Counsel may never be empowered to usurp the decision remain on record, the Court will see the aspect making process or power with regard to the as contended between the rival parties. basic structure of the association he acts only as manager. Such a power would be 1ALL] Ranbir Singh V. D.I.O.S., Jalone at Orai and others 25 completely opposed to the concept of an 10. In the present case the question can be association of persons. An authorised decided without any further evidence only by controller if enter upon such a domain in that the decision as to the entitlement of the event it would amount to encroaching upon District Inspector of Schools to induct the freedom of association of which he is not members. It is, therefore, would not be a member. Then again the way the members desirable to refer the parties to Civil Court have been inducted also does not show that now. these members were taken in the normal course of functioning. All the members have 11. Therefore on the basis of material come in a group for particular purpose. By an placed before this Court when it had been order dated 21.9.1995which is Annexure-VII found that the District Inspector of Schools to the writ petition the District Inspector of has no jurisdiction to induct new members as Schools had already settled the list of has been done in this case, the election in members containing 17 names. Thereafter, he which those new members admittedly have had issued another letter on 25.11.1995 by taken part, cannot be sustained and therefore which he has shown 31 new members. This the same is quashed. The District Inspector of induction of members is not a part of the Schools shall hold fresh election on the basis election process. It is a part, which is to be of the members already on record without played by the general body or the allowing the 31 new members to participate in management committee who according to the the election. This process should be authorised controller is entitled to induct completed within a period of eight weeks members. The District Inspector of Schools from the date a certified copy of this order is was authorised to hold the election on the produced before the District Inspector of basis of members of the Institution The Schools. The petition is thus disposed of. process of election would commence with the holding of the election with the existing There will however no order as to costs.” members which he had finalised on 21.9.1995. 12. Before any thing else is reflected upon this issue, it would be safer to see the relevant 8. Be that as it may in the present case Mr. provisions of the law under the Act, aforesaid. Rai submits that the election has already been Given a certain situation, the law permits the held and the result has already been declared. Committee of Management of an institution to Therefore, the contention of Mr. Sankatha be replaced by the appointment of an Rai, counsel for the respondent that this court Authorised Controller to take over for a cannot interfere with the election process once specified period which may not exceed two started cannot be sustained. Election having years. This aspect is discernible from sub- been over the same is now open to scrutiny. clause (4) to Section 16-D. The Court is not going into the question as to how long an 9. The proposition that an election if Authorised Controller may continue as the commenced the process cannot be stopped aspect before the Court is on what may be the and cannot be interfered with is an established limits of his powers. Are they same as are proposition and it need no repetition as has normally attributed in totality to the been held particularly in the case cited by Mr. Committee of Management? The answer is in Rai. The said submission now has become the negative. redundant since the result of the election has already been declared. 13. While the Committee of Management may have the power to transfer any moveable property, the Authorised Controller does not.

26 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

The Authorised Controller may set about to an election. The question is whether the discharge his function day to day but does not District Inspector of Schools could, during the have the power to alienate and transfer any course of his management of the institution as immovable property, (except by way of letting an Authorised Controller, induct life from month to month in the ordinary course members. The learned Judge, who gave the of management) but may create a charge on judgement on the writ petition, was of the the properties. Thus, while he may carry out view that the basic structure of the institution, day to day functions, as the Committee of whether the general body or the Committee of Management otherwise may have done, any Management, could not be changed by such special directions he may receive from the induction of life members. The learned Judge Director for the proper management of the was of the opinion that this should best be left institution or its properties. This aspect is to the normalcy of the institution, when there spelled out in sub-clause (9) and (11) to is a general body and a Committee of Section 16-D of the Act, aforesaid. Section Management. It is for this reason and for good 16-DD permits an Authorised Controller to measure, the Court has observed that an take over charge of the concerned institution Authorised Controller can never be treated as and its properties to the exclusion of the a substitute to a Committee of Management or Committee of Management, but his powers a general body of a society or an institution.1 will be subject to such restrictions as the State Government may impose. These are the broad 16. Permitting induction of new members guidelines on the functions of an Authorised by an Authorised Controller, or, for that Controller. The rest is a matter of prudence. matter, the District Inspector of Schools in a similar situation would be putting such an 14. Plainly the issue is as if there is local authority into a power and position which government and local-self-government. An even the law did not spell out. Induction of aspect which can be seen as a corporation – new members is best left to be filtered and sole as opposed to a corporation with elected inducted by the general body and the members. Even where local-self-government, Committee of Management as the scheme of as an institution, has been provided for and administration may provide. But for an protected by the Constitution of India, it is not Authorised Controller, as a corporation-sole, that local-self-government may not be to take the responsibility of changing the superseded. But, the powers of an fabric of the committee of members of a Administrator of a superseded local body, a society or a trust may be too sweeping a municipality for instance, are curtailed. He power which is not compatible with the may carry on the administration, yet may not provisions of the Act, aforesaid. The impose fresh taxes as this is best left to the appointment of an Authorised Controller is in elected representatives. Taking it to a higher itself a temporary phase. The law suffers the plain, when a Legislature is not in Session a appointment of an Authorised Controller and Governor may issue an Ordinance, but within provides for it, but does not encourage it. a specified period it must be laid before the What is encouraged by the law is the return to legislature. normalcy by an election and the management being handed over to a Committee of 15. In the instant case, the Committee of Management. Management is not available, instead there is a District Inspector of Schools who has been appointed, in effect, as an Authorised Controller by an order of the High Court. He 1 :ULW SHWLWLRQ 1R RI  6KLY 3UDWDS had been caused with an obligation to conduct 6LQJK Y'HSXW\ 'LUHFWRU RI (GXFDWLRQ DQG RWKHUV 'HFLGHG RQ  1ALL] M/s U.P. Petroleum Traders’ Asso. & another V. Union of India and others 27

17. In the circumstances, this Court is of 7KH HUURUV VSHFLILHG LQ WKH FLUFXODU GR QRW the opinion that the learned Judge was not in SHUPLW GHDOHUV WR FKHDW FRQVXPHUV E\ ZD\ RI VKRUW GHOLYHU\ VHFWLRQV   DQG  error when he quashed the induction of 31 DORQJZLWK VHFWLRQ  RI WKH $FW FOHDUO\ GHDO new members, to participate in an election, ZLWK YDULRXV DVSHFWV LQ UHJDUG WR HQVXULQJ and consequently gave a direction to the FRUUHFW GHOLYHU\ WR WKH FRQVXPHUV DQG District Inspector of School to hold a fresh SURYLGH VXLWDEOH SXQLVKPHQW RI WKH GHDOHUV election. IRXQG JXLOW\ RI FRPPLWWLQJ EUHDFK RI WKH DIRUHPHQWLRQHG SURYLVLRQV ZKLFK DUH UHDVRQDEOH DQG LQ QR ZD\ YLRODWH $UWLFOH  The judgement is affirmed.  J DQG  RI WKH FRQVWLWXWLRQ WKH SHWLWLRQHUV DUH QHLWKHU KDUDVVHG QRU DUH The appeal is dismissed with costs. YH[HG E\ WKH RIILFHUV RI WKH 'HSDUWPHQW ------UDWKHU WKH\ DUH SURVHFXWHG RQO\ ZKHQ WKH\ 25,*,1$/ -85,6',&7,21 DUH IRXQG FRPPLWWLQJ GHOLEHUDWH EUHDFK RI &,9,/ 6,'( WKH DIRUHPHQWLRQHG SURYLVLRQV 3DUD  '$7(' 7+( $//$+$%$' -$18$5<   &DVH ODZ GLVFXVVHG %()25( $,5  6&  7+( +21·%/( %,12' .80$5 52< - $,5  6&  7+( +21·%/( 5. 6,1*+ - $,5  6&  $,5  6&  &LYLO 0LVF :ULW 3HWLWLRQ 1R  RI  $,5  6&  $,5  6&    -7  0V 83 3HWUROHXP 7UDGHUV¶ $VVRFLDWLRQ DQG   -7 6&  DQRWKHU «3HWLWLRQHUV $,5  6&  9HUVXV $,5  6&  8QLRQ RI ,QGLD DQG RWKHUV 5HVSRQGHQWV $,5  6&  $,5  6&  &RXQVHO IRU WKH 3HWLWLRQHU $,5  6&  6KUL 5DYL .DQW $,5  6& 

&RXQVHO IRU WKH 5HVSRQGHQWV  By the Court 6KUL .. 3DUHNK 6KUL 3. %LVDULD 1. The Petitioners have come up with 6KUL 66 6KDUPD prayers to (i) declare Section 39, 60 and 61 of 6KUL 81 6KDUPD the Standards of Weights and Measures 6UL 61 6ULYDVWDYD (Enforcement) Act, 1985 (hereafter referred to 6KUL 9. 6LQJK as the Act) as unconstitutional and void and 6& (ii) restrain the Respondents from prosecuting them for violation of the aforementioned 6WDQGDUGV RI ZHLJKW DQG PHDVXUHV (QIRUFHPHQW $FW  VHFWLRQ    provisions of the Act. UHDGZLWK FRQVWLWXWLRQ RI ,QGLD $UWLFOHV   * DQG  3URYLVLRQ IRU 3URVHFXWLRQ WR 2. Petitioner No.1 claims itself to be WKRVH GHDOHUV XOWLPDWHO\ IRXQG JXLOW\ representative body of the dealers of QHLWKHU KDUDVVHG QRU VXEMHFWHG WR YH[HV E\ petroleum products in our State, duly WKH RIILFHUV SURVHFXWLRQ RI WKRVH ZKR IRXQG registered with the Registrar- Chits, Firms and FRPPLWWLQJ GHOHEHUDWH EUHDFK ±KHOG VXFK SURYLVLRQV DUH QHLWKHU DUELWUDU\ QRU Societies, U.P., Lucknow and its registered XQUHDVRQDEOH SURYLVLRQV RI $UWLFOH   office at Kanpur. Petitioner no.2 is a petrol  J DQG  RI WKH &RQVWLWXWLRQ QRW pump owner and dealer appointed by the YLRODWHG Indian Oil Corporation situate at G.T. Road, +HOG ± Bamrauli, Allahabad.

28 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

business and occupation as guaranteed under The Pleadings :- Article 19 (1) (g) of the Constitution.

3. Shortly put the case of the Petitioners is 4. In the Counter Affidavit (filed on to this effect :- 7.12.1998; and a copy of which was sent by Registered Post on 30.11.1998 to Petitioner The petrol and diesel supplied by the Oil No2) of the Respondents no. 2 and 3 Companies, are stored in an underground tank following facts have been stated :- from which retail supply is made through a measure which is a mechanical process The stand that until 1984 there was no through machines, manufactured by leading comprehensive provision for regulating the manufacturers (1) M/s Larson & Tourbo and Weights and Measures is not true inasmuch as (2) M/s Mercantile and Industrial Company there were specific provisions to regulate and Limited, which are maintained by them; enquire the commercial transactions under the according to the Brochures issued by the U.P. Weights and Measures (Enforcement) aforementioned manufacturers (as contained Act, 1959 and the Rules framed thereunder; in Annexures 1 and 2 ) there are five causes the petitioners are required to maintain their for inaccurate measurements, namely, (i) dispensing pumps in such a way so as to Improper adjustment of the calibrating wheel; deliver correct quantity; the Act and the Rules (ii) Swollen ‘O’ ring GM 50002; (iii) Worn made thereunder provide range of variation scaling surface, i.e. valve, valve seal and 0.6% in excess and 0.3% in deficiency at the valve seat; (iv) Worn piston cups, and (v) time of Inspection of the dispensing pumps; inaccurate test can; these machines are the G.O. dated 5th September, 1977, requires beyond the control of the petitioners, besides the petrol/diesel dealers to check the quantity the faults can occur at any point of time; at the delivered by the dispensing pumps each and time of installation of these machines every morning and on finding any deficiency variation of a range up to 0.6% and while they are required to inform in that regard to delivering 5 litres of oil variation between the Oil Company and stop the sale till the 4.86 liters to 5.16 liters i.e. 0.3% have been dispensing pump is corrected; it does not found, which is apparent from the test checks prohibit the Weights and Measures carried out by the manufacturers, as contained Department from prosecuting the retail out- in Annexures 3 and 4; the Government being lets of the Oil Companies on finding alive to these natural variations, has been committal of malpractice’s by the owners of issuing Orders dated 5th September, 1977 and the retail outlets/dispensing pumps, rather it 5th September, 1975 (Copies appended as provides guidance that only on finding solid Annexures 5 and 6) to the effect that a dealer proof of tempering or dishonesty, prosecution should not be prosecuted merely on account should be lodged; the officers of the of variations unless there are solid reasons or Department follow the guide lines though the proof of dishonesty; the legislation in question provisions of the Act and the Rules will is a new one; Section 39 and 60 of the Act are prevail; the said G.O. should not be totally unreasonable and they infringe upon misinterpreted by the petitioners for their own their fundamental rights under Article 19 (1) benefits; once weights and measures are duly (g) and Article 21 of the Constitution of India verified and stamped by the Inspector of and the presumptions mentioned in Section 60 Weights and Measures they shall be deemed and 61 of the Act per se imposes wholly to conform to the standards prescribed under unreasonable restriction on the fundamental the Act; a certificate is issued under Section rights of the petitioner to carry on their trade, 24(4) of the Act but it is not admitted that a dealer cannot be prosecuted, if defects 1ALL] M/s U.P. Petroleum Traders’ Asso. & another V. Union of India and others 29 develop during the course of the currency of reports of the Companies also suggests that the certificate because such defects can be they are taking action against such erring deliberately caused by the dispensing pump dealers, who are found involved in cheating owners by adopting various illegal ways and consumers by their fraudulent activities and means and effecting manipulations by several other malpractice viz. short delivery, devices in the machines; Circular dated 23rd overcharging , adulteration etc.; it is prima December, 1989 was issued by the Ministry facie duty of the users of the dispensing of Supplies (Civil and Food) (Department of pumps to maintain its accuracy with the help civil Supplies), Government of India, which and active association of their Principals i.e. indicate that the Directorate was considering the Oil Companies ; it is not true that the details of alternative arrangement to be defects may not come to the knowledge of the worked out by an expert panel regarding the petitioners for months altogether when they verification of such dispensing pumps which are required to check their pumps every deliver short quantities; considering the morning and tally the stock position stored in variation in speed in dispensing pumps while the tanks with their daily records of the sale the products to the consumers appropriate balance, and thus they can very well know the amendment has been made in this regard in defects every day; the dealers shall also be the Rules by notification dated 15th July, 1991 held responsible for the abatement of the (being filed as C.A.-1) though the Oil offence being committed by them by their Companies have not yet made provision in connivance in causing defects in the machines dispensing pumps as per the amended Rules; either deliberately or by their callous the permissible variations allowed is upto negligence in regard to maintenance of the 0.6% that is to say 30 ml. In 5 liters at the accuracy of the machines; [ the errors time of verification to condone minor specified in the circular do not permit dealers variation only to develop in course of use of to cheat consumers by way of short delivery; the dispensing pumps mechanism for delivery Section 39, 60 and 61 along with section 37 of purposes; the said circular does not indicate the Act clearly deal with various aspects in that this variation has been allowed in regard to ensuring correct delivery to the deficiency also; the Act aims to safeguard the consumers and provide suitable punishment of interest of the consumers and that is why no the dealers found guilty of committing breach variation either at the time of verification or at of the aforementioned provisions, which are the time of inspection is allowed in deficiency reasonable and in no way violate Articles 19 beyond tolerance limit prescribed under the (1) (g) and 21 of the Constitution; the Act or the Rules; the stand of the petitioners petitioners are neither harassed nor are vexed that they have absolutely no control over the by the Officers of the Department, rather they maintenance of measuring Machines is not are prosecuted only when they are found correct and they cannot be exonerated from committing deliberate breach of the their responsibilities in not keeping them in aforementioned provisions:] none of the perfect condition with a view to ensure correct grounds taken are tenable in law and the delivery; the petitioners have deliberately not petitioners are not entitled to any relief under impleaded the Oil Companies to have their Article 226 of the Constitution; and their version in this regard though they have tried petition is liable to be dismissed with costs. to fix up the entire responsibility on them; the Oil Companies have been issuing marketing 5. No Rejoinder to the aforesaid Counter guide lines and suitable instructions to their has been filed by the petitioners. dealers time and again to maintain accuracy of dispensing pumps so that the consumers should not be cheated by short delivery; the

30 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

The Submissions:- Union of India and others A.I.R. 1964 S.C. 1140 (at page 1149); State of Maharashtra v. 6. Sri Ravi Kant, learned counsel Mayer Hans George A.I.R. 1965 S.C. 722 (At appearing on behalf of the petitioner, Page 736); Indra Sain v. State of Punjab contended as follows:- A.I.R.1973 S.C. 2309 (At Page 2311); Kartar Singh v. State of Punjab 1994(2) J.T.423 (At (i) It is impossible for the petitioner to page 464) AND Sanjay Dutt v. The State have a machine, delivery petrol/diesel, free through C.B.I. Bombay 1994(5) J.T.(S.C) (At from any fault. In view of the inherent defect Page 540). in the machines the Government itself has recognised variation 0.6% while delivering 7. Sri Krishna Kumar Parekh, the learned five liters of petrol/diesel and has issued Additional Standing Counsel of the Union G.O.’s yet prosecution has been made in case appearing for the Respondent no.1 the Union of even such a variation. Restriction in the of India-contended as follows:- variation between the actual weight being inherent it is per se excessive and not (i) The provisions in question do not consummate with public interest and ultravires Articles 14,19 (1)(g) and 21 of the accordingly violative of Article 19 (1) (g) of Constitution of India. the Constitution of India. (ii) we are having in our country best (ii) Sections 60 and 61 of the Act create a software technology and computer and/or presumption regarding guilt ruling out Mens with the help of micro gauge and miscroscope rea which ultravires the Constitution. so as to have variation upto .005 only at the time of delivery. In fact on many petrol In order to support his submission he pumps machines with computers have been placed reliance on Chintamanrao and another installed for supplying petrol and diesel. v. The State of Madhya Pradesh A.I.R.1951 S.C.118 (Paragraph 7); Ravula Hariprasada (iii) in fact the petitioners are adopting Rao v. The State A.I.R.1951 S.C. 204 (at page dubious methods at the time of delivery of 206); The State of Madras v. V.G.Row petrol/diesel to the consumers. Some of them A.I.R.1952 S.C. 196 (Paragraph 15); are even using adulterated petrol/diesel which Messears Dwarika Prasad Laxmi Narain v. is causing damage to the engine of the vehicle State of Uttar Pradesh and others A.I.R.1954 of the consumer. In support of his contentions S.C. 224 (Paragraph 6); M/s. Laxmi he placed reliance on A.K. Gopalan vs. State Khandsari etc. v. State of U.P. and others of Madras, 1950 S.C.R.88 and Maneka A.I.R.1981 S.C. 873 (Paragraph 12,14 and Gandhi vs. Union of India, 1978 S.C. 597. 19); P.P.Enterprises etc. etc. v. Union of India Thus there is no merit in the submissions and others etc. A.I.R.1982 S.C. 1016 made by Mr. Ravi Kant. (Paragraph 8 and 10); Peerless Generall Finance and Investment Co. Ltd. And another (iv) The Oil Companies are necessary v. Reserve Bank of India A.I.R. 1992 S.C. parties, who have been left out and thus this 1033(Paragraph 3 and 49); Adhunik Grah writ petition is liable to be dismissed. Nirman Sahkari Samiti Ltd.etc. v. State of Rajasthan and another A.I.R.1989 S.C. 867 (at 8. Sri P.K. Bisaria, learned Standing page 873); The Corporation of Calcutta v. Counsel appearing on behalf of the Calcutta Tramways Co. Ltd. Calcutta Respondents No. 2 and 3 contended as A.I.R.1964 S.C. 1279(Paragraph 4 and 6); follows : Indo China Steam Navigation Co. Ltd. v.

1ALL] M/s U.P. Petroleum Traders’ Asso. & another V. Union of India and others 31

(i) The impugned section safeguard the 8.1 When this case was listed for further protection of the consumers from being hearing on 17.12.1998 the learned counsel for cheated by unscrupulous dealers/traders who the Parties informed us that no further indulge in delivering lessor quantum of petrol/ argument will be advanced by them. diesel by using substandard weight and measures. The sections in question were 9. Our findings :- enacted by the Parliament to safeguard the interest of the consumers, which by no stretch 9.1 The need to have correct balances, of imagination can be dubbed as arbitrary and weights and measures is not a new need. In unreasonable and/or violative of the our Country more than 2200 year ago constitutional mandate enshrined under Kautilya in his book ‘Arthshastra’ Adhyaksh Articles 14, 19(1) (g) and 21 of the Prachar Dwitiya Adhikaran, 19th Chapter, has Constitution of India. stated as follows :- (ii) In our State there was U.P. Weights and Measures Act,1959 and 1960 Rules framed “6¡¡L¡®ƒ¡¡Ÿ¡¢ ¡%¡(ž _¡¡¢L¡Œ¡¼Y¡¡¢[¡%¡( %¡(¡†ƒ¡L¡¼ thereunder, but having found them ¡_¡¡¢L¡¡¢Œ¡Q’ƒ¡¡Lƒ¡ƒ¡ ’Œ¡¡Q ’^L¡¡¢Œ¡Ž¡¡¢L¡ƒ¡K¡: ” insufficient to curb the malpractice of the unscrupulous traders the Parliament enacted In English Translation it means : The balance Standards of Weights and Measures Act, & Weights should be examined at the interval 1966; Standards of Weights and Measures of every four months. Those who do not get (Enforcement) Act, 1985 and Standards of examined at the Schedule time they should be Weights and Measures (General) Rules,1987 awarded an economic punishment of 27-1/2 were framed with a view to provide more Pan” severe punishment for those dealers who intended to deceive and cheat the 9.2 Even around 7th Century the Holy-Quran, consumers/buyers by delivering fraudulently Verse (Aayat) No.35 Surah 17-A stated thus : lesser quality of petroleum products by using non standard and false weights and measures. “ Give full measure when ye Measure, and weight (iii) The range of variation in the machine is With a balance that is straight-: only minor one. The Oil Companies have That is better and fairer been issuing instructions to the petitioners to In the final determination.” maintain accuracy in supply of petrol/diesel so that the consumers are not cheated by short 10. Through the Preamble of the delivery. They have been even taking positive Constitution an attempt has been made to action against such dealers who have been secure to all its citizen, inter alia, social and found involved in cheating the consumers by economic justice; and through Article 19 (2) it their fraudulent activities and malpractice in has been provided that nothing in sub clause supplying short delivery of the fuel, (g) of Article 19 (1) will prevent the State overcharging, adulteration etc. which stand (means Parliament or the Stated Legislature) corroborated by the very documents appended from making any law imposing reasonable as Annexure-1 to the written submissions restriction on the exercise of the right to carry made by Sri Ravi Kant. Accordingly there is on any occupation, trade or business no merit in the submission of Mr. Ravi Kant guaranteed under Article 19 (1)(g). Thus, in and the writ petition is fit to be dismissed order to achieve the objective of securing summarily. social and economic justice, and the directive principle of the State policy under Articles 38 and 39 the Parliament enacted ‘ The standards

32 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 of Weight and Measures Act,1976 in order to (iii) in buying any article or thing by establish standards of weights and measures, weight, measure or numbers, fraudulently to regulate inter-state trade or commerce in receives, or causes to be received any quantity weights, measures and other goods, which are or number of that article or thing in excess of sold or distributed by weight, measures or the quantity or number contracted for and paid number; and to provide for matters connected for, or therewith or incidental thereto. The (iv) in obtaining any service by weight, Parliament in 1985 enacted the instant Act to measure or number, obtains that service in provide for the enforcement of the standards excess of the service contracted for and paid of weights and measures established by or for; under the aforesaid Act, and for matters connected therewith or incidental thereto. The shall be punished with fine which may extend Act came into force in our State with effect to five thousand rupees, and for the second or from January 26, 1990, the day appointed by subsequent offence, with imprisonment for a the Governor in exercise of powers under term which may extend to five years and also Section 1(3) of the Act. with fine.

Section 39, of the Act reads thus :- (3) Whoever enters, after the commencement of this Act, into any contract “39. Penalty for keeping non standard weights or other agreement (not being a contract or or measures for use and for other other agreement for export) in which any contraventions,-- weight, measure or number is expressed in terms of any standard other than the standard (1) Whoever keeps any weight or measures weight or measures, shall be punished with other than the standard weight or measure in fine which may extend to two thousand rupees any premises in such circumstances as to and, for the second or subsequent offence, indicate that such weight or measures is with imprisonment for a term which may being, or is likely to be, used for any extend to one year and also with fine.” (a) weightment or measurement, or (b) transaction or for industrial production or 11.1 Its perusal shows that Sub-Section for protection, shall be punished with fine (1) prohibits keeping of sub-standards weights which may extend to two thousand rupees, or measures with an intention to use them for and, for the second of subsequent offence, weighment or measure or transaction or for with imprisonment for a term which may industrial production or even for protection extend to one year and also with fine. and on the first occasion shall be fined upto Rs.2000/- and on second time or subsequent (2) Whoever,-- time with imprisonment upto 1 year with fine. Sub-section 2 (i) provides punishment for (i) in selling any article or thing by weight, those, who are found guilty in selling any measure or number, delivers or cause to be article or thing by weight, measures or delivered to the purchaser any quantity or number, delivers to purchasers less than the number of that article or thing less than the quantity contracted and paid for. Sub-section quantity or number contracted for and paid 2 (ii) likewise deals with persons who are for, or rendering any service. Sub- section 2(iii) (ii) in rendering any service by weight, likewise deals with such persons who in measure or number, renders that service less buying fraudulently receive or cause to be than the service contracted for and paid for, or received in excess. Sub-section 2 (iv) deals with those who obtain service, and prescribes 1ALL] M/s U.P. Petroleum Traders’ Asso. & another V. Union of India and others 33 punishment with fine upto Rs.5000/- on first indulge in the acts mentioned unless contrary account, and for second and subsequent time, is proved. with imprisonment upto 5 years alongwith 13. Section 61 of the Act reads thus :- fine Sub-section (3) imposes punishment of fine upto Rs.2000/- on first count, and second “61. When employer to be deemed to have and subsequent acts imprisonment upto 1 year abetted an offence,--(1) Any employer, who and with fine for those who enter into any knows or has reason to believe that any contract or agreement except for export in persons employed by him has, in the course of which any weight/measure/number is such employment, contravened and provision expressed other than the standard ones. of this Act or any rule made thereunder, such be deemed to have abetted an offence against 12.Section 60 of the Act reads thus :- this Act :

“60. Presumption to be made in certain, Provided that no such abatement shall be cases,- deemed to have taken place if such employer (1) If any person has, before the expiry of seven days from, the (a) makes or manufactures, or causes to be date on which, made or manufactured, any false weight or (a) he comes to know of the contravention, measures, or or (b) uses, or causes to be used, any false or (b) he has reason to believe that such unverified weight or measure in any contravention has been made, intimated in transaction or for industrial production or for writing, to the Controller the name of the protection, or person by whom such contravention was (c) sells, distributes, delivers or otherwise made and the date and other particulars of transfers, or causes to be sold, distributed, such contravention. delivered or otherwise transferred, any false (2) Whoever is deemed under sub-section or unverified weight or measure, (1) to have abetted an offence against this Act it shall be presumed, until then contrary is shall be punished with imprisonment for a proved, that he had done so with the term which may extend to one year, or with knowledge that the weight or measure was a fine which may extend to two thousand false or unverified weight or measure, as the rupees, or with both, and, for the second or case may be. subsequent offence, with imprisonment for a term which may extend to five years and also (2) If any person has in his possession, with fine. custody or control any false or unverified weight or measure in such circumstances as to Explanation Dismissal or termination of indicate that such weight or measure is likely service of an employee after the expiry of the to be used in any transaction or for industrial period specified in the proviso to sub-section production or for protection, it shall be (1) shall not absolve any employer of his presumed, until the contrary is proved, that liability under this sub-section.” such false or unverified weight or measure was possessed, held or controlled by such 13.1 The aforesaid Section takes care of person with the intention of using the same in those who abate the acts constituting the any transaction or for industrial production or offence/offences. for protection.” 14. The consumers are now said to be 12.1 This Section talks of a statutory kings of the market. Petrol is being called presumption against such persons who Petro-Gold. One of the well known slogans of

34 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 the ‘Bharat Petroleum’ is to the effect that 17. We thus do not see any vice of every drop of Petrol should be saved as it is arbitrariness or unreasonableness so as to hold not going to last for ever. Obviously the these sections as violative of Articles 14, 19 emphasis is on its limited resources and on its (1) (g) and 21 of the Constitution of India. weight/measurement and utilisation to the maximum. The Parliament has made 18. For the reasons aforementioned we endeavours to protect the consumer’s interest. dismiss this writ petition but without cost. The law stands well settled that there is a presumption of constitutionality of an Act and 19. The office is directed to hand over a the onus lies on the person challenging its copy of this order within one week to (i) Sri vires. Having gone through the K.K. Parekh, the learned Additional Standing aforementioned sections and other provisions Counsel of the Union and (ii) Sri P.K.Bisaria, of the Act we find substance in the learned Standing Counsel of the State of U.P. contentions of Mr. Parekh and Mr. Bisaria both for its intimation to the authorities both. concerned.  15. By installation of computerised 25,*,1$/ -85,6',&7,21 machines in the petrol pumps the variations &,9,/ 6,'( have now been brought to the minimal as '$7(' $//$+$%$' -$18$5<  claimed by the learned Standing counsel for the Union, which has not been disputed before %()25( 7+( +21·%/( %,12' .80$5 52< - us. Unfortunately the Petitioners have not 7+( +21·%/( 5. 6,1*+ - impleaded the Oil Companies, whose presence would have been useful to know &LYLO 0LVF :ULW 3HWLWLRQ 1R  RI  their view points. Thus, the assertion of the petitioners that it is impossible for them to 3HRSOH¶V 8QLRQ IRU &LYLO install foolproof machines, is not acceptable /LEHUWLHV «3HWLWLRQHU to us. The submission in this regard being 9HUVXV based on mere self serving statements of 6WDWH RI 83 DQG RWKHUV «5HVSRQGHQWV petitioner no.2 is not worthy of acceptance. True it is that is well known dectum that the &RXQVHO IRU WKH 3HWLWLRQHU  law does not expect a party to do the 6UL 5DYL .LUDQ -DLQ impossible- “impossibilium mulla obligatio 6UL .. 5R\ est”- but here we do find that the law is asking 6UL 3XVKNDU 0HKURWUD the petitioners to do impossible rather the &RXQVHO IRU WKH 5HVSRQGHQW  Petitioners have been given a latitude to 6UL 53 *R\DO supply upto 0.3 % deficient fuel to the 6UL

'LUHFWLRQV LVVXHG WR WKH 6WDWH *RYHUQPHQW WR passed direction for consideration by the State WDNH H[SHGLWLRXV VWHS IRU REWDLQLQJ of U.P. for establishing a S.H.R.C. on the UHFRPPHQGDWLRQV RI VWDWXWRU\ FRPPLWWHH FRQVWLWXWHG XV   RI WKH $FW DQG WR ground that the legislative intent of the SURFHHG WR PDNH DSSRLQWPHQWV LQ WHUPV RI Parliament is being ignored for long vide its VHFWLRQ   DQG  RI WKH $FW Judgement & Order dated 9.2.1996 in +HOG C.M.W.P No. 32984 of 1994 Uttarakhand 7KLV &RXUW FDQQRW UHPDLQ D VLOHQW VSHFWDWRU Sangharash Samiti Versus State of U.P.; the DQG LW LV UHTXLUHG WR FUHDWH QHZ WRROV DQG Governor of U.P., when the State was under DYHQXHV WR DFKLHYH WKH DYRZHG REMHFWV President’s Rule, issued a Notification on UHJDUGLQJ +XPDQ 5LJKWV 3DUD  4.4.1996 under section 21(1) of the Act for

constitution of S.H.R.C. realising the By the Court extremely grim condition of law and order problem in the State; the former C.J.I. Sri 1. The Petitioner has come up to this R.N. Misra, after he became a Member of Court for commanding Respondent no.1 the State of U.P. to (I) constitute a State Human Rajya Sabha, revealed on 22.7.1998 on the Rights Commission (hereinafter referred to as floor of the Rajya Sabha of the fact aforementioned which is evident from the S.H.R.C.) under section 21 of the Protection report published in the Newspaper “Times of of Human Rights Act, 1994 ( hereinafter referred to as the Act) and (ii) create Human India” 23.7.1998 Edition appended as Annexure –2; Respondent no.3. in its Annual Rights Courts at district level under section 30 Report 1996-97 stated that “a country of the of the Act. size and diversity of India needs Human Right Commission at the state level, the reasons are 2. The case of the petitioner is to this obvious, the redressal of grievance must be effect :- The Petitioner is a non-political organisation of such citizens of India who are swift and inexpensive, the message of human committed to promote and protect, interalia, rights must reach the gross-root level in the languages of the people of the country, the human rights; a copy of its aims and object is federal character of our Constitution must be filed as Annexure – 1; after recording his satisfaction that the circumstances existed for respected . the nation-wide challenge need an army of activist in each State and in each an immediate action for protection of human district, if societal and attitudinal changes are rights and to achieve the objects/purpose as contained in Section 2(1) (d) the read with to be brought about”; State Human Rights preamble, the President of India promulgated Commissions have been established in the States of West Bengal, Himachal Pradesh, Protection of Human Rights Ordinance, 1993 (Ordinance No. 30 of 1993) on 28.9.1993 Assam, Punjab and Tamil Nadu; Respondent which was later replaced by the Act; Section 3 no.3 had received8497 complaints from our State out of Total number of 20833 in 196-97; of the Act provides that the Central Sri Kalyan Singh the present Chief Minister Government shall constitute a body to be known as the National Human Rights had openly said in a press conference and in his interview with Sri Rajesh Joshi, special Commission (hereinafter referred to as Correspondent of “Out Look” that a criminal N.H.R.C.) pursuant to which Respondent no.3 was constituted; Section 21 of the Act should have no human rights, he should either provides that the State Government may be in jail or dead; according to press report as many as 156 criminals have been killed in constitute a body to be known as S.H.R.C.; encounter with the police; it is common Respondent no.3 started functioning immediately, and receiving complaints in knowledge that the State is also prone to communal disturbances about which this court regard to custodial deaths, rapes, fake should take Judicial notice; the Parliamentary encounters and other police excess; this Court

36 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

Affairs Minister Sri Hukam Singh on casts, scheduled casts and scheduled tribes are 23.7.1998 made a statement on the floor of being enquired into, intervened. Investigated the Assembly that the government has taken upon and reviewed; the factors and safe a decision that there is no need of constitution guards provided by or under the Constitution of a State Human Rights Commission for the or any law for the time being in force and for reasons mentioned in his speech and hence protection of rights are being looked into by this writ petition. the respective Commissions; it is mandatory for the officer Incharge of any Police Station 3. This writ petition came up for to report about every arrest to concerned consideration before one of us (Binod Kumar District Magistrate, who can make an enquiry Roy, J) and Hon’ble Mr. Justice R.K. with regard to any arrest with or without Mahajan, since retired, on 10.8.98. After warrant; section 58 of the Code of Criminal submissions were made by Sri Ravi Kiran Procedure has sufficient checks on any Jain, the learned Senior Counsel appearing on violation of human rights in the police behalf of the petitioner, time was granted to custody; under section 176 of the Code of Sri. H.R. Misra, Learned Standing Counsel Criminal Procedure whenever any death with an observation, interalia., that the writ occurs in police custody or a person dies in a petition is likely to be disposed of at the Stage police encounter a Magisterial enquiry can be of admission itself and that a copy of the ordered to bring about correct facts; whenever counter affidavit, if any, must be served on any report is made under the aforementioned the petitioner by 21.8.98. sections the Magistrate takes all necessary action in accordance with law to safeguard the 4. Counter affidavit was filed on behalf of person in police custody and ensures that no Respondent nos. 1 and 2, sworn by Secretary violation of any fundamental right and human (Home), Government of U.P. on 21.8.98. It right of the person takes place; enlightened was stated interalia, therein that the State citizens keep invoking these provisions to attaches utmost importance to the human ensure that the human rights are not violated rights and a Human Right Cell has been by the police; and in view of the constituted (I) in the Home Department, and aforementioned facts and circumstances on (ii) in the Police Organisation under the direct 16.6.98 the State decided not to constitute the supervision of D.G.P., U.P. and an officer of State Human Rights Commission at this stage, the rank of A.D.G. is its Incharge; the State the constitution of which is also not Government is endeavoring to protect the mandatory as Act has left a decision to be fundamental rights and human rights of the taken by the State Government in this regard; person and is taking all precautions to ensure the figures as obtained from the Annual that no violation of human rights or abatement report 1996-97 of the National Human Rights thereof or negligence in the prevention of Commission showed that 2900 were the such violation by any one should take place; number of total cases registered during1995- the State is taking all actions necessary to 96 and 8728 during 1996-97; the State prevent the abuse, violation, abatement of Government attaches utmost importance to human rights as well as any negligence to maintenance of law and order and the prevention of such violation; it has already contention that they are extremely grim is constituted Minority Commission, Backward denied; the Notification dated April 4, issued Caste Commission and Schedule Caste by the State Government with a view to Schedule Tribe Commission; any violation of honour the suggestions made by this Court human rights or abatement thereof or during the Presidential Rule and the negligence in the prevention of such violation contention that it was issued on account of ‘ with regards to women, minorities, backward extremely grim law and order situation’ is not 1ALL] People’s Union for Civil Liberties V. State of U.P. and others 37 correct; it would be wrong to conclude that have been taken by the police; in some hot only S.H.R.C. could address to the public pursuit there have been exchange of fire grievance; the popular government would between the police and the criminals in which directly handle all matters relating to violation at times police men and /or criminals fall of human rights, if any, and through the victim which are commonly termed as legislature, which is the supreme body before ‘encounter’, though it is well within the ambit which matters relating to human rights of law for the police to fire in exercise of its violation are brought up and debated; beside right of self-defence and to term this as extra Judicial Officers are competent to take judicial killings of the criminal is distortion of cognizance where someone has suffered due fact. to wrongful act; rapid rise in the number of complaints received by the N.H.R.C. is a 5. To the aforementioned Counter pointer of increasing awareness regarding Affidavit a Rejoinder was filed by the human rights as well as its activities; Petitioner stating following facts:- There has N.H.R.C. is based in Delhi, adjacent to the been concealment of a very material fact that State of U.P. which is the most populous and the Chairperson of National Human Rights its citizen find it convenient to address the Commission wrote a letter on 30.7.1998 grievances to it due to its proximity which is (appended as Annexure –RA1) to the the prime factor responsible for origin of Respondent no.2 referring to the Notification maximum complaints; as per Annual Report for setting up of a State Human Rights 1996-97 N.H.R.C U.P. accounts for 42.17% Commission after taking into consideration of of total cases out of which 8048 cases (42.8%) his suggestions and the view of the Division were dismissed in limine during 1996-97 out Bench of this Court telling that a logical of 2722 cases disposed of with directions U.P. sequence would have been a final Notification accounted for 56.99% and out of 6503 cases under section 21 (2) of the Act; the letter considered/admitted for disposal during 1996- further indicated that substantial percentage of 97 U.P. accounted for 40.38%; the statements the complaints received in his office pertain to made in paragraph 37, 38 and 39 (pertaining this State and a State Commission will to the statements made in a press conference obviate the need for the aggrieved parties to and in the interview by the Special approach Courts and burden the already heavy Correspondent out Look ) are false and docket of the courts of law; yet another frivolous and are denied and it is submitted Division Bench of this Court in Hari Krishna that the statement should be read with Maheshwari @ Hari Maheshwari Vs. State of reference to context “ clamping down the U.P., 1996 J.I.C. 1034. had made request to illegal activities of criminals in order to the State Government to constitute a State maintain “law and order” and emphasizes that Human Rights Commission and Human the police should not give up its fight against Rights Courts as provided under the Act as offenders of law and human rights and in early as possible; in a matter like this in which safeguarding the law abiding citizens; there is extremely serious allegations of violation of complete communal harmony at present; even human rights were made against him, the the long standing Shia-Sunni dispute at Chief Minister himself should have filed his Lucknow has been resolved amicably counter affidavit; in regard to the press reports recently; the direction of the state the petitioner shall place the clipping of the Government to the police is to improve law newspapers and news magazine containing and order situation by clamping down heavily the reports; according to the press report the on the criminals and to make the society a greatest form of human rights violations are safe place for law abiding citizen and in occurring in U.P. these day, like of which pursuance of this objective stringent measures might not have been found in any democratic

38 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 country at any point of time in the human Human Rights Commission was permitted to history; in D.K. Basu V. State of West be impleaded as Respondent no.3. Bengal, decided by the Supreme Court on 18.12.96, it took judicial notice of the fact that 8. The case was again listed before the custodial torture could be ascertained by aforementioned Bench on 22.9.1998 and Sri reading morning newspapers and High Court Shahshi Kant Agarwal, learned counsel may also take notice of the relevant reports appearing on behalf of Respondent no. 3 through press; despite request of National informed the bench that he has instructions to Human Rights Commission and by this Court state that the Chairperson of Respondent no 3. through its two Division Bench judgments the Has already twice recommended to the state decision of the State Government not to Government for setting up of a State Human constitute a State Human Rights Commission Rights Commission at Lucknow as also in shows that it has no regard to human rights districts at the earliest and that Respondent and no concept in regard to what the human no.3 stands by recommendation rights are and why such a Commission is aforementioned made by its Chairperson. required and its disregard in that regard requires passing of a very severe stricture by 9. On 24.9.1998 the Bench was informed this Court against the present Government. by the learned Advocate General that the two Mandamus issued earlier by the Court were 6. On 25.8.1998 the case was heard considered by the Cabinet which, however, further by the earlier Division Bench, as took a decision not to constitute a State stated above comprising one of us. The Human Rights Commission as it was learned advocate General came up with a considered not beneficial. On that day an prayer for adjournment on the ground that affidavit was filed, sworn by the Under some new facts have been stated in the Secretary (Home), stating that the letter sent Petitioner’s Rejoinder. The Bench repeatedly by the Chairperson of National Human Rights asked as to whether the State Government has Commission has not been received. The any real intention to constitute a State Human learned Advocate General further informed Right Commission or not in regard to which the Bench that there will be every likelihood the learned Advocate General took up a stand of inclusion of an agenda in the next meetings that this will require some further consultation of the cabinet for consideration in regard to with the Government. The Bench also the desirability of constitution of a State reiterated that the Court intends to dispose of Human Rights Commission. In this view of this writ petition at the stage of admission the matter the case was adjourned noting in its itself. order dated 24.9.1998 that the letter of the Chairperson of National Human Rights 7. On 9.9.1998 this case was placed Commission has already been reproduced in before a Division Bench consisting one of us Court’s order dated 9.9.1998 and since the (Binod Kumar Roy, J) and Hon’ble Mr. Court after pooja holiday will reopen on Justice J.C. Mishra. The case was heard 5.10.1998 the case is adjourned to 27.10.1998 directing the State Government to produce the hoping and trusting that the two mandamus entire records to know as to what action it has issued by the Court earlier and the letter of the taken in regard to the directions made by the Chairperson of National Human Rights Court earlier in the two cases (Uttarakhand commission shall be considered by the and H.K. Maheshwari) and in regard to the Cabinet further stating that it is needless to request made by the chairperson of National clarify what the word “considers” means. Human Rights Commission. The National 1ALL] People’s Union for Civil Liberties V. State of U.P. and others 39

10. On 27.10.1998 this case was listed the State claims privilege and intends to file before a Division Bench comprising M. Katju an appropriate application supported by an and S.L. Saraf, J. but it was directed to be affidavit. placed before a Bench of which Hon’ble Mr. Justice M. Katju is not a member. The then 15. On 1.12.98 an application was filed on Hon’ble the Chief Justice vide his order dated behalf of the State praying to recall the order 6.11.1998 directed this case to be placed summoning the records and uphold the before a Bench presided over by one of us ( privilege and protection of the records and for Binod Kumar Roy, J). That is how this case return of the documents on the grounds inter was placed before this Bench. alia that apart from the fact that those documents are not required for decision of 11. An affidavit of General Secretary, the case, they cannot be looked into in view of Home Department, U.P. Government was Article 163(3) of the constitution and are also filed stating that the question of desirability of privileged documents under section 123 of constituting State Human Rights Commission the Evidence Act. In the affidavit supporting was considered in extenso by the State the said application it has been added that Cabinet and it was decided that as the existing the records are unpublished official records institutional frame work for redressal of relating to the affairs of the State, which human rights related grievances are adequate, include papers prepared for the submission to therefore, its constitution is not necessary; and the cabinet for taking a decision about that pursuant to the aforesaid decision of the establishment of the State Human Rights Cabinet, vide Notification no. 2238/6-H.R./98 Commission, Cabinet meetings, Cabinet dated October26,1998 (copy enclosed as papers and high level documents relating to Annexure –1 to this affidavit) the earlier framing of policy which are confidential as Notification no. 2254 KHA/6-496 dated April well as of sensitive nature; and that the public 4,1996 has been rescinded interest will suffer by their disclosure.

12. We heard Sri R.K. Jain, learned Senior 16. An objection was filed by the counsel in part, who drew our attention to the petitioner in regard to the application fact that the direction in regard to production aforementioned stating interalia, that it is a of the entire records by the State was not result of an after thought; the claim of complied with. His submissions will be privilege and protection is manifestly referred to, later. We adjourned this case for misconceived; the submission that the public further hearing reiterating the earlier order of interest will suffer by the disclosure of the the court for production of the records by the documents, and as such production is State. withheld, is of the deponent of the affidavit and not based on the legal advice of the 13. On 16.11.98 the petitioner filed an Advocate General or some State Law Officer; application under Article 215 of the the State has come out for the first time at the Constitution of India for taking suo motu advanced stage of hearing that they are action of contempt against Sri Kalyan Singh, entitled to privilege; by no stretch of the Chief Minister and his Cabinet colleagues imagination it can be conceived that the for the reasons stated in the accompanying disclosure of documents will be against affidavit. public interest rather non-disclosure of the documents is injurious to the public interest. 14. On 20.11.98 Sri Yatindra Singh, the learned Additional Advocate General filed 17. Thereafter Sri S.K. Agrawal, learned documents in a sealed cover but indicated that counsel for Respondents no.3 was heard on

40 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

4.1.1999 and 5.1.1999. On 5.1.1999 Sri safeguards provided to its citizens as well as Agrawal informed us that a writ petition was non-citizens both, it would be in the interest filed earlier before the Lucknow Bench of the of Justice to overrule the privilege and peruse Court in this regard but details thereof is not the records so as to find out as to whether the available with him and he was requested to stand taken by Respondent nos. 1 and 2 are furnish details thereof. Sri S.K.Agrawal, had borne out of the records and are correct or not. contended as follows:- The Notification under The explanation given in the Counter are section 21(1) of the Act constituting State merely eye-wash and highly capricious. Human Rights Commission having been made, the only issue before this Court was to 18. Thereafter Sri Yatindra Singh, learned command the Government of U.P. to (a) Additional Advocate General was heard. The nominate the Members of the Commission in learned Additional Advocate General, on the terms of section 21(2) of the Act and (b) other hand, contended as follows:- The appoint necessary staff in accordance with reasons advanced for non constitution of State section 21(3) of the Act and we are very much Human Rights Commission are valid; though competent to issue such a direction. Reliance the State has no objection to the perusal of in this regard was placed by him on the the records, which were produced but observations made by the Supreme Court in nevertheless privilege is being claimed paragraph 631, 734,735 and 1251 to 1253 of having regards to the sensitivity etc.; It is a S.P. Gupta Versus Union of India A.I.R 1982 question of policy which is neither arbitrary S.C. 149. The direction of this Court in its nor unreasonable hence it cannot be quashed order 24.4.1998 for consideration of the by placing reliance on K.Kakkanath V State matter has really not been obeyed and the of A.I.R. 1997 S.C. 128; Indian Railways V. circumstances clearly unfold the capricious D.R.T.S.A. 1993 Supp. (4) S.C.C. 474 and and malafide conduct of the State State of Punjab V R.L. Bagga 1998 (4) S.C.C. Government. In the garb of consideration of 117. The High Court cannot issue a the issues it was not open for the Government Mandamus for constitution of State Human to recall the Notification constituting the State Rights Commission which is a policy matter Human Rights Commission itself inasmuch as of the Government. Reliance was placed on the Court never meant nor had it permitted the A.K. Roy V. Union of India A.I.R. 1982 S.C. government to do so. National Human Rights 710; Aeltemesh Rein Vs. Union of India 1988 Commission stands by every word written (4) S.C.C. 54 (=A.I.R. 1988 S.C.1768); Bar through its Chairperson to the Chief Minister Counsel of U.P. V. Union of India 1997 (3) advising him for constitution of State Human U.P.L.B.E.C. 1551; Misbah Alam Sheikh V. Rights Commission which, if constituted, State of Maharashtra 1997 (4) S.C. C.528 and would even reduce the workload of the High Tata Cellular V. Union 1994 (6) S.C.C. 651. Court in entertaining writ petitions concerning No reliance can be placed on the newspaper the subjects touching human rights. The claim report which are inadmissible. No contempt of privilege was made by the State much after was committed by the Chief Minister Sri passing the order for production of the Kalyan Singh or his Cabinet colleagues and documents so that we could not peruse them the contempt petition being thoroughly through the affidavit which is not in terms misconceived is fit to be dismissed of the decisions of the Supreme Court in State summarily. of Punjab V Sodhi Sukhedeo Singh A.I.R. 1961 S.C. 493 and Amar Chand Butail A.I.R. 19. By 12.1.1999 Mr. Jain concluded his 1964 S.C. 1658. It does not involve any policy replies who also pressed the petition filed for decision but the matter being of considerable initiation of proceedings in contempt against public importance touching the constitutional the cabinet including the Chief Minister of the 1ALL] People’s Union for Civil Liberties V. State of U.P. and others 41

State. He also addressed us in regard to the of a High Court, a member who has been or is petition dated 12.1.1999 filed for a Judge of a High Court, another Member impleadment of Sri Kalyan Singh as one of who has been or is a District Judge of our the respondents ‘for the facts and reasons State and two Members to be appointed from disclosed in the accompanying affidavit’ but amongst persons having knowledge of, or without serving a copy on Sri. H.P. Misra, practical experience in matters relating to learned Standing Counsel for the State and human rights and thereby an expert body. At the Chief Minister. In the affidavit the time when this Court had passed its order accompanying the application seeking for production of records no privilege was impleadment reference was made to several claimed; nothing has been produced by killings in the State and several X-rox copy of Respondent nos. 1 and 2 to show that the two paper clippings were also produced and requests made earlier by the Court and the referred to. interim Mandamus issued even by us have been ‘considered’. The attitude of Respondent 20. The judgement was reserved by us on no.2 the Chief Minister from his statements 12.1.1999. Thereafter we tried our level best that criminals have no rights etc. made to the to locate the reference of the case said to journalists from time to time, which are on have been filed before the Lucknow Bench the record, and which were not denied by but could not succeed partly due to the filing of any counter by him personally, is reason that Sri S.K. Agrawal, learned counsel crystal clear that he and/or his government for Respondent no.3 was elevated to the does not want to fulfil the legislative Bench in February, 1999. Thereafter we learnt intention enshrined in Section 21 of the Act from newspapers that some of the aspects by constituting State Human Rights touching this case had been pressed before Commission. Even resort to falsehood has another Bench by Sri Jain and in another writ been taken in the Counter filed on behalf of petition before the Lucknow Bench. Before Respondents nos.1 and 2 in stating that since we could deliver the judgement Sri Jain the decision was taken to constitute State desired to be heard further and the case was Human Rights Commission at a time when brought up for further hearing giving further the popular government was not in power but opportunities to him as well as learned when the state was under the presidential Rule Advocate General. inasmuch as after the decision taken by the Government, had in fact taken a decision for 20.1 Sri Jain contended interalia that as constitution of State Human Rights serious allegations have been made by the Commission which because of mere obstinity Petitioner against the Chief Minister of Sri Kalyan Singh is not being followed up Respondent no. 2 in view of the decision of to its logical end. The defence taken in regard the Supreme Court in R.P Kapoor V. Sardar to financial crunch is also of no significance Pratap Singh Kairon A.I.R. 1961 S.C. 1117, at all because the Chief Minister has formed a he owed a duty to file an affidavit stating the Zumbo Cabinet burdening the State exchequer correct position regarding the allegations and unnecessarily and the attitude of the State not to leave their refutation to the Secretary Government in regard to non-constitution is of the Departments who could speak only apparently callous and condemnable. He is from the Records and thereby the allegations seriously pressing the petitions filed for be accepted by us; that the Commissions initiating proceedings in contempt against the referred to by the Learned Advocate General/ then Chief Minister Sri Kalyan Singh and his Additional Advocate General are no substitute Cabinet colleagues as well as the application of State Human Rights Commission at all, seeking impleadment of the former. which has to consist of a former Chief Justice

42 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

21. The learned Advocate General (ii) negligence in the prevention of such appearing on behalf of Respondent Nos. 1 & 2 violation, repeated the arguments made earlier by Sri by a public servant; Yatinder Singh, the learned Additional Advocate General, who in the meantime was (b) intervene in any proceedings involving elevated to the Bench. He contended that no any allegation of violation of human rights contempt was committed by the then Chief pending before a court with the approval of Minister and his cabinet colleagues. The such court; petition seeking impleadment of the Chief (c) visit, under intimation to the State Minister is infructuous due to his resignation Government, any jail or any other institution and formation of the new Government under under the control of the State Government, the Chief Ministership of Sri Ram Prakash where persons are detained or lodged for Gupta which, however, is of the same view in purposes of treatment, reformation or regard to non constitution of S.H.R.C.. he protection to study the living conditions of the informed us that under section 30 of the Act inmates and make recommendations thereon; almost in every district Human Rights Courts have been established. In this regard Sri Jain (d) review the safeguards provided by or took up a stand that those courts are not under the constitution or any law for the time functional, to which the learned Advocate being in force for the protection of human General stated that those courts will be made rights and recommend measures for their functional expeditiously even by specifying effective implementation; the Special Public Prosecutors as contemplated under section 31 of the Act. (e) review the factors, including acts of terrorism, that inhibit the enjoyment of human 22. Our Findings :- rights and recommend appropriate remedial measures; 22.1 The purpose of the Act reads thus:- “An Act to provide for the constitution of a (f) Study treaties and other international National Human Rights Commission, State instruments on human rights and make Human Rights Commissions in States and recommendations for their effective Human Rights Courts for better protection of implementation; human rights and for matters connected therewith or incidental thereto.” (g) undertake and promote research in the From this the intention of the Parliament field of human rights; is crystal clear that S.H.R.C. is for better protection of human rights. (h) Spread human rights literacy among various sections of society and promote 22.2 Section 12 of the Act enumerates awareness of the safeguards available for the the functions of the commission, which reads protection of these rights through as follows:- “Functions of the Commission – publications, the media, seminars and other The Commission shall perform all or any of available means; the following functions, namely: - (i) encourage the efforts of non-government organisations and institutions working in the (a) inquire, suo motu or on a petition field of human rights; presented to it by a victim or any person on his behalf, into complaint of – (j) such other functions as it may consider (i) violation of human rights or abetment necessary for the promotion of human rights. thereof; or 1ALL] People’s Union for Civil Liberties V. State of U.P. and others 43

22.3 Section 13 of the Act states the other Commission duly constituted under any powers of the Commission relating to the law for the time being in force, the State enquiries into the complaints made under the Commission shall not inquire into the said Act and section 14 confers powers on it to matter: utilise the services of any officer or investigating agency of the State with its Provided further that in relation to the concurrence, as the case may be. Jammu and Kashmir human Rights Commission, this sub- section shall have 22.4 Sections 21 of the Act deals with the effect as if that for the words and figures ‘list constitution of State Human Rights II and List III in the Seventh Schedule to the Commission, which reads thus :- Constitution”, the words and figures “ List III in the Seventh Schedule to the Constitution as “Constitution of State Human Rights applicable to the State of Jammu and Commission – (1) A state Government may Kashmir and in respect of matter in relation to constitute a body to be known as …..( name which the Legislature of that State has power of the State ) Human Rights Commission to to make laws” had been substituted”. exercise the powers conferred upon, and to perform the functions assigned to, a State The Supreme Court in Premjit Kaur V. Commission under this Chapter. State of Punjab J.T. 1998 (6) S.C.338 had held N.H.R.C. to be a unique expert body in (2.) The State Commission shall consist of -- itself which is also a body sui juris created (a) a chairperson who has been a Chief under the Central Act for examining and Justice of High Court; investigating the question and complaints (b) One Member who is, or has been, a relating to violation of human rights, as also Judge of a High Court; the negligence on the part of any public (c) One members who is, or has been, a servant in preventing such violation. In our district Judge in that State; view the same distinction has to be conferred (d) Two members to be appointed from on S.H.R.C. also. amongst experience in, matters relating to human rights. 22.5 Section 22 of the Act deals with the appointment of the Chairperson and other (3) There shall be a Secretary who shall be members of the State Human Rights the chief Executive Officer of the state Commission on the recommendation of a Commission and shall exercise such powers committee consisting of persons enumerated and discharge such functions of the State therein, which reads thus :- Commission as it may delegate to him. “Appointment of Chairperson and other (4) The headquarters of the State members of the State Commission – (1) Commission shall be at such place as the The Chairperson and other Members shall State Government may, by notification, be appointed by the Governor by warrant specify. under his hand and seal : (5) A State Commission may inquire into violation of human rights only in respect of Provided that every appointment under this matters relatable to any of the entries sub-section shall be made after obtaining the enumerated in List II and List III in the recommendations of a Committee consisting Seventh Schedule to the Constitutions: of, -

Provided that if any such matter is already (a) the Chief Minister - Chairperson; being inquired into by the Commission or any

44 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

(b) Speaker of the Legislative Assembly- 24. Now we take up the submissions Member made by the learned counsel in regard to the (c) Minister in-charge of the Department of prayer no.1 of the petitioner i.e. for Home in that State Member constitution of U.P. State Human Rights (d) Leader of the opposition in the legislative Commission as envisaged under section 21 of Assembly - Member the Act.

Provided further that where there is a 25. We do not want to make our order Legislative council in a State, the Chairperson bulky by referring to various decisions cited at of that Council and the Leader of the the Bar by one or the other learned counsel Opposition in that Council shall also be which were read out before us. members of the Committee: 25.1 According to the learned Additional Provided also that no sitting Judge of a Advocate General Misbah Alam Sheikh High Court or a sitting district judge shall be (1997) 4 S.C.C. 528 is a direct decision appointed except after consultation with the where it was held that no Mandamus can be Chief Justice of the High Court of the issued in Policy matters to constitute a concerned state. commission. A perusal of the judgement shows, interalia, following things:- (I) A writ (2) No appointment of a Chairperson or a petition filed challenging the abolition of Member of the State Commission shall be Minority Commission set up by the State invalid merely by reason of any vacancy in Government was dismissed by the Bombay the committee.” High Court (ii) On appeal a notice was issued by the Supreme Court why the National 22.6 Section 29 of the Act talks of Commission should not take up the issue of jurisdiction/power of the S.H.R.C. to deal protecting the interest of the minorities in the with complaints by applying Sections 9,10 & State of Maharashtra . (iii) The Central Govt. 12 to 18 with suitable modification. filed an affidavit that it had undertaken to establish branch of the National Commission 23. We take up Prayer no.2 of the petitioner at Mumbai. (iv) Due to want of statutory first in view of the stand taken regarding compulsion the State cannot be directed by a Section 30 of the Act. mandamus to constitute Commission or to reconstitute it once abolished. (v) Under these 23.1 In view of the fair Stand of the learned circumstances no compelling reason was Advocate General noted in paragraph no.21 found warranting interference. supra we dispose of prayer no. 2 of the petitioner as follows :- Let further steps be 25.2 Here the position is somewhat different. taken by the State Government for specifying A Chief Minister because of his position as for each district a Court of Sessions to the leader of the Party in power is expected to Human Rights Courts in terms of Section 30 influence his Cabinet to accept his views. The of the Act expeditiously within three months allegation made by the petitioner against the from today and specify a Special Public Chief Minister (Respondent no.2) have not Prosecutor or appoint an Advocate as a been denied by him in terms of the decision of Special Public Prosecutor for the purposes of the Supreme Court in Kairon’s case A.I.R conducting cases of Human Rights Courts 1961 S.C. 1117 as rightly argued by Mr. Jain. aforementioned within 8 (Eight) weeks from The legal position is that facts not disputed today under section 31 of the Act. are so deemed to have been admitted though it is open for a person to show that the 1ALL] People’s Union for Civil Liberties V. State of U.P. and others 45 allegations are so absurd that they should not effectively by the four Commissions created be believed. Here there is section 22 of the by our State as strenuously urged by the Act under which S.H.R.C. is required to be learned Advocate General/Additional constituted by a State Government though in Advocate General in preference to S.H.R.C. its discretion whereas under the National Our answer is a definite no. The reason is Commission for Minorities Act, 1992 there is obvious. Under section 21 of the Act S.H.R.C. no such provision enabling the State is manned by its Chairperson who has to be Government to constitute Minority an Ex-C.J. apart from 4 Members out of Commission. The State Government was whom one has to be sitting or an Ex – High party to ‘Uttarakhand’ & Maheshwari’ and Court Judge, the other has to be a sitting or an the requests made therein by this Court could Ex-District Judge and the remaining two not be lightly taken. It did not go up before having knowledge of, or practical experience the Supreme Court against the directions in matters relating to human rights, which as issued by the High Court. It cannot lightly held by the Supreme Court, is an expert body. brush aside or ignore the Mandamaus already The 4 Commissions and the Lokayukt can by issued. This decision is thus, of no help to no stretch of imagination be equated with Respondent nos. 1 and 2. S.H.R.C. Thus, it can not be said that the existence of the 4 commissions 26. Human Rights jurisprudence is of aforementioned and the Lokayukt obviated recent growth. We do not want to make our the need of S.H.R.C. order more bulky by referring to various aspects pointed out in several books and 28. True it is that Article 166(3) of the Article published in our Country as well as in Constitution forbids an enquiry in regard to other Countries highlighting the necessity of the advice tendered by the Cabinet to the protection of such rights. Relevant in this government. We were/ are not interested in regard is the very purpose stated in the very regard to that advice. No one suggested either. beginning of the Act itself stated earlier. Thus such is not a case here at all. The law permits us overruling of privilege claimed and 27. On the spectrum of Human Rights, perusal of government records, barring advice which are the very essence of human life, part, in a given case in public interest. (See there are manifold subjects enumerated in list State of Punjab V Sodhi Sukhdeo Singh A.I.R II/III of the Seventh Schedule of the 1961 S.C. 493; Amar Chand Butail V Union Constitution. Some of the general topics are of India A.I.R 1964 S.C.1658 and S.P Gupta ‘Inhuman Existence’, Freedom of Religion’, V. Union of India A.I.R. 1982 S.C. 149). The Right to privacy and Information’, ‘Legal facts and circumstances including the public Aid’, ‘Clean and wholesome Environment’, interest involved for constitution of S.H.R.C. ‘Custodial violence’, ‘Torture,’ ‘Terrorism, compels us to look to the government records. ‘Gangestorism’, ‘Prisoner’s right/Prison We accordingly, reject the petition claiming Justice,’ ‘Capital Punishment,’ ‘ Atrocities privilege and perused the two records. After against Women’, ‘Child Abuse,’ ‘Right of perusal we find that unfortunately the records Child,’ Atrocities of Scheduled Caste and have not been produced in their entirety Scheduled tribes,’ ‘Right of Minorities,’ inasmuch as we do not find on the record as to ‘Right of Juveniles’. The S.H.R.C. is vested how the matter was considered by the Cabinet with the power to enquire into violation of and what had happened allegedly on human rights in aspects of matters reliable to 22.10.1998 in the Cabinet meetings or any of the entries enumerated in list II and thereafter so as to have a judicial review of List III in the Seventh Schedule of the the decision of the government. Constitution. Can they be dealt with

46 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

28.1 Be that as it may, the material 29. Apparently the 2nd request made by constituting the records of the Government the Court in ‘H.K. Maheshwari’, to which the discloses, interalia, the following facts :- State Government was a party, for constitution of State Human Rights (i) Pursuant to the orders passed by the High Commission has not at all been considered as Court in CM.W.P. No 32984 of 1994 it appears from the Records as produced. How Uttarkhand Sangharsh Samiti, Mussoorie and in what circumstances the Court had Versus State of U.P. State Human Rights proceeded to make repeated requests stands Commission was constituted. fully discussed in the judgement in ‘Uttarkhand’ and ‘H.K. Maheshwari’ which (ii) A committee was also constituted by the need not be repeated by us. We gave State Government under section 22 of the Act opportunity to the State to consider the matter. for the purpose of appointment of The word ‘consider’ has been explained by Chairperson and 4 Members of the the Supreme Court in a number of decisions. commission as required under section 21 of One of such decision is Ram Chander V. the Act by a popular Government of which Union of India A.I.R. 1986 S.C. 1173 in Miss Mayawati was the Chief Minister on which it was held to mean an objective 10.5.1997. Even letters were issued to the consideration after due application of mind Members of such Committee. which implies giving of reasons for its decision. (iii) The then Chief Mister Miss Mayawati vide her order dated 12.6.1997 directed 30. Following the 1st Mandamus issued production of records along with the list of by this court in ‘Uttarkhand’ a Notification suitable persons for appointment of the was made under section 21 of the Act during Chairperson and the Members of the S.H.R.C. the President’s Rule which was succeeded by Miss Mayawati’s Government supported by (iv) Even the then Home Minister of the the B.J.P. Miss Mayawati’s government was Govt. of India Sri Indrajit Gupta had written thus a popular government which had even letter dated 15.1.1998 to the Chief Minister proceeded to take steps in terms of Section 22 Sri Kalyan Singh for constitution of the State of the Act. Thus it was wrong on the part of Commission. Respondent nos. 1 and 2 to take up a stand in the Counter and during submission that since (v) In regard to this writ petition it was noted the decision was taken during the Presidential that keeping in view the financial reasons etc. Rule and Thus after the popular government of the State, where there are already Schedule came in power it rightly proceeded to consider Caste/Schedule Tribes Commission, the desirability of constitution of State Backward Commission and Minority Human Rights Commission and came to a Commission, constitution of State Human conclusion that it will not be beneficial to do Rights Commission will not be of special so. It is not even for a moment suggested that advantage. it was not open for Sri Kalyan Singh’s government to reconsider the decision taken (vi) The topic for discussion was included in by his predecessor Miss Mayawati’s the agenda of the Cabinet Meeting to be held government which had proceeded to on 22.10.1998, but in the absence of any constitute State Human Rights Commission material it is not known whether it was in fact under section 21(1) of the Act and a discussed or not. Committee under section 22(2) of the Act.

1ALL] People’s Union for Civil Liberties V. State of U.P. and others 47

31. In Union of India V. S.P. Anand was in any event not fair and /or proper. It (1998) 6 S.C.C. 466 the Supreme Court held was well known to the Government that the that a question regarding justifiability can only question till then was as to whether the arise only in respect of an action that has been Government should proceed to obtain the taken under the Constitution or a law. In recommendations of the committee already Supreme Court Advocate on Record V. Union constituted under section 22 (1) of the Act and of India 1993 (4) S.C.C. 441 it was held by proceed to make the already constituted U.P. the Supreme Court that direction can be State Human Rights Commission functional issued to fulfil the State obligation of which was not made known to us. The State providing speedy justice. Even in Altemesh cannot act as an ordinary litigant and in the Rein relied upon by Sri Singh the Supreme words of the present Hon’ble C.J.I. the action Court went to the extent of holding that every of the State, however, must be right, just and discretionary power vested in executive fair vide his speech made on September should be exercised in a just, reasonable and 27,1999 at Vigyan Bhawan Printed in 1999 fair way and that Court cannot allow the (3) S.C.C. journal 10. This Court will be Government to leave the matter to lie without failing in its duty in not correcting the acts/ applying its mind to the question. Tata omissions/commission of the State Cellular, Strongly relied upon by the learned Government if it refuses to act as per the Additional Advocate General, also laid down constitutional mandate and /or the other to the effect that the Government is the Acts/laws. Even conceding that the state guardian of the finances of the State and is government possessed powers to nullify the expected to protect its financial interest yet earlier Notification, we in the peculiar facts the Courts concern regarding its power of and circumstances are of the view that it was judicial review should be whether it done arbitrarily. Beyond this we do not want committed an error of law and abused its to say in this regard. We are of the view that powers. Thus, we hold that the decision of the the State Government should have taken the State Government under Section 22 of the Act repeated requests of this Court seriously and not to constitute S.H.R.C. is justiciable. the views expressed by the Chairperson of N.H.R.C. not lightly and refused to constitute 32. As laid down by the Supreme Court the State Human Rights Commission, an in H.C. Suman V. RENEC Home Building Expert Body, the avowed object for which it Society A.I.R. 1991 S.C. 2160 rescinding of was required to be statutory constituted. We an earlier Notification made pursuant to a find in this context that the state is blowing judicial order cannot be done in an arbitrary hot and cold in the same breath inasmuch as manner. The common Judgement dated on the one hand it had proceeded to specify 18.12.1996 of the Supreme Court in Writ Human Rights courts almost in every district Petition (Crl) No. 539 of 1986 D.K. Basu V. by now under section 30 of the Act but on the State of West Bengal and Writ Petition (Crl.) other hand refuses to constitute State Human No. 592 of 1987 Ashok K. Johri V. State of Rights Commission for the State under U.P. arising out of our own State reported in Section 20 of the Act. We also note that much A.I.R. 1997 S.C. 610 belies the tall claim was convassed about the word ‘may’ used in made by Respondent Nos. 1 & 2 in their section 21(1) of the act by the learned counsel counter in regard to the following of the but having regard to the peculiar facts and provision of Code of criminal Procedure etc. circumstances we are of the view that it We accept the entire arguments of Sri S.K. cannot refuse to exercise its discretion Agarwal in this regard and hold that arbitrarily and discriminatory. We are rescinding and / or nullifying the earlier anguished to make such remarks but we are Notification under section 21(I) of the Act left with no option. We find an apparent

48 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 fallacy in the main defence that there being today for obtaining the recommendations of several Commissions, Lokayukt and as the the statutory Committee constituted under departments in Home/Police are looking into section 22 (1) of the Act and to proceed to Human Rights violations, there is no necessity make the appointment in terms of section 21 to have S.H.R.C. The other ground namely. (20) and (3) of the Act within three months Financial crunch also does not appeal to us. from today. Both defences are thus rejected. Its decision is not only arbitrary but discriminatory which is 35. The Word ‘contempt’ stands defined writ large. under the Contempt of Court Act. Having regard to the peculiar facts and circumstances 33. The present State Government has we are of the view that no contempt at all was taken a stand before us that it is also not in committed by the then Chief Minister Sri favour of constituting S.H.R.C. it was thus Kalyan Singh who has also resigned, and his rightly contended by Mr. Jain that thus no Cabinet Colleagues, who have also not been useful purpose will be served for directing it impleaded and that no useful purpose will be to consider this matter and this Court cannot served by his impleadment more so when this remain a silent spectator; and it is required to case has been heard and re-heard to its full create new tools and avenues to achieve the extent. Accordingly, the petitions, seeking avowed objects regarding Human Rights. In initiation of proceedings in contempt under fact in Neelabati Behra V. State of Orissa Article 25 of the Constitution of India against A.I.R. 1993 S.C. 1960 the Supreme Court has the then Chief Minister Sri Kalyan Singh and held that as a protector of Human Rights it is his Cabinet colleagues and impleadment of the Constitutional object of the Supreme Sri Kalyan Singh, both are dismissed. Court and the High Court to forge new tool and invent new remedies to grant relief of 36. This writ petition is disposed of enforcement of Fundamental Rights. The accordingly but without cost. judgment of the Supreme Court in Common Cause V. Union of India 1992 (1) S.C.C. 707 37. Let the records produced by the State cannot be said to be irrelevant where Government be returned forthwith to the directions were issued for establishing learned Advocate General and / or the learned consumer Forums under the Consumer Standing Counsel Sri H.R. Mishra. Protection Act. The 9 Judges Judgment of the Supreme Court in the Judges case A.I.R 1994 38. The Office is directed to hand over a S.C. 268 that a writ could be issued for X-rox or Computerised copy of this order fixation of judges strength in the High Court latest by tomorrow dated 13th January, 2000 and its justiciability is also relevant. The to the learned Advocate General and /or Sri decisions relied upon by the learned H.R. Misra, the learned Standing Counsel of Additional Advocate General on the other the State for its intimation to and follow up hand are distinguishable. action.

34. We, accordingly, exercising our 39. The office is also directed to dispatch constitutional powers enshrined under Article a similar copy to Respondent no. 3 by Post 226 of the Constitution of India quash the within one week, as its learned counsel Sri Subsequent Notification nullifying the First S.K. Agrawal with his elevation to the Bench Notification as contained in Annexure –1 to has ceased to be its counsel. the Affidavit of the General Secretary (Home) and direct the State Government to take  expeditious steps within three months from 1ALL] C/M, J.S.R. K. Inter College & another V. Joint Director of Education & others 49

$33(//$7( -85,6',&7,21 ZKR KDG DOUHDG\ DWWDLQHG WKH DJH RI &,9,/ 6,'( VXSHUDQQXDWLRQ SDUD  '$7(' $//$+$%$' '(&(0%(5   By the Court %()25( 7+( +21·%/( 55. 75,9(', - 1. As in both the aforesaid special appeals 7+( +21·%/( 0& -$,1 - the controversy involved is similar, they can

6SHFLDO $SSHDO 1R  RI  be disposed of by a common order against which learned counsel for the parties have no &RPPLWWHH RI 0DQDJHPHQW -DJGLVK 6DUDQ objection. Special appeal no. 619 of 1999 5DMZDQVKL .DQ\D ,QWHU &ROOHJH 0HHUXW DQG shall be the leading case. DQRWKHU «$SSHOODQWV 9HUVXV 2. The facts, in short, giving rise to special -RLQW 'LUHFWRU RI (GXFDWLRQ ,VW 5HJLRQ appeal no. 619 of 1999 are that the post of 0HHUXW DQG 2WKHU¶V «5HVSRQGHQW principal of Jagdish Saran Rajvanshi Kanya

&RXQVHO IRU WKH $SSHOODQWV Inter College, Meerut (hereinafter referred to 6KUL *. 6LQJK as the college) fell vacant on account of 6KUL $3 6DKL retirement of Smt. Sarala Bansal. This 6KUL 51 6LQJK vacancy was communicated to the U.P. 6KUL $UXQ 7DQGRQ Secondary Education Service Commission under the provisions of U. P. Secondary &RXQVHO IRU WKH 5HVSRQGHQWV Education Services and Selection Boards Act, 6KUL :+ .KDQ 1982 (hereinafter referred to as the Act) and 6KUL .3 %DMSDL the rules framed thereunder. The commission 6& in its turn advertised the post inviting applications vide advertisement no.1, 1995- 5HJXODWLRQ  RI WKH ,QWHUPHGLDWH (GXFDWLRQ 96. Large number of persons applied in $FW2QFH D WHDFKHU KDV DWWDLQHG WKH DJH RI pursuance of the aforesaid advertisement. The VXSHUDQQXDWLRQ  KH KDV QR YHVWHG ULJKW WR FRQWLQXH LQ VHUYLFH 7KH RUGHU RI commission having interviewed two senior DSSRLQWPHQW FDQQRW EH LVVXHG LQ IDYRXU RI most teachers of the institution and also the VXFK WHDFKHU WKRXJK VHOHFWHG IRU WKH SRVW E\ candidates who had directly applied and after WKH FRPPLVVLRQ DIWHU DWWDLQLQJ WKH DJH RI completion of the selection proceedings VXSHUDQQXDWLRQ 7KH HGXFDWLRQDO DXWKRULW\ notified the panel of selected candidates on DV ZHOO DV WKH FRPPLWWHH RI PDQDJHPHQW 15.4.1997. The panel recommended by the ZHUH QRW MXVWLILHG LQ LVVXLQJ WKH OHWWHU RI commission was as under: DSSRLQWPHQW LQ IDYRXU RI D WHDFKHU IRU WKH SRVW RI SULQFLSDO ZKR KDG DOUHDG\ DWWDLQHG WKH DJH RI VXSHUDQQXDWLRQ ➣ Maya Rani Goel (respondent no. 3 in +HOG appeal), 2QFH D WHDFKHU KDV DWWDLQHG WKH DJH RI ➣ Smt. Shashi Sharma (respondent no. 4 VXSHUDQQXDWLRQ LQ RWKHU ZRUGV DJH RI  in appeal), and

50 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 panel was recommended on 15.4.1997 of following three names:- In respect of S.S.D. Balika Inter College, Lal Kurti, Meerut Smt. Shantosh Khurana ➣ Smt. Santosh Khurana, who was recommended at serial no. 1 in the ➣ Smt. Saroj Yadav ( appellent in special panel for the post of principal attained the age appeal appeal no 539 of 1999), and of superannuation on 15.12.1998. It may be ➣ Smt. Shashi Sharma ( respondent no. 4 clarified that her date of birth was 15.12.1940 in special appeal no. 619 of 1999). but she was to attain the age of superannuation after completing 58 years of 4. It is not in dispute that on account of age on account of option exercised by her various interim orders passed by this Court in earlier. writ petitions, some of which were of general in nature, prohibiting the implementation of 5. The writ petitions and special appeals panel dated 15.4.1997 the authorities did not challenging the panel dated 15.4.1997 were take any action as required under the Act and considered and decided finally by this Court the rules for implementation of appointment by the Judgment dated 6th October, 1998 of selected candidates from the panel dated reported in (1998) 3 UPLBEC 989, Balak 15.4.1997. In the above circumstances the Singh Kushwaha vs. State of U.P. & others. committee of management vide resolution no. About panel prepared and notified by the 7 of 20” June, 1997 authorised Smt. Maya commission following order was passed:- Rani Goel to work as officiating principal “The selection made by the commission .Though, the committee also took notice of and the panel prepared and notified on the fact that she had been selected by the 15.4.1997 is not affected in any way by the commission for appointment as regular Government notification dated 17.4.1997. The principal and her name is at serial no. 1 in the panel shall be implemented by the educational panel. It was also said in the resolution that authorities in accordance with law without after completion of legal formalities she will further delay. The writ petitions of group 3 ultimately get the aforesaid office. In seeking implementation of the aforesaid pursuance of the aforesaid resolution Maya panels are thus, allowed and decided Rani Goel, respondent. No. 3 started accordingly. The writ petitions belonging to discharging functions of the principal w.e.f. the 4th group challenging the panel dated 1st July, 1997. She attained the age of 15.4.1997 are dismissed. superannuation on 7.8.1998 but she was allowed to continue in the office in view of 6. After the Judgment dated 6.10.1998 a the regulation 21 of Chapter 3 which provides letter dated 21.8.1999 was written by the that age of superannuation for principal and District Inspector of Schools to the manager teachers and other employees shall be 60 of the college for making appointment of the years but if the date of superannuation falls selected candidate namely Smt. Maya Rani between 2nd July and 30 June then there will Goel. Thereafter committee of management be automatic extension of service up to the on 30.1.1999 issued letter of appointment in close of academic session i.e. 30th June so that favour of Smt. Maya Rani Goel appointing alternative arrangement may be made by the her principal on regular basis on the basis of committee of management during summer the selection made by the commission. vacation for the new academic session Aggrieved by the aforesaid orders of District commencing from the month of July. By Inspector of School and the committee of virtue of the aforesaid regulation Maya Rani management respondent no. 4, Smt. Shashi Goel continued in the office upto 30th June , Sharma who was placed at serial no. 2 in the 1999. panel filed writ petition no. 12607 of 1999

1ALL] C/M, J.S.R. K. Inter College & another V. Joint Director of Education & others 51 challenging the appointment of respondent. 8. We have heard Shri R.N. Singh, learned No. 3, Smt. Maya Rani Goel on the ground Senior Advocate for the appellant in special that as she had already attained the age of appeal no. 619 of 1999 and Shri W.H. Khan, superannuation the order of appointment learned counsel appearing for respondent no. could not be issued in her favour and she 4 and learned standing counsel. We have also being shown at second place in the panel heard Shri Arun Tandon for the appellant in should have been appointed as regular special appeal no. 539 of 1999 and Shri K.R. principal. Learned Single Judge disposed of Bajpai and learned standing counsel for the this writ petition by the order dated 28.7.1999 respondents. directing that the petitioner who has been selected for the post of principal shall be 9. After hearing counsel for the parties, in permitted to function as principal of the our opinion, the short but interesting question institution in question. Learned Single judge which is required to be determined in these also gave liberty to committee of management appeals is as to whether an order of to make representation before the Director of appointment could be legally issued in favour Education in respect of their contention that of the candidate shown at serial no.1 in the respondent no. 4, Shashi Sharma was not panel after she had attained the age of qualified for the post. Aggrieved by this superannuation. The facts are not much in Judgment of learned Single Judge committee dispute in both the aforesaid cases. For of management and manager of the college answering the aforesaid legal question it is have filed special appeal no. 619 of 1997. necessary to consider the nature of right to continue in the office even after attaining the 7. The management of S.S.D. Balika Inter age of superannuation under regulation 21 of College Lal Kurti, Meerut also issued order of chapter of the Regulations framed under the appointment in favour of Smt. Santosh Intermediate Education Act. The regulation Khurana on 2.2.1999 though she had already 21, which is in Hindi, is being reproduced attained the age of superannuation. The Below; appellant, Smt. Saroj Yadav aggrieved by the aforesaid action filed writ petition no. 18232 8“21.  6 ‚ ž _ Y [ Y‚ ^ % (  Y‚ ^ % ( L O  [‚ of 1999 in this Court in which interim order % (· ž6 ¡ ‚ ¼ % (  ¡Y ‹ „ ž  ‹ „ ž F »0 ‚ ¡Q ¡% (‘ ©  6 ‚ ž was passed and order of appointment dated _ Y [ Y‚ ^ % (  O ‹  Y‚ ^ % ( % ( ^ ‚ ž­% 'L  ¡Y ‹ „ ž ‹ ‚  2.2.1999 in favour of Smt. Santosh Khurana 9 ­º ž  ¿  9 ±[ % (» · Y‚ · ¼ ¡% (‘ © ¡L ¡O % ( » ^ EL F¿ L » was stayed. This interim order was further ‘ » ‘ Q % ( » 8 »E% ( 9 } ¡% ( ‹ F ‘‹ ‚  ‘ »‹ ¡‹ ‘L K [ extended on 25.5.1999. However during º »[ » F»L ­ ¡º ¡- L ‘ ±6 [  ^ [ »  ¡Y ‹ „ ž ‹ ‚ % ( © ¡L ¡O ‘ »  pendency of the aforesaid writ petition · F ^ ±‹ ž Q» Q¼  9 ±[ L % ( ‘ »‹ ¡‹ ‘L K ‘‹ ‚ · »‹ _ Q [ respondent no. 1, Smt. Madhu Chaurasia field ¡% (‚ ‚ ‘ · = 9 ‚ »0 L ¡% ( 2 ©„· ‹ % (  % (» ^ [L writ petition no. 30304 of 1999 and obtained 9 ­º ž · ¼ _ ¡L ‘O [ ¼ % ( © %‚ ‹ ‘O F » ‘ % (» ‘ % (»  ¡L ¡ % 'L interim order dated 23.7.1999 which reads as ‘ »‹ ¡‹ ‘L K % (»‹ º [F ª ¡‹ ¡ „@ Q  » · ¼ _ Q [ ¡% (‚ under :- 9 ‘ % (»0 9 » 9‚ ‘ % ( X ¡[ Y ž ¡ L % ( © 9 ‚

“Until further order petitioner shall be XXXXXXXXXXXXXXXXXXXXXX” permitted to function as adhoc principal in the institution in question.” 10. From the perusal of the aforesaid

regulation 21 it is apparent that the object Aggrieved by this order of learned Single behind granting automatic extension of judge special appeal no. 539 of 1999 has been service up to the end of academic session is to filed, protect the academic interest of the students of

the institution. But for such arrangement there

52 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 could be absence of teacher during the the letter of appointment in favour of the next academic session which may cause loss to the candidate shown in the order of preference. students as the management may not be able to make arrangement so swiftly. The 12. The submission of learned counsel for regulation itself contemplates that during the appellant is that on the letter of summer vacation alternative arrangement appointment issued in favour of the candidate could be made for the next academic session shown at serial no.1 in the panel commencing from 1st July. Thus, it is the recommended by the commission, the panel benefit conferred on the teacher in the interest exhausted and it could not be used for giving of students and the institution and it does not appointment to the next candidate mentioned create any vested right or lien against the post. in the panel in order of preference. In our The Division Bench in the case of R.L. Prasad opinion, the submission cannot be accepted vs. State of U.P. and others, 1987 AWC 1314 for more than one reason. Firstly, as discussed after considering the legal position in respect above, after the teacher attained the age of of such extension of service held under :- superannuation a letter of appointment could not be issued by the management and this “We respectfully agree with the decision exercise of issuing letter of appointment in given in the case of D.N. Dhar (supra). The favour of such teacher was futile exercise and mere fact that after the date of void ab initio and could not affect the panel superannuation an extension has been in any manner. This Court in the case of granted under the regulations to the teachers Kishori Raman Shiksha Samiti, Mathura vs. in the interest of students, no vested right is Regional Deputy Director of Education, Agra, created in the teachers to continue in service (1994) 1 UPLBEC 248 considered in detail till a particular date.” the circumstances in which the panel shall survive for the benefit of next candidate 11. From the aforesaid discussions it is shown in the order of preference. The relevant clear that once a teacher has attained the age paragraph 11 of the judgment is being of superannuation, in other words age of 60 reproduced below:- years or 58 years, as the case may be he has no vested right to continue in service. The “11. Thus for ascertaining the true order of appointment, thus, could not be legislative intent the meaning of the words has issued in favour of such teacher though to be understood with the context and selected for the post by the commission, after reference in which the provisions have been attaining the age of superannuation. In our made. Sub-section (5) of Section 11th of the opinion, the educational authorities as well as Act contains the provision dealing with committee of management were not justified situation which has given rise to the present in issuing the letter of appointment in favour dispute. There is no dispute so far as first of teacher for the post of principal who had situation contemplated under sub Section (5) already attained the age of superannuation. of Section 11 of the Act is concerned and if Under no provision of the Act or the the candidate failed to join the institution Regulations such action can be justified as the within the time allowed or even within such panel became ineffective and it was not extended time which the management may required to be implemented in respect of allow in this behalf, the authorities could candidate who had already attained the age of direct management to issue letter of superannuation. The only step required by the appointment in favour of candidate mentioned authorities of the education department and at second place in panel. However, so far as the committee of management was to issue the second situation where such candidate is otherwise not available for appointment as a 1ALL] C/M, J.S.R. K. Inter College & another V. Joint Director of Education & others 53 teacher, is material for resolving the present attains the age of superannuation and as the controversy. The scheme and object for which candidate shown at serial no.1 could not be Section 11 of the Act exists in the Statute made available for appointment for the reason book is to make available the selected of her attaining the age of superannuation the candidate for appointment on the post of only course open could be to offer principal or Teacher in educational institution. appointment to the next candidate mentioned The aforesaid provision or sub Section (5) the in the panel. The aforesaid view was phrase “ where such candidate is other wise confirmed by the Division Bench in special not available for appointment as such teacher” appeals reported in (1994) 2 UPLBEC 1320. contains some words of very wide meaning Paragraph 13 of the judgment is being and also some words of narrow meaning. The reproduced below :- words ” other wise not available” have very “13. Looking to the over all facts and wide meaning, meaning, covering all kinds of circumstances of the case, specially the fact situation including death and other physical that Smt. Kusum Srivastava died within five injury which may render candidate not days of her joining and that the name of Smt. available to the institution for appointment as Zubairi finds place at Serial no. 2 in the panel teacher. However, the word “appointment” which was prepared for the same post, we do contains narrow meaning. The question is not think that it is a fit case where we should whether the word” appointment” used in the exercise jurisdiction under Article 226 of the aforesaid phrase should be given its plain Constitution of India on purely technical meaning or it should also be given a wider grounds which have been raised to thwart the meaning. The maxim “noscitur a sodis” will orders passed by education authorities to have to be applied in such circumstances to deprive Smt. Zubairi of the right to work as ascertain correct legislative intent, which principal of the College. The affect of means that the meaning of word should be accepting the contention raised by the judged by the company it keeps. In my appellant would be that the institution would opinion, in sub Section (5) as the word continue to be headed by an adhoc or ‘appointment’ denotes to make available for officiating principal for a long period who the work of teaching, and as it has been used would be appointed at the sweet will of the with words ‘other wise not available,’ having management and such an appointment would for wide meaning it should also be given and not be conducive for maintaining proper understood, in wider sense so as to include academic atmosphere in the institution. An situation where candidate is not available for institution is run for imparting education to work as teacher. This phrase thus may be large body of students and it is their interest interpreted and construed so as to cover even which is supreme and not the remote chance the situation where the teacher is not available of a lecturer to work as principal.” to work even after appointment and joining the post on account of death etc. Such 14. It is also not disputed that aforesaid interpretation can be given to the aforesaid judgments of this Court were challenged phrase without causing any violence to the before Hon’ble Supreme Court but Special scheme and object of the Act and the context Leave petition was rejected by the Apex and reference in which it has been used. Court. The judgment of Division Bench of this Court in the case of Nagar Palika Inter 13. If the present controversy is considered College, Jaunpur vs. Dr. Havaldar Singh and in the light of the aforesaid judgment the others, 1996 (1) ESC 252 (Allahabad) and the phrase ‘where such candidate is other wise not judgment of Hon’ble Supreme Court in the available for appointment as such teacher’, case of Uma Kant vs. Bhika Lal Jain and shall cover the situation where the candidate others, ( 1992) 1 SCC 106 may also be quoted

54 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 with advantage Hon’ble Supreme Court in the 17. So far as special appeal no. 539 of case of Uma Kant (supra) held in para 7 as 1999 is concerned, it is not disputed that Smt. under :- Madhu Chaurasia was considered by the “7 xxxxxxxxxxx It is not in dispute that the commission for appointment as principal as main list and the reserve list prepared by the senior teacher but was not selected. Smt. Selection Committee on June 20, 1989 were Santosh Khurana, admittedly, attained the approved by the Syndicate. We agree with the age of superannuation on 15.12.1998. Thus, contention of the university that a reserve list the appellant, Smt. Saroj Yadav selected and is always prepared to meet the contingency of recommended by the Commission and shown anticipated or future vacancies caused on at serial no. 2 in the panel became entitled for account of resignation, retirement, promotion appointment and her appointment could not of otherwise. This is done in view of the fact be stayed at the instance of Smt. Madhu that it takes a long time in constituting a fresh Chaurasia in view of the order of Hon'ble Selection Committee which has a Supreme Court has passed in Special Leave cumbersome procedure and in order to avoid petition no 19035- 38 of 1998, and 19178 of adhoc appointments keeping in view the 1998. The order of Hon’ble Supreme Court interest of the student community. reads as under :- Xxxxxxxxxxx” “ORDER” 15. Thus, the contention raised on behalf Issue notice. of the appellant considered from every angle cannot be accepted. In the present case it is Mr. E.C. Vidya Sagar, learned counsel undisputed that the panel prepared and accepts notice on behalf of the respondents/ notified by the commission on 15.4.1997 Caveator in S.L.P. (c) Nos./ 19035-38,19178 could not be given effect on account of & 20225 of 1998. various interim orders passed by this Court in writ petitions. Only after the judgment dated Three weeks time is granted to the 6.1.1998 the authorities could initiate action respondents to file counter affidavit. Two for implementation of the panel under Section weeks there after is granted to learned counsel 11 of the Act. Before the steps could be taken for the petitioners to file rejoinder List in the the candidate mentioned at serial no. 1 in the last week of January, 1999. panel in both the cases, had already attained the age of superannuation. Thus, the only It is specified that all those petitioners course open was to offer appointment to the whose names were sent to the U.P. Secondary candidate next in the order. Education Services Commission and who were not found fit and were not selected are 16. For the reasons stated above, the not being granted any interim relief. The special no. 619 of 1999 filed by the committee appointment, if any made, in the meantime in of management and the manager has no merit pursuance of the recommendation of the and is accordingly dismissed. Respondent commission, shall be subject to the ultimate no.1, Joint Director of Education, 1st Region, decision of these S.L.Ps. Meerut, respondent no. 2, District Inspector of Schools, Meerut and committee of It is also clarified that adhoc principal management shall take immediate steps to working in colleges for which no selected appoint Smt. Shashi Sharma as the principal candidate has been made available by the of the college for which she was selected and commission shall be allowed to continue until recommended by the commission. further orders.”

1ALL] H.S. Bhatnagar V. In the matter of property of Shri Jyoti Swaroop Bhatnagar 55

VHFWLRQ  RI WKH 6XFFHVVLRQV $FW ,Q FDVH 18. In view of the aforesaid order of WKH ([HFXWRU KDV QRW EHHQ DSSRLQWHG WKH OHWWHUV RI $GPLQLVWUDWLRQ LV WR EH JUDQWHG WR Hon’ble Supreme Court Smt. Madhu DQ XQLYHUVDO RU UHVLGXDU\ OHJDWHH XQGHU Chaurasia was not entitled for any interim VHFWLRQ  RI WKH $FW order from this Court. As she has not been selected by the commission she has no right to +HOG resist the claim of Smt. Saroj Yadav who has been selected and recommended for 7KH SUREDWH LV JUDQWHG RQO\ WR DQ H[HFXWRU DSSRLQWHG E\ WKH ZLOO DV SURYLGHG XQGHU appointment as principal of S.S.D. Balika VHFWLRQ  RI WKH $FW ,Q FDVH WKH H[HFXWRU Inter College, Lal Kurti, Meerut. The special KDV QRW EHHQ DSSRLQWHG WKH OHWWHUV RI appeal no 539 of 1999 is accordingly allowed. DGPLQLVWUDWLRQ LV WR EH JUDQWHG WR DQ The order dated 23.7.1999 passed by the XQLYHUVDO RU UHVLGXDU\ OHJDWHH XQGHU VHFWLRQ learned Single Judge is set aside. Respondent  RI WKH $FW ,Q FDVH WKH SHUVRQ ZKR KDG no. 2 District Inspector of Schools, Meerut, DSSOLHG IRU SUREDWHOHWWHUV RI DGPLQLVWUDWLRQ GLHV WKHUH DUH WZR FRXUVHV RSHQ HLWKHU WKH respondent no. 3, Joint Director of Education st SURFHHGLQJV EH GURSSHG RU SHUPLWWHG WR EH 1 Region, Meerut and respondent no. 5, FRQWLQXHG E\ D SHUVRQ ZKR VKDOO RWKHUZLVH committee of management, S.S.D. Balika EH HQWLWOHG IRU SUREDWHOHWWHUV RI Inter College, Lal Kurti, Meerut are directed DGPLQLVWUDWLRQ 3DUD  to give appointment to Smt. Saroj Yadav without any further delay. By the Court

19. However, in both the appeals there 1. This is an application for deletion of the will be no order as to costs. name of Sri Hemendra Swaroop Bhatnagar,  the plaintiff and substitute the name of M.S. $33(//$7( -85,6',&7,21 Bhatnagar in his place and there is a further &,9,/ 6,'( prayer to substitute the name of Satyendra '$7(' $//$+$%$'  Kumar Bhatnagar also in addition to M.S. %()25( Bhatnagar. 7+( +21·%/( 68'+,5 1$5$,1 - 2. Briefly stated, the facts are, that Jyoti &LYLO 0LVF 6XEVWLWXWLRQ $SSOLFDWLRQ 1R  Swarup Bhatnagar had no issue. He had one RI  brother Har Swarup Bhatnagar. Har Swarup ,Q Bhatnagar expired in the year 1923 leaving 7HVWDPHQWDU\ VXLW 1R  RI  behind him five sons namely Gyan Swarup Bhatnagar, Sachida Nand Bhatnagar, Brahm +6 %KDWQDJDU «3ODLQWLII Swarup Bhatnagar, Brijendra Swarup Bhatnagar and Hemendra Swarup Bhatnagar. ,Q WKH PDWWHU RI SURSHUW\ RI 6KUL -\RWL Hamendra Swarup Bhatnagar filed 6ZDURRS %KDWQDJDU testamentary petition no. 13 of 1984 for grant of probate/letters of administration in the &RXQVHO IRU $SSHOODQW 0U $MLW .XPDU matter of goods and property of deceased Jyoti Swarup Bhatnagar on the allegation that

&RXQVHOV IRU 5HVSRQGHQWV he had executed a Will on 22.4.1920 which 0U 9LQLW 6DUDQ provided that till the life time of Har Swarup 0U 5. 5DMZDQVKL he will administer the property of Sri Jyoti Swarup Bhatnagar in accordance with the ,QGLDQ 6XFFHVVLRQ $FW  6HFWLRQ   testament dated 22.4.1920 and after his death, 3UREDWH FDQ EH JUDQWHG RQO\ WR WKH SHUVRQ the property shall be administered by the sons ZKR KDV EHHQ QDPHG XQGHU WKH ZLOO XQGHU

56 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 of Sri Har Swarup Bhatnagar. Har Swarup abate if the right to sue survives. On the death Bhatnagar expired in the year 1923 and out of of the plaintiff, the Court can permit a legal his five sons except the petitioner Hamendra representative of the deceased plaintiff to be Swarup Bhatnagar, all expired and thus he made a party under Order 22, Ruled 3 of the claimed that he was only surviving executor Code of Civil Procedure. Similarly, if the of the Will of deceased Jyoti Swarup defendant dies, his legal representatives can Bhatnagar. On his petition, the notices were be substituted under Rule 4 of Order 22 issued and on an objection being filed by the C.P.C. The Code of Civil Procedure was contesting opposite party, it was treated as amended in 1976 and Order 4-A was added contentious and registered as testamentary suit which provides that if, in any suit, it shall no. 6 of 1994. appear to the Court that any party who has died during the pendency of the suit has no 3. Before the Will could be proved, the legal representative, the Court may, on the petitioner Hamendra Swarup Bhatnagar application of any party to the suit, proceed in expired on 14.6.1999. An application was absence of the person representing the estate filed by M.S. Bhatnagar son of Brijendra of the deceased person, or may by order Swarup Bhatnagar that he may be permitted to appoint the administrator general, or an be substituted. Another application has been officer of the Court or such other person as it filed by Satendra Kumar, one of the sons of thinks fit to represent the estate of the the petitioner Hamendra Swarup with the deceased person for the purpose of the suit. prayer that he may be substituted along with M.S. Bhatnagar. The opposite party, Ajay 5. There is a difference between the Kumar has filed objection to the application proceedings of a suit and that of proceedings for substitution. for the grant of probate/letters of administration. On the death of the plaintiff 4. The core question is whether after the the Court allowed the application for death of the petitioner in a testamentary suit substitution. The Court on an application of his heir or any other person is entitled to be the legal representative of the deceased substituted in his place and if so, who shall be plaintiff shall make him a party in the suit if entitled to be substituted or in other words, to the right to sue survives. The Court has to continue the proceedings for grant of examine whether such an applicant is entitled probate/letters of administration under the to be substituted in relation to the cause of provisions of Indian Succession Act 1925 (in action in the suit and the relief claimed. A short 'the Act'). The probate is granted only to petition for probate/letters of administration is an executor appointed by the Will as provided filed on the allegation that the petitioner is under Section 222 of the Act. In case the entitled to probate or letters of administration executor has not been appointed the letters of under the provisions of the Act. One view is administration is to be granted to an universal that the right to claim probate/letters of or residuary legatee under section 232 of the administration is personal and on the death of Act. In case the person who had applied for the petitioner the right to obtain probate/letters of administration dies, there probate/letters of administration does not are two courses open either the proceedings devolve on his heir. In one case, the suit is be dropped or permitted to be continued by a decreed on the basis of the relief claimed in person who shall otherwise be entitled for the suit but in the other case probate/letters of probate/letters of administration. administration is granted under the provisions of the Indian Succession Act. But in that Where any suit is filed in the Civil Court, respect he has to establish that he is entitled to on the death of the plaintiff the suit shall not 1ALL] H.S. Bhatnagar V. In the matter of property of Shri Jyoti Swaroop Bhatnagar 57 such grant being an executor universal or could not be substituted. The Court repelled residuary legatee under the Will. the contention with the following observation:- 6. The Calcutta High Court in Sarat Chandra Banerjee vs. Nani Mohan Banerjee, “But it is not so clear why a person who (1909) 36 Cal. 799, where executor claiming has, admittedly, under the law, right to apply right of probate on the basis of Will, having for letters of administration, and who derives died during the pendency of the probate this right from the legatee by virtue of being proceedings, his widow sought to be an heir of the legatee, should be debarred substituted as being his heir, Harrington, J. from carrying on the proceedings if the rejected the application holding that the legatee happens to die after he had applied for executor’s right to sue did not survive. This letters of administration and before the letters decision was followed in Hari Bhushan Datta have been granted.” vs. Manmath Nath Datta, A.I.R. 1919 Cal. 197. In this case one Him Bhushan Datta 7. In Chandramani Maity vs. Bipin Bihari, applied for grant of letters of administration AIR 1932 Cal. 206, a distinction was drawn with a copy of the Will annexed to the estate that though right to obtain probate of Will of the deceased. He died leaving Hari does not survive, in an appeal in a case where Bhushan Datta as his heir and legal the judgment appealed against may operate as representative. Greaves, J. held that the right one in rem, different consideration will arise for grant of letters of administration was a and substitution should be allowed. The above personal right and this right did not devolve noted decisions of the Calcutta High Court on his heir. It was, however, observed that the were also discussed in P. Ram Naidu and applicant may apply for grant of letters of others vs. Rangayya Naidu and others, A.I.R. administration and adopt such material 1933 Mad. 114 and were dissented from. The proceedings as had been taken in the Division Bench of the Madras High Court testamentary suit filed by his father. These took the view that an executor named under two decisions came up for consideration the Will, acts in a representative capacity, i.e., before a Division Bench of Patna High Court for the benefit of whole class of persons in Mst. Phekni vs. Mst. Manki, A.I.R. 1930 including himself, interest in having the Will Pat. 618. Fazl Ali, J. (as he then was), noted established. The concept that the right to that the view taken by Greaves, J. will cause obtain a probate/letters of administration is considerable hardship when the applicant, limited to a person who has applied for, was after death of the petitioner may be entitled to not taken as correct because if the Will is obtain letters of administration. The facts in proved and probate/letters of administration is this case were that an application was filed for granted, it will benefit not only him but others letters of administration on the basis that the who are equally interested in it. Any person applicant was legatee under the Will. The interested in the matter can intervene in the application was resisted by the widow of the proceedings. The position of a petitioner for deceased. The District Judge rejected the probate was taken as that of a plaintiff under application on the finding that the Will was Order 1, Rule 8 C.P.C. It is based on the not proved to his satisfaction. Against this principle that one of the necessary incident of decision the applicant filed appeal. During the a representative suit is that any person for pendency of the appeal the applicant died. An whose benefit it is instituted may intervene application for substitution was filed by his and ask to be made a party under Order 1, heir. It was resisted by the respondent on the Rule 8(3) C.P.C. The petition for probate ground that the right to obtain letters of stands on a footing similar to that of a administration was personal and the applicant representative suit. It was observed that if the

58 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 petition for probate stands on the footing position, this Court held that the probate can similar to that of a representative suit, it is a be granted only to the person who has been right in principle to extend the analogy and named under the Will under Section 222 of hold that any legatee or beneficiary may, on a the Succession Act and not the Administrator proper case being made intervene at any stage General who was not named under the Will. and claim to come on the record. The proper course to adopt would be to take proceedings under Section 232 of the Act, 8. The above noted decisions were under which when an executor dies, after surveyed in detail in Jadeja Pravinsinhji having proved the Will, but before having Anandsinhji vs. Jadeja Mangalsinhji administered all the estate of the deceased, a Shivsinhji and others, A.I.R. 1963 Guj. 32. universal or a residuary legatee may be The view taken by the Madras High Court in admitted to prove the Will and letters of Rama Naidu’s case (supra) was followed. administration with the Will annexed may be Mehta, J. did not agree with the view taken by granted to him of the whole estate or so much Justice Harington in Sarat Chand’s case thereof may be administered. It was not a case (supra). It was held that on the death of the whether an executor had died and the heirs executor before having proved the Will, the had applied for substitution. residuary legatee who claimed to be beneficiary under the Will is entitled to 11. Hamendra Swarup, who had applied continue the proceedings on the principle that for probate/letters of administration, claimed an executor named under the Will and who that Jyoti Swarup had appointed his brother may happen to be beneficiary under the Will, Har Swarup as executor and after his death his in applying for probate does not fight a sons and at the time he applied for personal action but fights for the interest of all probate/letters of administration, he was only the beneficiaries under the Will. entitled to apply for the same. He died leaving behind him two sons namely Satendra Kumar 9. The action of an executor in applying and Ajai Kumar. Ajay Kumar has not filed an for probate is not in substance a personal application to continue the proceedings. M.S. action. There is no reason that after his death Bhatnagar, son of Brijendra Swarup (nephew the person claiming the benefit under the Will of Hamendra Swarup), has also applied for cannot apply to continue the proceedings. On substitution. Brijendra Swarup had not the other hand, to ask the applicant to file applied for probate/letters of administration. another application for probate/letters of He does not claim any independent right to administration, will unnecessarily cause apply. Satendra Kumar, being the legal hardship and it will spoil all the proceedings representative of Hamendra Kumar, is entitled which have already been taken. to continue the proceedings.

10. Learned counsel for the respondent 12. In view of the above, the application relied upon the decision in Edward Waston of Satendra Kumar is allowed and the Coleston vs. Mrs. Theresa Chitty and others, application of M.S. Bhatnagar is rejected. A.I.R. 1934 All. 1053. In this case the learned Judge had granted probate to the I order accordingly. Administrator General as the executor named under the Will was not in sound financial  1ALL] Abdul Rahman Jafri V. The State of U.P. and others 59

25,6,1$/ -85,6',&7,21 the second respondent has ordered that the &,9,/ 6,'( petitioner “Shall be charged under section '$7(' $//$+$%$' 129(0%(5   161 and 165-A of I.P.C.”

%()25( 7+( +21·%/( 656,1*+ - 2. Before proceeding further it may be 7+( +21·%/( '5 &+$8'+$5<- mentioned here the petition was entertained initially by a Single Judge Bench but on an &LYLO 0LVF :ULW 3HWLWLRQ 1R RI  application moved by the complainant Dr. Lal Bahadur, the Bench consisting of Hon’ble $EGXO 5DKPDQ -DIUL 62 $EGXO 0DQQDQ the Chief Judge and Hon’ble M. Katju, J. by -DIUL «3HWLWLRQHU order dated 13.9.1999 directed that the matter 9HUVXV be placed before a bench presided over by 7KH 6WDWH RI 83 WKURXJK WKH 0LQLVWU\ RI one of R. Singh, J.) and it was pursuant to +RPH $IIDLUV DQG RWKHU «5HVSRQGHQWV the said order that the matter was listed before this Bench . &RXQVHO IRU WKH SHWLWLRQHU 0U 6 6 7\DJL 3. We have Heard Shri S. S. Tyagi for the petitioner and Government Advocate for &RXQVHO IRU WKH 5HVSRQGHQWV Sate and Dr. Lal Bahadur, the complainant *$ who appeared in persons. 'U /DO %DKDGXU ,Q SHUVRQ 4. It transpires from the record that a 3UHYHQWLRQ RI &RUUXSWLRQ $FW 6HFWLRQ  7KH F.I.R. was lodged by Shri Surendra Pratap SHWLWLRQHU FDQQRW EH SURVHFXWHG XQGHU Mishra , Judge Family Court , Allahabad VHFWLRQ  DQG  $ RI ,3& ZKLFK KDYH against the petitioner and four others under EHHQ RPLWWHG YLGH VHFWLRQ  RI SUHYHQWLRQ RI &RUUXSWLRQ $FW Section 161 and 165 -A of the Indian Penal +HOG  Code. The F.I.R. was lodged on the basis of a 7KH SHWLWLRQHU FDQQRW EH SURVHFXWHG XQGHU complaint made by Dr. Lal Bahadur to the VHFWLRQ  DQG  $ RI ,QGLDQ SHQDO &RGH Hon’ble the Chief Justice that Brij Bhushan ZKLFK KDYH EHHQ FRPPLWWHG YLGH VHFWLRQ  Pandey, Mohd. Shakil, Manglesh and Abdul RI WKH SUHYHQWLRQ RI &RUUXSWLRQ $FW 7KHUH Rahman Jafri working as class III employees FDQQRW EH DQ\ SURVHFXWLRQ RI DQ\ SHUVRQ XQGHU WKH DIRUHVDLG VHFWLRQV DQG WKH OHDUQHG in the Court of Judge, Family Court 7ULDO -XGJH KDV HUUHG LQ ODZ LQ GLUHFWLQJ WKDW Allahabad took illegal gratification of Rs. WKH DFFXVHG $EGXO 5DKPDQ -DIUL 6KDOO EH 150/-- on 4th and 5th February , 1997 for FKDUJHG XQGHU 6HFWLRQ  DQG $ ,3& issuing copy of an order. The F.I.R. Was 7KH µ6DQFWLRQ¶ LPSOLHV DSSOLFDWLRQ RI PLQG lodged at Police Station Colonelganj., ([HUFLVH RI SRZHU WR VDQFWLRQ SURVHFXWLRQ Allahabad. On the basis of of the aforesaid VDQV DSSOLFDWLRQ RI PLQG LV EDG LQ /DZ DQG LQYDOLG  ,Q WKH FLUFXPVWDQFHV WKHUHIRUH WKH F.I.R. , Case Crime No. 139 of 1997 was SHWLWLRQ GHVHUYHV WR EH DOORZHG 3DUD  registered at Police Station Colonelganj, Allahabad and on comprehended by Section By the Court 19 of the Prevention of Corruption Act, 1988. The District and Sessions Judge acting as 1. The petitioner, Abdul Rahman Jafri, a Incharge Judge Family Court , Allahabad. Class III employee in the Family Court, By his order dated 27.7.1998 accorded Allahabad has instituted the present writ permission for prosecution of the petitioner petition seeking issuance of writ in the nature and Mohd. Shakil in case crime no. 139 of of certiorari quashing the part of the order 1997, Police Station Colonelganj, Allahabad dated 22.12.1999 (annexure no.5) where by under Sections 161 and 165-A I.P.C. and

60 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

Section 7 and 13 (1)(a) of the Prevention of Previously under section 6of the Corruption Act , 1988. Earlier the Judge Prevention of Corruption Act. 1947, previous Family Court , Allahabad by his order dated sanction was required for prosecution under 3.6.98, being annexure no.2 to the writ Section 161 and 165 of I.P.C. also but the act petition, had accorded sanction for has been repealed and replaced by Prevention prosecution of co-accused Brij Bhushan of Corruption Act.1988, in which no previous Pandey and Manglesh Singh in the self sanction is required for prosecution under same case under Section 7 and 13 (1) (a) of Section 161 and 165 of I.P.C. and as such the Prevention of Corruption Act, 1988. accused Abdul Rehman Jafri shall be charged According ly the cognizance was taken by under Section 161, 165-A of I.P.C. the competent court and criminal case no.4 of 1998 State Versus Brij Bhushan Pandey and It is made clear that if prosecution obtains others was registered against the petitioner valid sanction from Competent Authority and four others. mentioned under section 19 of Prevention of Corruption Act 1988, accused shall be tried 5. The petitioner moved an application for that offence under Section 13(2) of being annexure no.4 to the Writ Petition Prevention of Corruption Act. before the Trial Judge praying for quashing of his prosecution on the ground that the As discussed above the accused Abdul sanction accorded vide order dated 27.7.1998 Rehman Jafri shall be charged under Section was invalid and without jurisdiction. The 161 and 165-A of I.P.C. learned Trial Judge by the impugned order dated 22.12.1998 held that the District & Fix 5.1.99 for fixing of charge. All accused Sessions Judge acting as Incharge Judge, should appear an that date for framing of Family Court was not competent to grant charge. sanction of the petitioners prosecution. Accordingly the petitioner was held “liable to 6. It is not disputed that the Judge, Family be discharged under Section 13(2) of the Court is the authority competent to remove prevention of Corruption Act,1988”. But at the petitioner. Section 19 of the Prevention of the same time the learned Trial Judge directed Corruption Act , 1988 Provides that no Court that the petitioner be charged under Section shall take congnizance of offence punishable 161 and 165-A of the Indian Penal Code. under Section 7, 10, 11, 13 and 15 alleged to Relevant part of the impugned order dated have been committed by a public servant , 22.12.1998 reads as under : except with the previous sanction of authorites referred to in clauses (a) , (b) and “Since the court has been prohibited to (C) of sub Section (I) of Section 19 of the take cognigance for want of valid sanction Prevention of Corruption Act Which are thus the case cannot proceed against quoted below. accused Abdul Rahman Jafri and he is liable “(a) In the case of a person who is to be discharged under Section 13(2) of employed in connection with the affairs of the Prevention of Corruption Act. 1988. Union and is not removable from his offence save by or with the santion of the Central As for Section 161 I.P.C. and Sec. 165-A Govt. of that Government , I.P.C. is concerned no previous sanction is (b) In the case of a person who is required under Section 19 of Prevention of employed in connection with the affairs of a Corruption Act. 1988. State and is not removble form his offence save by or with the sanction of the State Government of that Govt., or with the 1ALL] Abdul Rahman Jafri V. The State of U.P. and others 61 sanction of the State Government , of that F.I.R. was lodged under Section 161 and 165- Government, A of Indian Penal Code read with prevention (c) In the case of any other person of the of Corruption Act and the sanction too authority competent to remove him from his appears to have been granted for prosecution office.” in case crime no.139 of 1997 Police Station Colonelganj, Allahabad under Section 161 7. The petitioner’s case is covered by and 165-A I.P.C. read with Section 7/13(1) (a) clause (c) of Sub Section (1) of Section 19 of of Prevention of Corruption Act but the fact the Prevention of Corruption Act, 1988. The remains that the petitioner cannot be District and Sessions Judge being not the prosecuted under Section 161 and 165-A of authority competent to remove the petitioner Indian Penal Code which have been omitted as held have no jurisdiction to grant sanction vide Section 31 of the Prevention of for offence punishable under Section 13 of Corruption Act. The order dated 27.7.1998 the said Act . This part of the order has not of the District and Sessions Judge passed in been challenged. We there fore, do not his capacity as Judge, Family Court, consider it necessary to express our opinion as Allahabad according permission for the to correction otherwise of the view so taken prosecution of the petitioner under Section by the Trial Judge or examine the effect of 161 to 165-A I.P.C. (both inclusive) appears “any error” in the sanction dated 27.7.1998 as to have been passed of the provisions stipulated in Section 19(2) of the read with contained in Section 31 of Prevention of clause (a) of the Explanation appended to Corruption Act, 1988 which provides that be Section 19. any prosecution of any person under the aforesaid sections and learned Trial Judge 8. It would be evident from the order shall be charged under Section 161 and 165- aforestated that the sanction accorded by the A both inclusive have been omitted . There District and Sessions Judge in his capacity as cannot be any prosecution of any person Incharge Judge, Family Court, Allahabad has under the aforesaid sections and learned been set at naught by the order impugned Trial Judge has erred in law in directing herein but in so far as it relates to prosecution that the “accused Abdul Rahman Jafri shall under Section 161 and 165-A of Indian Penal be charged under Section 161 and 165-A Code it has maintained. The submission made I.P.C. “ The “Sanction” implies application by the learned counsel appearing for the of mind is bad in law and invalid . In the petitioner is that Section 161 to 165-A of the circumstances, therefore, the petition deserves Indian Penal Code (both inclusive) have to be allowed. been omitted vide Section 31 of the Prevention of Correction Act,1988 reads as 10. Accordingly the petition succeeds and under : is allowed. The impugned order dated 22.12.1998 in so far as it directs that the “31. Omission of certain section of Act 45 “accused Abdul Rahman Jafri shall be of 1860 Section 161 to 165-A (both inclusive charged under Section 161 and 165-A I.P.C.” ) of the Indian Penal Code shall be omitted, is quashed. and Section 6 of the General Clauses Act , Petition Allowed. 1897( 10 of 1897), shall apply to such  omission as if the said sections had been repeaied by a central Act.”

9. The alleged incident of taking illegal gratification is of February 4/5, 1997 . The

62 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

25,*,1$/ -85,6',&7,21 regarding High Tension, Low Tension line &,9,/ 6,'( and Street Light of Trivenipuram Avas '$7(' $//$+$%$'  Yojana in favour of the respondent nos. 5 & 6 may also be quashed. It is further prayed that %()25( 7+( +21·%/( *30$7+85- the respondents may be commanded by a writ 7+( +21·%/( %+$*:$1 ',1 - or order in the nature of mandamus to negotiate with the petitioners who have &LYLO 0LVF :ULW 3HWLWLRQ 1R  RI  offered over all lowest tender in pursuance of the tender notice dated 18.8.1998. 0V 6 8 %XLOGHUV $OODKDEDG DQG DQRWKHU «3HWLWLRQHUV 2. Allahabad Development Authority 9HUVXV (hereinafter referred to as the Authority) 9LFH &KDLUPDQ $OODKDEDG 'HYHORSPHQW floated the tender notice inviting the offers $XWKRULW\ $OODKDEDG RWKHUV«5HVSRQGHQWV from the contractors who were registered with

&RXQVHO IRU 3HWLWLRQHU the Authority and were having certificate 6UL &%

therefore, he wrote again a letter on 27.1.1999 By the Court to respondent no.5 to further reduce his rate.

On this the respondent no.5 by his letter dated 1. The petitioners by means of this writ 28.1.1999 offered to reduce the rate to 12.49 petition under Article 226 of the Constitution % above the scheduled rate. The petitioner on seek indulgence of this court for issuing a writ having information about the reduction of the nature of certiorari quashing the tender rates by the respondent no. 5 wrote a letter proceedings, which tool place pursuant to the dated 4.2.1999 contained in Annexure-6 to the tender notice dated 18.8.1998 published in counter affidavit of Shailendra Singh offering local News paper “Dainik Jagran”. Further to work at the rates submitted by respondent seeking a writ of certiorari that the work order 1ALL] M/s S.U. Builders and another V. Vice Chairman, A.D.A.,Allahabad. and others 63

no.5. So, the other tenders also expressed the Authority, whereas, the negotiation has their willingness to reduce the rate to the been made with the respondent no.5, who is extent offered by the respondent no.5. In the second lowest tendered, that the tender of pursuance to the offers made by the tenderers respondent no.5 has been illegally, arbitrarily and also having regard to the fact that the and unreasonably by the Tender Committee, work has to be completed within a period of 8 without showing any cogent reason. It is months, a Committee consisting of Executive further contended that the Authority has not Engineer, Superintending Engineer, Chief framed any rule / policy regulating the Accounts Officer and the Secretary of the contract. Authority was constituted. The Committee submitted its report dated 18.2.98 5. On the other hand, the learned counsel recommending the distribution of work appearing for the respondents urged that the among all the tenderers. The Secretary of the work was divided into two parts. One relates Authority dissented with the recommendation. to the laying of H.T.& L.T. line and other for He refused to sign the report. Consequent Street Light and a schedule of the work was upon this report into consideration by the furnished in advance with the tender form. higher authorities. However, the tender which The petitioner and other tenderers thus were was opened on 28.9.98 was accepted on aware of the division of the works in two 4.6.99 and by work order dated 5.6.99 the parts. So also all the tenderers, including the respondent no.5 was directed to carry out the petitioner and the respondent no.5 & 6 have work and submit the stamp papers for furnished rates for the execution of the work agreement. The respondent no.5 executed separately under two heads i.e. H.T.& L.T. deed on 7.6.99 and then completing the and Street Light. The petitioner himself formalities the respondent no. 5 started work. offered to complete the work of H.T. & L.T. for Rs.1,45,34,713.28 and to complete the 3. We heard Sri C.B. Yadav, learned work of street light for Rs.13,81,738.50. The counsel appearing for the petitioner and Sri petitioner is, therefore, stopped from raising A.K. Misra, learned counsel appearing for the plea that the work has been bifurcated respondent nos. 1 to 4 and Sri Bhagwati detrimental to his interest. Besides that all Prasad, learned counsel appearing for the tenderers tendered the costs of works H.T. & respondent no.5. L.T. line and street light separately.

4. The contention of the learned counsel It is further urged that the petitioner appearing for the petitioner is that the tender offered the cost of Rs.1,45,34,713.28. for the notice was floated for the combined work of work of H.T.& L.T. whereas, the respondent H.T. & L.T. Line and the Street light work. no. 5 offered Rs.1,45,33,454.88. Thus, the There has been no bifurcation of the work in rate of the respondent no.5 was the lowest two parts. Subsequently, with the object to among the tenderers and the rate of the defeat the interest of the petitioner the work petitioners was next lowest rate. For the work has been bifurcated. Petitioner had offered of street light the petitioner tendered to lowest rate for the work of H.T.& L.T. line execute the work for Rs.13,81,738.50, and Street Light to the tune of whereas the respondent no.6 offered to Rs.1,59,16,451.78 while respondent no. 5 had complete the work of Street Light for offered second lowest rate to the tune of Rs.13,79,203.20. Thus, the petitioner can not Rs.1,59,16,461.03. Thus, the petitioner claim to be lowest tenderer on both the items. tendered the lowest rate for the execution of The rate tendered by the petitioner was the work, that the negotiation ought to have Rs.1,59,16,451.78 where as rates tendered by been done between the lowest tendered and the respondent no.5 & 6 for the completion of

64 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 both the works comes to Rs.1,59,12,658. On contention of the petitioner’s counsel is that negotiation the respondent no.5 had agreed to the work was bifurcated later to give benefit work at the rate of 12.49 % above the to the respondent nos. 5 & 6 and to defeat the schedule rate. Thus, both the works are to be interest of the petitioner, is not sustainable. completed for Rs.1,55,35132/-. Thus, the 8. The rates offered by the petitioner and petitioner cannot be said to be lowest the respondent nos. 5 & 6 are compiled in the tenderer. In regard to the third contention it is above table. Which demonstrates that the urged by the counsel for the respondent that it petitioner offered to complete the work of HT may be stated that the negotiation could only & LT line for Rs.1,45,34,713.28, whereas the be entered into by the Authority with the respondent no.5 offered to complete the same lowest tenderer and not with any other work for Rs.1,45,33,454.88. Thus, the rate tenderer. The Authority therefore has not offered by the respondent no. 5 for acted unreasonably, arbitrarily or illegally. completion of the work of HT & LT line was lowest among the offers made by the 6. We perused the relevant papers on petitioner and the other contractors. The table record. The respondents have filed the Tender further demonstrates that the petitioner Forms supplied to the petitioner and the offered to complete the work of Street Light respondent nos.5 & 6 and other two tenderers. for Rs.13,81,738.50, whereas the respondent The Tender Forms indicate that the work no. 6 agreed to complete the same work for proposed to be completed by the contractors, Rs.13,79,203.20. The rate offered by was bifurcated in H.T. & L.T. line and Street respondent no.6 is lowest among the offers Light. The Scheduled rates have been made by the other contractors including the indicated therein. A comparative table of the petitioner. The total amount for completion of financial rates offered by the technically the work offered by the respondent nos.5 & 6 qualified tenderers for the contract was was Rs.1,59,12,658. Therefore, the Authority prepared as below :- committed no irregularity or illegality in Sl. Name of Contractor H.T. & L.T. Street Light Total No. 1. M/s Shree Bhawani 15.49%(above) 9.1 (above) Rs.1,59,16,461.03 Rs.1,45,33,454.88 Rs.13,83,006.15

2. M/s S.U. Builder 15.5% (above) 9.0% (above) Rs.1,59,16,451.78 Rs.1,45,34,713.28 Rs.13,81,738.50

3. M/s R/G Traders 17.5%(above) 8.8%(above) Rs.1,61,65,599.88 Rs.1,47,86,396.68 Rs.13,79,203.20

4. M/s Rajesh Electricals 18%(above) 10%(above) Rs.1,62,43,732.48 Rs.1,48,49,317.48 Rs.13,94,415.00

5. M/s Vilayti Ram 20.7%(above) 20.7%(above) Rs.1,67,19,143.33 Mittal Rs.1,51,89,089.98 Rs.15,30,053.55

7. In the above table the contractors have considering the rates offered by the offered district rates for the two separate respondent nos. 5 & 6 which were the lowest. works. It is all indicative of the facts that the Apart that the respondent no.5, on have entire work was bifurcated in two parts. The negotiations with the Executive Engineer, 1ALL] M/s S.U. Builders and another V. Vice Chairman, A.D.A.,Allahabad. and others 65 agreed to complete work of H.T. & L.T. line could complete a part thereof, even despite of at the rate 12.49 % above the schedule rates. the expiry of the extended time allowed to Thus, both the works are to be completed by him for the completion of the work. The the respondent nos. 5 & 6 for Rs. 1,55,35,132. petitioner has not controverted this fact in his The petitioner, therefore, cannot be said to be rejoinder affidavit. the lowest tenderer. As for contention of the petitioner’s counsel that the petitioner also 10. In the case of G.B.Mahajan Vs. offered to complete the work at the rate, Jalgaon Municipal Council AIR 1991 SC offered by the respondent nos. 5 & 6. In para 1153 Hon’ble Supreme Court has observed 18 of the writ petitioner himself admits that that :- Article 364 of the Financial Hand Book Vol. VI Chapter 12 provides that- “while it is true that principle of judicial review apply to the exercise by a government ³8VXDOO\ WKH ORZHVW WHQGHU VKRXOG EH body of its contractual powers, the inherent DFFHSWHG XQOHVV WKHUH EH VRPH REMHFWLRQ limitations on the scope of the inquiry are WR WKH FDSDELOLW\ RI WKH FRQWUDFWRU WKH themselves a part of those principles. For VHFXULW\ RIIHUHG E\ KLP RU KLV H[HFXWLRQ instance, in a matter even as between the RI IRUPHU ZRUN $W WKH VDPH WLPH parties, there must be shown a public law DFFHSWDQFH RU UHMHFWLRQ RI WHQGHUV LV OHIW element to the contractual decision before HQWLUHO\ WR WKH GLVFUHWLRQ RI WKH ZKRP WKH judicial review is invoked.” GXW\ LV HQWUXVWHG DQG QR H[SODQDWLRQ FDQ EH GHPDQGHG RI WKH FDXVH RI UHMHFWLRQ RI 11. In the present case, the material placed KLV RIIHU E\ DQ\ SHUVRQ PDNLQJ D WHQGHU before the Court does not indicate that the ,Q FDVHV ZKHUH WKH ORZHVW WHQGHU LV QRW authorities have accepted the tenders of respondent nos. 5 & 6 for irrelevant DFFHSWHG UHDVRQV VKRXOG KRZHYHU EH consideration or on self misdirection or UHFRUGHG FRQILGHQWLDOO\«««´ violated the public law in the contractual decision. Hence the administrative exercise of In para 19 of the writ petition the petitioner power by the respondents does not fall within has admitted that negotiations take place with the purview of the judicial review. the lowest tenderer only. We are, therefore, of the view that the respondent no.1 has rightly In Raunaq International Ltd. V. I.V.R. with all diligence executed its contractual construction Ltd. AIR 1999 SC 397 the power considering the rates offered by the Hon’ble Supreme Court held that- respondent nos. 5 & 6 as lowest and has reasonable without detrimental to the interest “When a writ petition is filed in the High of any body has negotiated with the Court challenging the award of a contract by a respondent no. 5 as far relates to the work of public authority or the State, the Court must H.T.& L.T. line. be satisfied that there is some element of public interest involved in entertaining such a 9. It may also be mentioned here that the petition. If, for example, the dispute is purely Executive engineer did not negotiate with the between two tenderers, the Court must be petitioner perhaps for the reasons; firstly, that very careful to see if there is any element of the tender submitted by the petitioner was not public interest involved in the litigation. A lowest; secondly, because, as stated in the mere difference in the prices offered by the affidavit filed by Sri B.K. Singh on behalf of two tenderers may or may not be decisive in the respondent nos. 1 to 4 that in the past deciding whether any public interest is under Agnipath Scheme the petitioner was involved in intervening in such a commercial awarded a contract work of L.T. line. He

66 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 transaction. It is important to bear in mind that considerably delayed escalating cost and by Court intervention, the proposed project public interest would be marred. may be considerably delayed thus escalating 14. In the Raunaq International Ltd. case the cost far more than any saving which the (Supra) The Hon’ble Supreme Court has Court would ultimately effect in public money further observed that- by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, “It is also necessary to remember that price unless the Court is satisfied that is a may not always be the sole criterion for substantial amount of public interest, or the forwarding a contract. Often when an transaction is entered into malafide, the Court evaluation committee of experts is appointed should not intervene under Article 226 in to evaluated offers, the expert committee’s disputes between two rival tenderers.” special knowledge plays a decisive role in deciding which is the best offer. Price offered 12. In the instant case it is neither pleaded is only one of the criteria. The past record of that in this case public interest is involved nor the tenderers, the quality of the goods or from the impending circumstances it may be services which are offered, assessing such inferred that public interest is involved in quality on the basis of the past performance of awarding the contract in question. On the the tenderers, the quality of the goods or contrary the Authority under took the housing series which are offered, assessing such project known as Trivenipuram Housing quality on the basis of the past performance of Scheme, wherein approximately 1438 plots the tenderer, its market reputation and so on, were carved out for construction of residential all play an important role in deciding to whom houses. A number of residential houses have the contract should be awarded. At times, a already been constructed and residents have higher price for a much better quality of work been constantly pressing their demands of can be legitimately paid in order to secure electrification of the area at the earliest proper performance of the contract and good possible. So in the public interest and also quality of work-which is as much in public undertaking given by the respondent no.5 to interest as a low price. The Court should not complete the work at the earliest possible, the substitute its own decision for the decision of contract has been awarded to him. We do not an expert evaluation committee.” find illegality or arbitrariness in the action of the Authority in exercising contractual power 15. The respondent nos. 5& 6 have been by awarding contract to respondent no. 5 & 6. awarded the contract on the basis that they offered the lowest rate for the work. The 13. It is pertinent to mention here that Sri award of the contract is purely administrative Om Chand in the supplementary counter matter. The Scope of enquiry in judicial affidavit has stated that in pursuance of review of an administrative action has been contract awarded on 5th June, 1999 the considered in Tata Cellular case, AIR 1996 respondent no.5 has already completed SC 11 (paragraphs 85 & 112) and it has been substantial work of the project and about half observed that- (modern trend points to judicial of the work on the spot has already been restrain while reviewing administrative completed. As against the total sanctioned decisions relating to contractual power of amount for HT & LT Line the Authority had Government.) already paid a sum of Rs. 36.75 lacs to the respondent no.5. Therefore, any intervention 16. In view of above factual and legal by the court, the proposed project, may be position, we have no other option except to dismiss the petition.

1ALL] Dilip Kumar V. Family Court, Gorakhpur and others 67

17. The petition is, accordingly, By the Court dismissed. No order as to costs. 1. Heard learned counsel for the applicant, Petition Dismissed. Sri Shankar Suan, learned counsel for the  opposite party, and also learned A.G.A. for 25,*,1$/ -85,6',&7,21 the Stated. &5,0,1$/ 6,'( '$7(' $//$+$%$' '(&(0%(5   2. On the last date while admitting this %()25( application, clear direction was given to the 7+( +21·%/( 6. $*5$:$/ - State counsel that he shall also prepare himself on the question whether any court &ULPLQDO 0LVF  $SSOLFDWLRQ 1R  RI deciding an application for recovery of the  amount due under section 125 Cr.P.C. to the wife from the delinquent husband can pass an 'LOLS .XPDU «$SSOLFDQW order of his confinement for a period of one 9HUVXV year competitively or any other consolidated )DPLO\ &RXUW *RUDNKSXU DQG period. RWKHUV «2SSSDUWLHV 3. A perusal of Section 125 (3) Cr.P.C. &RXQVHO IRU WKH $SSOLFDQW very clearly indicates that no such order can 6UL 5DM .DUDQ

68 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

Court to levy such amount within a period of obligation imposed upon him by an order of a one year from the date on which it became competent court. due: 6. In view of the discussions made above, Provided further that if ;such person offers the order of the learned Family Judge is to maintain his wife on condition of her living wholly unsustainable. I am fortified in my with him, and she refuses to live with him, view by a latest decision of the Apex Court such Magistrate may consider any grounds of reported in (1999) 5 S.C.C. 672 (Shahada refusal stated by her, and may make an order Khatoon and others v. Amjad Ali and others). under this section notwithstanding such offer, The Apex Court has gone to the extent of if he is satisfied that there is just ground for so saying that the confinement can extend to doing” only one month and if even after the expiry of one month the delinquent husband does not 5. From these it is clearly available that make the payment of arrears then the wife can the person can be kept under confinement for approach the Magistrate again for a similar each month’s default and the confinement can relief but the confinement of the husband be only for a period of one month. The must be only of on month. In the own words subsequent part ‘until payment if sooner of the Apex Court ‘By no stretch of made’ further clarifies the situation to the imagination can the Magistrate be permitted extent that such a husband can be confined to to impose sentence for more than one month’. a period of one month even if the default is of Thus, this latest decision of the Apex Court more than a month and he can be allowed to further lays down a fetter in the exercise of come out of jail if the payment is made earlier this power by the Judicial Magistrate or the at any point of time within this period. This Family Judge to the extent that only a very clearly indicates that if the payment is confinement for a period of one month can be made within this period on any date his passed on an application whether the amount confinement will come to an end. The purpose claimed by the wife as arrears is for more than behind this enactment of provision for one month or for only a month. In one stroke confinement is to put to an end to the no composite confinement can be directed by sufferings of the wife by compelling the the court. It very clearly flows from the above husband to pay the maintenance amount. The decision. This power can be exercised only court cannot keep him in confinement any after a warrant for recovery of the unpaid further beyond a period of one month by one maintenance allowance is issued by the court. stroke of pen, in the present case an This warrant is to be executed like any application was moved by the wife for the warrant of recovery of fines. This fine can be recovery of the arrears amount, which appears recovered like any land revenue arrears. to be for several months. The Family Judge Unless that exercise is first adhered to, this has passed a consolidated order for 12 power of confinement to jail for his failure months’ confinement of the applicant, i.e. for can not be resorted to by any court. the total period of default. The applicant is the husband, who has failed to make payment of 7. Accordingly, this 482 application is the maintenance amount allowed not only to allowed and the order passed by the Family the wife but also to his children. He has failed Judge on24.4.1999 is hereby quashed. to discharge this obligation. The court is However, it will be open for the Family Judge vested with this extensive power with this to pass a fresh, proper ;and judicial order in extensive power with this interest in mind, i.e. accordance with the provisions of law and as compelling the husband to discharge his decided by the Apex Court in the aforesaid 1ALL] Pushpendra Singh V. Regional Manager, U.P.S.R.T.C., Aligarh and another 69

case in case if any application is moved by Writ Petition No.46695 of 1999 thereby the wife. dismissing the writ petition in limine. The Application Allowed. facts constitutive of the grievances of the  appellant is that the appellant’s father who $33(//$7( -85,6',&7,21 was serving in the U.P. State Road Transport &,9,/ 6,'( Corporation, died in harness on 21.8.1984. At '$7(' $//$+$%$'  the time of the death of his father, the %()25( appellant was minor and he attained majority 7+( +21·%/( 1. 0,75$ &- on 12.12.98. He applied for compassionate 7+( +21·%/( 65 6,1*+ - appointment on 23.2.99 permissible under the provisions of the U.P. (Recruitment of 6SHFLDO $SSHDO 1R  RI  Government Servants) Dying in Harness Rules, 1974. The claim of the appellant for 3XVKSHQGUD 6LQJK «$SSHOODQW compassionate employment under the Dying 9HUVXV in Harness Rules met the fate of rejection at 5HJLRQDO 0DQDJHU 83 6WDWH 5RDG 7UDQVSRUW the end of Regional Manager U.P. State Road &RUSRUDWLRQ $OLJDUK DQRWKHU«5HVSRQGHQWV Transport Corporation, Aligarh vide order

&RXQVHO IRU WKH $SSHOODQW dated 30.6.1999 premised on the ground that 6KUL 'KDQ 3UDNDVK the application was not moved within five years of the death of the employee. &RXQVHO IRU WKH 5HVSRQGHQW 6KUL 6DPLU 6KDUPD 2. The learned Single Judge dismissed the writ petition. The quintessence of the order '\LQJ LQ +DUQHVV 5XOHV (PSOR\HH GLHG LQ dismissing the writ petition is that after such a KDUQHVV RQ $SSOLFDWLRQ IRU JLYLQJ long time of death of the deceased, the right DSSRLQWPHQW RQ FRPSDVVLRQDWH JURXQG ZDV of the claimant stood extinguished. PRYHG E\ KLV VRQ RQ DWWDLQLQJ PDMRULW\ RQ  WKH FRPSDVVLRQDWH DSSRLQWPHQW FDQQRW EH JLYHQ DIWHU D ODSVH RI 3. We have heard Sri Dhan Prakash, UHDVRQDEOH SHULRG DQG DIWHU WKH FULVHV LV learned counsel for the appellant and Sri RYHU +RZHYHU D GLUHFWLRQ ZDV LVVXHG WR WKH Samir Sharma, counsel appearing for the UHVSRQGHQWV WR FRQVLGHU KLV DSSOLFDWLRQ IRU respondent no. 2. WHPSRUDU\ DSSRLQWPHQW LI WKH IDPLO\ LV VWLOO IHHOLQJ XQGHU WKH ILQDQFLDO FULVHV 7KH FDVH ODZ UHIHUUHG  ,9 6&& SDJH   4. The rule of compassionate is an , 6/5 SDJH   6/5 SDJH  exception to the general mode of appointment +HOG²3DUD  strictly on the basis of open invitation of %\ UHDVRQ RI UHOLDQFH XSRQ WKH VDLG applications on merits. It is born of pure REVHUYDWLRQV DV DOVR XSRQ WKH 5XOHV ZKLFK humanitarian consideration and interest of HQYLVDJH FRQVLGHUDWLRQ RI DQ DSSOLFDWLRQ IRU justice, reckoning into consideration the fact FRPSDVVLRQDWH DSSRLQWPHQW PDGH HYHQ DIWHU ILYH \HDUV RI WKH GHDWK RI WKH HPSOR\HH LI WKH that unless some source of sustenance is FLUFXPVWDQFHV VR ZDUUDQW WKH DSSHDO LV provided the family would not be able to fend GLVSRVHG RI SRVWIL[HG ZLWK WKH REVHUYDWLRQ for itself on its own. ‘The whole object of WKDW LQ FDVH DQ DSSOLFDWLRQ LV PRYHG WKH granting compassionate employment is thus to UHVSRQGHQWV PD\ UHFNRQ ZLWK WKH IHDVLELOLW\ enable the family to tide over the sudden RI D WHPSRUDU\ DSSRLQWPHQW LI WKH IDPLO\ LV crisis’- Umesh Kumar Nagpal v. State of VWLOO UHHOLQJ XQGHU ILQDQFLDO VWUDLWV Haryana and Others1. In the said case, the Supreme Court has held the view that that By the Court mere death of an employee in harness does 1. Appeal on hand stems from the judgment and order dated 4.11.99 passed in 1 (1994) 4 SCC 138

70 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

not entitle a family to get employment as of 6. The view taken in Haryana State right irrespective of “the financial condition Electricity Board v. Naresh anwar3, reliance of the family of the deceased”. “The on which has been placed by Sri Dhan compassionate appointment”, it has further Prakash during the course of his arguments is been held, “cannot be granted after a lapse of not in any manner disparate with the view reasonable period which must be specified in taken by the Apex Court in the cases referred the rules. The consideration for such to supra. The observations made in para 11 of employment is not a vested right, which can the report that if a representation is made, the be exercised at any time in future. The object concerned authority namely, the Haryana being to enable the family to get over the State Electricity Board would consider the financial crisis which it faces at the time of same with such benignity as the applicant the death of the sole bread winner, the therein might deserve in the facts of the case, compassionate employment cannot be was not a declaration of law extending claimed and offered whatever the lapse of coverage of Art. 141 of the Constitution. The time and after the crisis is over.” impugned decisions do not suffer from the blemish of any infirmity. As a result of 5. In Jagdish Prasad v. State of foregoing discussion the appeal is bereft of Haryana2 the question of appointment on merits. However, by reason of reliance upon compassionate ground to an applicant who the said observations as also upon the Rules was four years old at the time when his father, which envisage consideration of an an ex-employee died in harness came up for application for compassionate appointment consideration before the Apex Court. It was made even after five years of the death of the contended that since the appellant therein was employee if the circumstances so warrant, the minor when the father died in harness, the appeal is disposed of post-fixed with the compassionate circumstances having observation that in case an application is continued till the date he made an application moved, the respondents may reckon with the for appointment, he was entitled to be feasibility of a temporary appointment if the appointed on compassionate ground. The family is still reeling under financial straits. contention was met with disapproval by the Supreme Court in the following words. Petition disposed of.  “The very object of appointment of a 25,*,1$/ -85,6',&$7,21 dependent of the deceased employees who die &,9,/ 6,'( '$7(' $//$+$%$'  in harness is to relieve unexpected immediate hardship and distress caused to the family by %()25( sudden demise of the earning member of the 7+( +21·%/( 6+$ 5$=$- family. Since the death occurred way back in 7+( +21·%/( .5,6+1$ .80$5- 1971, in which year, the appellant was four years old, it cannot be said that he is entitled &LYLO 0LVF :ULW 3HWLWLRQ 1R  RI  to be appointed after he attained majority long thereafter. In other words, if that contention is 7KH VROH SHWLWLRQHU 6XUDM %DOL .DWL\DU KDV accepted, it amounts to another mode of EHHQ GLHG RQ   DQG DIWHU KLP WKH recruitment of the dependent of a deceased QDPHV RI Government servant which cannot been 6PW 6DW\DZDWL .DWL\DU RWKHUV«3HWLWLRQHU encouraged, dehors the recruitment rules.” 9HUVXV 6WDWH RI 83 DQRWKHU «5HVSRQGHQW

2 1996 (1) SLR 7 3 1996(2) SLR 11 1ALL] Smt. Satyawati Katiyar & others V. State of U.P. & another 71

&RXQVHO IRU WKH 3HWLWLRQHU 4. It has been averred that on 27.5.1971 6KDQWL 6ZDURRS %KDWQDJDU one Pandit Triveni Sahai, M.L.A. and one Radhey were shot dead in town of Dataganj , &RXQVHO IRU WKH 5HVSRQGHQW Dudaun , His Younger brother Radhey 6& Shyam was the Deputy Inspector General of Police and Director of Vigilance, U.P. On  $UWLFOH  DQG  RI WKH &RQVWLWXWLRQ RI ,QGLD +LJK &RXUW XQGHU $UWLFOH  LV YHVWHG 29.5.1971 one Balak Ram surrendered in the ZLWK FRQWURO RI WKH 6XERUGLQDWH -XGLFLDU\ Court of late Shri Katiyar and preferred an +LJK &RXUW RXJKW QRW WR KDYH DVNHG 6WDWH application, in which it was mentioned that *RYW WR KHOG WKH LQTXLU\ WKURXJK WKH men of the complainant party and the police $GPLQLVWUDWLYH 7ULEXQDO +LJK &RXUW IDLOHG WR were hunting him out and if he would not be GLVFKDUJH LWV GXW\ RI SUHVHUYLQJ LWV FRQWURO taken into custody, he would be killed. Late 7KH FDVH ODZ UHIHUUHG $,5  6& SDJH  $,5  6& SDJH  Shri Suraj Bali Katiyar ordered that accused +HOGSDUD  Balak Ram be taken into custody and he was ,W ZDV WKH GXW\ RI WKH +LJK &RXUW WR KDYH sent to jail. FRQGXFWHG WKH HQTXLU\ SUHIHUDEO\ WKURXJK WKH 'LVWULFW -XGJH DQG WKHUHDIWHU ZRXOG KDYH 5. Late Shri Suraj Bali Katiyar in this writ UHFRPPHQGHG WR WKH 6WDWH *RYHUQPHQW IRU petition averred that Shri Radhey Shyam DQ\ DSSURSULDWH DFWLRQ Sharma, Deputy Inspector General of Police

and Director of Vigilance was very much By the Court annoyed to him due to that reason and he

made a complaint to the Secretary to the 1. The fate of this writ petition hinges on Government of U.P. Vigilance Department the reply to the question as to whether an leveling certain allegations against late Shri enquiry conduct by the Administrative Katiyar and Shri Mahabir Prasad , the then Tribunal against the judicial officer, an order District Judge, Budaun. of deduction of 50% of pension under Rule

351-A of Civil Services Rules, can be passed 6. On 26.3.1973 Dr. Manohar Lal Gupta, by the Governor of the State. Deputy Secretary to Government of U.P.

requested the Registrar of this Court for 2. Before dealing with this question, it is initiating proceedings at the behest of Shri pertinent to have a glance over the factual Radhey Shyam Sharma, Deputy Inspector matrix of the case as set out in the writ General of Police, Who made a complaint. petition by the deceased petitioner Suraj Bali

Katiyar, who expired on 26.4. 1987 and in his 7. On 27.11.1974 an order of suspension place his wife, there sons and two daughters was passed against late Shri Suraj Bali were substituted as petitioners. Katiyar under the signature of late Shri Gulam

Husain Commissioner and Secretary to the 3. Late Shri Suraj Bali Katiyar was State Government, wherein it was indicated appointed as a Judicial Officer under the that under the order of the Governor, the case provisions of U.P. Judicial Officers Service of the petitioner will be referred to the Rules, 1948 in the years 1955. On 30th Administrative Tribunal under Rule 4(1) of September 1967 in pursuance of the the U.P. Disciplinary proceedings provisions of Clause (3) of Article 348 of the (Administrative Tribunal ) Rules, 1947. The Constitution of India, the Governor was said letter also contains a copy of the charge – pleased to order the publication of sheet and late Shri Suraj Bali Katiyar was Notification No.P-7479/II-C-54/1961 in directed to submit an explanation against the exercise of powers conferred by Article 237 charge sheet. The Additional Registrar of the of the Constitution of India.

72 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

High Court, Allahabad was asked to relieve 12. It was further contended by the late Shri Suraj Bali Katiyar from the charge learned counsel for the petitioners that neither of the judicial magistrate. the enquiry report was the petitioners that neither the enquiry report was submitted nor 8. On 10.12.1974 late Shri Suraj Bali the recommendation of the Administrative Katiyar submitted his reply to the tribunal was furnished to late Shri Suraj Bali Administrative Tribunal and submitted that he Katiyar. On 25.3.1977 the District Judge, should be furnished with the copies of the Etah sent a letter to late Shri Suraj Bali document upon which the imputation of Katiyar asking him to show cause as to why charges were based. he be not dismissed from service as recommended by the Administrative Tribunal 9. On 20th January, 1974 late Shri Suraj . Bali Katiyar, after attaining the age of 13. The thrust of the learned counsel for superannuation, was ordered to be retired with the petitioners is that District Judge was not effect from 31.12.1976. competent to issue show cause notice under Rule 10 of the Disciplinary proceedings 10. After late Shri Suraj Bali Katiyar was (Administrative Tribunal ) Rules, 1947. It was furnished with the copies of the document mandatory for the Governor to send the upon which the imputation of charges were Tribunal’s recommendation to the High Court based, on 9.4.1975 he submitted his detailed and after receiving the decision of the High explanation to the charge sheet. On 18.7.1975 Court, the Governor could have passed the the Ad hoc Administrative Tribunal, Lucknow order of dismissal, removal or compulsory informed that the Governor Vide Notification retirement or any other penalty. No. 1775/39-1-2-M dated 5.7.1975 transferred the petitioner’s (late Shri Suraj Bali Katiyar) 14. Taking a cue from the decision of matter from Administrative Tribunal IInd to Hon’ble Supreme Court in Shamsher Singh Administrative Tribunal Ad hoc, comprising Vs. State of Punjab , (A.I.R. 1974 SC 2192,) two members namely, Shri P.C. Pandey, it was submitted that petitioner (Late Shri I.A.S.(Chairman) and Shri A.P. Agarwal, Suraj Bali Katiyar) was a Judicial Officer Member, U.P. Administrative Tribunal IInd. under the control of the High Court and as such enquiry through Vigilance department 11. The contention of the learned counsel and by one member of Administrative appearing on behalf of the petitioners is that Tribunal without consultation and the Tribunal was not properly constituted in recommendation of the High Court was void accordance with Rule 3(7) of the Disciplinary abinitio and without jurisdiction. proceedings (Administrative Tribunal) Rules, 1947 and the Governor could not make 15. However, on 24.9. 1977 another show reference under Section 4(1) of the aforesaid cause notice was received from the State Rules against a judicial magistrate under the Government, Which was served upon late control of the High Court in view of the Shri Suraj Bali Katiyar through the District notification dated 30.9.1967 under article–237 Judge, Etah containing a notice dated 12.09. of the Constitution of India for the reason 1977, wherein it was indicated that the that the High Court was vested with a power Administrative Tribunal vide its enquiry to hold disciplinary proceedings in relation report dated 18.12.1976 found charges No.1 to the members belonging to U.P. Judicial and 2 proved and exonerated from charge Officers Service Rules as well as under No.3 and since the Petitioner (Late Shri Suraj Article 235 of the Constitution of India. Bali Katiyar) had retired from Service with effect from 31.12.1976, the Governor directed 1ALL] Smt. Satyawati Katiyar & others V. State of U.P. & another 73 the State Government to issue a show cause Court and the deceased petitioner was asked notice as per the report of the Tribunal that as to submit a reply against the same. to why 50% of the pension may not be deducted under the provisions of Article 351- 19. In his reply, which late Shri Suraj Bali A of the Civil Service Regulation. Late Shri Katiyar submitted on 15.6.1980, it was Suraj Bali Katiyar submitted his explanation mentioned that the entire proceedings were against the show cause notice. vitiated due to non furnishing of the report of the tribunal and denial of opportunity to show 16. Charge no.1 mentions that on April cause against the said notice inasmuch as after 15, 1971, the deceased petitioner had taken a his retirement the petitioner ( late Shri Suraj sum of Rs. 10,000/= at his residence from one Bali Katiyar) was lying on his death bed. It Hifzul Hasan, Son of Daud Ali, residence of was also stated that the proceedings suffer village Gabhiyai, P.S. Allapur, district from colourable exercise of powers Buduan as illegal gratification for granting inasmuch as enquiry was initiated at the bail to the nine persons case crime No. 77 of behest of Shri Radhey Shyam Sharma, 1971, P.S. Allapur, under Sections Deputy Inspector to be the brother of Pandit 147/148/307/452/436 I.P.C. (S.T.No.292 of Triveni Sahai, Who was murdered and the 1971. Although the deceased petitioner had petitioner (late Shri Suraj Bali Katiyar ) rejected the bail applications of two accused allowed the application of the accused for on 15.4.1971. The deceased petitioner was surrender and remanded him to judicial also charged with a view to minimize the custody. gravity of the charges leveled against the accused. The deceased petitioner in his order 20. The first question which falls for dated 16.4.1971 granted bail by indicating consideration before this Court is as to that co-accused Ameer Hasan had fired with a whether the petitioner (Late suraj Bali Tamancha and Monis Ali Khan had fired in Katiyar ) could be subjected to investigation the air. by the vigilance department and thereafter proceeded with in an enquiry by the 17. Charge No.2 indicates that the Administrative Tribunal and the Governor of deceased petitioner in the month of October, the State without the decision of the High 1971 had taken illegal gratification, of which, Court under Article 235 of the Constitution of two bottles of liquor, 15 Kg. Of kalmi India can pass the impugned order under Mangoes, 2 Kg. of sweet as well as meat and regulation 351-A of the Civil Service Rs. 1,000/- cash from the complainant Shri Regulations deducting 50% from the pension Makhan Lal to show him favour in of the petitioner (Late Shri Suraj Bali complaint case No. 717 of 1970, in re: Katiyar). Makhan Lal Vs. Deep Chand, under Section 379/215 I.P.C. In the same month the 21. Article 235 of the Constitution of deceased petitioner further took Rs.6,00/- India with the control of the High Court over from Deep Chand, accused in that case for the Subordinate Courts, which reads as under: acquitting him and obtaining an order for the “235. Control over subordinate courts:-- The return of the alleged stolen property, i.e. a control over district court and courts and camel. courts subordinate there to including the posting and promotion of and the grant of 18. As stated earlier the enquiry report of leave to , persons belonging to the judicial the Administrative Tribunal, IInd, U.P. service of a State and holding any post Lucknow was sent along with a copy of the inferior to the post of district judge shall be letter of the Additional Registrar of the High vested in the High Court , but nothing in this

74 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 article shall be construed as taking away from presiding Judge. Article 227 gives to the High any such person any right of appeal under Court superintendence over these courts and such Law: enables the High court to call for returns etc. The word “Control” in Article 235 must have 22. In State of West Bengal Vs. Nripendra a different content. It includes something in Nath A.I.R. 1966 SC 447, a Constitution addition to merd superintendence. It is Bench of Hon’ble Court observed in para 13 control over the conduct and discipline of the of the report: judges. This conclusion is further strengthened by two other indications pointing “ We do not accept this contention. The clearly in the same direction. The first is that word “Control” is not defined in the the order of the High court is made subject to Constitution all. In part XIV which deals with an appeal if so provided in the Law regulating Services under the Union and the State the the conditions of service and this necessarily word “disciplinary control” or “ disciplinary indicates as order passed in disciplinary jurisdiction” have not at all been used. It is jurisdiction, Secondly, the words are that the not to be thought that disciplinary jurisdiction High Court shall “deal” with the judge in of services is not contemplated. In the contest accordance with his rules of service and the the word “control” must, in our judgement, word administrative jurisdiction.” include disciplinary jurisdiction. In deed, the word may be said to be used as a term of art It was further held in para 18 of the report” because the Civil Service (Classification, Control and Appeal) Rules used the word “There is, therefore, nothing in Article “Control” and the only rules which can 311 which compels the conclusion that the legitimately come under the only rules which High Court is ousted of the jurisdiction to can legitimately come under the word “ hold the enquiry if Article 235 vested such a control” are the Disciplinary Rules. Further, power in it. In our judgement, the control as we have already show, the history which which is vested in the High Court is a lies behind the enactment of these articles complete control subject only to the power of indicates that “ Control” was vested in the the Governor in the matter of appointment High Court to effectuate a purpose namely, (including dismissal and removal) and posting the securing of the independence of the and promotion of District Judges. Within the subordinate judiciary and unless it included exercise of the control vested in the High disciplinary control and unless it included Court, the High Court can hold enquiry’s, disciplinary control as well the very object impose punishments other than dismissal or would be frustrated. This aid to construction removal, subject however, to the conditions of is admissible because to find out the meaning service, and a right of appeal if granted by the of a law, recourse may legitimately be had to conditions of service, and to the giving of an the prior Sate of the Law, The evil sought to opportunity of showing cause as required by be removed and the process by which the clause (2) of article 311 unless such law was evolved. The word “control” as we opportunity is dispensed with by the Governor have seen, was used for the first time in the acting under the provisos (b) and (c) to that Constitution and it is accompanied by the clause. The High Court alone could have held word “vest” which is a strong word. It shows the enquiry in this case. To hold otherwise that the High Court is made the sole custodian will be to reverse the policy which has moved of the control over the judiciary. Control, determinedly in this circumstances.” therefore, is not merely the power to arrange the day to day working of the court but 23. In Samsher Singh Vs. State of Punjab contemplates disciplinary jurisdiction over the and another; 1ALL] Smt. Satyawati Katiyar & others V. State of U.P. & another 75

A.I.R. 1974 SC 2192 a Constitution Bench Court after Considering Samsher Singh Hon’ble Supreme Court observed in para 76 (Supra) held in para 47 of the report. of the report “The High Court under Article 235 is vested with the control of subordinate 25. The Governor has power to pass an judiciary. The High Court according to the order of dismissal, removal or termination on appellant failed to act in terms of the the recommendations of the High Court which provisions of the Constitution and abdicated are made in exercise of the power of control the control by not having an inquiry through vested in the High court. The High Court of judicial officers subordinate to the control of course under this control cannot terminate the the High Court but asking the Government to services or impose any punishment on District enquiry through the vigilance department.” Judges by removal or reduction. The control over District Judges is that disciplinary It was further indicated in para 78 of the proceedings are commenced by the High report: Court. If as a result of any disciplinary proceedings any District Judge is to be “The High Court for reasons which are not removed from service or any punishment is Stated requested the Government to depute to be imposed that will be in accordance with the Director of Vigilance to hold an enquiry. the conditions of service.” It is indeed strange that the High Court which had control over the subordinate judiciary 26. It was further held in para 50 of the asked the Government to hold an enquiry report: through the vigilance department. The members of the subordinate judiciary are not “ This Court in the majority view in only under the care and custody of the High Shamsher Singh Vs. State of Punjab (C.A. Court, but are also under the care and custody No.2289 of 1970) and Ishwar Chand of High Court. The High Court failed to Agarwal Vs. State of Punjab, (Civil) Appeal discharge the duty of preserving its control. No. 632 of 1971) decided on 23rd August , The request by the High Court to have the 1974 (reported in A.I.R. 1974 SC 2192) enquiry through the Director of Vigilance was pointed out that the High Court is to hold an act of self abnegation. The contention of the enquiry preferably through District the State that the High Court wanted the Judges . The members of the subordinate Government to be satisfied makes matters judiciary look up to the High Court for worse. The Governor will act on the discipline and dignity. The enquiry conducted recommendation of the High Court. That is by the Director of Special Enquiry was the broad basic of Article 235. The High unconstitutional.” Court should have conducted the enquiry preferably through District Judges. The 27. There is no necessity for this Court to members of the subordinate judiciary look up over burden the judgment by multiplying the to the High Court not only for discipline but authorities on this question, suffice to say that also for dignity. The High Court acted in total there are catina of decisions of Hon’ble disregard of article 235 by asking the Supreme Court, wherein it has been observed government to enquiry through the Director of that under Article 235 of the Constitution of Vigilance.” India the control is vested with the High Court over the subordinate courts in all matters 24. In Punjab and Haryana High Court including the disciplinary proceedings and the Vs. State of Haryana, A.I.R. 1975 SC 613, powers of the Chief Justice the High Court the Constitutional bench of Hon’ble Supreme under Article 229 includes the powers to suspend, dismiss, remove or compulsory retire

76 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 from service an officer of subordinate 29. The impugned order dated 19.11.1981 judiciary. reveals that late Shri Suraj Bali Katiyar, while he was working as Judicial Magistrate at 28. In view of the reasons mentioned in Budaun, the Vigilance Department of the the fore going paragraphs, we are of the view High Court found certain allegations prima that the entrie disciplinary proceedings facie to be correct against him. There after, commencing from suspension order dated with the consultation of the High Court, the 27.11.1974 passed by the State Government, matter was referred for enquiry by the issuance of the charge sheet under the Administrative Tribunal, IInd. The Tribunal signature of Secretary to the State after completing the enquiry found two Government, order of the Governor referring charges stood proved against the petitioner ( the matter to Administrative Tribunal to hold deceased). The consent/ concurrence of the the enquiry against the petitioner (Late Shri High Court was obtained on the report of the Suraj Bali Katiyar) under Rule 4(1) of the Administrative Tribunal. In the meantime the U.P. Disciplinary proceedings (Administrative petitioner (deceased) retired on 31.12.1976. Tribunal) Rules,1947. The enquiry report As even against a retired officer action under dated 18.12.1976 submitted by the Regulation 351-A could be taken, hence the Administrative Tribunal, issuance of show question of deduction of pension was passed. cause notice dated 25.3.1977 by the District Thereafter, furnishing with a copy of the Judge Etah asking the petitioner (Late Shri decision of Administrative Tribunal, a show Suraj Bali Katiyar ) to show cause, even cause notice was issued to the petitioner when he retired on 31.12.1976, as to why in (deceased), in which it was proposed that 50% pursuance of the recommendation of the of his pension be deducted. The petitioner Administrative tribunal he will not be (deceased) submitted a reply against the show dismissed from service under Rule 10 of the cause notice, which was considered by the Disciplinary proceedings ( Administrative Administrative Committee in its meeting Tribunal) Rules, 1947, issuance of another dated 5.5.1979. The Administrative show cause notice dated 12.9.1977 by the Committee rejected the representation of the State Government to the effect that the petitioner (deceased) and had recommended Administrative Tribunal in its enquiry report deduction of 50% of pension of the petitioner dated 18.12.1976 found charges No.1 and 2 (deceased). The State Government after proved and as the deceased petitioner considering the recommendation of the High retired from service with effect from Court took a decision to accept the 31.12.1976 and the Governor has directed recommendation of the High Court, thereafter the State Government to issue show cause the Governor of U.P. exercising his powers notice as per the report of the under Regulation 351—A and Rule 28 of the Administrative Tribunal as to why 50% of U.P. Judicial Officers Service Rules directed the pension may not be deducted under the that from the pension of petitioner (deceased), provisions of Regulation 351-A of the deduction of 50% be made. Regulations and the report of the Administrative Tribunal passed by the State 30. In view of the provisions contained in Government in the name of the Governor of Article 235 of the Constitution and Section 28 U.P. deducting 50% of the pension of the of the U.P. Judicial Officer Rules, the powers deceased petitioner under Regulation 351-A is vested with the High Court to initiate and of Civil Service Regulations, are totally conduct and enquiry against an officer vitiated and are liable to be set aside. belonging to subordinate judiciary. After coming into force of the notification dated September 30, 1967, the petitioner (deceased) 1ALL] Sri Gopal Singh V. Executive Engineer, Construction and another 77

became the member of the subordinate allowed. A writ in the nature of certiorari judiciary and only the High Court, under quashing the impugned order of the Article 235 of the Constitution of India, could Government directing 50% deduction from hold the enquiry, but unfortunately the High the pension of the petitioner (Late Shri Suraj Court abnegated its control by holding the Bali Katiyar), the order of the Government enquiry against the petitioner ( deceased). dated 27.11.1974 suspending the petitioner (Late Suraj Bali Katiyar) pending enquiry and 31. We are of the view that the High the report of the Administrative Tribunal Court under Article 235 is vested with the dated 18.12.1976, is issued. The respondents control of the subordinate judiciary, ought not are directed to make the payment of full to have asked the State Government to hold pension to the substituted heirs and legal the enquiry through the administrative representatives of the deceased petitioner and Tribunal. It appears that the High Court failed grant family pension to his wife in accordance to discharge its duty of preserving its control. with rules form the date of death of the It was nothing, but an act of abnegation of its deceased petitioner. powers of control. If the High Court would Petition Allowed. have conducted the enquiry through any  officer subordinate to it and recommended to 25,*,1$/ -85,6',&7,21 the State Government for the deduction of the &,9,/ 6,'( '$7(' $//$+$%$'  pension of the petitioner (Late Shri Suraj Bali Katiyar), then the State Government could %()25( have been perfectly justified in passing the 7+( +21·%/( $. <2* - said order, but in the instant case the Administrative Tribunal conducted the &LYLO 0LVF :ULW 1R  RI  enquiry, submitted its report and the High Court on the basis of the said report, 6UL *RSDO 6LQJK «3HWLWLRQHU recommended for deduction of 50% of the 9HUVXV pension of the petitioner (Late Shri Suraj ([HFXWLYH (QJLQHHU &RQVWUXFWLRQ DQG Bali Katiyar) under Regulation 351—A of DQRWKHU «5HVSRQGHQWV Civil Service Regulations and the State &RXQVHO IRU WKH 3HWLWLRQHU Government passed the impugned order. 6KUL 36 $GKLNDUL

32. As we have state earlier, it was the &RXQVHO IRU WKH 5HVSRQGHQWV duty of the High Court to have conducted the 6KUL .6 .XVKZDKD enquiry preferably through the District Judge 6& and thereafter would have recommended to the State Government for any appropriate )LQDQFLDO +DQG %RRN 5XOH  F  action. 5HWLUHPHQW DJH DSSRLQWPHQW DV PXVWHU UROO HPSOR\HH VLQFH  ZRUNHG DV ,QFKDUJH 33. In view of our observations indicated %HOGHU RQ  RQ WHPSRUDU\ EDVLV in the foregoing paragraphs, as a result of VXEVHTXHQWO\ UHJXODULVHG ZLWK UHVW UHVSHFWLYH HIIHFW ZKHWKHU HQWLWOHG WR ZRUN which this writ petition succeeds, we have not XS WR WKH DJH RI  \HDUV ± PD[HG TXHVWLRQ delved into the other points raised in this writ RI ODZ DQG IDFWV UHTXLUHG WR EH GHFLGHG E\ petition regarding malafide and denial of WKH DXWKRULWLHV FRQFHUQHG reason of reasonable opportunity. +HOG ± 3DUD  DQG  34. In view of what has indicated herein 7KH FRQWURYHUV\ LQ KDQG DSSDUHQWO\ ZLOO above the writ petition succeeds and is UHTXLUH SHUXVDO RI RULJLQDO UHFRUG DQG

78 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

UHOHYDQW PDWHULDOV SDUWLHV PD\ OLNH WR retirement with the sanction of the DGGXFH HYLGHQFH EHIRUH WKH TXHVWLRQ ZKLFK Government of public grounds, which must be LQYROYHV ERWK PL[HG TXHVWLRQV RI IDFW DQG ODZ KDYH WR EH DGMXGLFDWHG LQ WKH EDFN recorded in writing, but he must not be JURXQG RI WKH FLUFXPVWDQFHV LQ ZKLFK WKH retained after the age of 60 years except in DXWKRULW\ SDVVHG LPSXJQHG RUGHU DQG very special circumstances. ZKHWKHU WKH FDVH RI WKH SHWLWLRQHU LV JRYHUQHG E\ DPHQGHG 5XOH  IHG XQGHU (b) A Government service in inferior SURYLVLRQ service shall retire from service on the &RQVHTXHQWO\ LW ZLOO EH DSSURSULDWH WKDW afternoon of the last day of the month in 3HWLWLRQHU EH GLUHFWHG WR ILOH D UHSUHVHQWDWLRQ which he attains the age of sixty years. He EHIRUH WKH FRQFHUQHG DXWKRULW\ IRU GHFLGLQJ must not be retained in service after that date, WKH TXHVWLRQ LQ DFFRUGDQFH ZLWK ODZ WR except in very special circumstances and with GHWHUPLQH WKH TXHVWLRQ DV WR ZKHQ SHWLWLRQHU sanction of the Government. ZDV UHFUXLWHG DQG WKHUHDIWHU WKH DSSOLFDELOLW\ RI 5XOH  DV D ZKROH DW UHOHYDQW WLPH &DVH ODZ GLVFXVVHG (c) Notwithstanding anything contained $,5  6&  in clause (a) or clause (b) the appointing $,5  6&  authority may, at any time, by notice to any $,5  6& Government servant (whether permanent or $,5  6&  temporary). Without assigning any reason,   )/5  require him to retire after he attains the age $,5  6&  of fifty years or such Government servant may  & 83/%(&  '% be notice to the appointing authority

voluntarily retire at any time after attaining By the Court the age of forty-five years or after he has

completed qualifying service of twenty years. 1. Gopal Singh, Petitioner, has impugned order dated January 16. 1997, passed by 2. The aforesaid Rule was, however, Executive Engineer Construction Division amended by U.P. Fundamental (Ist Amend (Nirman Khand) Lok- Nirman Vibhag, Rules, 1987 vide Government Order dated Bageshwar District Almora (now 28.7.1987 (enforced retrospectively, w.e.f. reconstructed District Bageshwar)/ 5.11.1985) and reads: Respondent no.1 (Annexure-2 to the Writ

Petition) whereby the said authority gave one 56(a) Except as otherwise provided in month’s notice to the petitioner on purported other clauses of this rule, every Government attainment of age of superannuation under servant shall retire from service on the Rule 56 (c) of Financial Handbook – Vol. 2 to afternoon of the last day of the month in 4 in public interest. which he attains the age of fifty eight years.

He may be retained in service on the after the Rule 56(a) (b) and (c) which came in date of retirement on superannuation, with the existence in the year 1975 is reproduced sanction of the Government on public grounds below: which must be recorded in writing, but he

must not be retained after the age of 60 years 56(a) Expect as otherwise provided in this except in very special circumstances: Rule, every Government servant other than a

Government servant in inferior service shall Provided that a Government servant, retire from service on the afternoon of the last recruited before November 5,1985 and day of the month in which he attains the age holding the Group ‘D’ post shall retire from of fifty eight years. He may be retained in service after the date of compulsory 1ALL] Sri Gopal Singh V. Executive Engineer, Construction and another 79 service on the afternoon of the month in which someone (hand written) on plane paper and he attains the age of 60 (Sixty) years. said copy has been pasted upon the so-called original horoscope making it impossible for Explanation.- The above proviso shall not any one to peruse the contents of original be applicable in those case where the status of document. a post/posts referred to in the above proviso, has been changed after February 27, 1982 an 5. In view of the above, this Court is of categorized in higher Group of post/post. the opinion that petitioner has no locus standi or case on merit to dispute the date of birth 3. Learned counsel for the petitioner recorded in his service record which initially argued that correct date of birth of the continued throughout and exists as on date. petitioner was February 14, 1942 as per horoscope; a copy of which has been filed as 6. Learned counsel for the petitioner, in Annexure 3 to petition. the alternative, submitted that assuming the date of birth recorded in financial hand book Learned Standing Counsel Sri K.S. to be correct, petitioner could not be retired Kushwaha placed reliance on Rule 2 of Uttar before attaining age of 60 years and he should Pradesh Recruitment to Service have been allowed to continue up to 30th June, (Determination of Date of Birth) Rules 1974. 1999. According to petitioner the impugned The relevant Rule 2 reads:- order is arbitrary and the concerned authority was not competent to pass the same in view of 2. Determination of Correct Date of Birth the fundamental Rules 56 (b) (before Amend or Age. The date of birth of a Government Rule 1987 came in force) as the concerned servant as recorded in the certificate of his authority itself did not refer to the amended having passed the High School or equivalent Rule 1987. examination at the time of his entry into the Government service or where a Government 7. In para 2 of the petition it is stated that servant has not passed any such examination petitioner is an illiterate person residing in as aforesaid or has passed such examination remote part of hill area of the Sate of U.P. He after joining the service, the date of birth or was appointed as a Muster Roll Labour in the the age recorded in his service book at the year 1970. Learned counsel for the petitioner time of his entry into the Government service claims that petitioner was working in the shall be deemed to be his correct date of birth establishment on or before 19th February, or age, as the case may be, for all purposes in 1988 as ‘Incharge Beldar’ in temporary relation of his service, including eligibility for establishment on the basis of District seniority promotion, superannuation, premature and he was regularised against sanctioned retirement or retirement benefits and no posts of Beldar- which were vacant vide order application or representation shall be dated 19th February, 1988 (to be operative entertained for Correction of such date of age w.e.f. 26th February, 1988); true copy of in any circumstances whatsoever. which has been filed as Annexure 1 to the petition. 4. Apart from the legal position that the Date of birth recorded in service book could 8. It is argued by the learned counsel for not be disputed, this Court required learned the petitioner that petitioner was in ‘inferior counsel for the petitioner to produce original service’ and hence he was entitled to continue horoscope for perusal. The original horoscope up to the age of 60 years as contemplated in has been placed for perusal but it is found that Rule 60 (b)- which existed prior to July 1987 alleged original horoscope has been copied by (and appears to have been relied upon in the

80 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 impugned order- Annexure-2 to the Writ clerical mistake. Be that as it may be, the Petition). impugned order has to be read as it stands since there is no explanation on record by the 9. On behalf of the petitioner it is concerned authorities. contended that Petitioner was recruited before November 5, 1985 (see proviso of amended 13. As the record stands today, un- Rule 56)- as also apparent from Annexure 1 to amended rule did not exist when the the petition. On this basis it is argued that impugned order was passed and the validity of petitioner was entitled to continue up to the he said order is to be considered in the light of age of 60 years and no notice could be given the amended rule. This position is not at 58 years. It is further submitted that it was disputed by e learned counsel for the not within the competence of concerned Respondents. authority to retire the petitioner at the age of 58 years. 14. Concerned Authorities and the parties, it appears, were not alive to the Amendment 10. Learned counsel for the Respondent in the Rule. The parties thus had no on the other hand referred to amended Rule opportunity to consider the applicability of 56 and submitted that no reliance can be place amended Fundamental Rules 56, i.e. whether on nonexistent ‘rule’ and reference in the proviso of the amended rule shall be impugned order to said Rule has to be referred applicable to the facts of the case of the to the existing rule. According to the petitioner or not. respondents, petitioner was regularised after November 5, 1985 and hence he cannot claim 15. No one dealing with the matter to have been recruited prior to the date of attempted to ascertain the date of recruitment regularisation given in the concerned order, of the petitioner, i.e. – to find out the exact i.e. Annexure- 1 to the Writ Petition. extent and scope of the expression “Recruitment. In other words – whether 11. Respondent laid emphasis on the word expression “Recruitment” in the proviso to ‘recruitment’ used in the proviso to amended Fundamental Rule 56 include or exclude Rule 56. Learned counsel for the petitioner on temporary appointment or it only means the the other hand places reliance on the date of regular/substantive appointment. expression used in the regularisation order date 19- 1988 (Annexure-1 to the Writ In this context – it will be useful to have Petition) and submits that the petitioner was Definition of the word – “Recruit/Recruited” recruited and working in ‘temporary or Recruitment” as given in some of the establishment’ prior to regularisation and it Dictionaries:- shows that he is covered by the proviso to the amended Rule 56. It is argued that in absence THE NEW LEXICON WEBSTER’S of necessary pleadings and grounds on this DICTIONARY aspect the respondents were not aware of the (Vol.2) Encyclopaedia Edition Particular exact issue to be determined in this case and page 834 hence the respondents are handicapped. RECRUIT ;“ - to enlist men for (an army) -Newly enlisted member of the armed 12. Learned Standing Counsel, had no force. opinion but to concede that the impugned -A member or supporter of a society, order was passed in ignorance of amended cause, etc.” Rule and /or reference to the un-amended rule in the impugned order is due to inadvertent MUKHERJEES THE LAW LEXICON- 1ALL] Sri Gopal Singh V. Executive Engineer, Construction and another 81

(Vol. II) Second Edition. 1977 – page 406 Expression “recruitment” is wider in scope as compared o the term “appointment” in 5(&58,70(17  service jurisprudence.

- the dictionary meaning of the word 16. The controversy in hand apparently ‘Recruit. will require perusal of original record and relevant materials, parties may like to adduce - Fresh supply of number of persons either evidence before the question – which involve as additional or to -make up for deceased so both mixed questions of fact and law, have to ‘recruitment’ is only for purpose of making up be adjudicated in the back ground of the deficiency which occurs in the Cadre while circumstances in which the authority passed ‘appointment’ means an actual act of posting impugned order and whether the case of the a person to a particular. petitioner is governed by amended a Rule 56 fed under provision. - the term ‘recruitment’ and appointment ‘ are not synonymous and cannot different 17. Consequently, it will be appropriate meanings. that Petitioner be directed to file a representation before the concerned authority - the term recruitment signifies enlistment, for deciding the question in accordance with acceptance, selection or approval for law, to determine the question as to when appointment and no actual ‘appointment or petitioner was recruited and thereafter the positing in service while of ‘appointment’ applicability of Rule 56 as a whole –at means and actual act of posting a person to a relevant time. particular office. 18. Learned counsels for the a parties are in agreement that petitioner has already AIR 1969 Punjab & Haryana 178 (181) completed 60 years and thus, he has attained the age of superannuation (according to the THE LAW LEXICON :- by Pramanatha sate of birth mentioned in his service book). It Aiyer is, therefore, submitted that Petitioner has no Reprint Edition 1987 (Wadhya & Company) claim to be reinstated in the service. The only relief, which survives, is regarding payment RECRUIT :- of salary for the disputed period.

- is a newly enlisted and not trained soldier In view the above the impugned order ; a person who newly joins a society or January 16,1997, passed by Executive organisation. Engineer Construction Division (Nirman THE RANDOM HOUSE – DICTIONARY Khand) Lok Nirman Vibhag, Badeshwar OF ENGLISH LANGUAGE –College District Almora (now reconstructed District Edition (1972) – (Published in India) Bageshwar)/Repondent no.1 (Annexure-2 to the Writ Petition ) is set aside subject to the RECRUIT – condition that petitioner files a “ …….. a new mention of group, organisation comprehensive representation containing his or the like grievance on the aspect referred to above in ………. To raise or increase (a force) by the judgement (along with a certified copy of enlistment ……. to engage or hire (new this judgement) within six weeks from today. employees, members etc.)” Petitioner will not be entitled to re-open controversy on the ground of horoscope or

82 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 entry not being correctly recorded in service &RXQVHO IRU WKH 3HWLWLRQHU record. The concerned authority shall decide 6KUL $ .XPDU the said representation within three months by 6KUL 63 6LQJK giving opportunity to the petitioner in accordance with law and shall a reasoned &RXQVHO IRU WKH 5HVSRQGHQW order which shall be communicated within 6& two weeks of its being passed by Registered 6UL 9LQHHW 6DUDQ 6UL 81 6KDUPD post acknowledgement due apart from any 6UL 3UDERGK *DXU other mode to the Petitioner. 6KUL 7HM 3UDNDVK 6KUL 7DXMD 6RPYDQVKL It is made clear that none of the observation made above shall effect the &RQVWLWXWLRQ RI ,QGLD $UWLFOH    discretion of the concerned authority in WHUPLQDWLRQ RUGHU EDVHG RQ DEROXWLRQ RI deciding the issue before him. If it is found SRVW &RQWUDFWXDO DSSRLQWPHQW SHWLWLRQHU that petitioner was entitled to be continued up KDV QR ULJKW WR FRQWLQXH HYHQ LI WKH to the age of 60 years, the question of DSSRLQWPHQW ZDV SHUPDQHQW EDVLV payment of arrears of salary on the basis of DEROXWLRQ RU FUHDWLRQ RI SRVW LV D SROLF\ PDWWHU SURWHFWLRQ $UWLFOH   QRW full wages shall be decided by concerned DYDLODEOH authority taking into account relevant +HOG ± 3DUD  circumstances (keeping in mind-employee in 6LQFH WKH GHFLVLRQ RI WKH &HQWUH RI DEROLVK the instant case has not refused to work) on WKH SRVW DSSHDUV WR KDYH EHHQ SDVVHG RQ the basis of criterion pointed out in several DGPLQLVWUDWLYH DQG ILQDQFLDO JURXQGV WKLV decisions of this Court as well as Apex Court, &RXUW FDQQRW LQWHUIHUH ZLWK WKH VDPH 7KHUH LV D ILQDQFLDO FULVLV LQ WKH FRXQWU\ DQG WKH whether employee was gainfully employed or FRXUW VKRXOG QRW LQWHUIHUH LQ WKH DXWKRULWLHV not etc., during relevant period in question. HQGHDYRXU EH EULQJ GRZQ H[SHQVHV See AIR 1991 SC 2010 (Union of India &DVH ODZ GLVFXVVHG versus K.V. Jankiramna):AIR 1999 SC 3265; $,5  6&  AIR 1979 SC 75; AIR 1980 SC 840 (para 18 $,5  6& ±  and 19); 1998 (78) FLR 530(SC); AIR 1991 $,5  6& ±  SC 1490 and 1998 (1) UPLBEC 304 (DB) All. H.C. By the Court

Writ petition stands allowed subject to the 1. This writ petition has been filed against direction and observations made above. the impugned orders dated 13.1.1998 Petition Allowed. Annexure 25 and 26 to the petition. By the  order dated 13.1.1998 Annexure 25 to the 25,*,1$/ -85,6',&7,21 petition the post of Deputy Director (Public &,9,/ 6,'( Relation) in the North Central Zone Cultural '$7(' $//$+$%$' -DQ   Centre, Allahabad was abolished. By the second order of the same date (Annexure 26 %()25( to the petition) the petitioner was given 7+( +21·%/( 0.$7-8 - contractual appointment for two years from 7+( +21·%/( '%&+$8'+$5< - 1.12.1993 terminable at any point of time &LYLO 0LVF :ULW 3HWLWLRQ 1R  RI  without any prior notice. It was also provided therein that on the expiry of the contract 6XUHVK 6LQJK «3HWLWLRQHU period it will be in the sole discretion of the 9HUVXV Executive Board of the North Central Zone 'LUHFWRU 1RUWK &HQWUDO =RQH Cultural Centre, Allahabad to determine DQG RWKHUV «5HVSRQGHQWV 1ALL] Suresh Singh V. Director, North Central Zone & others 83

whether the contract should be renewed or be re-designed as Deputy Director (public not. Relations) and the petitioner be appointed on the pay scale of Rs.3000-4500 for three years Heard learned counsel for the parties. from 1.12.1992. It was resolved by the Executive Board that the petitioner be treated 2. The North Central Zone Cultural as an officer on contract employment. By the Centre, Allahabad (hereinafter referred to as order dated 3.6.1996 the petitioner was ‘the Centre’) was set up a view to promote allowed to continue to work in continuation of and preserve the cultural heritage of India. It his previous service till such time as the next is registered as a Society under the Societies meeting of the Executive Board/Governing Registrar Act. Its governing body consists of body. The petitioner made a representation for several persons mentioned in paragraph 2 of absorption. True copy of the representation the petition. The finance of the centre is dated 24.1.1997 is Annexure 10 to the provided by the Central Government and petition. By the order dated 26.4.1997 vide participating State Government. The Director Annexure 11 to the petitioner’s contractual is an I.A.S. officer. appointment was extended till 30.4.1997. it was mentioned therein that if the petitioner 3. It is alleged that the petitioner was a failed to extend his contract till 30.4.1997 confirmed/regular employee working as the letter dated 24.1.1997 will be considered Administrative Officer in the U.P. Panchayat as notice of termination of employment as per Raj Vitta Evam Vikas Nigam Ltd. (hereinafter contract. The petitioner submitted a referred to as the Nigam) a Government of representation 29.4.1997 against this order U.P. undertaking and he was sent on vide Annexure 12. In reply the office memo deputation by the Nigam to the Centre. True dated 3.5.1997 was sent to him vide Annexure copy of the letter appointing him on 13. The petitioner signed the counteract deputation is Annexure 2 to the writ petition. referred to in the office memo as stated in The petition. The petitioner took charge on paragraph 50 of the writ petition. He then 2.12.1991 vide Annexure 3. It is alleged in moved an application dated 10.10.1997 for paragraph 17 of the writ petition that while reconsidering of the decision vide Annexure working in the Centre the petitioner retained 14. In paragraph 54 of the petition it is alleged his lien in the Nigam. In paragraph 18 it is that the petitioner was not paid salary for the alleged that the petitioner was appointed as months of November and December 1997. Deputy Director (Public Relations) by the The petitioner filed a writ petition no. 43718 order dated 19.1.1993 in the Centre vide of 1997 before this court which was disposed Annexure 4. He was given pay scale of Rs. of by the order dated 13.1.1998 vide 3000-4500. It is alleged in paragraph 21 that Annexure 24 to the writ petition in which the on the assurance given by the respondent no.1 respondents were directed to pass appropriate that he would be absorbed in the Centre he orders on the representation of the petitioner. resigned from the Nigam. True copy of the It is alleged in paragraph 73 that consequent petitioner’s application dated 13.7.1993 is to this order the Director get annoyed and Annexure 5 to the petition. True copy of the abolished the contract vide Annexure 25. resignation letter is Annexure 6 to the writ Hence this petition. petition. The resignation was accepted by the Nigam w.e.f. 1.12.1993 vide Annexure 8. In 4. A counter affidavit has been filed by paragraph 28 it is alleged that the Executive the respondents. It is stated in paragraph 32 of Board of the Centre by the resolution dated the counter affidavit that the post on which 4.3.1994 resolved that the post of Deputy the petitioner was working has been abolished Director (Public Relations and Publications) and no direction could be given in favour of

84 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 the petitioner. This was a policy decision in authority of the officiating Director for the the interest of the Society. In paragraph 29 of purposes of service matters and he had no the counter affidavit it has been stated that the jurisdiction to regularize the service of the Executive Board of the Society decided on petitioner. There was indecent haste in the 15.12.1997 that the Centre does not need the matter and the decision of Sri Mishra to post of Deputy Director (Public Relations) regularize the service of the petitioner was and there is no need to renew the contract of illegal and for extraneous consideration. The the petitioner. Hence the contract was not Executive Board did not want to add any renewed and his service was terminated. In more to the staff of the Society since the paragraph 37 of the counter affidavit it is Society was spending more than 20 % of its denied that the Society is an instrumentality income on payment of pay and allowances. In and agency of the Central Government. paragraph 66 of the counter affidavit it is stated that there was no promise or assurance 5. In paragraph 13 of the counter affidavit given by any competent authority of the it is stated that the petitioner had fraudulently Society for absorption regulation of the tendered his resignation from his parent petitioner in the service of the Society. The department, namely, U.P. Panchayat Raj Vitta petitioner resigned from his parent department Evam Vikas Nigam Limited, Lucknow. In voluntarily on his own and no competent paragraph 18 it is stated that the authority of the Society asked him to do so. administrative expenditure of the Society The petitioner and the then Joint Director Sri exceeded 20% of the total outlay of the R.P. Mishra connived in sending a fraudulent Society and hence the Governing Body of the letter to the parent department of the Society in its meeting on 15.12.1997 decided petitioner. In paragraph 74 of the counter that efforts should be made by the Society to affidavit it is alleged that the Society never bring its administrative expenditure to 20% gave any assurance as alleged in the of its total budget. Hence it was decided that application of the petitioner dated 13.7.1993. the service of those on contractual basis may not be renewed after expiry of the contract. It The detailed facts have given in the was also decided to abolish the post of Deputy counter affidavit and in the other affidavits Director (Public Relations). In paragraph 20 but it is necessary to go into the same. of the counter affidavit it is stated that there was connivance between the petitioner and 6. The question whether to abolish a post the Officiating Director Sri Prayag Ram is a policy matter and it is for the Mishra. It is alleged that the petitioner and Sri Management of the Society to decide this and Mishra were in the knowledge of the decision this Court cannot interfere in the decision of of the Executive Board Governing Body and abolition of a post. Moreover the allegation of hence the petitioner and Sri Mishra cannot the petitioner that he was given assurance for claim ignorance about such resolution. True absorption in the Society has been strongly copy of the resolution dated 9.10.1992 is refuted in the counter affidavit. These are Annexure C.A. 4 to the counter affidavit. It is disputed questions of fact and we cannot go alleged in paragraph 20 to the counter into it in writ jurisdiction. affidavit that it was amazing that just after the minutes of the said meeting of the Executive 7. It is obvious that the Centre wanted to Board held in Lucknow on 25.6.1993 the reduce its administrative expenses and this officiating Director Sri Mishra moved a note approach cannot be faulted by the Court. dated 13.7.1993 for regulation of the service Obviously there has been overstaffing in the of the petitioner. Moreover, the Executive Centre and there is nothing wrong in Board of the Society did not recognize the remedying this situation. 1ALL] Suresh Singh V. Director, North Central Zone & others 85

was stated that the matter should await the 8. In Rajendra vs. State of Rajasthan and appointment of the permanent Director. On others AIR 1999 SC 923 the Supreme Court 4.3.1994 the Executive Board of the Centre in held that where a decision to abolish the post its meeting at Jaisalmer passed a resolution is taken which is bona fide based on that if the petitioner wants to continue in the administrative and financial consideration, the Centre his employment from 1.12.1993 shall employer cannot be directed to continue a be purely on contractual basis on the disped person in service. The Supreme Court condition that the petitioner should execute a considered several of its own earlier decisions deed of contract. The first contract of service and held that the Court cannot interfere in was executed on 21.4.1994 whereby the such matters. petitioner was appointed on purely contract 9. In the present case it cannot be said that basis for a period of two years from 1.12.1993 the decision of the respondent to abolish the and terminable at any time without notice and post was mala fide. Rather, the factual after the expiry of the contract period it was position appears to be that the matter of the sole discretion of the Executive Board to appointment of the petitioner as Deputy renew the contract or not. On the request of Director was placed on 25.6.1993 before the the Director of the Centre the U.P. Governor Executive Board and the Board decided that gave permission for extension of the contract the matter should await decision till the for a period of six months i.e. up to 31.5.1996 permanent/ regular Director of the Centre was and hence a second contract of employment appointed. No doubt Sri J.P. Rai, I.A.S. was was executed on the same terms as in the first appointed as regular Director of the Centre by contract vide Annexure C.A. 12 to the counter the letter dated 7.7.1993 but that letter states affidavit. Since no meeting of the Executive that the appointment will take effect from the Board was held hence with the approval of the date of his joining, and Sri Rai joined as Governor of U.P. (who is Chairman of the regular Director of the Centre on 21.7.1993. It Centre) the contract between the petitioner appears that in between i.e. before the joining and the Centre was extended till 31.5.1996 on of Sri Rai on 21.7.1993 the petitioner gave an the same terms as the precious two contracts. application on 13.7.1993 to the Director Sri Another contract was signed on 26.4.1997 P.R. Misra that if he is absorbed in the service extending the period to 30.4.1997 vide of the centre he shall resign from his parent Annexure C.A. 13 to the counter affidavit and department. On the same date the petitioner again another contract was signed on 3.5.1997 submitted his resignation letter dated extending the petitioner’s contract till the next 13.7.1993 to be forwarded to his parent meeting of the Executive Board or specific department and on the same date i.e. on order issued in this regard which ever was 13.7.1993 Sri P.R. Misra wrote to the parent earlier vide Annexure C.A.14 to the counter department of the petitioner (Panchayat Raj affidavit. Ultimately on 15.12.1997 the Nigam) forwarding the resignation letter of Governing Body of the Centre resolved to the petitioner. All these acts were done in a abolish the post of Deputy Director (Public hurry and in one single day although the Relation) besides down grading various other officiating Director had no authority or power posts. This decision was apparently taken with to give approval or assurance for absorption to a view to bring the administrative expenditure the petitioner or to forward his resignation of the Society to 20 % of its total budget. letter to the parent department. In our opinion, Consequent to the aforesaid resolution the Sri R.P. Misra should have awaited for the Executive Board passed another resolution regular Director Sri Rai to join but he acted in stating that the Centre does not require the great haste and against the resolution of the post of Deputy Director (Public Relations). In Executive Board dated 25.6.1993 wherein it pursuance of the aforesaid two resolutions the

86 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

Director of the Centre issued two orders dated 25,*,1$/ -85,6',&7,21 13.1.1998 abolishing the post and terminating &,9,/ 6,'( the contractual appointment of the petitioner. '$7(' $//$+$%$' 

%()25( 10. In N.C. Singh vs. Union of India, AIR 7+( +21·%/( 5$9, 6'+$9$1 - 1980 SC 1255 the Supreme Court observed 7+( +21·%/( $ &+$.5$%$57,- (vide paragraph 18): “Creation and abolition of posts is a matter of government policy, and 6SHFLDO $SSHDO 1R  RI  every Sovereign Government has this power in the interest and necessity of internal 6XUHVK &KDQGUD 0LVKUD «$SSHOODQW administration. The Creation or abolition of a 9HUVXV post is dictated by policy decision, exigencies 7KH 'LVWULFW ,QVSHFWRU RI 6FKRROV -KDQVL of circumstances and administrative necessity DQG RWKHUV 5HVSRQGHQWV (see M. Ramanatha Pillai vs. The State of &RXQVHO IRU WKH $SSHOODQW Kerala, AIR 1973 SC 2641)”. 6KUL .5 6LQJK

11. In K. Rajendran vs. State of Tamil &RXQVHO IRU WKH 5HVSRQGHQW  Nadu, AIR 1982 SC 1107 it was held that 6& abolition of a post did not involve 6KUL 51 5DL punishment, and hence Article 311(2) was not attracted. In Mathuresh Chand vs. U.P. Public ,QWHUPHGLDWH (GXFDWLRQ $FW  Service Tribunal, 1999(81) FLR 322 a DSSRLQWPHQW VXEVWDQWLYH YDFDQF\ RI OHFWXUHU division bench of this Court held that FDXVHG GXH WR UHWLUHPHQW RI SHUPDQHQW abolition of a post is a valid ground for HQFXPEDQW VKRUW WHUP YDFDQF\ZKHWKHU WKH termination of service of even a permanent DSSRLQWPHQW VKRXOG EH PDGH WKURXJK SURPRWLRQ IURP WKH VHQLRU PRVW HOLJLEOH /7 employee. JUDGH WHDFKHU RU E\ GLUHFW UHFUXLWPHQW " +HOG WKH PDQDJHPHQW WR ILQG RXW ILUVW DERXW 12. Since the decision of the post appears WKH HOLJLEOH FDQGLGDWH IURP HQWHUQDO to have been passed on administrative and FDQGLGDWHV LI QR RQH HOLJLEOH 7HDFKHU LV financial grounds this Court cannot interfere DYDLODEOH RQO\ DIWHU UHFRUGLQJ WKLV ILQGLQJ with the same. There is a financial crisis in the WKH GLUHFW DSSRLQWPHQW FDQ EH PDGH WLOO WKH UHJXODU FDQGLGDWH MRLQ WKH SRVW LQ TXHVWLRQ country and the court should not interfere in +HOG SDUD  the authorities endeavour to bring down their ,Q WKH SUHVHQW FDVH LW ZRXOG EH DSSURSULDWH expenses. Hence this is not a fit case for WKDW WKH UHFRUG EH UHPLWWHG WR WKH &RPPLWWHH interference under Article 226 of the RI 0DQDJHPHQW IRU LWV GHFLVLRQ WR FRPH WR D Constitution. FRQFOXVLRQ ZKHWKHU DQ HOLJLEOH FDQGLGDWH ZLWKLQ WKH ,QVWLWXWLRQ ZDV DYDLODEOH RU QRW DYDLODEOH DW WKH UHOHYDQW WLPH ,I WKH 13. We are not going into question &RPPLWWHH RI 0DQDJHPHQW FRPHV WR WKH whether the Centre is an instrumentally of the FRQFOXVLRQ WKDW WKHUH ZHUH QR HOLJLEOH State under Article 12 of the Constitution or FDQGLGDWHV DYDLODEOH IRU SURPRWLRQ ZLWKLQ not as we are dismissing the petition on the WKH LQVWLWXWLRQ WKHQ WKH DSSRLQWPHQW VR ground mentioned above. PDGH VKDOO EH UHWDLQHG &DVH /DZ GLVFXVVHG   83/%(& However, we recommend to the petitioner’s parent department (the Nigam) to By the Court re-employ the petitioner considering the fact that his post in the centre has been abolished. 1. This special appeal has been filed Petition Dismissed.  against the order dated 18 September 1995, in 1ALL] Suresh Chandra Mishra V. D.I.O.S, Jhansi and others 87

writ petition no. 29083 of 1991:Krishna “This writ petition has been filed against Dutt Mishra v. The District Inspector of the impugned order darted 24.1.1991 Schools and four others. The contesting (annexure 10 to the writ petition). respondent in the writ petition, respondent no.4, is Suresh Chandra Mishra, appellate 4. I have heard Dr. R.G.Padia, learned before this court. The memorandum of writ counsel for the petitioner and Sri A.D. Tiwari, petition described him as an “illegally learned counsel for the respondents No.4. The appointed as Lecturer in Civics in Sri Laxman short controversy in this case is regarding Das Inter College, Jhansi.” appointment of lecturer in Sri Laxman Das Damelay Inter College, Mauranipur, District 2. In so far as the issue on facts is Jhansi. The college has appointed respondent concerned, it is clear. On the post of Lecturer No.4 by direct recruitment on the said post. in Civics there was a vacancy on 30 June The contention of the petitioner is that this 1990. This was one Dwarika Prasad Sarawagi. post has to be filled up by promotion. The The process of intimating the vacancy to the Full Bench of this court in Radha Raizada Vs. Commission had been made by the Committee of Management 1994(3) UPLBEC Committee of Management, but no 1551 has held that so far as adhoc communication had been received within one appointment is concerned, it should be by stipulated period. Thus, the Committee of filling up by promotion from the lower post Management set about to fill the post on ad not by direct recruitment. Since petitioner was hoc basis until a candidate duly selected was admittedly in the L.T. Grade Teacher and was returned by the Commission. On whoever eligible and he should have been considered may be appointed until a candidate from the for promotion as Lecturer in Civics in the Commission arrives, his status would be ad college and the respondent No. 4 could not hoc. On this aspect, also, there is no issue. have been validily appointed by direct recruitment. 3. Between the appellant, who was the contesting respondent in the writ petition, 5. In the circumstances this writ petition is Suresh Chandra Mishra, and the petitioner, allowed and the impugned order dated Krishna Dutt Mishra (respondent in this 24.1.1991 of the D.I.O.S. approving the appeal), there is an issue. The contention on appointment of respondent No. 4 is quashed. behalf of the appellant as raised by Mr. Ashok The Committee of Management should know Khare Advocate, is that the process of filing a consider the petitioner as well as other eligible vacancy in the circumstances, as in the candidates for promotion in the institution for present case, permits the Committee of the post of Lecturer in civics and forward the Management to fill the post by promotion or papers to the D.I.O.S. for grant of approval from the outside. This contention is disputed within six weeks from the date of production by counsel for the petitioner-respondent, Dr. a certified copies of this order before him R.G. Padia, whose contention is that the post after hearing the parties concerned. Petition can be filled only by promotion. The order of is allowed. No. order as to costs.” the learned Judge and the direction issued is also, to the effect, as has been contended by 6. On both sides, whether the appellant or the petitioner- respondent. The Court the respondent in this appeal, reliance is considers it appropriate that the order of the placed on the same case. While the appellant learned Judge be reproduced : contends that, a candidate from the Commission has yet to arrive, recruitment can be made both ways, internally and externally. On behalf of the respondent, it is emphatically

88 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

argued that an outsider has no place and the Management to take resort to the power to vacancy can be filled by promotion only. appoint ad hoc teacher by direct recruitment under paragraph 5 of the First Removal of 7. The only aspect which is to be resolved Difficulties Order. In Charu Chandra Tiwari is whether the learned Judge, on the case v. District Inspector of Schools, 1990 which had been cited, had left the field open UPLBEC Page 160, it was held that the or had taken the view that this vacancy is Management has to fill the vacancy by ad hoc closed for recruitment by promotion only. promotion of a senior most teacher of the same institution qualified for such In the judgement which has been appointment and ad hoc appointment through impugned, it is the later aspect. direct recruitment is permissible only in case no such teacher in the institution is available. 8. The case which is relied upon by This according to me lays down the correct learned counsel for the parties is the Full view of law. I am, therefore, of the view that bench decision in re. Radha Raizada and the existing substantive vacancy which has others v. Committee of Management, been notified to the Commission and the Vidyawati Darbari Girls Inter College and condition provided under Section 18 of the others.1 Reliance is placed on behalf of the Act is present, the vacancy has to be filled up petitioner-respondent on paragraph 39. firstly by promotion from amongst senior Reliance is also placed by counsel for the most teacher in next lower grade.” appellant on the same paragraph with the contention that the entire perspective may be 10. The full Bench was itself relying on an seen in objectivity. earlier decision of the Court Chandra Tiwari v. District Inspector of Schools. What is 9. In the circumstances, this Court is relevant is on what the Full Bench has noticed reproducing paragraph 39 : towards the end of the paragraph. The Full bench has laid down that a vacancy, in the “39.Paragraph 5 of the First Removal of circumstances as the present one, has to be Difficulties Order provides that where any filled up first by promotion from amongst the vacancy cannot be filled by promotion under senior most teachers in the next lower grade. paragraph 4 of the order, same may be filled The emphasis is on an exercise of filling a direct recruitment. Thus, it is mandatory on vacancy initially from amongst the candidate the part of the Management to first up the available at the institution itself by promotion. vacancy by promotion on the basis of The Full Bench adopts the reasoning (in the seniority alone. This method has to be has to case referred to) that an ad hoc appointment be resorted to as the teachers are available in by direct recruitment is permissible only if an the institute and any other method of eligible teacher at the institution is not recruitment may cause disturbance in teaching available. In that case, recourse can be of the institution which may affect the career resorted to by making an appointment through of students. Another reason why the vacancy direct recruitment. Suffice it to say either way has to be filled by ad hoc appointment by the appointments, as may be made, given the promotion is that it is a short term exigencies of the situation, would have the appointment in the sense that shortly a duly status of being ad hoc. Consequently, there is selected teacher would be available for no rigidity that a vacancy, in context, will be appointment against the said vacancy. So long filled with promotion of an in-house the posts can be filled under paragraph 4 of candidate. This position has been clarified by the Order by promotion, it is not to the the Full Bench by laying down that first the Committee of Management will assess on the 1 (1994)3 UPLBEC 1ALL] Pramod Kumar Rai & others V. Life Insurance Co. of India & others 89

eligible candidates being available within 25,*,1$/ -85,6',&7,21 the institution so as to maintain standards of &,9,/ 6,'( teaching, thus, the reference to eligible '$7('$//$+$%$' -$1   candidates. If eligible candidates are %()25( available, then, an appointment will be made 7+( +21·%/( 0 .$7-8 - on an ad hoc capacity from within the 7+( +21·%/( '5 &+$8'+$5< - institution until a duly selected candidate is returned from the Commission. &LYLO 0LVF :ULW 3HWLWLRQ 1R  RI 

11. But if there be no eligible candidate 3UDPRG .XPDU 5DL RWKHUV «3HWLWLRQHUV within the institution and this will need to be 9HUVXV placed on record, then, nothing stands in the /LIH ,QVXUDQFH &RUSRUDWLRQ RI ,QGLD DQG way of the Committee of Management to take RWKHUV 5HVSRQGHQWV recourse to make a direct recruitment as an &RXQVHO IRU WKH 3HWLWLRQHU alternate, on an ad hoc basis. 6KUL 7 3 6LQJK 6KUL 6XGKLU $JDUZDO To that extent there is an error in the judgement of the learned Judge. &RXQVHO IRU WKH 5HVSRQGHQWV  6KUL 3 3DGLD 12. In the present case, it would be appropriate that the record be remitted to the &RQVWLWXWLRQ RI ,QGLD $UWLFOH  -XGLFLDO Committee of Management for its decision to 5HYLHZ +LJK &RXUW FDQ QRW DFW DV DSSHOODWH come to a conclusion whether an eligible RU 5HYLVLRQDO DXWKRULW\ ± LW KDV QR FRQFHUQ candidate within the institution was available ZLWK WKH GHFLVLRQ RI WKH DXWKRULW\ EXW WR or not available, at the relevant time. If the FRQVLGHU WKH GHFLVLRQ PDNLQJ SURFHVV VHULRXV FRPSODLQW DJDLQVW VHOHFWLRQ LQFOXGLQJ Committee of Management comes to the EULEHU\ IDYRXULVP ± YLJLODQFH HQTXLU\ conclusion that there were no eligible SHQGLQJ DJDLQVW WKH UHVSRQVLEOH DXWKRULW\ ± candidates available for promotion within the GHFLVLRQ FDQFHOLQJ WKH HQWLUH VHOHFWLRQ RI WKH institution, then, the appointment so made FRQFHUQ ]RQH ± +LJK &RXUW GHFOLQHG WR shall be retained. LQWHUIHUH

+HOG ± 3DUD  DQG  13. This Court is not going into the rival merits of the candidates, whether they should ,Q WKH OLJKW RI WKH DERYH GHFLVLRQV RI WKH be in-house or by direct recruitment as this 6XSUHPH &RXUW LQ 7DWD &HOOXODU¶V FDVH DQG matter has yet to be examined by the RWKHU FDVHV :H DUH RI WKH RSLQLRQ WKDW LW Committee of Management. FDQQRW EH KHOG WKDW WKH DXWKRULWLHV DFWHG DUELWUDULO\ LQ WKH PDWWHU E\ FDQFHOOLQJ WKH H[DPLQDWLRQ ,Q VXFK PDWWHUV WKLV &RXUW The appeal is allowed. The order of the VKRXOG QRW RUGLQDULO\ VXEVWLWXWH LWV VRZQ learned Judge, dated 18 September 1995 on ZLVGRP IRU WKDW RI WKH DGPLQLVWUDWLYH the writ petition is set aside. DXWKRULW\ ,Q WKH VLPLODU FLUFXPVWDQFHV D 'LYLVLRQ No order on costs. %HQFK RI WKLV &RXUW LQ 8QLRQ RI ,QGLD 9V $NFKKD\ .XPDU 6LQJK   $:&  UHIXVHG WR LQWHUIHUH LQ WKH FDQFHOODWLRQ RI WKH Appeal Allowed. H[DPLQDWLRQ RI VHOHFWLRQ LQ UDLOZD\V 7KLV  &RXUW UHOLHG RQ GH 6PLWK¶V -XGLFLDO 5HYLHZ RI $GPLQLVWUDWLYH $FWLRQV DQG KDV KHOG WKDW DOO WKDW LV UHTXLUHG E\ WKH DXWKRULW\ LV WKDW LW

VKRXOG DFW LQ JRRG IDLWK DQG LWV GHFLVLRQ VKRXOG QRW EH LQIOXHQFHG E\ DQ\ H[WUDQHRXV

90 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

FRQVLGHUDWLRQ :H GR QRW ILQG DQ\ EDG IDLWK held in which the petitioners also appeared. LQ WKH DXWKRULW\ LQ WKH SUHVHQW FDVH QRU DQ\ Thereafter the result was declared in May H[WUDQHRXV FRQVLGHUDWLRQ 1999 in which the petitioners were awaiting &DVH /DZ GLVFXVVHG publication of the final result. In paragraph 14   -7 of the petition it is alleged that the final result   83/%(& with respect to selected candidates of Agra, $,5  6&   Aligarh, Allahabad, Kanpur, Haldwani, $,5  6& ±  Lucknow and Meerut Divisions were $,5  ± 6& ±    $// (5  published in July 1999 vide Annexure 6. $,5  6HF /   However, The result was not declared for   $&  Varanasi Division and hence writ petition no. 28914 of 1999 was filed in this Court. This By the Court Court directed that the result should be declared or the respondents should show 1. This Writ petition has been filed for a cause vide order of this Court dated writ of certiorari to quash the fax message 16.7.1999. In paragraph 18 of the writ petition dated 26.7.1999 Annexure 7 to the writ it is alleged that instead of showing cause the petition and for a mandamus directing the respondents have arbitrarily issued the respondents to appoint the petitioners on the impugned fax message dated 26.7.1999 post of Apprentice Development officers after cancelling the entire selection for Varanasi declaring the final result of the selection held Division besides three divisions and ordered in pursuance of the employment notice dated fresh selection. True copy of the fax message 25.1.1999. is Annexure 7 to the writ petition. The petitioner relied on the decision of the We have heard the learned counsel for the Supreme Court in Asha Kaul vs. state of parties. Jammu and kashmir 1993 (2) J.T. 688 and some other decisions e.g. Ram Prasad Rai 2. It is alleged in paragraph 3 of the and others vs. State of U.P and others 1995 ( petition that as per L.I.C. circular dated 2) UPLBEC 985 20.1.1999 recruitment of Apprentice Development Officer is to be made from 3. A Counter affidavit has been filed by certain sources which are mentioned in that the respondents. In paragraph 5 of the same it paragraph. In paragraph 4 of the petition it is has been stated that a large number of alleged that by employment notice dated complaints were made by several persons 21.1.1999 issued by the Zonal Manager, regarding the selection test complaining about North Central Zone office, L.I.C. Kanpur gross irregularities including bribery / recruitment of 300 posts of Apprentice favouritism. True copy of the compliant filed Development Officer was notified for various by ten candidates addressed to the divisional offices and for Varanasi Division Chairperson L.I.C. is Annexure C.A. 1 to the the number of vacancies notified were 38. counter affidavit. True copy of the compliant True copy of the employment notice dated made to the Executive director (Vigilance) is 21.1.1999 is Annexure 2 to the writ petition. Annexure C.A. 2 to the counter affidavit. True In Paragraph 5 of the petition it is alleged that copy of the compliant made by the L.I.C. the Petitions are working as Agents in the Agents Federation of India to the Chairperson Respondents Corporation and satisfy the of the L.I.C. is Annexure C.A. 3. In eligibility requirements for being considered paragraph 9 of the counter affidavit it is for 50% quota meant for the Agents of the alleged that the Chairperson of L.I.C. as well corporation. On 25.4.1999 a written test were as the Executive Director (Vigilance) took the 1ALL] Pramod Kumar Rai & others V. Life Insurance Co. of India & others 91 matter and the complaints very seriously and a in the examination. He also submitted that out fax messages was sent to the Executive of 38 posts only seven selected candidates Director to the Zonal Manager, Kanpur dated were relatives of officials. He has also relied 21.5.1999 directing him to get the matter on Annexure C.A. 8 for this submission. investigated through some responsible officer and to send the report to the Central Office at 4. In our opinion, this is not a fit case for Bombay. True copy of the fax messages interference under Article 226 of the alongwith the complaint is Annexure C.A. 4 constitution. The Authorities have come to the to the counter affidavit. In paragraph 10 of the conclusion that there were serious counter affidavit it is stated that an order irregularities in the examination and hence it dated 27.5.1999 was passed by the Vigilance is not proper for this Court to interfere. In Secretary, L.I.C. in which the Senior Union Territory of Chandigarh vs. Dilbagh Divisional Manager Varanasi has been named Singh A.I.R 1993 SC 796 the Supreme Court and it was pointed out to the Zonal Manager, held that no opportunity of hearing need be Kanpur that in the written test various given for cancelling the examination on the irregularities were alleged and it was directed ground of irregularity. The Supreme Court that an investigation be made through some further observed that the cancellation order responsible officer. True copy of the order of cannot be vitiated on the ground that direct the Vigilance Secretary dated 27.5.1999 is evidence about the corruption charges was not Annexure C.A. 5 to the counter affidavit. In available. In the present case there appear to paragraph 11 it is stated that an order was have been several complaints regarding passed on 27.5.1999 directing for holding the bribery /favouritism and a vigilance enquiry is enquiry. True copy of the same is Annexure going on against the Senior Divisional C.A. 6. The investigation report submitted by Manager , Varanasi. In S. Dash vs. Union of the regional manager dated 21.6.1999 and India A.I.R. 1991 SC 1991 SC 1612 the 25.6.1999 is Annexure C.A. 7 and C.A. 8 to Supreme Court held that a successful the counter affidavit. The Zonal Manager candidates does not acquire infeasible right to then passed the order dated 15.7.1999 for be appointed. Th only requirement is that the annulling the examination vide Annexure State should not act in an arbitrary manner C.A. 1) was issued. In paragraph 17 of the and should ac bona fide. In the present case it counter affidavit it is alleged that a person appears that a large number of complaints whose name is on the select list is not entitled have been made regarding the test for to be appointed. In paragraph 19 of the Varanasi Division and three other divisions. counter affidavit it is stated that out of the 11 It is for the authorities to decide whether divisions in which the examination was held, there should be a fresh examination or not and cancellation was made only for four divisions this Court has only limited power of judicial in respect of which there were specific review in such administrative matters. We do complaints and enquiries. In paragraph 20 of not think that the authorities acted arbitrarily the counter affidavit it is alleged that a in this matter. Moreover in the fresh selection Vigilance enquiry is pending against the which has been ordered the petitioners can Senior Divisional Manager, Varanasi also appear. Division. In paragraph 21 it is stated that a fresh selection is going to be held in Varanasi 5. The Scope of Judicial review in Division. administrative matters has been discussed in great detail by the Supreme Court in Tata Sri T.P. Singh learned counsel for the Cellular vs. Union of India A.I.R 1996 SC 11 petitioner submitted that as per Annexure vide paragraph 86 to 113. It has been held C.A. 7 and C.A. 9 there was no irregularity therein that the judicial review of

92 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

Administrative decisions is not concerned 8. In Tata Cellular’s case the Supreme with reviewing the merits of the decision but Court also referred to the views of eminent the decision making process itself. As held by jurists like Schwartz who emphasized judicial Lord Brightman in North Wales Police vs. restraint in judicial review in administrative Evans (1982) All ER 141: matter, since judges were not experts. The court will only interfere if the authority acts “ Judicial review, as the words imply is unfairly and in violation of law. If the not an appeal from a decision, but a review of decision making body is influenced by the, manner in which the decision was made. considerations which ought not influence it, or Judicial Review is concerned, not with the fails to take into account matters which it decision, but with the decision making ought to take into account, the Court will process.” interfere. Similarly, if the decision making body comes to its decision on no evidence or 6. The same view has been taken in comes to finding so unreasonable that no several other decisions also e.g. Union of reasonable person would have come to it the India v. G. Ganayuthan, 1997 S.C.C. (L&S) court can interfere. However, the court should 1806. The supreme Court in Tata Cellular’s not substitute its judgement for the judgement case (Supra) referred to the Wednesbury of the administrative authority unless that principle of unreasonableness. The Supreme judgement is wholly perverse. As observed by Court referred to several decisions of British, Prof. Wade in his ‘ Administrative Law’. American and Indian Courts wherein it was “The point to note is that a thing is not held that the words unreasonable had several unreasonable in the legal sense merely meanings. The Court should not interfere because the court thinks it is unwise. The merely because it takes a view from that of administrative test of reasonableness is not the administrative authority, and it can the standard of a reasonable man in Tort interfere only if the decision is so outrageous Law.” in its defiance of logic or of accepted moral standard that no sensible person who had 9. In the light of the above decisions of applied his mind to the question to be decided the Supreme Court in Tata Cellular’s case and could have arrived at it vide lord Diplock’s other cases we are of the opinion that it cannot judgement in Council of Civil Service Unions be held that the authorities acted arbitrarily in Vs. Minister for the Civil Service 1985 (I) AC the matter by cancelling the examination. In 374. such matters this court should not ordinarily substitute its sown wisdom for that of the 7. In Associated Provincial Picture houses administrative authority. limited vs. Wednesbury Corpn. (1947) 2. ALL ER 680 the Wednesbury principle was 10. In similar circumstances a Division defined by Lord Greene in the following Bench of this Court in Union of India Vs. manner” Akchhay Kumar Singh 1999 (4) A.W.C. 3564 refused to interfere in the cancellation of the “The decision of a public authority will be examination of selection in the railways. This liable to be quashed or otherwise dealt with Court relied on de Smith’s judicial Review of by an appropriate order in judicial review Administrative Actions and had held that all proceedings where the Court concludes that that is required by he authority is that it the decision is such that no authority should act in good faith and its decision properly directing itself on the relevant law should not be influenced by any extraneous and acting reasonably could have reached consideration. We do not find any bad faith in it.” 1ALL] Radhey Shyam Pandey V. The State of U.P. another 93

the authority in the present case, nor any SHQGHQF\ RI WKH FULPLQDO FKDUJH LQ WKH extraneous consideration. IRUPHU FDVH ZKLOH NHHSLQJ WKH DFFXVHG XQGHU VXVSHQVLRQ  WKHUH VKRXOG EH QR VWD\ RI GHSDUWPHQWDO SURFHHGLQJ LQ WKH OHWWHU Hence there is no force in this petition FDVH ,Q RXU RSLQLRQ WKH REVHUYDWLRQ RI WKH and it is dismissed accordingly. 6XSUHPH &RXUW LQ FHUWDLQ GHFLVLRQV WKDW Petition Dismissed. ZKHUH WKH FULPLQDO SURFHHGLQJ DQG  GHSDUWPHQWDO SURFHHGLQJ DUH JURXQGHG XSRQ 25,*,1$/ -85,6',&7,21 WKH VDPH VHW RI IDFWV DEVROXWH UXOH &,9,/ 6,'( ,Q WKH SUHVHQW FDVH DV DOUHDG\ PHQWLRQHG '$7(' $//$+$%$'  DERYH WKHUH DUH DOOHJDWLRQV UHJDUGLQJ HPEH]]OHPHQW RI KXJH DPRXQW RI SXEOLF %()25( IXQGV E\ WKH SHWLWLRQHU DQG KLV DVVRFLDWHV $ 7+( +21·%/( 0.$7-8 - SHUXVDO RI WKH FKDUJH VKHHW ZKLFK LV DOPRVW 7+( +21·%/( '5&+$8'+$5< -  SDJHV ORQJ DQG FRQWDLQV DV PDQ\ DV  FKDUJHV VKRZV WKDW VHULRXV DOOHJDWLRQV RI KXJH ILQDQFLDO HPEH]]OHPHQW DQG &LYLO 0LVF :ULW 3HWLWLRQ 1R  RI  PLVDSSURSULDWLRQ RI SXEOLF IXQGV KDYH EHHQ PDGH DJDLQVW WKH SHWLWLRQHU DQG KLV 5DGKH\ 6K\DP 3DQGH\ «3HWLWLRQHU DVVRFLDWHV ,Q 6WDWH RI 5DMVWKDQ 9HUVXV %. 9HUVXV 0HHQD DOVR WKHUH ZHUH JUDYH FKDUJHV 7KH 6WDWH RI 83 DQG DQRWKHU «5HVSRQGHQW SHUWDLQLQJ WR PLVDSSURSULDWLRQ RI KXJH DPRXQW RI SXEOLF IXQGV DQG WKLV ZDV D IDFWRU &RXQVHO IRU WKH 3HWLWLRQHUV ZKLFK WKH 6XSUHPH &RXUW WRRN LQWR 6&7HZDUL FRQVLGHUDWLRQ ZKLOH UHIXVLQJ WR VWD\ WKH 'U5DP 6KDQNHU 'ZLYHGL GHSDUWPHQWDO SURFHHGLQJ SDUD  &DVH ODZ GLVFXVVHG &RXQVHO IRU WKH 5HVSRQGHQWV   (6&  $,5  6& 6& $,5  6& $,5  6&  &RQVWLWXWLRQ RI ,QGLD $UWLFOH 6WD\ RI $,5  6&  'HSDUWPHQWDO 3URFHHGLQJ &ULPLQDO &DVH LV JRLQJ RQ WKH VDPH IDFWV VHULRXV FKDUJHV DERXW HPEH]]OHPHQW RI 5V  By the Court RIIHQFH RI PXUGHU LV SHUVRQDPH ZKLOH WKH RIIHQFH RI HPEH]]OHPHQW HIIHFW WKH LQWHUHVW Heard learned counsel for the parties. RI FRPPRQ SHRSOH RI VRFLHW\ 1R UHDVRQ GLVFORVHG LQ 'HSDUWPHQWDO (QTXLU\ VKDOO 1. The petitioner was appointed as a SUHMXGLFH WKH WUDLO RI FULPLQDO FDVH ERWK Junior Engineer in the Rural Engineering SURFHHGLQJ PD\ JR RQ VLPXOWDQHRXVO\ +HOG Services of the U.P. Government and was ,Q RXU RSLQLRQ LQ WKH SUHVHQW FDVH ZKHQ promoted as Assistant Engineer and WKHUH DUH JUDYH FKDUJHV DJDLQVW WKH subsequently given charge of Executive SHWLWLRQHU DQG KLV DVVRFLDWHV RI HPEH]]OLQJ Engineer from 14.7.1997. He was placed KXJH DPRXQW RI SXEOLF IXQGV WKH GLVFLSOLQDU\ under suspension by the order dated SURFHHGLQJV VKRXOG QRW EH VWD\HG ,Q RXU 22.12.1998 on grave charges of financial RSLQLRQ LQ GHFLGLQJ ZKHWKHU WR VWD\ WKH GHSDUWPHQWDO SURFHHGLQJV WKH QDWXUH RI WKH irregularities alongwith others. An F.I.R. was FKDUJHV KDV WR EH FDUHIXOO\ +RZHYHU WKHUH also filed against him and others at police DUH GLIIHUHQW NLQGV RI VHULRXV FKDUJHV DQG station, Kotwali, Ballia on 19.2.1998 vide WKH VDPH FRXUVH RI DFWLRQ FDQQRW EH IROORZHG Annexure1 to the petition. The petitioner has IRU DOO WKHP 7KH FKDUJH RI PXUGHU LV D been charged for embezzlement of an amount VHULRXV FKDUJH EXW VR LV WKH FKDUJH RI of Rs. 34,98,622/-. True copy of the F.I.R. is HPEH]]OHPHQW RI KXJH DPRXQW RI SXEOLF IXQGV ,Q RXU RSLQLRQ ZKLOH WKHUH VKRXOG EH Annexure 2 to the petition. True copy of the VWD\ LQ WKH GHSDUWPHQWDO SURFHHGLQJ WLOO WKH suspension order dated 22.12.1998 is

94 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

Annexure 3 and true copy of the charge sheet fact which are not simple, it would be is Annexure4to the writ petition. Thus both, advisable for the employer to await the criminal and departmental proceedings are decision of the trial court so that the defence going on against the petitioner. of the employees in the criminal case may not be prejudiced.” 2. It is alleged in paragraph18 of the writ petition that both criminal and departmental Similarly in Tata Oil Mills Company Ltd. proceedings are based on identical and similar vs. Workmen AIR 1965 SC 155 the Supreme facts and hence the departmental proceedings Court observed: should be stayed till the completion of the criminal case. In paragraph 20 of the petition “It is desirable that if the incident giving it is alleged that if departmental proceeding is rise to a charge framed against a workmen in allowed to continue that will prejudice the a domestic enquiry is being tried in a criminal petitioner in the criminal case. In paragraph court, the employer should stay the domestic 21 it is alleged that in the criminal proceeding enquiry pending the final disposal of the the charge sare to be proved by the criminal case and it would be particularly prosecution without compelling the accused to appropriate to adopt such a course where the give his version while in the departmental charge against the workmen is of grave proceeding the petitioner is bound to disclose character because in such a case it would be his version and that will prejudice the unfair to compel the workman to disclose the petitioner in the criminal case. The petitioner defence which he may take before the has relied on the decision of the Supreme criminal court. But to say that domestic Court in Capt. M.Paulk Anthony Vs. Bharat enquiry in spite of the fact that the criminal Gold Mines Limited and others 1999 (2) ESC trial is pending the enquiry for that reason 1009 and has prayed that departmental alone is vitiated and the conclusion reached in proceedings be stayed. such an enquiry is either bad in law or malafide” 3. After hearing the learned counsel for the parties and considering the facts in great In Kusheshwar vs. M/s Bharat Cokins detail we are not inclined to stay the CoalLtd. AIR 1988 SC 2118 the Supreme departmental proceeding. Court observed:

4. The question whether the departmental “There could be no legal bar for proceedings should be stayed when a criminal simultaneous proceedings being taken yet, case is going on the same facts has received there may be cases where it would be the attention of the Supreme Court in several appropriate to defer disciplinary proceeding decisions, many of which have been referred awaiting disposal of the criminal case. to in M. Paul Anthony’s case (Supra). Whether in the fact and circumstances of particular case there should or should not be In Delhi Cloth and General Mills Ltd. vs. such simultaneity of the proceedings would Kushal Bhan AIR 1960 SC 806 the Supreme then receive judicial consideration and the Court observed: Court will decide in the given circumstances “We cannot say that principles of natural of a particular case as to whether the justice require that on employer must wait for disciplinary proceedings should be interdicted the decision at least of the criminal trial Court pending criminal trial. It is neither possible before taking action against an employee- We nor advisable to evolve a hard and fast, strait may, however, say that if the case is of a jacket formula valid for all cases and of grave nature, or involves questions of law or 1ALL] Radhey Shyam Pandey V. The State of U.P. another 95 general application without regard to the (AIR1960 SC 806) and Tata Oil Mills (AIR particularities of the individual situation.” 1965 SC155) is also not an invariable rule . It is only a factor, which will go into the scales The Supreme Court further observed in the while judging the advisability or desirability same case: of staying the disciplinary proceedings. One of the contending consideration is that the “In the instance case, the criminal action and disciplinary enquiry cannot be – and should the disciplinary proceedings are grounded not be – delayed unduly. So far as criminal upon the same set of facts. We are of the view cases are concerned, it is well known that they that the disciplinary proceedings should have drag on endlessly where high officials or been stayed and the High Court was not right persons are involved. They get bogged down in interfering with the trial court’s order of on one or the other ground. They hardly ever injunction which had been affirmed in reach a prompt conclusion. That is the reality appeal.” in spite of repeatedly advice and admonitions from this court and the High Courts. If a In State of Rajasthan vs. B.K. Meena criminal case is unduly delayed that may itself A.I.R. 1997 SC 13 the Supreme Court be a good ground for going ahead with the observed: disciplinary enquiry even where the disciplinary proceedings are held over at an “It would be evident from the above decisions earlier stage. The interests of administration that each of them starts with the indisputable and good government demand that these proposition that there is no legal bar for both proceedings are concluded expeditiously. It proceedings to go on simultaneously and then must be remembered that interests of say that in a certain situation, it may not be administration demand undesirable elements desirable, advisable or appropriate to proceed are thrown out and any charge of with the disciplinary enquiry when a criminal misdemeanor is enquired into promptly. The case is pending on identical charges. The disciplinary proceedings are meant not realty staying of disciplinary proceeding, it is to punish the guilty but to keep the emphasized is a matter to be determined administrative machinery unsullied by getting having regard to the facts and c circumstances rid of bad elements. The interest of the of a given case and no hard and fast rules can delinquent officer also has in a prompt be enunciated in that behalf. The only ground conclusion of the disciplinary proceeding. If suggested in the above decisions as he is not guilty of the charges, his honour constituted a valid ground for staying the should be vindicated at the earliest possible disciplinary proceedings is that the defence of moment and if he is guilty, he should be dealt the employee in the criminal case may not be with promptly according to law. It is not also prejudiced. This ground has, however, been in the interest of administration that persons hedged in by providing further that this may accused of serious misdemeanor should be be done in cases of grave nature involving continued in office indefinitely, i.e., for long questions of fact and law. In our respectful periods awaiting the result of criminal opinion, it means that not only charges must proceedings. It is not in the interest of be grave but that the case must involve administration. It only serves the interest of complicated questions of law and fact. the guilty and dishonest. While it is not Moreover, ‘advisability’; ’desirability’ or possible to enumerate the various factors for properly, as the case may be, has to be and against the stay of disciplinary determined in each case taking into proceedings. We found it necessary to consideration all the facts and circumstances emphasize some of the important of the case. The ground indicated in DCM considerations in view of the fact that very

96 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 often the disciplinary proceedings are being (iv) The factors mentioned at (ii) and (iii) stayed for long periods pending proceedings. above cannot be considered in isolation to Stay of disciplinary proceedings cannot be, stay the departmental proceedings but regard and should not be, a matter of course. All the has to be given to the fact that the relevant factors, for and against, should be departmental proceedings cannot be unduly weighed and a decision taken keeping in view delayed. of the various principles laid down in ;the decisions referred to above.” (v) If the criminal case does not proceed or its disposal is being unduly delayed, the 5. In Depot Manager vs. Mohd. Yousuf departmental proceedings, even if they were Miyan AIR 1997 SC 2232 it was held that stayed on account of the pendency of the there is no bar to proceed simultaneously with criminal case can be resumed and proceeded the departmental enquiry and trial of a with so as to conclude them at an early date, criminal case unless the charge in the criminal so that if the employee is found not guilty, case is of a grave nature involving administration may get rid of him at the complicated questions of fact and law. earliest.”

6. In M. Paul Anthony’s case (Supra) the 7. We have carefully considered all the Supreme Court framed the following aforesaid decisions of the Supreme Court, As conclusions from the aforesaid decision: observed in some of the decisions, each case has to be seen on its own facts and no hand (i) Departmental proceedings and and fast general guidelines can be laid down. proceedings in a criminal case can proceed simultaneously as there is no bar in their 8. In the present case the allegation being conducted simultaneously, though against the petitioner is of embezzlement of separately. an amount of about Rs.35,00,000/- as a evident from both the F.I.R. as well as the (ii) If the departmental proceeding and charge sheet, which runs into almost 100 the criminal case are based on identical and pages and contains as many as 46 charges. A similar set of facts and the charge in the perusal of the same shows that the allegation criminal case against the delinquent employee against the petitioner and his other associates is of a grave nature which involves are very serious of embezzling a huge amount complicated questions of law and facts, it of government money which may run into would be desirable to stay the departmental crores of rupees. The F.I.R. was filed as far proceeding till the conclusion of the criminal back as in 1998 and as yet it appears criminal case. proceedings are still going on.

(iii) Whether the nature of a charge in a 9. In our opinion, in the present case when criminal case is grave and whether there are grave charges against the petitioner complicated questions of facts and law are and his associates of embezzling huge amount involved in that case, will depend upon the of public funds the disciplinary proceedings nature of offence, the nature of the case should not be stayed. In our opinion, in launched against the employee on the basis of deciding whether to stay the departmental evidence and matter collected against him proceedings the nature of the charges has to during investigation or as reflected in the be carefully for example, if an employee is charge sheet. accused of murder then it may be advisable stay the departmental proceeding (keeping the accused under suspension) till the conclusion 1ALL] Radhey Shyam Pandey V. The State of U.P. another 97 of the criminal trial. Similarly in cases of will be prejudiced if he is compelled to offences such as dacoity and assault the same disclose his defence in the disciplinary course of action may be followed. However, proceeding. In our opinion in such cases of there are different kinds of serious charges, embezzlement of huge amount of public funds and the same course of action cannot be it cannot be said that if the departmental followed for all them. The charge of murder is proceedings will go on the criminal trial will a serious charge, but so is the charge of be prejudiced. embezzlement of huge amount of public funds. In our opinion while there should be no 11. As observed by the Supreme Court in stay in the departmental proceeding till the Kusheshwar’s case (Supra) there cannot be a pendency of the criminal charge in the former hard and fast strait jacket formula valid for all case (while keeping the accused under cases and hence the observation in some cases suspension), there should be no stay of that departmental proceeding should be stayed departmental proceeding in the latter case. In if there are grave charges and a criminal trial our opinion the observation of the Supreme is pending on the same set of facts cannot be Court in certain decisions that where the treated as a hard and fast rule applicable in all criminal proceeding and departmental circumstances. The observations in certain proceeding are grounded upon the same set of decisions of ;the Supreme Court that the facts the latter should be stayed cannot be said departmental proceedings should be stayed if to be a universal or hard and fast absolute there are grave charges and complicated rule. As observed by the Supreme Court itself questions of law and facts are involved is not in several decisions e.g. in Kusheshwar’s case a hard and fast rule. As observed by the (Supra), there cannot be a strait jacket formula Supreme Court in State of Rajasthan vs. B.K. for all cases. In our opinion, in the case of Meena (Supra), the interest of administration embezzlement or huge financial irregularity and that undesirable elements are thrown out the departmental proceeding should not be after a prompt enquiry. Moreover, as observed stayed because in the cases of embezzlement in the same case, criminal cases often drag on of huge amount of public funds the entire endlessly and this is also a factor for not economic and social system of the country is staying the departmental proceeding. In the adversely affected. Everyone knows that there present case the F.I.R. was filed on 19.2.1998 is corruption and financial irregularity on a and it may take years for the criminal case to large scale in our country and this is playing be decided. havoc with our economy. On the other hand, offences such as murder, assault, etc. are of a 12. The observations in certain decisions personal nature and do not affect society or of the Supreme Court that the departmental the economy as a whole. Hence the proceeding should be stayed where both the observation of the Supreme Court that if there proceedings are on the basis of the same facts are grave charges the departmental and allegations cannot be treated as an proceedings should be stayed pending the absolute legal proposition, and it is merely criminal trial on the same set of facts cannot one of the factors which may be taken into be understood to relate to charges like consideration by the court in deciding whether embezzlement of huge amount of public funds to stay the departmental proceeding. After all, or large scale financial irregularities. Any the question whether to stay the departmental kind of leniency in the latter cases will be proceedings when a criminal case is pending wholly misplaced and uncalled for. is a question that arises when both the proceedings relate to the same set of facts. 10. Moreover, we do not see how the Hence the decision in M. Paul Anthony’s case defence of the petitioner in the criminal case (Supra) cannot be treated to lay down

98 INDIAN LAW REPORTS ALLAHABAD SERIES [2000 universal hard and fast rules as to when the Meena. also there were grave charges departmental proceeding should be stayed. pertaining to misappropriation of huge amount of public funds and this was a factor 13. In the present case, as already which the Supreme Court took into mentioned above, there are allegations consideration while refusing to stay the regarding embezzlement of huge amount of departmental proceeding. public funds by the petitioner and his associates. A perusal of the charge sheet In our opinion it will not be in the which is almost 100 pages long and contains interest of justice to stay the departmental as many as 46 charges shows that serious proceeding on the facts of the present case. allegations of huge financial embezzlement We are not inclined to exercise our discretion and misappropriation of public funds have under Article 226 of the Constitution in the been made against the petitioner and his present case. associates. In State of Rajsthan vs. B. K. The petition is dismissed.