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

ORIGINAL JURISDICTION my opinion, the second application is not CIVIL SIDE maintainable and is consequently DATED: 17.11.2014 dismissed. Interim order is vacated.

BEFORE Case Law discussed: THE HON'BLE SUNEET KUMAR, J. (2009) 4 SCC 523; (2005) 8 SCC 618; 2012 (6) ADJ 214; (2009) 8 SCC 520; 2013 (5) Civil Misc. Transfer Application No. 343670 of 2014 (Delivered by Hon'ble Suneet Kumar, J.) In Arbitration Application No. 35 of 2009 (In Re: Civil Misc. Transfer Application Satya Prakash Singh Applicant No. 343670 of 2014) Versus Dinesh Prakash Singh & Ors. Opp. Parties 1. The applicant had earlier filed an application no. 35 of 2009 under Section Counsel for the Applicant: 11(6) for appointment of an Arbitral Sri Ajay Kumar Singh, Sri Ashish Kumar Tribunal for settlement of dispute Singh, Sri Amit Kumar Singh between the applicant and the opposite parties, with regard to a partnership deed. Counsel for the Opp. Parties: Sri Gautam Baghel, Sri Pawan Shukla, Sri Hon'ble Chief Justice in exercise of his Vivek Kumar Singh, Sri M.D. Singh powers under Section 11(6) appointed Shekhar, Sri Udai Chandani Justice D.P.S. Chauhan, a retired Judge of this Court as sole Arbitrator to decide the Arbitration and Conciliation Act 1996- claims arising between the parties. Section-11(6)-Application for appointment of Arbitral Tribunal-once by exercising 2. The parties put in appearance power the Chief Justice appointed the before the Arbitral Tribunal and during the Arbitral Tribunal and became final under pendency of the arbitration proceedings, the section 25 of the Act-except the contingencies given in section 14-Chief Arbitral Tribunal by order dated 5.10.2014, Justice or the Judge nominated ceased in Arbitration Case No. 35-09 of 2012 with any jurisdiction-application wholly (Staya Prakash vs. Dinesh Prakash Singh misconceived-not maintainable. and others) District Mirzapur, closed the case, under Section 25 of the Arbitration Held: Para-39 and Conciliation Act, 19961 and posted the Having considered the law and provisions of the Act, in the facts of the present case case for award on 9.11.2014 at 2:00 PM. where the subject matter of the dispute was referred to arbitration and the 3. The applicant has again approached arbitration proceedings have been closed. the Court on 17.10.2011 by filing the Similar application for referring the very present Civil Misc. Transfer Application, same claim under Section 11, in my under Paragraph 8 of the Scheme of opinion, once the power was exercised under Section 11 and an arbitrator was Appointment of Arbitrators by Hon'ble the appointed, the proceedings have been Chief Justice of , closed under Section 25, there is no further 19962, seeking the following prayer:- power, considering the nature of power under Section 11 read with the Scheme, to "It is therefore, most respectfully once again refer the same disputes to prayed that this Hon'ble Court may arbitration, under Section 11. Therefore, in 1302 INDIAN LAW REPORTS ALLAHABAD SERIES graciously be pleased to withdraw the independent or impartial, further, there authority given to the learned Arbitrator has been undue delay in concluding the in Arbitration Case No. 35/2009 of 2012 arbitration proceedings, more than three (Satya Prakash Singh vs. Dinesh Singh & years has lapsed. The learned Senior others) and/or designate any other Advocate to substantiate his argument Arbitrator for the settlement of Claim relied upon the following judgments:- Petition between between the claimant Union of vs. Singh Builders3, SBP and opposite party no. 1, and/or pass any & Co. vs. Patel Engineering Ltd. and other and further order which may meet another4, Rungta Projects Ltd. vs. at the end of justice, otherwise the Government of and applicant/opposite party no. 1 shall suffer anothers5, Indian Oil Corporation Ltd. an irreparable loss and injury." and others vs. Raja Transport (P) Ltd. 6

4. I have heard Sri M.D. Singh 7. Sri Ajai Kumar Singh contends Shekhar, learned Senior Advocate that once an order has been passed under assisted by Sri Udai Chandani, learned Section 11(6) for appointment of an counsel appearing for the applicant and Arbitrator by the Chief Justice or his Sri Ajai Kumar Singh, learned counsel for designate, the Chief Justice or his the contesting opposite parties. designate becomes functus officio. The Arbitrator for want of independence or 5. A preliminary objection has been impartiality under Section 12(3) can be raised by Sri Ajai Kumar Singh that the removed by following the procedure application is not maintainable, the prescribed under section 13 of the Act, applicant has challenged the appointment which in the present case was not of the arbitrator on the grounds mentioned followed, admittedly, no written statement under section 12 sub-section (3) was filed before the Arbitrator. To questioning the independence or terminate the mandate of the Arbitrator, impartiality of the arbitrator and under for undue delay, under section 14, the section 14 for terminating the mandate of remedy is to approach the original Civil the arbitrator, for undue delay. The Chief Court having jurisdiction and not the Justice or his designate shall have no Chief Justice or his designate under jurisdiction under Section 11(6) or the Section 11 of the Act. The present Scheme framed by Hon'ble the Chief application has been filed with mala fide Justice under sub-section (10) of Section intention, to restrain the Arbitrator from 11 to go into the question of Section 12 or rendering the award on 9.11.2014. Sri Section 14 of Act, to remove the Singh in support of his submissions has arbitrator. relied upon following judgments:- Suresh Chandra Agarwal vs. Mahesh Chandra 6. The learned Senior Advocate Agarwal7, M/s S.K. & Associates vs. would submit that the application is Indian Farmer & Fertilizers8, Rakesh Jain maintainable and the grounds stated in vs. M/s Willowon Builders (India) Pvt. Section 12(3) and 14(1) are evident from Ltd.9, Development Authority the record of the arbitration case, the vs. Subodh Builders Pvt. Ltd.10, applicant has lost faith in the Arbitral Ahluwalia Contractors (India) Ltd. vs. Tribunal as the arbitrator is not Housing and Urban Development 3 All]. Satya Prakash Singh Vs. Dinesh Prakash Singh & Ors. 1303

Corporation & others11, Chintakayala to the parties in writing any circumstances Siva Rama Krishna vs. Nadimpalli referred to in Sub-section(1) unless they Venkata Rama Raju AIR12, M/s SBP & have already been informed of them by Co vs. M/s Patel Engineering Ltd. and him. others13. (3) An arbitrator may be challenged only if- 8. Rival submissions fall for consideration. (a) circumstances exit that give rise to justifiable doubts as to his 9. The question for determination is independence or impartiality, or as to whether this application filed under (b) he does not possess the the Scheme of 1996, read with Section 11 qualifications agreed to by the parties. of the Act is maintainable or whether, the Chief Justice or his designate has (4) A party may challenge an jurisdiction to terminate the mandate of arbitrator appointed by him, or in whose the Arbitrator, already appointed under appointment he has participated, only for Section 11, and to appoint substitute reasons of which he becomes aware after Arbitrator. the appointment has been made" 13. Challenge procedure. 10. Section 12 of the Act provides (1) Subject to Sub-section (4), the the grounds for challenge, whereas, parties are free to agree on a procedure for Section 13 prescribes the procedure to be challenging an arbitrator. followed for such a challenge. Section 14 (2)Failing any agreement referred to of the Act permits the termination of the in Sub-section (1), a party who intends to mandate of an arbitrator, for the reasons challenge an arbitrator shall,within fifteen stated therein and Section 15 of the Act days after becoming aware of the provides for appointment of substitute constitution of the arbitral Tribunal of arbitrator, in case, the mandate of the after becoming aware of any arbitrator, already appointed, is circumstances referred to in Sub- terminated. Since these are the relevant section(3) of Section 12, send a written provisions of the Act and have a bearing statement of the reasons for the challenge on the facts and circumstances of the to the arbitral Tribunal. present case, which are as follows:- (3) Unless the arbitrator challenged under Sub-section(2) withdraws from his "12. Grounds for challenge. office or the other party agrees to the challenge, the arbitral Tribunal shall (1)When a person is approached in decide on the challenge. connection with his appointment as an (4) If a challenge under any arbitrator, he shall disclose in writing any procedure agreed upon by the parties or circumstances likely to give rise to under the procedure under Sub-section (2) justifiable doubts as to his independence is not successful, the arbitral Tribunal or impartiality. shall continue the arbitral proceedings and (2)An arbitrator from the time of his make an arbitral award. appointment and throughout the arbitral (5) Where an arbitral award is made proceedings, shall, without delay, disclose under Sub-section (4), the party 1304 INDIAN LAW REPORTS ALLAHABAD SERIES challenging the arbitrator may make an (b) by or pursuant to agreement of application for setting aside such an the parties. arbitral award in accordance with section 34. (2) where the mandate of an (6) Where an arbitral award is set arbitrator terminates, a substitute aside on an application made under arbitrator shall be appointed according to Subsection (5), the Court may decide as to the rules that were applicable to the whether the arbitrator who is challenged appointment of the arbitrator being is entitles to any fees. replaced. "14 Failure or impossibility to act. (3) Unless otherwise agreed by the (1)The mandate of an arbitrator shall parties, where an arbitrator is replaced terminate if- under Sub-section (2), any hearings (a) he becomes de jure or de facto previously held may be repeated at the unable to perform his functions or for discretion of the arbitral Tribunal. other reasons fails to act without undue (4) Unless otherwise agreed by the delay; and parties, an order or ruling of the arbitral (b) he withdraws from his office or Tribunal made prior to the replacement of the parties agree to the termination of his an arbitrator under this section shall not mandate. be invalid solely because there has been a change in the composition of the arbitral (2) If a controversy remains Tribunal." concerning any of the grounds referred to in clause, 11. The applicant in the present case (a) of Sub-section (1), a party may, has prayed for termination of the mandate unless otherwise agreed by the parties, of the arbitrator (though worded as to apply to the Court to decide on the withdraw the authority and designate any termination of the mandate. other arbitrator for settlement) because (3) If, under this Section or Sub- the applicant apprehends bias on the part section (3) of Section 13, an arbitrator of the arbitrator, thus, doubting his withdraws from his office or a party independence or impartiality. The Senior agrees to the termination of the mandate Advocate has taken the Court through the of an arbitrator, it shall not imply record to demonstrate the lack of acceptance of the validity of any ground independence or impartiality of the referred to in this section or Sub-section arbitrator. The details need not be gone (3) of Section 12. into as it is not relevant to the question 15. Termination of mandate and sought to be answered. substitution of arbitrator. 12. The grounds for challenge to the (1) In addition to the circumstances mandate of the arbitrator falls under referred to in Section 13 or Section 14, Section 12 sub-section (3)(a) of the Act. the mandate of an arbitrator shall Section 13(3) of the Act makes it clear terminate- that unless the arbitrator challenged withdraws from his office or the other (a) where he withdraws from office party agrees to the challenge, the arbitral for any reason; or Tribunal shall decide on the challenge, 3 All]. Satya Prakash Singh Vs. Dinesh Prakash Singh & Ors. 1305 admittedly, this procedure was not unnecessary delay or he withdraws from followed by the applicant. The applicant his office or the party agreed to the had not challenged the arbitrator by termination of his mandate. As per following the procedure of challenge Section 14(1)(b) the mandate of an prescribed under sub-clause (2) of Section arbitrator shall terminate if he withdraws 13. The applicant within 15 days after from his office or the parties agree to the becoming aware of any circumstances termination of his mandate. referred to in sub-section (3) of Section 12 must, send a written statement of the 16. Section 15 provides for a reasons for the challenge to the arbitral procedure which has to be followed when Tribunal under Section 13(3). mandate of the arbitrator is terminated and substitution of the arbitrator in the 13. The arbitral Tribunal shall circumstances set out under Sub-section decide on the challenge on merits except- (1) including those referred under Section 13 and 14 of the Act is required. As per a). if the arbitrator whose Section 15 sub-section (2) of the Act appointment is challenged withdraws where the mandate of an arbitrator from his office on his own, or terminates, a substitute arbitrator has to be b). the other party agrees to appointed according to the rules that were thechallenge. applicable to the appointment of the arbitrator being replaced. 14. By virtue of Section 13(4) of the Act, if a challenge under any procedure 17. In the present case the applicant agreed upon by the parties or under the instead of pursuing the remedy available procedure under sub-section (2) fails, the for challenging the arbitrator as laid down arbitral Tribunal has to continue the in Section 13 or Section 14 has sought arbitral proceedings and make an arbitral appointment of a substitute Arbitrator on award. Sub-section (5) of Section 13 of the ground that the Arbitrator is not the Act empowers a party challenging the independent or impartial, under Section arbitrator to make an application for 11 read with the Scheme. setting aside such arbitral award made under sub-section (4) in accordance with 18. The Chief Justice or his Section 34 of the Act. designate in exercise of power under Section 11(4) or sub-clause (6) cannot 15. Under Section 14(2) of the Act, terminate the mandate of the arbitrator on the court has the power to decide on the challenge by a party on grounds termination of the mandate on any of the mentioned in Section 12 or 13 of the Act, grounds referred to in Clause (a) of sub- therefore, this court has no jurisdiction section (1) and also in the circumstances under Section 11 to substitute an enumerated in Section 15 of the Act and arbitrator so appointed in terms of the appoint an arbitrator. Under Section 14 of arbitration agreement. The meaningful the Act the mandate of an arbitrator interpretation of these sections, if read stands terminated if he becomes de jure or together, is that challenge to the de facto unable to perform his functions appointment of the arbitrator has to be or for other reasons fails to act without raised by the applicant before the arbitral 1306 INDIAN LAW REPORTS ALLAHABAD SERIES

Tribunal itself. If he succeeds in the 22. It is to be noted that the Act is challenge, the applicant has no cause or enacted mainly in the pattern of the Modern grievance left but if he fails then he has to Law adopted by the United Nations participate in the arbitral proceedings and Commission on International Trade law. if aggrieved by the award, to challenge The object and the reasons of the Act the same in accordance with provisions of clearly indicate that the intention of the Act the Section 34 of the Act including the is to lay emphasis on speedy disposal of mandate of the Arbitrator. arbitration proceedings. The Act also seeks to minimize judicial intervention in the 19. Once the matter reaches the progress and completion of arbitration arbitral Tribunal or the sole arbitrator, the proceedings, which is crystal clear from a High Court would not interfere with the bare reading of Section 5 of the Act which orders passed by the arbitrator or arbitral provides that no judicial authority would Tribunal during the course of the intervene except where so provided in the arbitration proceedings and the parties Act. Consequently, the bar on Court could approach the Court only in terms of interference on challenging the arbitral Section 37 of the Act or in terms of Tribunal during the pendency of the Section 34 of the Act. arbitration proceeding was meant to minimize judicial intervention at that stage, 20. The seven judge Constitution as any interference at that stage would be Bench of the Supreme Court in S.B.P. And against the spirit with which the Act was Company vs. Patel Engineering Ltd.14 has enacted. Sub-section (5) of Section 13 of the observed that the High Court should refrain Act lays down that challenging an arbitral from interfering against any order passed by award is permitted even on the grounds the Arbitral Tribunal during arbitration taken by the aggrieved party on which the proceedings under Article 226 or 227 of the challenge to the arbitral Tribunal was made. Constitution. The aggrieved party has a There is no provision in the Act which remedy under Section 34 or Section 37 by would enable the Court to remove an filing an appeal, if available. Arbitrator during the arbitration proceedings. But, at the same time the party 21. This Court in Rakesh Jain vs. having grievance against an Arbitrator M/s Willowon Builders (India) Pvt. cannot be said to be without a remedy and Ltd.15, where the question before the the said remedy becomes available as soon Court was as to whether, "is it open to the as the arbitral award is made by the Chief Justice, exercising jurisdiction arbitrator or the arbitral Tribunal. under Section 11(4) of the Arbitration Act, to remove an appointed Arbitrator 23. Thus clear mandate is to bar and appoint another Arbitrator in his judicial interference except in the manner place?" The Court held that once an provided in the Act. Conversely if there is Arbitrator has been appointed, before the no provision to deal with a particular application is filed, it would not be open situation, Courts cannot assume to Hon'ble the Chief Justice or his jurisdiction and interfere. designate to remove the said Arbitrator and appoint another Arbitrator in his 24. Comparing this legislation with place. the earlier legislation on the subject- 3 All]. Satya Prakash Singh Vs. Dinesh Prakash Singh & Ors. 1307 namely the Arbitration Act, 1940, the Arbitration Act, 1940 are concerned, message is loud and clear. The legislature Section 14(1)(a) and sub-section (2) of the found mischief in various provisions present Act substantially correspond to contained in the Arbitration Act, 1940 Section 8(1)(b) and Section 11(1) of the which would enable a party to approach the Arbitration Act, 1940. A bare perusal of Court time and again during the pendency Section 14 would show that the mandate of arbitration proceedings resulting into (authority) of an arbitrator shall terminate delays in the proceedings. Law makers on two conditions being satisfied:- wanted to do away with such provisions. 1.) The arbitrator becomes de jure or 25. The new Act deals with the de facto unable to perform his functions situation even when there is challenge to the or for other reasons fails to act without constitution of the arbitral Tribunal. It is left undue delay and. to the arbitrator to decide the same in the 2.) The arbitrator withdraws from first instance. If a challenge before the his office or the parties agreed to the arbitrator is not successful, the arbitral termination of his mandate. Tribunal is permitted to continue the arbitral proceedings and make an arbitral award. 28. It will thus, be seen that it is not Such a challenge to the constitution of the open to a party to unilaterally terminate arbitral Tribunal before the Court is then the mandate of an arbitrator on the ground deferred and it could be only after the that the arbitrator de jure or de facto arbitral award is made that the party unable to perform his functions or for challenging the arbitrator may make an other reasons failed to act without undue application for setting aside an arbitral delay. award and it can take the ground regarding the constitution of arbitral Tribunal while 29. In such situation, where one of challenging such an award. the parties wants the mandate of the arbitrator be terminated on the above 26. Thus course of action to be grounds, it will have to take the chartered in such contingency is spelt out controversy to the Court under sub- in the Act itself. Court interference on section (2) and the Court will then decide basis of petitions challenging arbitral on the termination of the mandate. Tribunal during the pendency of the Compared to the old law when the Court arbitration proceedings would be clearly had power to give leave to revoke the against the very spirit with which the Act authority of an arbitrator under Section 5 has been enacted. The mischief which or to remove an arbitrator under existed in the earlier enactment and is circumstances detailed in Section 11 of sought to be removed by the present the Arbitration Act 1940. The Court has enactment cannot be allowed to be now no such power, except when it is introduced by entertaining petitions in the asked to decide a controversy brought absence of any provision in the new Act before it by any party as to whether an in this respect. arbitrator has become de jure or de facto unable to perform his functions or for any 27. Now coming to Section 14 of the other reason failed to act without undue Act, so far as the provisions of the delay. Even here a party may not 1308 INDIAN LAW REPORTS ALLAHABAD SERIES approach the Court for this purpose, if it the dispute whether the arbitrator had is so agreed by the parties, it is clear from failed to act without any undue delay. But the use of words "unless otherwise agreed if the arbitrator fails to conclude by the parties" used in sub-section (2). No arbitration proceedings within the time appeal lies from an order of the Court on agreed to between the parties and parties the controversy, which is clear from do not extend the mandate of the perusal of Section 37. arbitrator any further, the mandate of the arbitrator automatically terminates. 30. A conjoint petition under (N.B.C.C. Ltd. vs. J.G. Engineering Pvt. Section 11(6) and Section 14 does not lie, Ltd.18). since under Section 11(6) the petition has to be heard and decided by the Chief 34. Termination of arbitral Justice or his designate, while a petition proceedings is different from termination under Section 14 lies to the "Court". Since of the mandate of the arbitrator. fora are different, conjoint petition does Termination of arbitral proceedings is not lie. (Grid Corporation of Orissa Ltd. governed by Section 32 of the Act. The vs. AES Corporation16. arbitral proceedings can come to an end on the events mentioned in Section 32 had 31. An application under Section occurred. Thus, mandate (authority) of an 14(2) of the Act for decision on arbitrator can be terminated but that termination of the mandate of an would not mean that the arbitral arbitrator lies only before the "Court" as proceedings have also terminated. defined in Section 2(1)(e) of the Act. 35. If an arbitrator refuses to act as 32. In a case, where, the Supreme an arbitrator, a substitute arbitrator would Court had appointed the arbitrator in be appointed in his place under sub- question, on an application made to it section (2) or Section 15, except where under Section 11(5) and (6) of the Act, the intention of the parties was to refer the held that application under Section 14(2) disputes to arbitration by a particular of the Act for terminating the mandate of person only. the arbitrator was not maintainable before the Supreme Court. The jurisdiction 36. "Rules" referred to in Section which the Chief Justice or his designate 15(2) would refer not only to any exercises under Section 11(6) of the Act statutory rules or rules framed under the is limited jurisdiction. The Supreme Court Act or under the Scheme, but also mean becomes functus officio after exercising that substitute arbitrator must be jurisdiction under Section 11(6) of the appointed according to the original Act. (Nimet Resources Inc. vs. Essar agreement or provision applicable to the Steels Ltd.17). appointment of the arbitrator at the initial stage. (Yashwitha Construction (P) Ltd. 33. There is no automatic vs. Simplex Concrete Piles India Ltd.19). termination of the mandate of an arbitrator on the alleged ground of his 37. In National Highways Authority failure to act without undue delay. It is of India vs. Bumihiway D.D.B. Ltd.20 only the Court which will have to resolve Supreme Court held that provisions of 3 All]. M/s Banaras Auto Traders & Anr. Vs. M/s Reliance Web Stores Ltd. & Ors. 1309

Section 15(2) states that a substitute present case where the subject matter of arbitrator shall be appointed according to the dispute was referred to arbitration and the rules applicable to the appointment of the arbitration proceedings have been arbitrator being replaced. Appointment of closed. Similar application for referring retired Chief Justice by the High Court the very same claim under Section 11, in under Section 11(6) was set aside and my opinion, once the power was directions was given that India Road exercised under Section 11 and an Congress be approached as per the agreed arbitrator was appointed, the proceedings procedure to appoint the arbitrator. have been closed under Section 25, there is no further power, considering the 38. The application is misconceived nature of power under Section 11 read and is not maintainable under paragraph 8 with the Scheme, to once again refer the of the Scheme, paragraph 8 refers to same disputes to arbitration, under withdrawal of authority by the Chief Justice Section 11. Therefore, in my opinion, the on receipt of a complaint from either party second application is not maintainable to the arbitration agreement or otherwise is and is consequently dismissed. Interim of opinion that the person or institution order is vacated. designated by him under paragraph 3 has ------neglected or refused to act or is incapable of ORIGINAL JURISDICTION acting he may withdraw the authority given CIVIL SIDE by him to such person or institution and DATED: ALLAHABAD 12.11.2014 dealing with the request himself or BEFORE designate another person or institution for THE HON'BLE SUNEET KUMAR, J. that purpose. Paragraph 3 provides that upon receipt of a request under paragraph 2, Civil Misc. Arbitration Petition No. 57 of 2007 the Chief Justice may either deal with the matter entrusted to him or designate any M/s Banaras Auto Traders & Anr. other person or institution for that purpose; Petitioners and paragraph 2 provides where a request to Versus M/s Reliance Web Stores Ltd. & Ors. the Chief Justice under sub-section 4 or sub- ...Respondents section 5 or sub-section 6 of Section 11 shall be made in writing and accompanied Counsel for the Petitioner: by the documents mentioned therein. Thus Sri Udai Chandani reading of paragraph 2, 3 and 8 would clearly demonstrate that the powers Counsel for the Respondents: conferred under paragraph 8 has nothing to Sri R.D. Khare, Sri Siddharth, Sri do with the removal of an arbitrator or Siddharth Khare, Siddharth Singh appointment of a substitute arbitrator. Paragraph 8 only confers power upon the Arbitration & Conciliation Act 1996-Section Chief Justice to withdraw the authority 11(5)-Territorial jurisdiction-both parties residing at Mumbai-as per section 16 of given by him to the designate person or franchisee agreement only Civil Court at institution for that purpose. Mumbai-entrusted with jurisdiction-mere filing application before Civil Court 39. Having considered the law and -not confer jurisdiction of provisions of the Act, in the facts of the Allahabad High Court-application rejected. 1310 INDIAN LAW REPORTS ALLAHABAD SERIES

Held: Para-13 Reliance Web Stores Ltd. and others) before A perusal of the demand made by the the Court of District Judge, Varanasi for notice dated 20.6.2007 send by injunction to restrain the opposite parties applicants to the defendants is a useful material for coming to the conclusion from terminating the Franchise Agreement that the dispute, as per the demand of dated 8.10.2004 further restraining the the applicants, relate to damages and opposite parties from interfering in the claims and not to immovable property. functioning the petitioner as Franchise under In such a situation, under law, the suit the said agreement. The opposite parties have could have been filed at Mumbai where appeared in the arbitration case before the the defendants resides, or where some cause of action arose, i.e. in the State of District Judge, Varanasi and raised objection Uttar Pradesh. Hence, the relevant regarding jurisdiction of the Court as the clause in the agreement conferring parties had agreed that the Courts of Mumbai jurisdiction in the matter solely upon the shall have exclusive jurisdiction in the Courts at Mumbai cannot be said to be matter. Learned counsel for the parties illegal in view of the Supreme court submit that the arbitration case is still judgments noticed herein above. pending before the Varanasi Court. Case Law discussed: (2007) 7 SCC 125; (2006) 11 SCC 521; (2007) 4. The submission of learned 1 SCC 467; (2000) 8 SCC 151; (2010) 1 SCC counsel for the applicant is that section 42 673. of the Act inter alia provides that when an application has been made in the Court, (Delivered by Hon'ble Suneet Kumar, J.) that Court alone shall have jurisdiction over the arbitral proceedings and all 1. Heard Sri Udai Chandani, learned subsequent applications arising out of that counsel for the applicant and Sri agreement and the subsequent Siddharth Singh, learned counsel proceedings shall be made in that Court appearing for the opposite parties. and in no other Court. 2. The application has been filed 5. In support of his submission, the under Section 11(5) of the Arbitration and learned counsel for the applicant has placed Conciliation Act. 1996 for settlement of reliance upon:- Adhunik Steels Ltd. vs. dispute as per the arbitration clause Orrisa Manganese and Minerals (P) Ltd. contained in Section 16 of the Franchise (2007) 7 SCC 125, Jindal Vijaynagar Steel Agreement dated 8.10.2004. The vs. Jindal Praxair Oxygen Co. Ltd. (2006) application is being opposed by the opposite 11 SCC 521, Pandey & Co. Builders (P) parties that in view of Section 16 of the Ltd. vs. State of Bihar and another (2007) 1 agreement the Courts of Mumbai will have SCC 467, Datar Switchgears Ltd. vs. Tara exclusive jurisdiction in respect of this Finance Ltd. and another (2000) 8 SCC agreement, thus, this Court shall have no 151, Bharat Sanchar Nigam Ltd. and jurisdiction to entertain the application. another vs. Dhanurdhar Champatiray (2010) 1 SCC 673. 3. Learned counsel for the applicant submits that he has already filed 6. In rebuttal, learned counsel for the Arbitration Case No. 50 of 2007, (M/s opposite parties would submit that this Banaras Auto Traders and others vs. M/s Court will not have jurisdiction, as no 3 All]. M/s Banaras Auto Traders & Anr. Vs. M/s Reliance Web Stores Ltd. & Ors. 1311 property is involved, further, the contract in force. The place of the Arbitration will itself provides that the Courts at Mumbai be Mumbai and the language of the shall have jurisdiction, which is proceedings will be English. The arbitral permissible as per section 20 of the Act. award shall be in writing and shall be Learned counsel for the opposite parties, final and binding on the parties. in support of his submission has placed Judgement upon the award may be reliance upon Balaji Coke Industries Pvt. entered in any Court having jurisdiction Ltd. Ms. Maa Bhagwati Coke Guj Pvt. thereof; provided, however, that this Ltd., 2009 (9) SCC 403 and order passed clause shall not be construed to limit in Arbitration and Conciliation Reliance from brining any action in any Application No. 20 of 2008 (M/s Ujhani Court of competent jurisdiction for Fuel Point and others vs. M.S. Reliance injunctive or other provisional relief as Industries Limited) and NKC Projects Reliance deems to be necessary or Pvt. Ltd. and another vs. Utility appropriate to protect its System, Energytech & Engineering Pvt. Ltd. and Proprietary Rights, trade marks, trade another 2009 (4) ALJ 18 (DB). names, service marks, logotypes, insignia, trade dress and designs, or to enjoin or 7. Rival submissions fall for restrain Franchisee from otherwise consideration. causing immediate and irreparable harm to Reliance. 8. The "Court" is defined under section 2(e), means principal Civil Court Subject to the above, the Courts of of original jurisdiction in the District, and Mumbai shall have exclusive jurisdiction includes the High Court in exercise of its in respect of this Agreement." ordinary civil jurisdiction, having jurisdiction to decide the questions 10. It is evident from the arbitration forming the subject matter of the clause that the Courts of Mumbai have arbitration, if the same had been the exclusive jurisdiction. Mere filing of an subject matter of the suit. application under section 9 of the Act before the Court at Varanasi would not 9. Section 19 of the contract reads as confer jurisdiction upon this Court to follows:- entertain the application under Section 11(5) for appointment of an Arbitrator. Section 19: Dispute Resolution and Jurisdiction 11. The Supreme Court in Jindal Vijaynagar Steel (JSW Steel Ltd) vs. "If any dispute arises in respect of Jindal Praxair Oxygen Co. Ltd. (2006) 11 this Agreement, the parties shall endeavor SCC 521 held that once the parties have to settle the dispute by direct negotiations chosen a particular place to be the place in good faith. If such negotiations do not for arbitration and proceedings connected settle the dispute, the parties agree to thereto for resolve of dispute, the said submit the matter to settlement place alone shall have jurisdiction. proceedings under the rules of the Arbitration and Conciliation Act, 1996, 12. The Supreme Court in the case (the 'Act') as applicable for the time being of Balaji Coke Industry Pvt. Ltd. Vs. Ms 1312 INDIAN LAW REPORTS ALLAHABAD SERIES

Maa Bhagwati Coke Guj Pvt. Ltd., 2009 Hence, the relevant clause in the agreement (9) SCC 403, where Clause 14 of the conferring jurisdiction in the matter solely agreement, which was a High Seas Sale upon the Courts at Mumbai cannot be said Agreement, provided that the sale contract to be illegal in view of the Supreme court would be subject to Kolkata jurisdiction. judgments noticed herein above. The venue of the arbitration was also agreed to be Kolkata, West Bengal. After 14. In view of the aforesaid discussing several earlier judgments on the discussions, it is held that this application issue, the Apex Court held that the parties under Section 11 of the Act has been had knowingly and voluntarily agreed for wrongly filed before this Court at Kolkata jurisdiction and even if the Courts Allahabad. The proper Court for filing such in Gujarat also had jurisdiction, the application would be at Mumbai. In that agreement to have the disputes decided in view of the matter, this application is Kolkata by an Arbitrator was valid and the dismissed, but with liberty to the applicants respondent-Company had wrongly chosen that they may prefer similar application to file an application under Section 9 of the before the competent Court at Mumbai. Act before a Court in Gujrat and the same ------was in violation of the agreement. The REVISIONAL JURISDICTION Apex Court relied upon an earlier CIVIL SIDE judgement in the case of A.B.C. Laminart DATED: ALLAHABAD 21.11.2014 (P) Ltd. Vs. A.P. Agencies, 1989 (2) SCC 173 to approve a legal proposition that so BEFORE THE HON'BLE PRADEEP KUMAR SINGH long as the parties to a contract do not oust BAGHEL, J. the jurisdiction of all the Courts, which would otherwise have jurisdiction to decide Civil Revision No. 143 of 2013 the cause of action under the law, it could not be said that the parties had by their Bihari Tripathi ...Revisionist contract ousted the jurisdiction of the Court. Versus To similar effect is a judgment of this Court Smt. Shanti Devi Shukla ...Respondent rendered by a Division Bench in the case of Counsel for the Revisionist: NKC Projects Pvt. Ltd. and Anr. Vs. Utility Sri Radha Kant Ojha, Sri Satyendra Energytech & Engineers Pvt. Ltd. & Anr., Chandra Tripathi 2009 (4) ALJ 18 (DB). Counsel for the Respondents: 13. A perusal of the demand made Sri B.K. Srivastava, Sri C. K. Singh, Sri by the notice dated 20.6.2007 send by Dhiraj Srivastava applicants to the defendants is a useful material for coming to the conclusion that (A) Provincial Small Causes Court Act- the dispute, as per the demand of the 1887-Section 25-jurisdiction of Revisional applicants, relate to damages and claims Court-held-very limited-no illegality or perversity committed by Court below-no and not to immovable property. In such a interference required-revision dismissed. situation, under law, the suit could have been filed at Mumbai where the defendants Held: Para-18 resides, or where some cause of action The revisional jurisdiction of this Court arose, i.e. in the State of Uttar Pradesh. under Section 25 of the Provincial Small 3 All]. Awadh Bihari Tripathi Vs. Smt. Shanti Devi Shukla 1313

Cause Courts Act, 1887 is limited. The (Delivered by Hon'ble Pradeep Kumar Court can interfere under this section Singh Baghel, J.) only when the finding recorded by the Court below is totally perverse and is based on no evidence. Learned counsel 1. This is a revision preferred by a for the revisionist-tenant has failed to tenant under Section 25 of the Provincial point out any perversity in the order of Small Cause Courts Act, 1887 against the the Court below, as discussed above. The judgment and order dated 01st March, findings of the Court below on various 2013 and decree dated 07th March, 2013 points are based on documentary as well passed by the Judge, Small Cause as oral evidence. It has not been pointed out that the Court below has ignored any Court/Additional District Judge, Court important documentary evidence filed by No. 7, Nagar, whereby Small the tenant-revisionist or it has taken into Cause Suit No. 160 of 2009 (Smt. Shanti consider any fact, which was not on the Devi Shukla v. Sri Awadh Bihari record. Tripathi) filed by the landlady-respondent has been decreed by directing the tenant- (B) C.P.C. Order XV Rule V-first date of hearing-whether the date of filling revisionist to vacate the suit premises written statement or the day on which within thirty days and to pay the arrears of issue framed? Held-in view of law laid rent of Rs.70,066/- and damages at the down by Apex Court in case of Chotti rate of Rs.2,000/- per month since 28th case-first date of hearing would be September, 2009 till the actual physical 15.06.10 when written statement filed- possession is handed over to the landlady. while rent deposited on 15.07.10 not entitled to a claim benefit of statutory protection. 2. The essential facts are that the respondent is landlady/owner of Premises Held: Para-16 No. 133/16, Transport Nagar, Kanpur This Court after considering the Nagar. The revisionist is tenant in a shop judgment of the Supreme Court in situated in the said premises at the rate of respect of the Small Cause Courts Act Rs.2,000/- per month excluding the tax. held that the first date of hearing shall be the date for appearance as well as Said shop was let out in the year 1986 final hearing. Applying the said principle vide a lease agreement dated 16th in the present case, the tenant had filed December, 1986 for a period of 11 his written statement on 15th June, months. The tenancy started from 15th 2010 and submitted his tender on 15th December, 1986 and came to an end on July, 2010, therefore, I do not find any 14th November, 1987. However, in spite error in the finding of the Court below that the tenant has deposited the arrears of expiry of said period of agreement, the of rent after the first date of hearing. tenant did not vacate the suit premises. Thus, he was not entitled for the benefit Thereafter at the instance of the landlady of Section 20(4) of the U.P. Act No. 13 of the rent was enhanced from Rs.1,000/- to 1972. Rs.2,000/- per month in terms of Clause- 14 of the agreement. It is stated that the Case Law discussed: 2002 (1) ARC 370; AIR 1993 SC 2525; 1995 tenant has deposited the rent from 16th (1) ARC 563; 1999 (4) AWC 3484 (SC); 2002 November, 1987 to 31st December, 1990 (2) ARC 160; 2006 (2) ARC 208; 2011 (5) at the rate of Rs.2,000/- per month, which AWC 4405; 2012 (4) AWC 3374; 2013 (1) ARC comes to a total sum of Rs.75,000/-, and 335; 2013 (2) AWC 1509; 2014 (1) ARC 692; the landlady issued a receipt of the said 1999 (2) ARC 71. 1314 INDIAN LAW REPORTS ALLAHABAD SERIES amount on 04th December, 1990. It is (ii) Whether defendant is entitled to further stated that when the landlady get the benefits of the provisions of asked the tenant to pay 18% tax in Section 20(4) of U.P. Act No. 13 of 1972? addition to the rent in terms of the (iii) Whether the defence of the agreement since January, 2001, the tenant defendant is liable to be struck off for refused to pay the said tax and also non-compliance of Order XV Rule 5(2) of stopped paying rent since January, 2001. the Code of Civil Procedure? When after several requests the tenant did (iv) Whether the defendant has not pay the rent and the tax, the landlady committed default in payment of rent on 24th August, 2009 sent a notice to the from 1.1.2001 and he is in arrears of rent tenant determining his tenancy and made for more than 4 months? a demand of arrears of rent. Vide said (v) Whether the suit filed by the notice the tenant was asked to vacate the plaintiff without consent of the co-owner premises in terms of the notice. The said is not maintainable? notice was served on the tenant on 28th (vi) Whether any other relief can be August, 2009 but neither he did pay granted to the plaintiff? arrears of rent, as demanded in the notice, nor did he vacate the premises. The tenant 5. The Issue No. 1 was decided in had sent a reply to the said notice on 19th favour of the landlady and it was found September, 2009, wherein he disputed the that the rate of rent was Rs.2000/- per rate of rent. According to the tenant, month and not Rs.1000/- per month, as agreed rent was Rs.1,000/- per month and claimed by the tenant. As regards Issue not Rs.2,000/- per month, as claimed by No. 2, the Court below recorded a finding the landlady in her notice. that the tenant has not deposited the entire rent and cost of the suit in terms of 3. Against this background, the Section 20(4) of the Uttar Pradesh Urban landlady-respondent instituted a suit for Buildings (Regulation of Letting, Rent eviction and arrears of rent in the Court of and Eviction) Act, 1972 (U.P. Act No. 13 Judge, Small Cause, Kanpur Nagar which of 1972). The tenant is not entitled for the was registered as Small Cause Suit No. benefit of Section 20(4) of the U.P. Act 160 of 2009 (Smt. Shanti Devi v. Sri No. 13 of 1972, as the tenant-revisionist Awadh Bihari Tripathi). The revisionist- has failed to deposit the entire arrears of tenant contested the suit and filed his rent on the first date of hearing of the suit. written statement and denied the claim In addition to above, he has not deposited made by the landlady. the entire arrears of the rent and the expenses. Issue No. 3, which deals with 4. The Court below framed six striking off the defence of the tenant, was issues for determination which are as decided in favour of the tenant and the under: Court below refused to strike off the defence of the landlady on the ground that (i) Whether rate of rent is Rs.2000/- the tenant has made substantial per month excluding the taxes as claimed compliance of the deposits of the rent. by the plaintiff-landlady or is Rs.1000/- With regard to Issue No. 4 the Court including taxes per month as claimed by below was satisfied that the tenant has the defendant-tenant? made default and in spite of notice 3 All]. Awadh Bihari Tripathi Vs. Smt. Shanti Devi Shukla 1315 demanding the arrears of rent, it was not below has granted permission to the paid for more than four months. Thus, the revisionist-tenant to deposit the arrears of said issue was decided against the tenant. rent under Section 20(4) of the U.P. Act Issue No. 5 was in respect of No. 13 of 1972. Thus, prior to 15th July, maintainability of the suit. It was alleged 2010 the Court below had not applied its by the tenant that all the landlords have mind, therefore, the revisionist-tenant was not joined the suit but the Court below has entitled to get benefit of Section 20(4) of decided the said issue in favour of the the U.P. Act No. 13 of 1972. He has landlady. Accordingly, the Court below placed reliance on a judgment of the vide impugned judgment and decree Supreme Court in the case of Mam Chand decreed the suit of the landlady- Pal v. Smt. Shanti Agarwal, 2002 (1) respondent. ARC 370.

6. I have heard Sri Radha Kant Ojha, 8. Sri Ojha further contended that learned Senior Advocate, assisted by Sri the agreement dated 16th December, 1986 Satyendra Chandra Tripathi, learned was an unregistered document, therefore, Counsel for the tenant-revisionist, and Sri the Court below has illegally placed B.K. Srivastava, learned Senior Advocate, reliance on the said agreement. He has assisted by Sri C.K. Singh and Sri Dhiraj further urged that the landlady has filed a Srivastava, learned Counsel for the suit under Section 21 of the U.P. Act No. landlady-respondent. 13 of 1972, therefore, it is evident that the provisions of the U.P. Act No. 13 of 1972 7. Sri Radha Kant Ojha, learned are applicable to the suit premises. Sri Senior Counsel appearing for the tenant- Ojha has also contended that the finding revisionist, submits that the tenant has of the Court below refusing to give deposited the entire rent on the first date benefit of Section 20(4) of the U.P. Act of hearing. In this case, since the issues No. 13 of 1972 on the ground that the have been framed, there cannot be the tenant has failed to deposit the entire rent first date of hearing before framing of the and the expenses, is erroneous and against issues. He submits that the Court below the evidence on record. has illegally accepted that the first date of hearing is 15th June, 2010 when the 9. Sri B.K. Srivastava, learned revisionist had filed his written statement. Senior Counsel appearing for the The Court below has failed to understand landlady-respondent, has submitted that that it is well settled that the first date of the provisions of the U.P. Act No. 13 of hearing will be the date when the Court 1972 are not applicable to the premises in applies its mind and it would not be prior dispute. The tenancy has rightly been to the date of filing of the written determined by the landlady-respondent. statement, where the issues were not He further submitted that in the present framed. If the issues are framed, then that case the suit was filed on 27th October, will be the date of first hearing. He further 2009 and in the summons 02nd submits that in the present case written December, 2009 was fixed for written statement was filed on 15th June, 2010 statement/hearing. The tenant had refused and thereafter the next date fixed was to accept the summons. Thus, the 15th July, 2010. On that date, the Court publication was made on 03rd February, 1316 INDIAN LAW REPORTS ALLAHABAD SERIES

2010. In pursuance thereof, the tenant Rs.1,90,000/-. Therefore, there was a huge appeared for the first time before the Court shortfall of Rs.1,55,282/-. For this reason below on 24th February, 2010 and moved also, he was not entitled for the benefit of an application for getting copy of the plaint Section 20(4) of the U.P. Act No. 13 of and other papers. He sought adjournments 1972. He further submitted that under on 19th March, 2010, 02nd April, 2010, Section 25 of the Provincial Small Cause 31st May, 2010 and 11th June, 2010 and Courts Act this Court has limited he filed his written statement on 15th June, jurisdiction and if the finding is not 2010. The tenant-revisionist moved an perverse, this Court should not interfere application on 15th July, 2010, being Paper under the revisional jurisdiction under No. 22-Ga(2), for passing tender to make Section 25. deposit under Section 20(4) of the U.P. Act No. 13 of 1972 on which 16th July, 2010 11. In support of his submissions, Sri was fixed. On 16th July, 2010 the matter Srivastava has relied upon several decisions was adjourned and on 21st July, 2010 the of the Supreme Court in Siraj Ahmad tenant-revisionist deposited a sum of Siddiqui v. Shri Prem Nath Kapoor, AIR Rs.1,90,000/-. From the aforesaid 1993 SC 2525; Advaita Nand v. Judge, chronological dates, learned Senior Small Causes Court, and others, Counsel appearing for the landlady- 1995 (1) ARC 563; Smt. Sudershan Devi respondent sought to argue that the tenant- and another v. Smt. Sushila Devi and revisionist has failed to deposit the amount another, 1999 (4) AWC 3484 (SC); and, on the first date of hearing, which in the Ashok Kumar and others v. Rishi Ram and present case was on 15th June, 2010, when others, 2002 (2) ARC 160, and of this Court the Court had applied its mind. Therefore, in Saadat Ali v. J.S.C.C., and the Court below has rightly rejected the others, 2006 (2) ARC 208; Commercial claim of the tenant-revisionist to give Auto Sales (P) Ltd. v. Auto Sales benefit of Section 20(4) of the U.P. Act (Properties), 2011 (5) AWC 4405; Rashid v. No. 13 of 1972. Kailash Chand, 2012 (4) AWC 3374; Om Prakash v. Sri Anil Kumar, 2013 (1) ARC 10. Sri B.K. Srivastava has further 335; Mahesh Chandra and others v. submitted that in addition to above, the Ashwani Kumar, 2013 (2) AWC 1509; and tenant-revisionist did not deposit the entire Mela Ram (since deceased and substituted arrears of rent, tax, interest, court fee. by legal heirs) v. Arun Kumar Agrawal, According to him, the arrears of rent was 2014 (1) ARC 692. Rs.2,28,000/-. The tenant has deposited only Rs.1,14,000/-. Thus, there was a 12. I have considered the rival shortfall of Rs.1,14,000/-. The tax was submissions advanced by the learned Rs.41,041/-, whereas the tenant deposited Counsel appearing for the parties and Rs.15,390/-. Under the head of interest perused the records. Rs.58,995/- was due, out of which he has deposited only Rs.49,162.50. The court fee 13. Before adverting to the issue was Rs.10,996/-, out of which he had whether the revisionist-tenant is entitled deposited Rs.5,196.50. Thus, the tenant to the benefit of Section 20 (4) of the U.P. ought to have deposited a total sum of Act No. 13 of 1972 or not, it is necessary Rs.3,39,031/- but he deposited only to examine whether the rent of the 3 All]. Awadh Bihari Tripathi Vs. Smt. Shanti Devi Shukla 1317 tenanted premises was Rs.2,000/- per 15. It is submitted by Sri Ojha that month, as claimed by the landlady, or the first date of hearing in the present case Rs.1,000/-, as claimed by the tenant- shall be the date when the Court below revisionist. The landlady has relied upon has framed the issues. In the cases of the an agreement dated 16th December, 1986, small cause suits, the issue about the first whereby the shop was let out to the date of hearing is no more res integra. revisionist-tenant at the rate of Rs.1,000/- per month. Clause-14 of the said 16. The Supreme Court in the case of agreement provides that in case after Siraj Ahmad Siddiqui (supra) has held that expiry of the eleven months the tenant the first date of hearing is the date on which does not vacate the premises and he the Court proposes to apply its mind to continues in possession, in that event the determine the point in controversy between rent shall be Rs.2,000/- per month. The the parties to the suit and to frame the revisionist-tenant has denied this issues, if necessary. The Court held that agreement. A copy of the said agreement "when time is fixed by the court for the is on the record. The Court below has filing of the written statement and the recorded a finding that this agreement hearing, these dates bind the defendant, bears the signature of the tenant and he regardless of the service of the summons, did not file Handwriting Expert opinion and compliance with the provisions of denying his signature. Thus, I do not find Section 20(4) of the said Act must be any error in the finding of the Court judged upon the basis of the dates so fixed". below that there is existence of an In respect of Section 20 (4) of the U.P. Act agreement between the parties. No. 13 of 1972 the Court held that the date for filing of the written statement and 14. The landlady has also filed hearing shall be the first date of hearing. counter-foil of the rent, which has been The aforesaid ratio was explained by the duly proved by her witness. From the Supreme Court in the case of Advaita Nand same counter-foil it was noticed by the (supra). The Court held that the first date of Court below that the receipt of previous hearing shall be the date when the time is tenants and other tenants have also been fixed by the Court for filing the written issued. On the basis of the documentary statement and hearing. Same view has been evidence as well as statement of P.W.-1 taken by this Court also in the case of Chotti Sri Rajesh Kumar Shukla, it has been v. 13th Additional District and Sessions established by the landlady that the rate of Judge, and others, 1999 (2) ARC 71. rent was Rs.2,000/- per month. The Court This Court after considering the judgment below has elaborately analysed the of the Supreme Court in respect of the evidence while recording its finding on Small Cause Courts Act held that the first this point i.e. Issue No.1. Learned Senior date of hearing shall be the date for Counsel appearing for the revisionist- appearance as well as final hearing. tenant Sri Ojha has failed to point out any Applying the said principle in the present error in the finding of fact recorded by the case, the tenant had filed his written Court, therefore, I find that the finding statement on 15th June, 2010 and submitted recorded by the Court below that the rent his tender on 15th July, 2010, therefore, I do was Rs.2,000/- per month does not suffer not find any error in the finding of the from any illegality. Court below that the tenant has deposited 1318 INDIAN LAW REPORTS ALLAHABAD SERIES the arrears of rent after the first date of Provincial Small Cause Courts Act, 1887 hearing. Thus, he was not entitled for the is limited. The Court can interfere under benefit of Section 20(4) of the U.P. Act this section only when the finding No. 13 of 1972. recorded by the Court below is totally perverse and is based on no evidence. 17. As regards the submission of Sri Learned counsel for the revisionist-tenant Ojha that the tenant has deposited the entire has failed to point out any perversity in rent and the finding of the Court below that the order of the Court below, as discussed there was a shortfall of amount is incorrect, above. The findings of the Court below on this Court finds that the finding of the Court various points are based on documentary below that the rent is Rs.2,000/- per month as well as oral evidence. It has not been has been found to be correct in the earlier pointed out that the Court below has part of this judgment. The tenant has ignored any important documentary deposited the rent at the rate of Rs.1,000/- evidence filed by the tenant-revisionist or per month. Thus, there is a shortfall of it has taken into consider any fact, which Rs.1,58,000/- and for this reason also, his was not on the record. claim for the benefit of Section 20(4) of the U.P. Act No. 13 of 1972 has rightly been 19. After careful consideration of rejected by the Court below. The finding of the facts and circumstances of the case, I the Court below that the tenant has made a am of the view that the revision lacks default for more than four months, is a merit and is liable to be dismissed. It is, finding of fact. Learned Senior Counsel accordingly, dismissed. appearing for the revisionist-tenant could not satisfy the Court that the said finding is 20. Considering the facts and perverse. The Court below has noticed the circumstances of the case, the tenant- fact that the statement of D.W.-1 Awadh revisionist is granted three months' time to Bihari that after receiving the notice he had vacate the premises in question on the sent the rent of the months of October & following conditions: November, 2009 by money-order, was not correct as no receipt of the money-order (i) The revisionist shall file an was filed before the Court below. undertaking within one month from today Therefore, said fact has been rightly ignored before the Judge, Small Cause Court, by the Court below. The landlady has filed a Kanpur Nagar that on or before the expiry suit under Section 28(A) of the U.P. Act of the three months he will handover No. 13 of 1972. Section 20(2)(A) of the peaceful possession to the landlady- U.P. Act No. 13 of 1972 provides that if a respondent and shall not create any third tenant is in arrears for more than four party interest in any manner. months and he fails to deposit the rent in (ii) For the period of three months, spite of the notice, then he shall be liable for which has been granted to him to vacate eviction. For the reasons stated above, the the premises, he shall pay damages at the finding of the Court below on Issue No. 4 rate of Rs.2,000/- per month for the use of also does not suffer from any error. accommodation. (iii) In case of default in compliance 18. The revisional jurisdiction of of any of the conditions, the interim order this Court under Section 25 of the shall stand vacated. 3 All]. Amit Agarwal Vs. Atul Gupta 1319

21. No order as to costs. Officers. If their confidence, impartiality ------and reputation is shaken, it is bound to ORIGINAL JURISDICTION affect the very independence of judiciary. CIVIL SIDE Any person, if allowed to make disparaging DATED: ALLAHABAD 12.11.2014 and derogatory remarks against a Judicial Officer, with impunity, is bound to result in breaking down the majesty of justice. BEFORE THE HON'BLE SUDHIR AGARWAL, J. 39. In the light of the above exposition of law, the pleadings in the case in hand Civil Misc. Transfer Application No. 519 of have been examined. The grounds taken 2014 by applicant is vague and wholly (U/s24 C.P.C.) unsubstantiated. The mere allegation is not sufficient to justify transfer unless it Amit Agarwal ...Petitioner is also substantiated by relevant Versus material, which is not the case in hand. Atul Gupta ...Respondent No ground, therefore, justifying transfer is made out under Section 24 C.P.C. Counsel for the Petitioner: Sri Shashi Nandan, Sri Prabhakar Dwivedi, Case Law discussed: Sri Anil Kumar AIR 1960 Kerela 91; AIR 2003 AP 312; 1914 (27) MLJ 645; AIR 1990 MP 320; (1882) ILR 5 Counsel for the Respondent: All 60; (1979) Cri.L.J. 459(SC); 1990 (1) SCC 4; AIR 2008 SC 1333; AIR 2009 SC 1374; AIR Sri K.R. Sirohi, Sri Pankaj Dubey 2009 SC 1773; (1938) 2 MLJ 249; AIR 1933 Lahore 635; AIR 1975 Delhi 42; AIR 1953 C.P.C.-Section 24-Transfer of Arbitration Orissa 46; AIR 1996 Kerela 113; AIR 1976 P & Appeal pending before D.J. Merrut to any H 321; 2007 (3) AWC 3119; AIR 1995 other adjoining District-on ground by Karnataka 112; AIR 1981 Madas 54 or 24; AIR conduct of presiding judge-no hope of fair 1981 Madras 24; AIR 1988 Gujrat 63; AIR justice-bent upon to grant interim order 2003 AP 448; AIR 2001 Culcutta 26; (1998) 7 in favor of Respondent-held the ground of SCC 248; 2013 (2) AWC 1546; AIR 2003 AP transfer wholly vague unsubstantiated-no 312. ground for interference-rejected. (Delivered by Hon'ble Sudhir Agarwal, J.) Held: Para-30 & 39 30. If there is a deliberate attempt to scandalize a judicial Officer of subordinate 1. Heard Sri Shashi Nandan, Senior Court, it is bound to shake confidence of Advocate, assisted by Sri Prabhakar the litigating public in the system and has Dwivedi, learned counsel for the to be tackled strictly. The damage is applicant, Sri K.R.Sirohi, Senior caused not only to the reputation of the Advocate, assisted by Sri Pankaj Dubey, concerned Judge, but, also to the fair name of judiciary. Veiled threats, abrasive learned counsel for opposite party and behaviour, use of disrespectful language, perused the record. and, at times, blatant condemnatory attacks, like the present one, are often 2. This transfer application has been designedly employed with a view to tame filed under Section 24 C.P.C., seeking a Judge into submission to secure a transfer of non admitted Arbitration desired order. The foundation of our Appeal No. Nil of 2014 (Atul Gupta Vs. system is based on the independence and impartiality of the men having Amit Agarwal) pending in the Court of responsibility to impart justice i.e. Judicial District Judge, Meerut to any other 1320 INDIAN LAW REPORTS ALLAHABAD SERIES

District Judge of any nearby District 25. That is is also stated that since making allegations against Sri Amar the aforesaid appeal dated 29.10.2014 Singh Chauhan, District Judge, Meerut. filed by the respondent under section Paras 23 to 26 of the affidavit, filed in 37(2)(b) of Arbitration and Conciliation support of transfer application contain Act-1996 before the District Judge allegation, which read as under: Meerut has yet not been admitted and as such no any number etc. has been given to "23. That at about 3.30 p.m. the the said appeal and due to said reason no appeal filed under section 37(2)(b) of any certified copy of the order sheet could Arbitration and Conciliation Act, 1996 by be obtained by the petitioner. the respondent was taken up before the 26. That as a matter of fact now the District Judge Meerut then the time was applicant lost all his hope to get justice in sought from the counsel for the applicant the Arbitration Appeal No.Nil of 2014 to file objection as in the said appeal the (Atul Gupta Vs. Amit Agarwal) pending caveat of the applicant was already filed before Sri Amar Singh Chauhan District then in utter surprise the District Judge Judge Meerut in as much as the said Meerut Sri Amar Singh Chauhan told to Court is even not ready to consider the the counsel for the applicant to prepare material brought on record and the the objection within 30 minutes so as to argument advance before him on behalf of hear the matter at 4.00 p.m. and since it the applicant which is apparent from the was not possible to prepare the objection aforesaid facts." towards the said appeal within 30 minutes and as such only after various request 3. From the bare perusal thereof and persuasion, the District Judge Meerut clearly shows that assertions are fixed the next date as 03.11.2014. It is absolutely vague, unsubstantiated and also stated that on 30/31.10.2014, the lacks trustworthiness. elections of District Bar Association was scheduled. 4. Learned counsel for opposite party 24. That as the earlier occasion also opposed the application submitting that the present Presiding Officer/Sri Amar there is no ground for transfer the case. Singh Chauhan District Judge Meerut has completely ignored the arguments and 5. The power of transfer of a case objection filed by the petitioner and being from one Court to another under Section prejudiced he has passed the order dated 24 C.P.C. is very wide. However, while 20.12.2013. Further more the present exercising such power, the Court itself District Judge Meerut is much interested must look into the ground taken for to pass interim order in favour of justifying transfer and should consider the respondent due to which earlier on matter within permissible limitations so as 29.10.2014 when the case was taken up, not to exercise power on mere asking by the Presiding Officer earlier granted only applicant. 30 minutes time to prepare the objections 6. The plaintiff, as obiter litis or to the appeal and only after great request dominus litis, has a right to chose any and persuasion the next date has been forum, the law allows him. It is a fixed as 03.11.2014. substantive right but of course subject to 3 All]. Amit Agarwal Vs. Atul Gupta 1321 control by statute like Sections 22 to 23 of and leaving him to seek his remedy in C.P.C. another jurisdiction.

7. The mere factum of expenses or 10. In Meneka Sanjay Gandhi Vs. difficulties should not justify transfer of a Rani Jekhmalani, (1979) Cri.L.J. 458 case from one Court to another, unless (SC) the Court said: Court finds that expenses and difficulties in the Court, where it is pending, is so Assurance of a fair trial is the first great as to lead injustice to applicant, or, imperative of the dispensation of justice the suit has been filed in a particular and the central criterion for the court to Court for the purpose of working consider when a motion for transfer is injustice. (P. Sadayandi Nadar and Ors. made is not the hypersensitivity or vs. Venugopala Chetty and Ors., AIR relative convenience of a party or easy 1960 Kerela 91; Satyasri Fertilisers vs. availability of legal services or like mini E.I.D. Parry (India) Ltd., AIR 2003 AP grievances. Something more substantial, 312; and, The Hindustan Assurance and more compelling, more imperiling, from Mutual Benefit Society Ltd. vs. Rail the point of view of public justice and its Mulraj and Ors., 1914 (27) MLJ 645). attendant environment, is necessitous if the Court is to exercise its power of 8. It is always necessary to the Court transfer. This is the cardinal principle to find out from the allegations made in although the circumstances may be transfer application, whether any myriad and vary from case to case. reasonable ground is made out for transfer (emphasis added) of the case. (Smt. Sudha Sharma vs. Ram Naresh Jaiswal, AIR 1990 MP 320) 11. Again in the context of power of Supreme Court with regard to transfer of 9. Transfer of cases from one Court cases under Section 25 C.P.C. in to another is a serious matter particularly Subramaniam Swamy Vs. Ramakrishna when transfer is sought by making Hegde, 1990(1) SCC 4, the Court said: allegations against Presiding Officer. It sometimes indirectly cause doubt on the "The question of expediency would integrity and competence of Presiding depend on the facts and circumstances of Officer of the Court from whom the each case but the paramount consideration matter is transferred. In cases where for the exercise of power must be to meet the ground for transfer is likelihood of bias of ends of justice. It is true that if more than one Presiding Officer, it is onerous duty of court has jurisdiction under the Code to try Court to see, whether such ground has the suit, the plaintiff as dominus litis has a been substantiated with reasonable right to choose the Court and the defendant certainty or not. It should not be done cannot demand that the suit be tried in any without a proper and sufficient cause. In particular court convenient to him. The mere Tula Ram Vs. Harjiwan Das (1882) ILR 5 convenience of the parties or any one of them All 60 it was held that the Court has to may not be enough for the exercise of power consider whether applicant has made out a but it must also be shown that trial in the case to justify it, closing doors of the chosen forum will result in denial of justice. Court in which suit is brought to plaintiff, Cases are not unknown where a party 1322 INDIAN LAW REPORTS ALLAHABAD SERIES seeking justice chooses a forum most cast-iron formula unanimously applicable inconvenient to the adversary with a view to to all situations, it cannot be gainsaid that depriving that party of a fair trial. The the power to transfer a case must be Parliament has therefore, invested this Court exercised with due care, caution and with the discretion to transfer the case from circumspection. Reading Sections 24 and one Court to another if that is considered 25 of the Code together and keeping in expedient to meet the ends of justice. Words view various judicial pronouncements, of wide amplitude- for the ends of justice- certain broad propositions as to what may have been advisedly used to leave the matter constitute a ground for transfer have been to the discretion of the apex court as it is not laid down by Courts. They are balance of possible to conceive of all situations convenience or inconvenience to plaintiff requiring or justifying the exercise of power. or defendant or witnesses; convenience or But the paramount consideration must be to inconvenience of a particular place of see that justice according to law is done; if trial having regard to the nature of for achieving that objective the transfer of evidence on the points involved in the the case is imperative, there should be no suit; issues raised by the parties; hesitation to transfer the case even if it is reasonable apprehension in the mind of likely to cause some inconvenience to the the litigant that he might not get justice in plaintiff. The petitioner's plea for the transfer the court in which the suit is pending; of the case must be tested on this touchstone. important questions of law involved or a (emphasis supplied) considerable section of public interested in the litigation; interest of justice 12. The age of wife and distance demanding for transfer of suit, appeal or between place of residence and place where other proceeding, etc. Above are some of matrimonial proceedings were filed, as well the instances which are germane in as absence of people who would escort her, considering the question of transfer of a are some of the grounds considered suit, appeal or other proceeding. They reasonable justification, for directing are, however, illustrative in nature and by transfer of case, to a place more suitable to no means be treated as exhaustive. If on her. In Kulwinder Kaur @ Kulwinder the above or other relevant Gurcharan Singh vs. Kandi Friends considerations, the Court feels that the Education Trust and Ors., AIR 2008 SC plaintiff or the defendant is not likely to 1333 the Court said that order of transfer have a fair trial in the Court from which must reflect application of mind and the he seeks to transfer a case, it is not only circumstances which weighed the Court in the power, but the duty of the Court to taking action or transfer of case from one make such order." Court to another. 14. In the matrimonial matters the 13. In Kulwinder Kaur @ convenience of wife and in particular that Kulwinder Gurcharan Singh (supra), the she has no one in her family to escort her Court said: to undertake a long journey has been held to be good ground for transfer of case as "14. Although the discretionary is also evident from Apex Court's decision power of transfer of cases cannot be in Anjali Ashok Sadhwani vs. Ashok imprisoned within a strait-jacket of any Kishinchand Sadhwani, AIR 2009 SC 3 All]. Amit Agarwal Vs. Atul Gupta 1323

1374 and Fatema vs. Jafri Syed Husain @ AWC 3119 the applicant put forward his Syed Parvez Jafferi, AIR 2009 SC 1773. claim on the basis of a Will before Civil Judge (Senior Division). The respondent 15. One of the common ground filed a suit before Civil Judge (Junior which generally is taken is of distrust in Division) for cancellation of Will. It was Presiding Officer of the Court. Here the held that claims of both parties were based Courts have to be very careful while on execution and non-execution of alleged passing the orders for transfer of case. Will, therefore, it would be in the interest of justice that both cases must be decided in 16. Where two persons filed suit the same Court. The expression "same against each other in different Courts on the Court" does not mean same Judge, rather it same cause of action, it was held desirable means the same Civil Court and as such the that suits should be tried by one and the same order of transferring proceeding from the Court. (G.M. Rajulu Vs. Rao Bahadur M. Court of Civil Judge (Junior Division) to the Govindan Nair, (1938) 2 MLJ 249; Mt. Court of Civil Judge (Senior Division) was Zabida Khatoon vs. Mohammad Hayat Khan held proper. and Ors., AIR 1933 Lahore 635; and Manjari Sen vs. Nirupam Sen, AIR 1975 Delhi 42). 21. The mere observations of Presiding Officer of the Court while 17. Similarly, if two suits in hearing a case does not mean that he has different Courts are filed raising common made up his mind in a particular manner questions of fact and law, and the so as to justify an allegation of bias decisions are independent, it is desirable against such Presiding Officer and this that they should be tried by same judge so would not justify transfer of case from as to avoid multiplicity of litigation and one Court to another. A Judge is not conflict in decision. (Purna Chandra expected to remain silent during course of Mahanty and Ors. vs. Samanta hearing and not to express any opinion. A Radhaprasana Das, AIR 1953 Orissa 46). sphinx like attitude is not expected from a Presiding Officer. There has to be an 18. If the fact of suits sought to be effective discussion and effective attempt tried together are intertwined with cause to conciliate or to clarify the of action in each suit, transfer of suit may misunderstanding or to get the issues not be refused provided the parties and clear, so that the issues can be settled or a subject matter of suits are one and the just and proper decision can be arrived at. same. (Rosamma Joseph vs. P.C. If in that process the Presiding Officer Sebastian, AIR 1996 Kerala 113) would make a statement it should not be misunderstood as an expression of 19. An order of transfer can also be decision. (Smt. Sangeetha S. Chugh vs. made to prevent abuse of process of Court Ram Narayan V. and others, AIR 1995 as said in State Bank of India vs. Sakow Karnataka 112 and Official Assignee, Industries Faridabad (Pvt.) Ltd., New Madras vs. Inspector-General of Delhi, AIR 1976 P & H 321. Registration, Bangalore and Anr., AIR 1981 Madras 54 or 24) 20. In Amardeep and others Vs. 22. In one matter certain District Judge, Lalitpur and others, 2007(3) observations were made by a Judge in an 1324 INDIAN LAW REPORTS ALLAHABAD SERIES earlier case. When a subsequent matter maintain such confidence and atmosphere came up before him this was sought to be by giving every litigant an assurance by a ground for transfer but declined by the their judicial conduct that fair and Court in G. Lakshmi Ammal vs. Elumalai impartial justice will be imparted. It is Chettiar and Ors, AIR 1981 Madras 24. necessary to create such a confidence in the mind of the litigants so that their faith 23. The allegations of bias of may not be shaken in Courts of law." Presiding Officer, if made the basis for transfer of case, before exercising power 24. Mere suspicion by the party that under Section 24 C.P.C., the Court must he will not get justice would not justify be satisfied that the apprehension of bias transfer. There must be a reasonable or prejudice is bona fide and reasonable. apprehension to that effect. A judicial The expression of apprehension, must be order made by a Judge legitimately cannot proved proved/ substantiated by be made foundation for a transfer of case. circumstances and material placed by Mere presumption of possible such applicant before the Court. It cannot apprehension should not and ought not be be taken as granted that mere allegation the basis of transfer of any case from one would be sufficient to justify transfer. In case to another. It is only in very special Smt. Sudha Sharma (supra) the Court circumstances, when such grounds are observed that it is the duty of learned taken, the Court must find reasons exist to counsel to draft the application and made transfer a case, not otherwise. (Rajkot allegations with utmost care and caution. Cancer Society vs. Municipal Hon'ble B.M. Lal, J. (as His Lordship Corporation, Rajkot, AIR 1988 Gujarat then was), said: 63; Pasupala Fakruddin and Anr. vs. Jamia Masque and Anr., AIR 2003 AP "9...... a foremost duty casts upon 448; and, Nandini Chatterjee vs. Arup the counsel concerned while drafting and Hari Chatterjee, AIR 2001 Culcutta 26) making allegations in the transfer petition against the Judge concerned with utmost 25. Where a transfer is sought care and caution, particularly in making making allegations regarding integrity or wild allegations against the Presiding influence etc. in respect of the Presiding Judge. But, it appears that now-a-days it Officer of the Court, this Court has to be has become common feature to make very careful before passing any order of allegations against the Court Presiding transfer. Judge. The counsel should realise that they are also officers of the Court. 26. In the matters where reckless Introducing fanciful and imaginary false allegations are attempted to be made allegations as grounds for transfer and to seek some favourable order, either in a harbouring apprehension such grounds transfer application, or otherwise, the that fair and impartial justice would not approach of Court must be strict and be done should always be deprecated. cautious to find out whether the 10. Nonetheless, it is also important allegations are bona fide, and, if treated to for all those who are engaged in the task be true on their face, in the entirety of of administering justice to remember that circumstances, can be believed to be it is incumbent on them to create and correct, by any person of ordinary 3 All]. Amit Agarwal Vs. Atul Gupta 1325 prudence in those circumstances. If the provincial level and is under allegations are apparently false, strict constitutional obligation to see effective approach is the call of the day so as to functioning of subordinate Courts by maintain not only discipline in the courts virtue of power conferred by Article 235 of law but also to protect judicial officers read with 227 of the Constitution. No and maintain their self esteem, confidence such similar power like Article 235, in and above all the majesty of institution of respect to High Court is exercisable by justice. Apex Court, though it is the highest Court of land. Its judgments are binding on all. 27. The justice delivery system knows Every order and judgment of any Court or no caste, religion, creed, colour etc. It is a Tribunal etc., in the Country, is subject to system following principle of black and judicial review by Apex Court. This is the white, i.e., truth and false. Whatever is power on judicial side. unfair, that is identified and given its due treatment and whatever is good is retained. 29. In Ajay Kumar Pandey, Whoever suffers injustice is attempted to be Advocate, In Re:, (1998) 7 SCC 248, the given justice and that is called dispensation Court said that superior Courts, i.e. High of justice. The prevailing system of Court as also the Apex Court is bound to dispensation of justice in Country, protect the Judges of subordinate Courts presently, has different tiers. At the ground from being subjected to scurrilous and level, the Courts are commonly known as indecent attacks, which scandalise or have "Subordinate Judiciary" and they form basis the tendency to scandalise, or lower or of administration of justice. Sometimes it is have the tendency to lower the authority said that subordinate judiciary forms very of any court as also all such actions which backbone of administration of justice. interfere or tend to interfere with the due Though there are various other kinds of course of any judicial proceedings or adjudicatory forums, like, Nyaya obstruct or tend to obstruct the Panchayats, Village Courts and then various administration of justice in any other kinds of Tribunals etc. but firstly they are manner. No affront to the majesty of law not considered to be the regular Courts for can be permitted. The fountain of justice adjudication of disputes, and, secondly the cannot be allowed to be polluted by kind and degree of faith, people have, in disgruntled litigants. The protection is regular established Courts, is yet to be necessary for the courts to enable them to developed in other forums. In common discharge their judicial functions without parlance, the regular Courts, known for fear. appropriate adjudication of disputes basically constitute subordinate judiciary, 30. If there is a deliberate attempt to namely, the District Court; the High Courts scandalize a judicial Officer of and the Apex Court. subordinate Court, it is bound to shake confidence of the litigating public in the 28. The hierarchy gives appellate and system and has to be tackled strictly. The supervisory powers in various ways. The damage is caused not only to the administrative control of subordinate reputation of the concerned Judge, but, judiciary has been conferred upon High also to the fair name of judiciary. Veiled Court, which is the highest Court at threats, abrasive behaviour, use of 1326 INDIAN LAW REPORTS ALLAHABAD SERIES disrespectful language, and, at times, to the requirements of law. He plays a vital blatant condemnatory attacks, like the role in preservation of society and justice present one, are often designedly system. He is under an obligation to uphold employed with a view to tame a Judge the rule of law. He must ensure that the into submission to secure a desired order. public justice system is enabled to function at The foundation of our system is based on its full potential. He, who practices law, is the independence and impartiality of the not merely a lawyer, but acts as moral agent. men having responsibility to impart This character, he cannot shake off, by any justice i.e. Judicial Officers. If their other character on any professional character. confidence, impartiality and reputation is He derives from the belief that he shares shaken, it is bound to affect the very sentiment of all mankind. This influence of independence of judiciary. Any person, if his morality is one of his possession, which, allowed to make disparaging and like all his possession, he is bound to use for derogatory remarks against a Judicial moral ends. Members of the Bar, like Judges, Officer, with impunity, is bound to result are the officers of the Court. Advocacy is a in breaking down the majesty of justice. respectable noble profession on the principles. An Advocate owes duty not only 31. I cannot ignore the fact that to his client, but to the Court, to the society much cherished judicial independence and, not the least, to his profession. needs protection not only from over zealous executive or power hungry 33. I do not intend to lay down any legislature but also from those who code of conduct for the class of the peoples constitute, and, are integral part of the known as "Advocates", but certainly I have system. Here is a case where an Advocate no hesitation in observing that no Advocate has drafted a petition since the litigants, has nay business to condemn a Judge merely namely petitioners, hereat does not appear on the basis of his caste, creed or religion or to understand the legal complexity much. for any other similar trait or attribute. If there The Advocate forgetting the higher status is something lacking on the part of a Judicial conferred upon him, making him an Officer touching his integrity, Advocates, Officer of the Court, has chosen to malign being Officers of the Court, may not remain Judicial Officer of the Subordinate Court, a silent spectator, but should come forward, based on caste consideration as also the raising their voice in appropriate manner nature of his appointment over which he before the proper authority, but there cannot himself has no control. In any case, that, be a licence to any member of Bar to raise by itself, has no connection with his his finger over the competency and integrity performance and function as Presiding etc. of a Judicial Officer casually or Officer of the Court. negligently or on other irrelevant grounds. Here the competence and capacity of the 32. An Advocate's duty is as important concerned Judicial Officer has been as that of a Judge. He has a large attempted to be maligned commenting upon responsibility towards society. He is his integrity and honesty. It deserves to be expected to act with utmost sincerity and condemned in the strongest words. No one respect. In all professional functions, an can justify it in any manner. Thinking of Advocate should be diligent and his conduct intrusion of such thought itself sounds alert. should also be diligent. He should conform It is a siren of something which is not only 3 All]. Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors. Vs. Aziz Ullah 1327 very serious, but imminent. A concept or an sought only on the ground that the idea which should not have cropped up in applicant is a diabetic patient. anybody's mind, connected with the system of justice, if has cropped up, deserves to be 37. The observations made above nipped at earliest, else, it may spreads its are only illustrative to show that Court, tentacles to cover others and that would be a though has wide power of transfer under dooms day for the very institution. Section 24 C.P.C. but it must be exercised for valid reasons and not in whimsical and 34. This Court also made similar arbitrary manner. observations in Smt. Munni Devi and others Vs. State of U.P. and others, 38. Now, this has to be seen, 2013(2) AWC 1546 and in para 10, said: whether any valid reason exist in the case justifying transfer. "10. Be that as it may, so far as the present case is concerned, suffice is to 39. In the light of the above exposition mention that the Constitution makers have of law, the pleadings in the case in hand have imposed constitutional obligation upon the been examined. The grounds taken by High Court to exercise control over applicant is vague and wholly unsubstantiated. subordinate judiciary. This control is both The mere allegation is not sufficient to justify ways. No aberration shall be allowed to transfer unless it is also substantiated by enter the Subordinate Judiciary so that its relevant material, which is not the case in purity is maintained. Simultaneously hand. No ground, therefore, justifying transfer Subordinate Judiciary can not be allowed to is made out under Section 24 C.P.C. be attacked or threatened to work under outside pressure of anyone, whether 40. The transfer application, individual or a group, so as to form a threat therefore, fails and is dismissed. to objective and independent functioning of ------Subordinate Judiciary." APPELLATE JURISDICTION CIVIL SIDE 35. Sometimes transfer of suit has DATED: ALLAHABAD 10.11.2014 also been justified on the ground of BEFORE convenience to the parties or witnesses THE HON'BLE RAKESH TIWARI, J. etc. but in such cases the paramount factor THE HON'BLE MRS VIJAY LAKSHMI, J. which should be considered is the convenience of both parties. An Special Appeal Defective No. 880 of 2014 exception, however, to some extent, has been made in matrimonial cases where Dakshinanchal Vidyut Vitran Nigam Ltd. convenience of wife has been given a Agra & Ors. Appellants Versus dominating factor than husband, Aziz Ullah Opp. Party particularly when she has none to escort her or of quite young age or where she Counsel for the Appellants: has financial constrained etc. Sri Baleshwar Chaturvedi 36. In Satyasri Fertilisers vs. E.I.D. Parry (India) Ltd., AIR 2003 AP 312 the Counsel for the Respondents: transfer of case was declined which was Sri Shekhar Srivastava 1328 INDIAN LAW REPORTS ALLAHABAD SERIES

Constitution of India, Art.-226- 3. The appellants have filed this intra Termination-on ground of forged high court appeal challenging the validity and school certificate-without holding enquiry correctness of the impugned judgment and as envisaged under Rule 7-in responce show cause notice after reply-termination order dated 24.7.2014 passed by the Writ order on 14.05.12 retirement on Court in Civil Misc. Writ Petition No. 31.07.12-when no disciplinary proceeding 30714 of 2012, Aziz Ullah versus pending-Learned Single Judge rightly Dakshinanchal Vidyut Vitran Nigam interfered-appeal dismissed. Limited and others whereby the aforesaid writ petition was allowed. Held: Para-12 In view of the above, learned counsel for the appellants has failed to point out any 4. Brief facts giving rise to the rule as to whether disciplinary proceedings instant appeal are that the respondent was could be initiated against the delinquent initially appointed in 1971 as Kuli on employee after retirement. The order of Class-IV post with Dakshinanchal Vidyut termination was passed on 14.5.2012 Vitaran Nigam Limited, Agra, and merely on a show cause notice and two months thereafter i.e. on 31.7.2012 he thereafter on qualifying examination, he retired from the service after attaining the was promoted on Class-III post as age of superannuation. It appears that on Technical Grade-II (TG-2). The minimum the date of superannuation there was no qualification for promotion is that the enquiry pending or contemplated against incumbent apart from qualifying the the respondent. The procedure as provided examination must be a High School. On under rule 7 of the Rules, 1999 was not followed and straight way the services of 6.8.2008, appellant no.3, Executive the respondent were terminated. The Writ Engineer, Electricity Distribution Court has rightly quashed the termination Division, Dakshinanchal Vidyut Vitaran order dated 14.5.2012 directing the Nigam Limited, District Banda issued a appellants to pay post retirement benefits show cause notice directing him to to the respondents. produce his High School certificate. Pursuant thereto, he approached appellant Case Law discussed: AIR 2004 SC 1469. no.3 along with original mark sheet as well as certificates, However, appellant (Delivered by Hon'ble Rakesh Tiwari, J.) no. 3 did not examine the original mark sheet and again a notice was issued on 1. Heard learned counsel for the 20.10.2008 calling upon the respondent to appellants on Civil Misc. Delay submit his mark sheet. Similar notice was Condonation Application No. 344900 of issued on 5.9.2009. In response thereto, 2014 and perused the affidavit filed in the respondent submitted a detailed reply support of this application. Cause shown for on 3.10.2009 and due to the pendency of delay in filing the special appeal is the enquiry, he was not given the benefit sufficient. Delay is condoned and the of "Sixth Pay Commission" hence he Application for Condonation of Delay is preferred Civil Misc. Writ Petition No. allowed. 75588 of 2010 praying that the pending enquiry be concluded and finalized which 2. Heard learned counsel for the was dismissed vide judgment and order appellants on merit of the appeal also and dated 4.1.2011. The judgment and order perused the record. dated 4.1.2011 reads thus:- 3 All]. Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors. Vs. Aziz Ullah 1329

"Heard learned counsel for the T.G.-2 and has been promoted on the parties. basis of forged certificate, hence he has It appears that some enquiry is going caused financial loss to the Nigam; that on against the petitioner with regard to the enquiry was held of which proper authenticity of papers submitted by the notice and opportunity was given to the petitioner and in pursuance thereto the respondent to put his defence and petitioner has been asked to submit thereafter on the basis of proper scrutiny certain document vide orders dated the order dated 14.5.2012 terminating his 7.4.2010 and 23.9.2010. services was passed, hence in view of the It is stated by the petitioner that he law laid down by the Apex Court in the has supplied all the documents but no case of R. Vishwanath Pillai versus State decision is being taken. of Kerala, AIR 2004, SC-1469, issuance If that is the case, the respondents of fresh notice under the rules was not may complete the said enquiry within six necessary as the genuineness of the weeks from the date of submission of a certificate has already been examined by certified copy of this order, provided the the Enquiry Officer. petitioner cooperates. Subject to the aforesaid, this petition 8. It is also submitted that the Writ is dismissed. " Court has quashed the order dated 14.5.2012 on the ground that no 5. In compliance of the aforesaid disciplinary enquiry as provided under judgment and order dated 4.1.2011 of the rule 7 was initiated and no charge sheet High Court, inquiry was conducted was served upon the delinquent employee, against the respondent in which it was hence it has committed an error in law by found by the Enquiry Officer that the not giving a liberty to the appellants to original documents submitted by the hold departmental enquiry in respect of respondent-employee do not tally with the allegation of misconduct and take High School Certificate of the respondent. necessary action thereafter in accordance He was found guilty in the enquiry and with law and as such the impugned vide order dated 14.5.2012 his services judgment and order dated 24.7.2014 were terminated. passed by the Writ Court is liable to be set aside. 6. Aggrieved by the order dated 14.5.2014 the respondent preferred Civil 9. Per contra, learned counsel for the Misc. Writ Petition No. 30714 of 2012, respondent submits that only a show Aziz Ullah versus Dakshinanchal Vidyut cause notice was issued to the respondent Vitaran Nigam Limited and others, which to which he submitted his reply and was allowed vide judgment and and order thereafter the enquiry was conducted dated 24.7.2014, hence the instant appeal. behind his back; that opportunity was afforded to the respondent to put his 7. The impugned judgment and defence and the authority has imposed order of the Writ Court is assailed on the major penalty which is not permissible ground that the Writ Court has failed to under the 1999 Rules; that the Writ Court consider that the respondent does not has rightly allowed the writ petition, fulfill eligibility criteria for the post of hence no interference is required by this 1330 INDIAN LAW REPORTS ALLAHABAD SERIES

Court. The Writ Court appreciated the were genuine or otherwise. This, with arguments and the case laws thus:- respect, was no part of the jurisdiction of the writ Court under Article 226 of the "Enquiry commences with the issue Constitution. When a substantive charge of charge-sheet as held in the case of of misconduct is levied against an Union of India vs. K.V. Jankiraman (AIR employee of the State, the misconduct has 1991 SC 2010), Union of India vs. Anil to be proved in the course of a Kumar Sarkar, 2013 (4) SCC 161 and disciplinary inquiry. This is not one of State of Andhra Pradesh vs. C.H. Gandhi, those cases where a departmental inquiry 2013 (5) SCC 111; Framing of the was dispensed with or that the ground for charge-sheet is the first step taken for dispensing with such an inquiry was made holding enquiry into the allegations on out. The U.P. Government Servants the decision taken to initiate disciplinary (Discipline and Appeal) Rules, 1999 lays proceedings. Service of charge-sheet on down a detailed procedure in Rule 7 for the Government servant follows decision imposing a major penalty. Admittedly, no to initiate disciplinary proceedings and it procedure of that kind was followed since does not precede and coincide with that no disciplinary inquiry was convened or decision (vide Delhi Development held." Authority vs. H.C. Khurana 1993 (3) SCC In Smt. Munni Devi vs. State of U.P. 196). Once the enquiry was not initiated and others [(2014) 2 UPLBEC 974] it or contemplated or pending before the was held that once an enquiry is initiated retirement, the same cannot be continued under Rule 7 it is mandated that the after retirement, unless there is a rule to enquiry officer would conduct oral that effect. The learned counsel for the enquiry. It was held that oral enquiry respondents has failed to show any rule would be mandatory before imposing or circular as to whether disciplinary major punishment. Paragraph 9 is as proceedings could be initiated after follows:- retirement and under what circumstances. "9. The question as to whether non A Division Bench of this Court in holding of oral inquiry can vitiate the Smt. Parmi Maurya vs. State of U.P. and entire proceeding or not has also been others [(2014) 2 UPLBEC 1060] held that considered in detail by a Division Bench the provisions of Rule 7 is mandatory and of this Court (in which I was also a it is obligatory for the employer to frame member) in the case of Salahuddin Ansari charge/conduct disciplinary enquiry by Vs. State of U.P. and others, 2008(3) ESC applying the principles of natural justice 1667 and the Court clearly held that non and prove that certificates were holding of oral inquiry is a serious flaw fabricated, without adopting such which vitiates the entire disciplinary procedure order passed terminating the proceeding including the order of delinquent employee is illegal. Paragraph punishment. This Court has said in paras 7 is as follows:- 10 and 11 of the judgement as under: "7. On these facts, the learned Single "10. ------Non holding of oral Judge, in our view, was clearly in error in inquiry in such a case is a serious matter arrogating to the Court the task of and goes to the root of the case. determining whether the certificate and 11. A Division Bench of this Court in mark sheets submitted by the appellant Subhash Chandra Sharma Vs. Managing 3 All]. Dakshinanchal Vidyut Vitran Nigam Ltd. Agra & Ors. Vs. Aziz Ullah 1331

Director & another, 2000 (1) appellant during the period of his U.P.L.B.E.C. 541, considering the dismissal and upto the date of question as to whether holding of an oral reinstatement. Inasmuch as the inquiry inquiry is necessary or not, held that if no had lapsed, it is, in our opinion, obvious oral inquiry is held, it amounts to denial that the appellant would have to get the of principles of natural justice to the balance of the emoluments payable to delinquent employee. The aforesaid view him." was reiterated in Subhash Chandra The Full Bench judgment in case of Sharma Vs. U.P. Cooperative Spinning State of U.P. v. Jai Singh Dixit and Mills & others, 2001 (2) UPLBEC 1475 others, 1974 A.L.J. 862, the words and Laturi Singh Vs. U.P. Public Service 'inquiry' and 'contemplated' was Tribunal & others, Writ Petition No. considered. 12939 of 2001, decided on 06.05.2005." "34. A formal departmental inquiry The Supreme Court in Dev Prakash is invariably preceded by an informal Tewari vs. U.P. Cooperative Institutional preliminary inquiry which itself can be in Service Board [LAWS (SC)-2014-6-14] two phases. There can be a summary was considering the case that as to investigation to find out if the allegations whether disciplinary proceedings after made against the Government servant retirement of an employee could be have any substance. Such investigation or continued in absence of any rule to that inquiry is followed by a detailed effect. In paragraph 6 and 7 held as preliminary or fact finding inquiry follows:- whereafter final decision is taken whether "6. While dealing with the above case, to initiate disciplinary proceeding. The the earlier decision in Bhagirathi Jena's case first preliminary inquiry may be in the (supra) was not brought to the notice of this shape of secret inquiry and the other, of Court and no contention was raised an open inquiry. In the alternative, when pertaining to the provisions under which the complaints containing serious allegations disciplinary proceeding was initiated and as against a Government servant are such no ratio came to be laid down. In our received, the authority may peruse the view the said decision cannot help the records to satisfy itself if a more detailed respondents herein. preliminary inquiry be made. Once the appellant had retired from 37. Departmental inquiry is service on 31.3.2009, there was no contemplated when on objective authority vested with the respondents for consideration of the material the appointing continuing the disciplinary proceeding authority considers the case as one which even for the purpose of imposing any would lead to a departmental, inquiry, reduction in the retiral benefits payable to irrespective of whether any preliminary the appellant. In the absence of such an inquiry, summary or detailed, has or has authority it must be held that the enquiry not been made or if made, is not complete. had lapsed and the appellant was entitled There can, therefore, be suspension pending to get full retiral benefits. inquiry even before a final decision is taken to initiate the disciplinary proceeding i.e., 7. The question has also been raised even before the framing of the charge and in the appeal with regard to arrears of the communication thereof to the salary and allowances payable to the Government servant." 1332 INDIAN LAW REPORTS ALLAHABAD SERIES

The Supreme Court in require any proof. The view taken by us find Prasad v. Union of India and others, support from the judgment of the Apex Court (2007) 1 SCC (L&S) 292), held that when in State of U.P. and another v. T.P. Lal an employee is sought to be deprived of Srivastava, 1997 (1) LLJ 831, as well as by a his livelihood for alleged misconduct, the Division bench of this Court in Subash procedure laid down under the rules are Chandra Sharma v. Managing Director and required to be strictly complied with: another, 2000(1) UPLBEC 541. "When an employee, by reason of an 16.A Division Bench decision of this alleged act of misconduct, is sought to be Court in the case of Salahuddin Ansari v. deprived of his livelihood, the procedure laid State of U.P. and others, 2008(3) ESC down under the sub-rules are required to be 1667 (All)(DB), held that non holding of strictly followed: It is now well settled that a oral inquiry is a serious flaw which can judicial review would lie even if there is an vitiate the order of disciplinary error of law apparent on the face of the proceedings including the order of record. If statutory authority uses its power punishment has observed as under: in the manner not provided for in the statute or passes an order without application of "10...... Non holding of oral inquiry mind, judicial review would be maintainable. in such a case, is a serious matter and Even an error of fact, for sufficient reasons goes to the root of the case. may attract the principles of judicial review." 11. A Division Bench of this Court in The Division Bench of this Court in Dr. Subash Chandra Sharma v. Managing Subhash Chandra Gupta v. State of U.P. and Director and another, 2000(1) UPLBEC others, [2012(1) ESC 279 (All)(DB)] while 541, considering the question as to whether dealing with the provision of rule 7 and 9 of holding of an oral inquiry is necessary or the Rules, held that the procedure for not, held that if no oral inquiry is held, it imposition of major penalty is mandatory amounts to denial of principles of natural and where the statute provides to do a thing justice to the delinquent employee. The in a particular manner that thing has to be aforesaid view was reiterated in Subash done in that manner. Paras 15 and 16 is as Chandra Sharma v. U.P. Cooperative follows:- Spinning Mills and others, 2001(2) UPLBEC "15. It is well settled that when the 1475 and Laturi Singh v. U.P. Public Service statute provides to do a thing in a particular Trinunal and others, Writ Petition No. 12939 manner that thing has to be done in that very of 2001, decided on 6.5.2005." manner. We are of the considered opinion that any punishment awarded on the basis of 10. After hearing learned counsel for an enquiry not conducted in accordance with the parties and on perusal of the impugned the enquiry rules meant for that very judgment of the Writ Court and the record it purposes is unsustainable in the eye of law. appears that the respondent had been We are further of the view that the procedure working since 1971 and had passed his high prescribed under the inquiry rules for school examination in 1990. Thereafter he imposing major penalty is mandatory in appeared for the written examination for nature and unless those procedures are promotion to the next higher post (TG-II). followed, any out come inferred thereon will On the basis of some complaint that the be of no avail unless the charges are so respondent's high school certificates were glaring and unrefutable which does not forged, an enquiry was initiated. At the best 3 All]. Devi Prasad Katiyar & Ors. Vs. U.P. Sahkari Gram Vikas Bank Ltd. & Anr. 1333 it could be said that it was a fact finding 14.5.2012 is quashed. The petitioner shall enquiry and on the basis of a fact finding be entitled to post retirement benefits. The enquiry the services of the respondent were writ petition is allowed with all terminated without following the procedure consequential benefits. Legal expenses as prescribed under rule 7 of the Rules. The assessed as Rs. 15,000/-." impugned order of termination was passed on 14.5.2012 and he had since superannuated 12. In view of the above, learned counsel on 31.7.2012. for the appellants has failed to point out any rule as to whether disciplinary proceedings 11. The Writ Court after considering could be initiated against the delinquent the following admitted facts has recorded employee after retirement. The order of the findings in the impugned judgment termination was passed on 14.5.2012 merely dated 24.7.2014 thus:- on a show cause notice and two months thereafter i.e. on 31.7.2012 he retired from the "The facts are not in dispute between service after attaining the age of the parties. It is admitted that no charge- superannuation. It appears that on the date of sheet was issued to the petitioner as required superannuation there was no enquiry pending under rule 7 for initiating disciplinary or contemplated against the respondent. The proceedings for imposing major penalty. The procedure as provided under rule 7 of the enquiry had not commenced before the Rules, 1999 was not followed and straight way petitioner superannuated. The learned the services of the respondent were terminated. counsel for the respondents failed to point The Writ Court has rightly quashed the out any rule as to whether disciplinary termination order dated 14.5.2012 directing the proceedings could be initiated against the appellants to pay post retirement benefits to the petitioner after retirement. Even otherwise, respondents. after retirement the petitioner cannot be imposed the penalty of termination as the 13. For the reasons stated above, the employer/employee relationship no longer special appeal is dismissed. No order as to exists. There is no allegation of causing loss costs. to the corporation that is to be recovered, ------hence no enquiry can be initiated against the ORIGINAL JURISDICTION petitioner after retirement. The impugned CIVIL SIDE order of termination was passed on DATED: 13.11.2014 14.5.2012 merely on a show cause notice BEFORE and two months thereafter i.e. on 31.7.2012 THE HON'BLE ADITYA NATH MITTAL, J. the petitioner retired on attaining the age of superannuation thus on the date of Alongwith superannuation there was no enquiry Service Single No. 3140 of 2005 along pending or contemplated, and admittedly the with Service Single No. 2160 of 2005, procedure as contemplated under rule 7 of Service Single No. 597 of 2011 and the Rules of 1999 was not followed and Service Single No. 7995 of 2011 straightway the petitioner's services was terminated. Devi Prasad Katiyar & Ors. ...Petitioners For the facts and circumstances stated Versus U.P. Sahkari Gram Vikas Bank Ltd. & Anr. herein above, the impugned order dated ...Respondents 1334 INDIAN LAW REPORTS ALLAHABAD SERIES

Counsel for the Petitioner: granted to the petitioners before passing Sri P.K. Srivastava of the order dated 16.03.2005, therefore, it is liable to be set aside. Counsel for the Respondents Case Law discussed: Sri Himanshu Shekhar Awasthi, Sri Balram (2012) 8 Supreme Court Cases 417; 2014 (1) Yadav, Sri N.N. Jaiswal LBESR 561 (SC); 2007 (1) LBESR 19 (SC):2006 (11) SCC 492; 2003 SCC (L& S) Constitution of India, Art.-226-Petitioner 951; 1994 LAB I.C. 2493. working as Assistant Accountant-claimed parity of pay scale as typist-accepted by (Delivered by Hon'ble Aditya Nath Mittal, J.) Industrial Tribunal equated with pay scale of typist-against that special appeal as well as SLP dismissed-after 1. Heard learned counsel for the successful working period of 10 years petitioners and learned counsel appearing and 15 years-benefit of first promotional for the respondents. pay given on 01.03.95 and 01.03.2000 respectively-after 24 years super time 2. By means of these scale on 15.05.2001 by subsequent order aforementioned writ petitions, the order 16.03.2005 all previous order quashed without affording any opportunity in dated 16.03.2005 has been challenged, by garb of G.O. 03.09.01-whether justified ? which the pay-scale of the petitioners has held-'no'-unless G.O. Provides been reduced and they have been put in otherwise-can not be implemented lower scale of pay. retrospectively-quashed-consequential benefit given. 3. The brief facts of the case are that Held: Para-21 & 26 petitioners were appointed on the post of 21. There is also no clause in the Assistant Accountant in the then pay scale aforesaid Government Order dated of Rs.100-180. Along with the petitioners, 03.09.2001 that this amendment shall certain persons were appointed on the post apply retrospectively. If any Government of Typist in the same pay-scale of Rs.100- Order is silent about its operation, then it 180 and they were also equally placed with has to be treated as prospective and it cannot be applied retrospectively. the petitioners. The pay-scale of the Typist Admittedly, the petitioners were granted was revised to the pay-scale of Rs.120-220, time scales prior to 03.09.2001, which was subsequently revised to Rs.150- therefore, the said Government Order 260. The Assistant Accountants raised an dated 30.09.2001 is not applicable to the industrial dispute by means of Case Nos.37 employees who have been granted of 1997 and 01 of 1987 and by means of an scales prior to it. award dated 09.05.1978, the pay-scale of 26. For the aforesaid reasons, I am of the Assistant Accountants was equated the view that the promotional pay scale w.e.f. 01.04.1971 and the same was granted to the petitioners cannot be accepted. The said award was challenged termed as promotion. The Government before Hon'ble the Apex Court, but the Order dated 03.09.2001 is the appeal was dismissed on 18.01.1984. amendment and not a clarification and it is to be implemented prospectively. Another award dated 12.12.1988 was There has been no mistake or challenged, against which, the appeal was misinterpretation of the Government also dismissed by Hon'ble the Supreme Orders while granting time scale to the Court of India on 24.10.1989. Although the petitioners. As no opportunity was 3 All]. Devi Prasad Katiyar & Ors. Vs. U.P. Sahkari Gram Vikas Bank Ltd. & Anr. 1335 petitioners were designated as Accountants contained in the Government Order dated but their pay-scales remained the same as 03.09.2001, therefore, there is no admissible to the Assistant Accountants and illegality. It has also been mentioned in the alleged promotions, so given, became the counter affidavit that because the infructuous. The petitioners are petitioners were given one promotion, subsequently placed in the higher pay-scale therefore, they were not entitled for two on completion of 10 years and 16 of service. time scales. All the petitioners were given The petitioners were given first promotional promotion to the post of Branch pay-scale of Rs.5000-8000 w.e.f. Accountant/ Senior Clerk during the 01.03.1995 and the second promotional period from 1976 to 1986. Therefore, in pay-scale of Rs.8000-13500 was sanctioned view of the provisions contained in sub- w.e.f. 01.03.2000. A person can be said to para-2 (Ka) of the Government Order have been promoted when there is dated 03.09.2001, no other benefits were enhancement in the pay-scale but in the admissible to such employees. present case, there was no enhancement in the pay-scale. On 09.04.2001, the Managing 5. Learned counsel for the Director of the Bank issued an executive petitioners has submitted that as the order to the effect that the employees, who Government Order dated 03.09.2001 is have rendered 24 years of service, shall be not retrospective, therefore, it has to be given super time scale and the authorities interpreted as prospective. It has also been issued order on 15.05.2001, by which the submitted that petitioners were given petitioners were given the time scale of scale because they had completed 24 Rs.8000-275-13500 w.e.f. 01.03.2000. years of service. It has also been Subsequently the Managing Director issued submitted that while reducing the pay- order dated 23.01.2002 and cancelled the scale, no opportunity was afforded to the order dated 15.05.2001 and constituted the petitioners. It has also been submitted that Committee. The order dated 23.01.2002 grant of scale to the petitioners was not by was passed without affording any way of mistake but it was in compliance opportunity of hearing to the petitioners. of the Government Orders. During this period, the Typists also continued on the pay-scale of Rs.8000- 6. In support of his submission 13500. By order dated 16.03.2005, the pay- learned counsel for the petitioners has scale of the petitioners was reduced and the relied upon the case Chandi Prasad Uniyal orders dated 15.05.2001 to 15.01.2002 as and others vs. State of Uttarakhand and well as order dated 29.01.2002 were others reported in (2012) 8 Supreme cancelled. The reduction of pay of the Court Cases 417, in which the Hon'ble petitioners has caused financial loss to them, Apex Court in paras-11, 12, 13 and 14 has which is arbitrary and violative of provisions held as under. of the Constitution. Therefore the said order, by which the reduction in the pay-scale has "11. We may in this respect refer to the been done, is liable to be set aside. judgment of a two-Judge Bench of this Court in Col. B.J. Akkara case where this 4. In the counter affidavit, the Court after referring to Shyam Babu Verma respondents have taken plea that the order case, Sahib Ram case (supra) and few other was passed in pursuance of the directions decisions held as follows: 1336 INDIAN LAW REPORTS ALLAHABAD SERIES

"Such relief, restraining recovery on their part. The excess payment made back of excess payment, is granted by was the result of wrong interpretation of courts not because of any right in the the rule that was applicable to them, for employees, but in equity, in exercise of which the appellants cannot be held judicial discretion, to relieve the responsible. Rather, the whole confusion employees, from the hardship that will be was because of inaction, negligence and caused if recovery is implemented. A carelessness of the officials concerned of Government servant, particularly one in the Government of Bihar. Learned the lower rungs of service would spend Counsel appearing on behalf of the whatever emoluments he receives for the appellants-teachers submitted that upkeep of his family. If he receives an majority of the beneficiaries have either excess payment for a long period, he retired or are on the verge of it. Keeping would spend it genuinely believing that he in view the peculiar facts and is entitled to it. As any subsequent action circumstances of the case at hand and to to recover the excess payment will cause avoid any hardship to the appellants- undue hardship to him, relief is granted in teachers, we are of the view that no that behalf. But where the employee had recovery of the amount that has been paid knowledge that the payment received was in excess to the appellants-teachers in excess of what was due or wrongly should be made. paid, or where the error is detected or (emphasis added)" corrected within a short time of wrong We may point out that in Syed Abdul payment, Courts will not grant relief Qadir case such a direction was given against recovery. The matter being in the keeping in view of the peculiar facts and realm of judicial discretion, courts may circumstances of that case since the on the facts and circumstances of any beneficiaries had either retired or were on particular case refuse to grant such relief the verge of retirement and so as to avoid against recovery." any hardship to them. 12. Later, a three-Judge Bench in Syed Abdul Qadir case supra) after 13. We are not convinced that this referring to Shyam Babu Verma, Col. B.J. Court in various judgments referred to Akkara (retd.) etc. restrained the hereinbefore has laid down any proposition department from recovery of excess of law that only if the State or its officials amount paid, but held as follows: establish that there was misrepresentation or fraud on the part of the recipients of the "Undoubtedly, the excess amount excess pay, then only the amount paid could that has been paid to the appellants - be recovered. On the other hand, most of the teachers was not because of any cases referred to hereinbefore turned on the misrepresentation or fraud on their part peculiar facts and circumstances of those and the appellants also had no knowledge cases either because the recipients had retired that the amount that was being paid to or on the verge of retirement or were them was more than what they were occupying lower posts in the administrative entitled to. It would not be out of place to hierarchy. mention here that the Finance Department had, in its counter affidavit, 14. We are concerned with the admitted that it was a bona fide mistake excess payment of public money which is 3 All]. Devi Prasad Katiyar & Ors. Vs. U.P. Sahkari Gram Vikas Bank Ltd. & Anr. 1337 often described as "tax payers money" subsequently in 2007 much before the which belongs neither to the officers who cancellation orders were issued in 2009. have effected over-payment nor to the Mr. Rai relied upon two judgments of this recipients. We fail to see why the concept Court in case of Bihar State Electricity of fraud or misrepresentation is being Board and Anr. vs. Bijay Bhadur and Anr. brought in such situations. Question to be reported in (2000) 10 SCC 99 and asked is whether excess money has been Purushottam Lal Das & Ors. vs. State of paid or not may be due to a bona fide Bihar & Ors. reported in 2007 (1) LBESR mistake. Possibly, effecting excess 19 (SC): (2006) 11 SCC 492 wherein it payment of public money by the has been held that recovery can be government officers may be due to permitted only in such cases where the various reasons like negligence, employee concerned is guilty of carelessness, collusion, favouritism etc. producing forged certificate for the because money in such situation does not appointment or got the benefit due to belong to the payer or the payee. misrepresentation. Situations may also arise where both the 9. The learned counsel for the State payer and the payee are at fault, then the of Bhiar submitted that under the relevant mistake is mutual. Payments are being rules passing of this examination was effected in many situations without any necessary. He referred us to the counter authority of law and payments have been affidavit of the respondent No. 1 wherein received by the recipients also without a plea has been taken that under the any authority of law. Any amount particular Government Circular dated paid/received without authority of law can 26.12.1985 the amounts in excess are always be recovered barring few permitted to be recovered. He relied upon exceptions of extreme hardships but not Clause (j) of the Government Circular as a matter of right, in such situations law dated 1st April, 1980 to the same effect. implies an obligation on the payee to 10. Mrs. Jain, learned Additional repay the money, otherwise it would Solicitor General appearing for the amount to unjust enrichment". Accountant General drew out attention to another judgment of this Court in Chandi 7. Learned counsel for the Prasad Uniyal & Ors. vs. State of petitioners has further relied upon the case Uttarakhan & Ors. reported in 2012 (3) Kusheswar Nath Pandey vs. State of LBESR 692 (SC): JT 2012 (7) SC 460: Bihar & others reported in 2014 (1) (2012) 8 SCC 417, and particularly LBESR 561 (SC), in which the Hon'ble paragraph 14 thereof which states that Apex Court in paras-8, 9, 10, 11 and 12 there could be situation where both the has held as under:- payer and the payee could be at fault and where mistake is mutual then in that case "8. Mr. Rai, learned Senior Counsel such amounts could be recovered. for the appellant points out that there was 11. In our view, the facts of the no fraud or misrepresentation on the part present case are clearly covered under the of the appellant. The appellant was given two judgments referred to and relied upon a time bound promotion by the concerned by Mr. Rai. The appellant was not at all in Department. If at all the examination was any way at fault. It was a time bound required to be passed, he has passed it promotion which was given to him and 1338 INDIAN LAW REPORTS ALLAHABAD SERIES some eleven years thereafter, the Government Order dated 02.12.2000, Authorities of the Bihar Government only two time scales were payable if there woke up and according to them the time has been no promotion. It has also been bound promotion was wrongly given and submitted that the previous Government then the relevant rules are being relied Order was misinterpreted, therefore, the upon and that too after appellant had subsequent Government Order is like a passed the required examination. clarification. It has also been submitted 12. In our view, this approach was that because as per rules, two pay-scales totally unjustified. The Learned Single could be granted if there has been no Jude was right in the order that he has promotion, but in the present case, the passed. There was no reason for the petitioners have been granted promotion Division Bench to interfere. The appeal is in view of the award. therefore allowed. The judgment of the Division Bench is set aside. The writ 10. Learned counsel for the petition filed by the appellant will stand respondents has further submitted that as decreed as granted by the Learned Single per the existing Government Orders, Judge. The parties will bear their own which have been adopted by the costs". respondents, the petitioners were entitled either for one promotion and one time 8. Learned counsel for the scale or in case there has been no petitioners has also relied upon the case promotion then two time scales. He has Chandra Singh vs. State of Rajasthan further submitted that the time scales reported in 2003 SCC (L & S) 951, in granted between 15.05.2001 to which the Hon'ble Apex Court has held as 15.01.2002 and 29.01.2002 were third under:- time scale, for which, they were not entitled. "...... It is fairly well settled that the legality or otherwise of an order 11. The whole controversy took passed by a statutory authority must be birth by the Government Order dated judged on the face thereof as the reasons 03.09.2001, by which the previous contained therein cannot be supplemented Government Orders were amended. It is by an affidavit (See Mohinder Singh Gill not disputed that the respondents have vs. Chief Election Commr.). It may be true adopted in-toto the Government Orders that mentioning of a wrong provision or issued by Finance Department of omission to mention the correct provision Government of U.P. Para-2 (Ka) of the would not invalidate an order so long as said Government Order dated 03.09.2001 the power exists under any provision of has been relied upon by the respondents, law, as was submitted by Mr. Rao. But the which provides that if an employee has said principles cannot be applied in the not got two promotions/ next pay-scale till instant case as the said provisions operate the completion of 24 years of service on in two different fields requiring 01.03.2000, whichever is later, the second compliance with different prerequisite". promotion/ next pay-scale could be granted. The respondents, who had 9. Learned counsel for the adopted the Government Orders of the respondents has submitted that as per the Finance Department, had issued the order 3 All]. Devi Prasad Katiyar & Ors. Vs. U.P. Sahkari Gram Vikas Bank Ltd. & Anr. 1339 dated 03.10.2001 in accordance with the of branch accountants/ senior clerk/ said Government Order dated 03.09.2001. senior typists, and making it effective Accordingly, following the Government retrospectively from 01.04.1971, as in the Order as well as the order of the case of the promoted typists. Managing Director, the order dated Accordingly, my award is as 16.03.2005 was passed, by which the follows:- orders issued in between 15.05.2001 to Workmen concerned from Sl.No.1 to 15.01.2002 as well as order dated 52 and from Sl.No.54 to 66, who were 29.01.2002 were set aside and it was also employed with the bank concerned prior directed that if the employees have drawn to 14.07.1971 shall be placed in the next excess salary then it should be adjusted higher grade of Branch Accountants/ from their dues or the future salary. Senior Clerks/ Senior Typists, alternatively mentioned in Ext. E-4 as 12. The main question for Shakha Ankik/ Lekha Lipik/ Praver consideration is whether the petitioners Tankak with retrospective effect from have been promoted as claimed by the 01.04.1971. The scale applicable to these respondents or they have been deemed to workmen will, of course, be Rs.280-450 have been promoted in compliance of the ex-post facto as given in column 4 against award dated 09.05.1978. Sl.No.8 of the order of the Registrar, Cooperative Societies, U.P. Dated 25th 13. For deciding this controversy, March, 1974. The workmen concerned at the reference to the award of Case No.37 Sl. No.53, Smt. Vijya Srivastava, having of 1977 dated 09.05.1978 is relevant. The joined the Bank on 11.12.1972 will be Industrial Tribunal (II) U.P. has held as entitled to such promotion in her turn under:- only and is not covered by the above".

"The decision becomes even 14. For the said award, the reference erroneous in its retrospective effect from was to the extent that whether non 01.04.1971, as if workmen appointed as revision of pay equivalent to Typists is junior typists in the junior grade were justified or not. In that award, the automatically treated as appointed in the question or dispute regarding promotion higher grade of senior typists. The was not involved but the main dispute decision becomes also suspiciously involved was that the pay-scale of Junior motivated in starting the chain of Clerk/ Assistant Branch Accountants was promotion of a group with the lower than the pay-scale of the Typists. advancement in grade of only 13 typists Learned Tribunal after considering all without assigning reasons. There is no aspects of the matter has restored the way of reversing what has been done, balance administratively and has directed administratively the balance can be that the employees, who were employed restored only by similar promotion 65 of with the Bank prior to 14.07.1971 which the workmen concerned, barring is the date of appointment of a last Sl.No.53, who were employed with the promoted Typists, the Branch Bank concerned prior to 14.07.1971 Accountants/ Senior Clerks shall be which is the date of appointment of the placed in the next higher grade with last promoted typists, to next higher grade retrospective effect from 01.04.1971. 1340 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Admittedly, the said award was opportunity of hearing was not granted to challenged before Hon'ble the Supreme the petitioners. In Bhagwan Shukla vs. Court by way of Civil Appeal No.1956 of Union of India and others reported in 1981, by which the appeal has been 1994 LAB I. C. 2493 the Hon'ble Apex dismissed. Court in paras-2 and 3 has held as under:-

16. Perusal of the aforesaid order of "2. The controversy in this appeal the Industrial Tribunal reveals that it was lies in a very narrow compass. The not a promotion given to the petitioners appellant who had joined the Railways as but their pay-scales were equated with a a Trains Clerk w.e.f. 18.12.1955 was last promoted Typists. There is vide promoted as Guard, Grade-C w.e.f. difference between a promotion and a 18.12.1970 by an order dated 27.10.1970. promotional pay-scale. In the promotion, The basic pay of the appellant was fixed the scale of pay is enhanced as well as the at Rs.190/- p.m. w.e.f. 18.12.1970 in a promotee employee is also burdened with running pay-scale. By an order dated higher duties and responsibilities. But in 25th July, 1991, the pay-scale of the the promotional pay-scale, the scale is appellant, was sought to be refixed and revised but the duties remain the same. during the refixation his basic pay was reduced to Rs.181/- p.m. From Rs.190/- 17. In view of the above, I do not p.m. w.e.f. 18.12.1970. The appellant find any substance in the submission of questioned the order reducing his basic learned counsel for the respondents that pay with retrospective effect from the petitioners shall be deemed to have 18.12.1970 before the Central been promoted inconsonence of the award Administrative Tribunal, Patna Bench. dated 09.05.1978. By the award dated The justification furnished by the 09.05.1978, the petitioners have not been respondents for reducing the basic pay promoted but they have been granted was that the same had been 'wrongly' promotional pay-scale equivalent to the fixed initially and that the position had last promoted Typist as on 14.07.1971. continued due to "administrative lapses" Therefore, it cannot be said that the said for about twenty years, when it was revision of pay-scale is covered by the decided to rectify the mistake. The term "promotion". petition filed by the appellant was dismissed by the Tribunal on 17.09.1993. 18. From the aforesaid discussion, I 3. We have heard learned counsel for have come to the conclusion that the scale the parties. That the petitioner's basic pay granted to the petitioners in compliance of had been fixed since 1970 at Rs.190/- p.m. the award dated 09.05.1978 does not is not disputed. There is also no dispute come within the definition of promotion. that the basic pay of the appellant was Therefore, the scales granted by the order reduced to Rs.181/- p.m. from Rs.190/- dated 15.05.2001 to 15.01.2002 and p.m. in 1991 retrospectively w.e.f. 29.01.2002 cannot be said to be the third 18.12.1970. The appellant has obviously time-scale. been visited with civil consequences but he had been granted no opportunity to 19. It is also not disputed that while show cause against the reduction of his passing the order dated 16.03.2005, any basic pay. He was not even put on notice 3 All]. Devi Prasad Katiyar & Ors. Vs. U.P. Sahkari Gram Vikas Bank Ltd. & Anr. 1341 before his pay was reduced by the of U.P. The perusal of the aforesaid department and the order came to be Government Order reveals that it was an made behind his back without following amendment regarding the previous any procedure known to law. There, has, Government Orders. In the said thus, been a flagrant violation of the Government Order, it has nowhere been principles of natural justice and the mentioned that if the pay scale of any of appellant has been made to suffer huge the employee has been sanctioned or financial loss without being heard. Fair revised in accordance with the previous play inaction warrants that no such order Government Orders, then the same shall which has the effect of an employee stand cancelled. There is also no clause in suffering civil consequences should be the aforesaid Government Order dated passed without putting the concerned 03.09.2001 that this amendment shall notice and giving him a hearing in the apply retrospectively. If any Government matter. Since, that was not done, the Order is silent about its operation, then it order (memorandum) dated 25.07.1991, has to be treated as prospective and it which was impugned before the Tribunal cannot be applied retrospectively. could not certainly be sustained and the Admittedly, the petitioners were granted Central Administrative Tribunal fell in time scales prior to 03.09.2001, therefore, error in dismissing the petition of the the said Government Order dated appellant. The order of the Tribunal 30.09.2001 is not applicable to the deserves to be set aside. We, accordingly, employees who have been granted scales accept this, appeal and set aside the order prior to it. of the Central administrative Tribunal dated 17.09.1993 as well as the order 22. Learned counsel for the (memorandum) impugned before the respondents has tried to convince this Tribunal dated 25.07.1991 reducing the Court that petitioners were granted higher basic pay of the appellant from Rs.190/- pay scales under mistake and to Rs.181/- p.m. w.e.f. 18.12.1970". misinterpretation of the Government Order, therefore, they are not entitled for 20. In the aforesaid matter, the the higher pay scales. The pay scales of Hon'ble Apex Court has set aside the the petitioners have been reduced by the reduction of pay because there was order dated 16.03.2005 and in the order flagrant violation of principles of natural dated 16.03.2005, there is no mention to justice and no opportunity of hearing was the effect that petitioners have been afforded. In the present case also granted higher pay scales due to mistake admittedly no opportunity of hearing has or due to misinterpretation or wrong been given to the petitioners while interpretation of the previous Government withdrawing the previous orders. Orders. Therefore, the impugned order dated 16.03.2005 suffers from illegality. 23. In the present case, it has been argued that the higher pay scales were 21. As pointed out earlier, the whole granted due to mistake but the same does of the controversy arises due to the not find in the order dated 16.03.2005. In Government Order dated 03.09.2001 by view of the law laid down by the Hon'ble the Department of Finance, Government Apex Court in the case Chandra Singh vs. 1342 INDIAN LAW REPORTS ALLAHABAD SERIES

State of Rajsthan (supra) the said mistake Director, U.P. Cooperative Village cannot be supplemented by an affidavit. Development Bank Ltd., are set aside. (ii) The respondents are directed to 24. In Chandi Prasad Uniyal and pay the arrears of salary of the petitioners others vs. State of Uttarakhand and others along with annual increments and arrears (supra), the Hon'ble Apex Court considering thereof treating the orders dated the fact that as now the appellants have either 23.01.2002 and 16.03.2005 as nonest, retired or are on the verge of it, therefore, the within six months from today. recovery of amount what has been paid an (iii) The respondents are also excess is not justified. directed to release the amount of gratuity and other retiral dues, within six months 25. In the present case also the from today, failing which, they shall be petitioners have retired and even after liable for interest at the rate of 6% per retirement their retiral dues with regard to annum from today to the date of actual the pay scales granted from 01.03.2000, payment, (if actual payment is made have been withheld. beyond six months from today). 29. Accordingly, the orders dated 26. For the aforesaid reasons, I am of 30.07.2010 and 06.04.2010 and the view that the promotional pay scale 09.11.2009 regarding the petitioner Raj granted to the petitioners cannot be termed as Kumar Mehrotra of Writ Petition No.597 promotion. The Government Order dated (S/S) of 2011, are also quashed. 03.09.2001 is the amendment and not a clarification and it is to be implemented 30. It is made clear that the above prospectively. There has been no mistake or directions shall be applicable in those misinterpretation of the Government Orders matter of the petitioners who have been while granting time scale to the petitioners. granted higher pay-scales prior to the date As no opportunity was granted to the of issuance of Government Order dated petitioners before passing of the order dated 03.09.2001. 16.03.2005, therefore, it is liable to be set ------aside. ORIGINAL JURISDICTION CRIMINAL SIDE 27. I am also of the view that the DATED: LUCKNOW 07.11.2014 order dated 23.01.2002 passed by the BEFORE Managing Director of the respondent- THE HON'BLE VISHNU CHANDRA GUPTA, J. bank, by which the sanction orders issued in between 15.05.2001 to 15.01.2002 U/S 482/378/407 No. 4153 of 2013 have been set aside, cannot be sustained. along with W.P. No. 5058 of 2013 28. For the facts and circumstances mentioned above, all the aforementioned Arjun Singh @ Natthu Singh Yadav writ petitions are allowed with the ...Applicant Versus following directions:- The State of U.P. & Anr. ...Opp. Parties

(i) The orders dated 23.01.2002 and Counsel for the Applicant: 16.03.2005, passed by the Managing Sri Jai Pal Singh 3 All]. Arjun Singh @ Natthu Singh Yadav Vs. The State of U.P. & Anr. 1343

Counsel for the Respondents 2. Since both these petitions are Govt. Advocate, Sri Srees Kumar arising out of same proceedings, they are Srivastava being disposed of by a common order.

Cr.P.C. Section 482-Quashing of complaint 3. Brief facts for deciding these case-offence u/s 323, 452, 504, 506 IPC- petitions are that a criminal complaint has on plea of alibi, malafidy-held-in absence of public document-plea of alibi can not be been filed by opposite party no. 2, Smt. accepted-except on Trail-none of the Santosh Pandey against the petitioners contingencies contained of guidelines of having Case No. 858 of 2013 alleging Apex Court in Rajiv Thapper case-no therein that petitioner Rajneesh Yadav alias interference called for-keeping in view of Bajrangi in (Criminal Misc. Case No. 5058 Art. 20 & 21-with certain direction- of 2013 (U/s 482 Cr.P.C.), the son of application disposed of. petitioner Amar Singh Yadav is Gunda. On Held: Para-15 11.4.2013 at about 5.30 p.m., some So far as question of absence of altercation took place in between Rajneesh petitioner Amar Singh Yadav and Yadav alias Bajrangi and Rishi Pandey, the Shailendra Yadav is concerned, though son of opposite party no. 2. Rajneesh Yadav they filed documents in respect of alibi. alias Bajrangi extended threats to life to These documents are not public documents and do not fall within the Rishi Pandey. A complaint of it was made category of step one as mentioned in to the police. The police came, but Rajneesh Rajiv Thapar's case (Supra). Unless the Yadav alias Bajrnagi escaped. On 12.4.2013 plea of alibi is established by cogent at about 6.45 p.m. Rishi Pandey was evidence, no inference could be drawn standing on his door. The petitioners came on the basis of those documents to this alongwith sticks on their hands, abused effect that present proceedings are abuse of process of court. Rishi Pandey. Rajneesh Yadav alias Bajrangi asked what you have achieved by Case Law discussed: making complaint with the police. Rishi (2013) 3 SCC 330; 2009 (3) 322 (SC) Pandey entered into his house. All the four petitioners also entered into the house and (Delivered by Hon'ble Vishnu Chandra beat Rishi Pandey with sticks. When Gupta, J.) opposite party no. 2 came to rescue her son, she was also beaten by kicks and fists and 1. Both these petitions under section also by stick. Rishi Pandey was badly 482 Code of Criminal Procedure (for injured and became unconscious. The short ''Cr.P.C.') have been filed for incident was witnessed by Pradeep Awasthi, quashing the proceedings of Complaint Ashok Tiwari and several other persons, Case No. 858 of 2013 Santosh Pandey Vs. who came on spot after hearing cries. Rishi Rajneesh Yadav and others and also the Pandey was medically examined on order dated 29.6.2013 passed by A.M.M.- 15.4.2013. When police did not take action, III, Unnao, whereby petitioners Rajneesh complaint was filed. Yadav alias Bajrangi , Sonu Yadav, Amar Singh Yadav and Arjun singh alias Natthu 4. In Criminal Misc. Case No. 4153 Singh Yadav have been summoned to of 2013 (U/s 482 Cr.P.C.) relating to face trial under sections 323, 452, Arjun Singh alias Natthu Singh Yadav a 504,506 IPC Co-ordinate Bench of this Court vide 1344 INDIAN LAW REPORTS ALLAHABAD SERIES order dated 19.9.2013 called for report Deepu Yadav is concerned, it is not in from the Circle Officer In-charge of dispute. police station Gangaghat, District Unnao with regard to presence of petitioner 9. Heard learned counsel for the Arjun Singh @ Natthu Singh Yadav on parties and perused the record. the date of occurrence. The police submitted report that Arjun Singh @ 10. It has been contended by the Natthu Singh Yadav was on official duty learned counsel for the petitioners that at District Mahrajganj on 12.4.2013 police did not found any material against though he was not posted there. accused petitioner Amar Singh Yadav and his son Sonu Yadav, who have been 5. In both these cases under section falsely implicated in this case and in that 482 Cr.P.C the ground to challenge the regard extract of police report dated summoning order and continuance of the 27.9.2005 has been brought on record as proceedings is that petitioners Arjun Annexure no. 7 to this petition. Singh alias Natthu Singh Yadav, Amar Singh Yadav and Shailendra Yadav alias 11. After considering the aforesaid Sonu were at their work places at the time facts, it cannot be said that after lapse of of alleged incident i.e. 12.4.2013. more than 8 years, a false case can be cooked up against the petitioners. The 6. The second ground of attack is facts which are based on some evidence, that daughter of opposite party no. 2 was ought to have been appreciated by the kidnapped by one Deepu Yadav, who was trial court and not by this Court while closely related to the petitioners' family exercising jurisdiction under section 482 and, therefore, the petitioners have been Cr.P.C falsely implicated in the complaint case. The case of kidnapping the daughter of 12. The Apex Court in Rajiv Thapar opposite party no. 2 is still pending Vs. Madan Lal Kapoor (2013) 3 SCC 330 against Deepu Yadav. had an occasion to rule what documents on material could be considered while 7. The petitioners have filed certain exercising jurisdiction under section 482 documents to demonstrate that they were Cr.P.C. to quash the proceedings after on their work places at the time of alleged rejecting and discarding the accusations incident. The plea which has been taken levelled by the complaint, without the for quashing the proceedings with regard necessity of recording any evidence. The to absence of petitioners Arjun Singh alias Apex Court in paras 29,30 and 31 Natthu Singh Yadav, Amar Singh Yadav observed as follows: and Sonu Yadav is based on plea of alibi, which is plea of defence and ought to 29. The issue being examined in the have been proved by the accused persons instant case is the jurisdiction of the High by adducing cogent evidence. Court under Section 482 CrPC, if it chooses to quash the initiation of the 8. So far as second ground of attack prosecution against an accused at the is concerned which relates to kidnapping stage of issuing process, or at the stage of of daughter of opposite party no. 2 by committal, or even at the stage of framing 3 All]. Arjun Singh @ Natthu Singh Yadav Vs. The State of U.P. & Anr. 1345 of charges. These are all stages before the prevent abuse of process of the court, and commencement of the actual trial. The secure the ends of justice. same parameters would naturally be 30. Based on the factors canvassed in available for later stages as well. The the foregoing paragraphs, we would power vested in the High Court under delineate the following steps to determine Section 482 CrPC, at the stages referred the veracity of a prayer for quashment to hereinabove, would have far-reaching raised by an accused by invoking the consequences inasmuch as it would power vested in the High Court under negate the prosecution's/complainant's Section 482 CrPC: case without allowing the 30.1. Step one: whether the material prosecution/complainant to lead evidence. relied upon by the accused is sound, Such a determination must always be reasonable, and indubitable i.e. the rendered with caution, care and material is of sterling and impeccable circumspection. To invoke its inherent quality? jurisdiction under Section 482 CrPC the 30.2. Step two: whether the material High Court has to be fully satisfied that relied upon by the accused would rule out the material produced by the accused is the assertions contained in the charges such that would lead to the conclusion levelled against the accused i.e. the that his/their defence is based on sound, material is sufficient to reject and overrule reasonable, and indubitable facts; the the factual assertions contained in the material produced is such as would rule complaint i.e. the material is such as out and displace the assertions contained would persuade a reasonable person to in the charges levelled against the dismiss and condemn the factual basis of accused; and the material produced is the accusations as false? such as would clearly reject and overrule 30.3. Step three: whether the material the veracity of the allegations contained in relied upon by the accused has not been the accusations levelled by the refuted by the prosecution/complainant; prosecution/complainant. It should be and/or the material is such that it cannot sufficient to rule out, reject and discard be justifiably refuted by the the accusations levelled by the prosecution/complainant? prosecution/complainant, without the 30.4. Step four: whether proceeding necessity of recording any evidence. For with the trial would result in an abuse of this the material relied upon by the process of the court, and would not serve defence should not have been refuted, or the ends of justice? alternatively, cannot be justifiably refuted, 30.5.If the answer to all the steps is being material of sterling and impeccable in the affirmative, the judicial conscience quality. The material relied upon by the of the High Court should persuade it to accused should be such as would persuade quash such criminal proceedings in a reasonable person to dismiss and exercise of power vested in it under condemn the actual basis of the Section 482 CrPC. Such exercise of accusations as false. In such a situation, power, besides doing justice to the the judicial conscience of the High Court accused, would save precious court time, would persuade it to exercise its power which would otherwise be wasted in under Section 482 CrPC to quash such holding such a trial (as well as criminal proceedings, for that would proceedings arising therefrom) specially 1346 INDIAN LAW REPORTS ALLAHABAD SERIES when it is clear that the same would not of process of court unless plea of alibi conclude in the conviction of the accused. taken by the petitioners is established by cogent evidence. 13. In light of the aforesaid ratio propounded and directions issued this 17. As Co-ordinate Bench of this case has to be judged on touch stone of Court has asked for report in respect of the aforesaid guidelines issued in Rajiv petitioner Arjun Singh alias Natthu Singh Thapar's case (Supra). So far as the report Yadav, this Court is of the view that in submitted by the police in this court is these circumstances, if this petition is concerned, no doubt it mentions that finally disposed of with following petitioner Arjun Singh alias Natthu Singh directions, it would serve the ends of Yadav was present on 12.4.2013 at justice and the principle of fair trial Mahrajganj on his official duty. enshrined under Articles 20 and 21 of the Constitution of India would be advised. 14. As report has been submitted in pursuance of the order passed by the Co- Directions ordinate Bench of this Court, it cannot be ignored by this Court. But at the same 1.That in case the petitioners appear time, the report which was submitted by before trial court within four weeks from the C.O., Unnao is based on statement and today and move application for bail, the record which ought to have been tested same shall be considered and disposed of with cross examination during trial. expeditiously in accordance with law and also keeping in view the directions 15. So far as question of absence of contained in the judgment delivered by petitioner Amar Singh Yadav and the Apex court reported in 2009 (3) ADJ Shailendra Yadav is concerned, though 322 (SC) Lal Kamlendra Pratap Singh Vs. they filed documents in respect of alibi. State of U.P.). If bail application of the These documents are not public petitioners is not disposed of on same day documents and do not fall within the by the court concerned , the petitioners category of step one as mentioned in shall be released on interim bail till the Rajiv Thapar's case (Supra). Unless the final order passed thereon. plea of alibi is established by cogent evidence, no inference could be drawn on 18. For four weeks or till the date of the basis of those documents to this effect surrender, whichever is earlier, no that present proceedings are abuse of coercive steps shall be taken against the process of court. petitioners.

16. So far as petitioner Rajneesh 2.That after appearing in the trial Yadav alias Bajrangi is concerned, he has court, the petitioners shall move not pleaded his absence. So far as the appropriate application before trial court. evidence of medical examination causing The trial court shall proceed to decide the injury to Rishi Pandey is concerned, it is plea of defence in the form of alibi before on record coupled with evidence of further proceeding with trial. The injured. Therefore, at this stage, it cannot petitioners may be allowed to adduce be said that present proceedings are abuse evidence in respect of plea taken by them 3 All]. C/M Vikas Madhyamik Vidyalay Tindola Vs. State of U.P. & Anr. 1347 as plea of alibi and the trial court after appointment contrary to statutory giving opportunity to adduce evidence to provisions-and engagement outsourcing the prosecution will decide the plea of nothing but a system of supply of work force through contractor-already quashed alibi taken by the petitioners Arjun Singh being violative of Art. 14 and 16 of alias Natthu Singh Yadav, Amar Singh Constitution-same being adopted in Basic Yadav, Shailendra Yadav and Sonu Education also-order impugned quashed- Yadav. In case the plea of alibi fails then with follow up direction. the trial shall proceed against them in accordance with law. Held: Para-8 & 13 8. Thus, considering the scheme relating 3.That trial court will decide the to appointment on Class IV posts in a defence plea of alibi taken by the Junior High School, I am of the opinion aforesaid petitioners within four months that the reasoning given in the judgment from the date of communication of this rendered in the case of C/M Lal Babu order. Baijal Memorial Inter college (supra), would also apply to the institutions governed by the Uttar Pradesh Basic 19. Interim order granted by this Education Act, 1972. The Management is court in both these petitions stand under mandate of law to fill vacancies vacated. within two months of its occurrence and in accordance with the procedure 20. In view of the above, these two prescribed under the Rules, which does petition are disposed of finally. not permit employing services of Class IV employees by 'outsourcing'. ------ORIGINAL JURISDICTION 13. In view of above discussion, this writ CIVIL SIDE petition is allowed. The order dated DATED: LUCKNOW 24.11.2014 27.9.2014 passed by the District Basic Education Officer, Barabanki is quashed. BEFORE The Management shall be free to THE HON'BLE MANOJ KUMAR GUPTA, J. advertise the vacancies. However, it is provided that the Management shall Service Single No. 6488 of 2014 specifically mention in the advertisement that the selection would be held subject C/M Vikas Madhyamik Vidyalay Tindola to decision of this Court in special appeal ...Petitioner No.1023 of 2012 pending against the Versus judgment of this Court dated 21.3.2012. State of U.P. & Anr. ...Respondents The District Basic Education Officer, Barabanki is further directed to act in Counsel for the Petitioner: accordance with law and nominate a Sri G.C. Verma, Sri Arvind Kumar Mishra specialist in case any such request is made by the Management, after Counsel for the Respondents following the procedure prescribed for advertising the vacancies. These, C.S.C., Sri Rahul Shukla directions are without prejudice to the power of the District Basic Education U.P. Basic Education Act 1972-Section Officer to examine the validity of the 3(2), 14, 15(5)-Ban imposed on selection at the stage of grant of appointment of class IV employee by G.O. approval under Rule 15 (5). 06.01.2011-in recognized institutions- held-arbitrary,discriminatory exploitative Case Law discussed: in nature-taking away provision of W.P. No. 11760 of 2011 1348 INDIAN LAW REPORTS ALLAHABAD SERIES

(Delivered by Hon'ble Manoj Kumar 14 and 16 of the Constitution vide Gupta, J.) judgment dated 21.3.2012 rendered in a bunch of writ petitions, leading case being 1. Heard counsel for the petitioner, Writ Petition No.11760 of 2011 C/M Lal learned Additional Chief Standing Babu Baijal Memorial Inter college and Counsel Sri Devendra Upadhyay on another Vs. State of U.P. and others. It is behalf of respondent no.1 and Sri Rahul submitted that against the said judgment, Shukla on behalf of respondent no.2. With the State preferred Special Appeal their consent, this writ petition is being (Defective) No.1023 of 2012, which is disposed of finally, as the respondents still pending and no interim order has state that they have already obtained been passed therein. Thus, according to instructions in the matter and do not wish him, the judgment dated 21.3.2012 in the to file formal counter affidavit. case of C/M Lal Babu Baijal Memorial Inter college (supra) is binding on 2. The petitioner is the Committee of respondent no.2. It is further contended Management of a recognised Junior High that in fact District Basic Education School receiving grant-in-aid from the Officer was not authorised to withhold State Government. The provisions of the approval for advertising the posts, as no Uttar Pradesh Junior High Schools such power is conferred in his favour (Payment of Salaries of Teachers and under Rules 1984, which governs the other Employees) Act, 1978 and the Uttar appointment on Class IV posts. Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and 4. On the other hand, learned Conditions of Service of Ministerial Staff Additional Chief Standing Counsel and and Group 'D' Employees) Rules, 1984 Sri Rahul Shukla appearing on behalf of (hereinafter referred to as '1984 Rules') the respondents contended that judgment are applicable to it. The petitioner is in the case of C/M Lal Babu Baijal aggrieved by order dated 27.9.2014 Memorial Inter college (supra) is passed by District Basic Education applicable only in relation to the Officer, Barabanki-respondent no.2, Intermediate Colleges and would not whereby, he had refused to accord apply to the colleges governed by the permission to the Management to Uttar Pradesh Basic Education Act, 1972. advertise two vacant Class IV posts. The However, it is not disputed by them that reasoning given in the order is that under the judgment rendered therein dated Government Order dated 6.1.2011 there is 21.3.2012 has not been stayed/set aside by a ban on appointment against Class IV any court. Sri Rahul Shukla further states posts. These posts, according to that, infact, no permission was required respondent no.2, would automatically by the Management from District Basic come to an end after the retirement of Education Officer, Barabanki for issuing incumbents working against these posts. the advertisement and they were only required to intimate the vacancies. 3. Learned counsel for the petitioner contended that the Government Order 5. I have considered the submissions dated 6.1.2011 has been struck down as made by learned counsel for the parties illegal, arbitrary and violative of Articles and perused the record. 3 All]. C/M Vikas Madhyamik Vidyalay Tindola Vs. State of U.P. & Anr. 1349

6. The Government Order dated staffs. In true sense though it is termed 6.1.2011 places prohibition on "outsourcing", but it does not satisfy the appointment against Class IV posts in requirement of term "outsourcing", as various educational institutions, receiving discussed above. grant-in-aid.. It is provided that such posts 62. The normal functions of Class-IV in future shall be filled by 'outsourcing'. staff in a secondary educational institution The Court, in the case of C/M Lal Babu is ringing of bell, opening of class rooms, Baijal Memorial Inter college (supra), cleaning, providing stationary etc. from examined the provisions of the office to class teachers, taking files and Intermediate Education Act, 1921, the other documents like examination copies Regulations framed thereunder, and etc. from one place to other and similar thereafter, came to the conclusion that other menial job. All this work of Class- Class IV posts are integral part of any IV has to be performed by a person educational institution and introduction of present in educational institution itself. It the scheme of appointment by cannot be performed sitting outside the outsourcing, is violative of Articles 14 educational institution. Therefore, what and 16 of the Constitution of India. the G.O. suggests is that for performing Relevant findings, in this regard, in the menial job of Class-IV, the workers shall said judgment are as under:- be made available by a third party, by whatever name it may be called, may be a "61. Moreover, in the context of labour supplier, may be a Service what it has permitted to be done by Provider or else but in effect it amounts to educational institutions, there also I am of introduction of a "middleman" for the view that this order is palpably arranging Class-IV employees to perform arbitrary, discriminatory, exploitative in the job of Class-IV in educational nature and, therefore, suffers the voice of institutions for which the institutions shall contravening constitution provision under pay the service charges which would Article 14 and 16. It is not a case where include wages/salary of such person requirement of Class-IV staffs in (Class-IV) and also the service charges of educational institutions has been done third party. This is nothing but a kind of away. The existing sanctioned posts of contract labour arrangement. Class-IV have not been abolished. It is 63. Introduction of a middlemen nobody's case that henceforth educational where the requirement is perennial, institutions shall not require any Class-IV continuous and permanent has been staffs in its functioning. What it suggests deprecated time and again and many and try to endeavour is that the statutes enacted with an objective to educational institutions shall not employ exclude middleman have been held to be Class-IV staff directly on their own so as in public interest. This is really strange to function and discharge the duties of that herein the State Government intend to Class-IV staff under the administrative introduce a system of middleman when it and otherwise control of institution, but, is not already there. Learned Additional the work supposed to be performed by Advocate General also could not explain Class-IV staff would be required to be that besides wages/salary of the person done through the staff made available by who would be available to educational an outside agency and by that agency's institution for performing the job of 1350 INDIAN LAW REPORTS ALLAHABAD SERIES

Class-IV employee, the service charges to Officer is conferred with power to accord third party would also be paid and in these approval to the recommendation made by circumstances how it can be an the Selection Committee. Rule 15 (5) (iii) arrangement for saving the cost. To this further states that in case the District Basic query he could not reply at all. Education Officer does not communicate 64. In my view, therefore, though the his decision within one month from the date concept of making available the staff to of receipt of the papers under clause (4), he perform Class-IV job by outside agency shall be deemed to have accorded approval though termed "Outsourcing" but it is to the recommendations made by the nothing but a system of supply of work Selection Committee. Under Rule 16, the force through a contractor or a person Management is authorised to issue who satisfy the term "contractor" for all appointment letter on receipt of approval or purposes though termed as "outsourcing". on expiry of period of one month provided Hence the system as contemplated in Para under Clause (iii) of the Sub-Rule 5 of Rule 2 of impugned G.O. is evidently 15. exploitative, arbitrary, unreasonable, irrational, illogical, hence violative of 8. Thus, considering the scheme Article 14 and 16 of the Constitution. relating to appointment on Class IV posts in a Junior High School, I am of the 7. Under the Rules 1984 framed opinion that the reasoning given in the under sub-section (1) of Section 19 of the judgment rendered in the case of C/M Lal Uttar Pradesh Basic Education Act, 1972, Babu Baijal Memorial Inter college a wholesome procedure is prescribed for (supra), would also apply to the filling up Class IV posts. Rule 3(2) institutions governed by the Uttar Pradesh prescribes that if any vacancy occurs Basic Education Act, 1972. The during an academic session, it shall be Management is under mandate of law to filled within two months from the date of fill vacancies within two months of its occurrence of vacancy. Rule 13 provides occurrence and in accordance with the that no vacancy shall be filled, except procedure prescribed under the Rules, after its advertisement in at least one which does not permit employing services newspaper having adequate circulation in of Class IV employees by 'outsourcing'. the locality and after intimation of such vacancy to the District Basic Education 9. As regards the contention of the Officer. Under Rule 14, Selection respondents that special appeal is pending Committee comprises of Manager, against the aforesaid judgment, it is Headmaster of the recognised school in admitted to both the parties that there is which the appointment is to be made and no stay in the special appeal and thus, the a specialist nominated by the District said judgment still holds the field and Basic Education Officer. The Selection would be binding on the authorities. This Committee, after interviewing the is, however, subject to any contrary candidates, forwards the list to the decision in special appeal, which is stated Management, who is enjoined with the to be pending. duty to place the same before the District Basic Education Officer within one week. 10. In view of the above, I am of the Thereafter, the District Basic Education opinion that District Basic Education 3 All]. Phool Singh Vs. State of U.P. & Ors. 1351

Officer, Barabanki was not justified in Education Officer, Barabanki is quashed. restraining the Management from The Management shall be free to advertising the posts. advertise the vacancies. However, it is provided that the Management shall 11. There is another aspect of the specifically mention in the advertisement matter. Under Rule 13, the Management that the selection would be held subject to is only required to intimate the vacancy to decision of this Court in special appeal District Basic Education Officer and its No.1023 of 2012 pending against the approval for advertising the same in the judgment of this Court dated 21.3.2012. newspaper was not required. The grant of The District Basic Education Officer, approval to the selection made on Class Barabanki is further directed to act in IV post by the Management comes at a accordance with law and nominate a later stage under sub rule (5) of Rule 15. specialist in case any such request is made In view of this, there was no justification by the Management, after following the on part of District Basic Education procedure prescribed for advertising the Officer to pass the impugned order, vacancies. These, directions are without refusing to accord approval for prejudice to the power of the District advertising the post. Sri Rahul Shukla Basic Education Officer to examine the appearing on behalf of Basic Education validity of the selection at the stage of Officer also supported the submission grant of approval under Rule 15 (5). made by the petitioner, in this regard. 14. Subject to aforesaid 12. Learned counsel for the observations/directions, writ petition petitioner submitted that there is stands allowed. apprehension that District Basic ------Education Officer, who has passed the ORIGINAL JURISDICTION impugned order, would not nominate the CIVIL SIDE specialist in the Selection Committee and DATED: ALLAHABAD 24.11.2014 would thereby, scuttle the selection BEFORE process. The aforesaid apprehension of THE HON'BLE SUNEET KUMAR, J. the petitioner can be taken care of by providing that District Basic Education Civil Misc. Writ Petition No. 36130 of 2014 Officer shall nominate the specialist in case request is made to him by the Phool Singh ...Petitioner petitioner, after due advertisement of the Versus vacancies. However, after the Selection State of U.P. & Ors. ...Respondents Committee makes recommendation, the Counsel for the Petitioner: District Basic Education Officer shall be Sri A.C. Tiwari empowered to take decision on its own merits, regarding grant of approval to Counsel for the Respondents such appointment. C.S.C., Sri Jagdish Pathak, Sri Anil Tiwari

13. In view of above discussion, this (A) U.P. Municipalities Act 1916, read writ petition is allowed. The order dated with U.P. Municipal Board Servants 27.9.2014 passed by the District Basic (Inquiry Punishment and Termination of 1352 INDIAN LAW REPORTS ALLAHABAD SERIES

Services) Rules 1960-Rule 74-Suspension 27. The petitioner was placed under of permanent servant of non centralized suspension on 29.05.2014, the moment services-challenged being without the President accepted the proposal of jurisdiction-as appointing authority is Executive Officer to place the petitioner municipality and not the President-held- under suspension pending enquiry. The municipality means an institution of Self order dated 02.06.2014 is merely government as per provisions of Section communication of the suspension order 77-competent authority is the president pending euquiry, it is not an order of and not the Board-can not be said punishment. without jurisdiction. Case Law discussed: Held: Para-16 & 17 2001 (3) UPLBEC 2057; 1995 AIR 600; 1998 16. A bare perusal of the provisions of the (1) AWC 282; [1999 (2) E.S.C. 1009 (S.C.)]; Act and 1960 Rules, the petitioner a clerk, AIR (SC) 1959-0-1342; (1968) 2 SCR 577; AIR is permanent superior staff within the 1952 SC 362; AIR 1961 SC 276; AIR 1964 SC meaning of Section 74 belonging to the 787; (2006) 2 SCC 269; (1970) 1 SCC 362; non-centralized service, can be appointed AIR 1996 SC 1313; (1969) 3 SCC 28; (2006) 2 and dismissed by the President, Section 77 SCC 269; (1960) 1 SCR 476; AIR 1961 SC 276; read with 1960 Rules the authority AIR 1964 SC 787; (1970) 1 SCC 362; AIR 1968 competent to pass an order of suspension SC 800. is the President not the Board, Section 77- B read with rule 8(i) refers to 'competent (Delivered by Hon'ble Suneet Kumar, J.) authority' and not the Board, thus, the competent authority for punishment of 1. The petitioner is class III superior staff is the President. employee working as a clerk with the 17. Thus, it is evident from the Nagar Palika Parishad, , service provisions of the Act and the rules, conditions are governed under the Uttar stated herein above, the competent Pradesh Municipalities Act 1916 read authority to place the petitioner under with U.P. Municipal Board Servants suspension is the President and not the (Inquiry, Punishment and Termination of Board. Services) Rules, 1960 (hereinafter (B) U.P. Municipal Board Servants (Inquiry referred to as '1960 Rules') Punishment & Termination of Service) Rules 1960-Rule-4 (iv) and Rule 8 (1)- 2. By means of this writ petition, the Suspension-whether punishment or not?- petitioner has challenged the complaint explained-when during contemplated dated 27.05.2014 made by the respondent enquiry suspension order passed is no punishment-under Rule 4(iv) suspension- no. 3/4, Executive Officer, Nagar Palika held-punishment. Parishad, Bijnor, approval dated 29.05.2014 granted by the President, Held: Para-26 & 27 Nagar Palika Parishad and the 26. In the 1960 Rules, suspension is consequential order of suspension dated provided both as a punishment, as well as, 02.06.2014 passed by respondent no. 3. pending enquiry or contemplation of enquiry (rule 4(4)(iv) and rule 8(1) of 1960 Rules). Suspension pending enquiry 3. Submission of learned counsel for or contemplation of enquiry provided the petitioner is that the suspension order under rule 8(1), is not a punishment. It is is a malafide exercise of power in order to not the case of the respondents that punish the petitioner, is wholly without suspension by way of punishment was jurisdiction as the appointing authority of imposed upon the petitioner. 3 All]. Phool Singh Vs. State of U.P. & Ors. 1353 the petitioner is the Municipality and not service book is in the custody of the the President, the order is without petitioner, questions was raised in the application of mind as the President has Assembly regarding Nagar Palika, Bijnor, merely countersigned the complaint but proper reply could not be sent to the lodged by the Executive Officer against Assembly as the files and records were in the petitioner. The order nowhere states the custody of the petitioner which was that enquiry is either pending or not handed over to the Nagar Palika, on contemplated, and finally the allegations, 20.06.2014 the Executive Officer was if accepted as correct, are not serious to threatened, by some persons, at the behest warrant the imposition of major penalty. of the petitioner to withdraw the suspension order, respondent no. 3 lodged 4. Learned counsel for the petitioner First Information Report on 20.06.2014, in support of his submission has relied thus, the order of suspension pending upon the following judgments: enquiry is legal and lawful order.

Smt. Meera Tiwari Versus The 7. Learned counsel for the Chief Medical Officer and others1, Om respondents in support of his submission Prakash Gupta Versus The State of has relied upon the following judgments: U.P.2, Ram Dular Tripathi Versus State of U.P. and other3 and Capt. M. Management Hotel Imperial, New Paul Anthony Versus Bharat Gold Delhi Vs Hotel Workers Union5, Mines Ltd. and another4. Balvantray Ratilal Patel Versus State of Maharash6, Shrimati Hira Devi and 5. Per contra, Sri Anil Tiwari, others Versus District Board, learned counsel for the Parishad would Shahjahanpur through the Collector7, submit that the order dated 02.06.2014 is T. Cajee Versus U. Jormanik Siem and not the order of suspension, but merely another8, R.P. Kapur Versus Union of communication of the order, suspension India and another9, L.K. Verma Vs. was passed vide order dated 29.05.2014 HMT Ltd. and another10 and V.P. by the President. The allegations against Gidroniya Vs. State of Madhya the petitioner, are very serious, as is Pradesh and another11. reflected in the complaint made by the Rival submissions fall for Executive Officer recommending the consideration. suspension and initiation of disciplinary proceedings which was duly approved 8. The submission of learned and endorsed by the President on counsel for the petitioner is two fold, 29.05.2014. firstly that the order of suspension is without jurisdiction as the competent 6. It is alleged that the petitioner, authority mentioned under the 1960 Rules being a clerk, had disobeyed the order of is the Municipality and not the President. the Commissioner and has been indulging Secondly, it is argued that the suspension in illegal activities which was not in the order dated 02.06.2014 does not refer to interest of the Nagar Palika Parishad. any allegation nor does it state that Petitioner has removed important records enquiry is either contemplated or pending, from the Nagar Palika, as well as, the by merely endorsing the complaint of the 1354 INDIAN LAW REPORTS ALLAHABAD SERIES executive officer would not mean that the Municipal Fire Station Officers, shall be order of suspension was passed by the subject to the approval of the President, finally there is allegation of [Municipality]. malafides against the respondent no. 4, the Executive Officer. 10. Section 75 provides for appointment of permanent inferior staff 9. It is further contended that the and the power is vested with the petitioner is a clerk, a class III employee Executive Officer. The servants referred belonging to the non centralized service to as the inferior staff would mean of the Nagar Palika Parishad. Section 74 servants carrying scales of pay lower than of the U.P. Municipalities Act 1916 the lowest scale of pay referred to in (hereinafter referred to as 'Act') provides, section 74, and section 76 confers power servants on posts in non-centralised of punishment and dismissal of permanent service, carrying scale of pay equal to or inferior staff upon the Executive Officer higher than the lowest scale of pay and when there is no Executive Officer on admissible to the clerical staff, shall be the President. Section 76 and 77 are as appointed and may be dismissed, removed follows:- or otherwise punished, or the services of a probationer may be terminated, by the 76. Punishment and dismissal of President, subject to the right of appeal. permanent inferior staff.- Except as Proviso to section 74 refers the certain otherwise provided, the Executive posts including Tax and Sectional Head Officer, and where that is no Executive Clerks whose appointments on such posts Officer, the President may dismiss, shall be subject to the approval of the remove or otherwise punish servants of Municipality. Section 74 is as follows:- the [Municipality], or terminate the services of probationers, [referred to in "74. Appointment and dismissal of Section 75], subject to their right of permanent superior staff.-Subject to the appeal, except in the case of termination provision of Sections 57 to 73, servants on of the service of a probationer, to such posts in the non-centralised services, authority within such time and in such carrying scale of pay equal to or higher than manner as may be prescribed.] the lowest scale of pay admissible to the 77. Limitation of powers conferred clerical staff, shall be appointed and may be by Sections 71 to 76.-(1) the provisions of dismissed, removed or otherwise punished, Sections 71, 73, 74, 75 and 76, shall be or the services of a probationer may be, subject to the provisions of,- terminated, by the President subject to the (a)...... right of appeal, except in the case of the (b)...... termination of the service of a probationer, (2) The provisions of Sections 74, 75 to such authority within such time and in and 76 shall also be subject to the such manner as may be prescribed. provisions of any regulation raising any Provided that appointment on the maximum or minimum monthly salary posts of Tax Superintendent, Assistant prescribed in those sections with Tax Superintendent, Inspectors, Head reference to the respect powers of the Clerks, Sectional Head Clerks, Sectional [Municipality], the [President] and the Accountants, Doctors, Vaids, Hakim and Executive Officer over the staff." 3 All]. Phool Singh Vs. State of U.P. & Ors. 1355

11. The powers conferred under servants is governed under 1960 Rules. Section 74, 75 and 76 is subject to the "Servants" in the Rules has been defined, provisions of section 78 and any rule meaning servant of the Municipality and pertaining to suspension or dismissal competent authority means the authority [removal or other punishment or discharge or or Board (Municipality) competent under termination of service] of such persons so the law to take such action. Rule 4 appointed. The power of suspension is provides for the penalties which can be covered under Section 77-B. Section 77-B, imposed by the Board for sufficient sub-clause 1 and sub-clause 5, is as follows:- reasons. Sub-clause of rule 4 is as follows:- 77-B. Power of suspension.-(1) The authority competent to punish an officer "4. Subject to the provisions of these or servant of the [Municipality] may place rules and any law governing a Municipal him under suspension,- Board, the following penalties may, for (a) where a disciplinary proceedings good and sufficient reasons, be imposed against him is contemplated or pending; upon a servant by the competent or authority, namely (b) where a criminal case against him (i) Censure, in respect of an offence involving moral (ii) With holding of increments, turpitude is under investigation, enquiry including stoppage at an efficiency bar. or trial. (iii) Reduction to a lower post or a (2)...... time-scale, or to a lower stage in a time- (3)...... scale. (4)...... (iv) Suspension" (5) [Municipality] shall act under this section by a special resolution supported 15. Rule 8(i) provides for by not less than two-thirds of the suspension of servant of Municipality members constituting the Board. during enquiry or contemplation of enquiry. Rule 8(i) is as follows:- 12. Sub-clause 9 of section 2 defines "Municipality" means an institution of "8(1) Subject the provisions of any self-Government [referred to in clause (e) law governing the municipal board, a of Article 243-P] and sub-section (22) of servant against whose conduct an inquiry section 2 defines "servant of the is contemplated or is proceeding, may in [Municipality]" means any person in the the discretion of the competent authority pay and service of the [Municipality]. be placed under suspension pending the conclusion of the enquiry." 13. Section 9 provides for the Composition of Municipality which shall 16. A bare perusal of the provisions consist by a President who shall be its of the Act and 1960 Rules, the petitioner a Chairman, elected members, Ex officio clerk, is permanent superior staff within members and nominated member. the meaning of Section 74 belonging to the non-centralized service, can be 14. The Service conditions of the appointed and dismissed by the President, servants belonging to the non-centralized Section 77 read with 1960 Rules the 1356 INDIAN LAW REPORTS ALLAHABAD SERIES authority competent to pass an order of that the petitioner be placed under suspension is the President not the Board, suspension pending enquiry, which was Section 77-B read with rule 8(i) refers to duly approved and endorsed by the 'competent authority' and not the Board, President on 29.05.2014, the petitioner thus, the competent authority for was thereafter communicated the order of punishment of superior staff is the suspension on 02.06.2014 by the President. Executive Officer.

17. Thus, it is evident from the 19. The contention of learned counsel provisions of the Act and the rules, stated for the petitioner that endorsement of the herein above, the competent authority to President dated 29.05.2014 is not the place the petitioner under suspension is suspension order, the order dated the President and not the Board. 02.06.2014 communicating that the petitioner has been placed under suspension 18. As regards, the second is the order of suspension, cannot be submission, as to whether the order of the accepted for the simple reason that the Chairman dated 29.05.2014 endorsing the petitioner was placed under suspension on complaint of the Executive Officer 29.05.2014 i.e. the moment President recommending suspension pending approved the proposal. It would be wrong to enquiry or contemplation of enquiry is an say that the President did not apply his order of suspension or not, requires close mind. The complaint made by the executive reading of the complaint. The executive officer alleges serious allegation against the officer complained on 27.05.2014 petitioner, which if true, would follow alleging that the petitioner had scanned imposition of major penalty, the President his signature and issued contract, the by merely endorsing the complaint and petitioner did not attend the Tehsil Diwas directing to proceed, as proposed would in spite of the directions of the mean that the petitioner was placed under Commissioner, Moradabad Division, suspension with immediate effect pending Moradabad, as such, the petitioner was enquiry. Merely because the removed as Lekha Lipik and was made communication order dated 02.06.2014, the pairokar to pursue the cases of the passed pursuant to the endorsement dated Nagar Palika Parishad. The petitioner did 29.05.2014, does not refer or mention that not inform the Executive Officer of the the petitioner was placed under suspension important cases, as a result, the Nagar pending enquiry, is not correct, as the Palika Parishad lost certain important suspension and enquiry was already cases thus resulting in loss to the Nagar proposed which was approved and accepted Palika; in spite of the directions being by the President. It is settled principle of issued to the petitioner, appeal was not law that the suspension order comes into filed before the High Court, as such, the effect the date it is passed and not from the Palika lost several crores, there are date of communication, unlike termination allegations of the petitioner conniving or dismissal order. with the opposite party against the interest of the Palika; keeping in custody of the 20. An order passed by a competent service book; filing of proxy complaints, authority dismissing a government servant thus the Executive Officer recommended from services requires communication 3 All]. Phool Singh Vs. State of U.P. & Ors. 1357 thereof vide State of Punjab Versus Amar [Refer: Management of Hotel Singh Harika12, but an order placing a Imperial V. Hotel Workers' Union15, T. government servant on suspension does not Cajee Versus U. Jormanik Siem and require communication of that order vide another16 and R.P. Kapoor Versus Union State of Punjab Versus Khemi Ram13. of India and another17,] What is, therefore, necessary to be borne in mind is the knowledge leading to the 24. In V.P. Gidroniya Versus State making of the order. An order of suspension of Madhya Pradesh and another18, the ordinarily would be presumed to have been Constitution Bench of the Supreme Court made when it is signed. held as under:-

21. The contention on behalf of the "8...... The general principle is petitioner is that the order is not only that an employer can suspend an malafide exercise of power but the order employee of his pending an enquiry into of suspension is a punishment order under his misconduct and the only question that rule 4(4)(iv), hence opportunity should can arise in such a suspension will relate have been given to the petitioner before to the payment of his wages during the passing the order. period of such suspension. It is now well settled that the power to suspend, in the 22. Suspension in service sense of a right to forbid an employee to jurisprudence is of different kinds, viz as work, is not an implied terms in an punishment if provided under the service ordinary contract. Between master and rules, inherent power of the employer to servant, and that such a power can only be suspend and thirdly, rules providing for the creature either of a statute governing suspension during pending enquiry or the contract or of an express term in the contemplation of enquiry. contract itself. Ordinarily, therefore, the absence of such a power either as an 23. In L.K. Verma Versus HMT Ltd. express term in the contract or in the rules and another14, the Supreme court held as framed under some statute would mean follows:- that an employer would have no power to suspend an employee of his and even if he "17. Suspension is of three kinds. An does so in the sense that he forbids the order of suspension may be passed by employee to work, he will have to pay the way of punishment in terms of the employee's wages during the period of conduct rules. An order of suspension can suspension. Where, however, there is also be passed by the employer in power to suspend either in the contract of exercise of its inherent power in the sense employment or in the statute or the rules that it may not take any work from the framed thereunder, the order of suspension delinquent officer but in that event, the has the effect of temporarily suspending the entire salary is required to be paid. On relationship of master and servant with the order of suspension can also be passed, if consequence that the servant is not bound to such a provision exists in the rule laying render service and the master is not bound down that in place of the full salary, the to pay. It is equally well-settled that an delinquent officer shall be paid only the order of interim suspension can be passed subsistence allowance specified therein." against the employee while an enquiry is 1358 INDIAN LAW REPORTS ALLAHABAD SERIES pending into his conduct even though pending enquiry or contemplation of there is no such term in the contract of enquiry (rule 4(4)(iv) and rule 8(1) of employment or in the rules, but in such a 1960 Rules). Suspension pending enquiry case the employee would be entitled to his or contemplation of enquiry provided remuneration for the period of suspension under rule 8(1), is not a punishment. It is if there is no statute or rule under which, not the case of the respondents that it could be withheld. The distinction suspension by way of punishment was between suspending the contract of a imposed upon the petitioner. service of a servant and suspending him from performing the duties of his office 27. The petitioner was placed under on the basis that the contract is subsisting suspension on 29.05.2014, the moment is important. The suspension in the latter the President accepted the proposal of case is always an implied term in every Executive Officer to place the petitioner contract of service. When an employee is under suspension pending enquiry. The suspended in this sense, it means that the order dated 02.06.2014 is merely employer merely issues a direction to him communication of the suspension order that he should not to the service required pending euquiry, it is not an order of of him during a particular period. In other punishment. words the employer is regarded as issuing an order to the employee which because 28. In my opinion, there is no the contract is subsisting, the employee illegality or infirmity in the impugned must today." orders.

25. Suspension as punishment can 29. For the reasons and law stated be imposed after holding departmental herein above, the writ petition fails and is enquiry. The Supreme Court in accordingly dismissed. Balvantray Ratilal Patel Versus State of Maharashtra19, observed as follows:- 30. No order as to costs. ------"...... On general principles ORIGINAL JURISDICTION therefore the government like any other CIVIL SIDE employer, would have a right to suspend a DATED: ALLAHABAD 29.10.2014 public servant in one of two ways. It may BEFORE suspend any public servant pending THE HON'BLE ASHWANI KUMAR MISHRA, J. departmental enquiry or pending criminal proceedings; this may be called interim Civil Misc. Writ Petition No. 40533 of 2014 suspension. The Government may also proceed to hold a departmental enquiry Ankit Tiwari & Ors. Petitioners and after his being found guilty order Versus suspension as a punishment if the rules so State of U.P. & Ors. ...Respondents permit. This will be suspension as a Counsel for the Petitioners: penalty." Sri Ashok Khare, Sri V.D. Shukla

26. In the 1960 Rules, suspension is Counsel for the Respondents provided both as a punishment, as well as, C.S.C., Sri Neeraj Tiwari, Sri R.K. Ojha 3 All]. Ankit Tiwari & Ors. Vs. State of U.P. & Ors. 1359

Constitution of India, Art.-226-cancellation Kanpur. The institute was assigned the of entire entrance examination for joint responsibility of conducting entrance para-medical and nursing entrance examination for Joint Paramedical and examination 2014-on certain objection at residence of Hon'ble Chief Minister-being Nursing Entrance Examination, 2014, and influenced previous examination canceled- thereafter to conduct counselling. The but no specific date of subsequent institute published notice on 2nd May, examination disclosed-held once 2014, whereunder registration for examination held properly-cancellation of appearing in the entrance test was to first examination without any valid reason- commence from 5th May, 2014 with the subsequent examination-immaterial- quashed-direction to hold counseling as last date for submission of online per merit of OMR sheet of first registration being 6.6.2014 and the date of examination. examination was notified as 13th July, 2014. The petitioners, who are three in Held: Para-37- number, were desirous of appearing in the In view of the discussions and entrance examination, duly applied for consideration made above, this Court finds the impugned action of the appearing in the entrance test, and were respondent institute, in cancelling the issued admission ticket and they actually examination dated 13.7.2014 to be appeared in the entrance test held on 13th without any basis, lacking bona fide, and July, 2014. However, the petitioners learnt based upon non existed material, and as through a press release that the examination such, it cannot be sustained. The conducted on 13th July, 2014, had been impugned order dated 17.7.2014, cancelling the examination held on cancelled allegedly for unavoidable reasons, 13.7.2014 is, therefore, quashed. A vide order dated 17th July, 2014 and the direction is further issued to the date of next examination was to be notified respondents to forthwith process the through newspapers. It is this press release OMR sheets of the examination held on dated 17th July, 2014, which has been 13.7.2014, which are lying in the safe challenged by filing the present writ custody of the institute itself, and based petition. A further prayer has been made to upon the results thereof, the counselling and admission to Para Medical and command the respondents to publish the Nursing course be offered, in accordance result of the entrance examination with law. conducted on 13th July, 2014 and grant admission, on the basis thereof, to the Case Law discussed: petitioners. 1986(1) SCC 133; 2004 (4) SCC 666; 1991 (3) SCC 47; 1993 (1) SCC 154; 2002 (5) SCC 533; 2012 (2) ADJ 561; 2009 (9) ADJ 316. 2. The writ petition was entertained and following orders were passed on (Deliverd by Hon'ble Ashwani Kumar 6.8.2014:- Mishra, J.) "Learned Standing Counsel prays for 1. U.P. Rural Institute of Medical and is allowed one week time to seek Sciences and Research, , District- instruction as to what was the reason for Etawah, is an institute of Paramedical cancelling the examination, which took Science established by the State place on 13th July, 2014. Government, which is affiliated to Chhatrapati Shahu Ji Maharaj University, Put up/list on 18th August, 2014." 1360 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Again on 19.8.2014, further time respondents 2 and 3, in paragraphs 5, 6 was granted to learned Standing Counsel and 7 thereof, allegations have been made to seek instructions and bring on record against the conduct of respondent no.4. reasons for cancellation of the As per the endorsement in the writ examination already conducted on 13th petition, the learned Standing Counsel July, 2014. The order dated 19.8.2014 is has accepted notice on behalf of reproduced:- respondents 1 to 4, but now learned Standing Counsel states that he appears "The instant petition has been filed only for respondent no.1 and that due to challenging the order dated 17th July, mistake the said endorsement has been 2014 cancelling the examinations already made in the writ petition. held without assigning any reason. In view of the above, let notice be On 6th August, 2014, learned issued to the respondent no.4 through Standing Counsel was granted time to Registered Speed Post returnable within seek instructions. Learned Standing three weeks. Steps to serve the respondent Counsel prays for further time to seek no.4 may be taken within three days. instruction. List this petition on 7th October, Learned counsel for the petitioners 2014 by which date the respondent no.4 informed the Court that now, by an may file counter affidavit." advertisement, 14th September, 2014 has been notified for fresh examination. It has 5. Notices, accordingly, were issued been submitted that in absence of any to respondent no.4, who filed his counter valid reason for cancelling the earlier affidavit on 7.10.2014 and the following examination, the holding of subsequent orders were passed:- examination on 14th September, 2014 does not appear to be justified. "Rejoinder affidavit filed on behalf of In view of the above, let this matter the petitioners is taken on record. be listed on 1st September, 2014. In the A counter affidavit has been filed on meantime, learned Standing Counsel shall behalf of respondent no.4, which is taken file counter affidavit detailing the reasons on record and a copy whereof is also for which the earlier examination was supplied to Sri Neeraj Tiwari, learned cancelled and a decision to take fresh counsel appearing for respondent no.2 examination was taken." and 3. Learned counsel for the petitioners 4. A counter affidavit was filed by state that the counselling is to start for the institute on 1st September, 2014. The admission to Para Medical Nursing matter thereafter was heard on 8.9.2014, Course from tomorrow, which fact is not wherein following orders were passed:- disputed by Sri Neeraj Tiwari, learned counsel for respondent no.2 and 3. "Sri Neeraj Tiwari, who appears on behalf of respondents 2 and 3, has sent On the request made by learned illness slip. counsel for the parties, let the matter once Learned counsel for the petitioners again appear tomorrow in the additional submitted that in the counter affidavit cause list, by which time, further filed by Sri Neeraj Tiwari on behalf of affidavits, if any, may be exchanged." 3 All]. Ankit Tiwari & Ors. Vs. State of U.P. & Ors. 1361

6. The matter was heard on that fresh examination has been 8.10.2014 and while passing an interim conducted thereafter, although parties are order, case was fixed for delivery of at issue on it and the date of such orders on 13.10.2014. The order passed subsequent examination is also disputed. on 8.10.2014 was to the following effect:- Sri R.K. Ojha, Senior Advocate, appearing for the respondent no.4, states "Heard Sri Ashok Khare, Senior that the facts stated in the counter Advocate, assisted by Sri V.D. Shukla, affidavit of the respondent no.2 & 3 are appearing for the petitioner, learned absolutely incorrect, inasmuch as the Standing Counsel for the respondent no.1, institute had already taken a decision to Sri Neeraj Tiwari, learned counsel for the have entrance examination conducted in respondent no.2 & 3, and Sri R.K. Ojha, the manner as has been done. The Senior Advocate, assisted by Sri Ashish Director of the Institute had already Kumar Ojha, appearing for the passed an order on 18.6.2014, whereby respondent no.4. respondent no.4 was authorized to have Sri Ashok Khare, Senior Advocate, the possession of all examination has challenged the decision taken by the materials and OMR sheets etc., after the respondent institute contained in the examination were concluded, so that communication dated 17.7.2014, whereby transparency in holding of the the entrance examination conducted on examination is maintained. The attention 13.7.2014 for admission to Para Medical of the Court has also been invited to the and Nursing Courses in the State of U.P. decision of the institute, whereby the for the year 2014 has been cancelled, on outside agency had been appointed for the account of alleged unavoidable purposes of evaluation of the OMR circumstances. The submission advanced answer sheets and the rates etc. had all is that no reasons have been assigned in been settled by the Director. The support of the decision, nor any reasons argument, therefore, is that there is no actually exist on record, and that the infirmity in holding of the examination impugned decision is arbitrary and is and it has also been contended that after unsustainable in law. the examination were conducted, the A counter affidavit has been filed by OMR sheets were retained in the custody the respondent institute, wherein it has of respondent no.4, as per the decision been stated that after the examination was already taken by the Director on conducted, certain complaints were 18.6.2014 and respondent no.4 left for received by the office of the Chief Lucknow along with OMR sheets and Minister and the attempt of the institute to other relevant records for being delivered contact the Examination Controller could to the agency, after obtaining permission not succeed. According to the respondent from the Director, which document has institute, it apprehended that the also brought on record along with examination has not been conducted counter affidavit. fairly, and therefore, the decision has Prima facie, the contention of the been taken to cancel the examination. petitioner that cancellation of Thereafter, a show cause notice has also examination conducted on 13.7.2014 was been issued to the respondent no.4 on not for valid reason appears to have 23.7.2014. Sri Neeraj Tiwari also submits substance. Since the hearing in the matter 1362 INDIAN LAW REPORTS ALLAHABAD SERIES has been concluded and sometime may be "Learned Standing Counsel prays for consumed in delivering judgment in the and is allowed one week time to seek matter, and the counselling is to instruction as to what was the reason for commence from today itself, therefore, as cancelling the examination, which took an interim measure it is provided that till place on 13th July, 2014. Put up/list on delivery of judgment, the counselling, 18th August, 2014." which is proposed to be undertaken by the The matter was thereafter was taken respondent no.4 institute from today, shall up on 19.8.2014 and the following orders remain stayed. were passed:- This order has been passed in the "The instant petition has been filed presence of Sri Neeraj Tiwari, learned challenging the order dated 17th July, counsel for the respondent no.2 and 3, 2014 cancelling the examinations already who shall inform the authorities held without assigning any reason. concerned about passing of this order for On 6th August, 2014, learned its compliance. Standing Counsel was granted time to List this matter for delivery of seek instructions. judgment on 13.10.2014." Learned Standing Counsel prays for further time to seek instruction. 7. On 13.10.2014, the matter was Learned counsel for the petitioners again adjourned, after noticing the informed the Court that now, by an previous orders passed in the matter, in advertisement, 14th September, 2014 has order to give one further opportunity to been notified for fresh examination. It has the respondents to reply to the affidavit of been submitted that in absence of any respondent no.4 and also produce the valid reason for cancelling the earlier records, on the basis of which, the examination, the holding of subsequent impugned action has been taken. The examination on 14th September, 2014 order dated 13.10.2014, which also does not appear to be justified. records previous orders passed, is In view of the above, let this matter reproduced:- be listed on 1st September, 2014. In the meantime, learned Standing Counsel shall "Hearing in the matter was file counter affidavit detailing the reasons concluded on 8.10.2014 and the matter for which the earlier examination was was fixed for today i.e. 13.10.2014 for cancelled and a decision to take fresh delivery of judgment. However, from the examination was taken." materials available on record, this Court A counter affidavit was filed on is of the opinion that one opportunity is behalf of respondent no.2 and 3, wherein liable to be further granted to the allegations were made against the respondents, before the matter is decided conduct of Examination Controller i.e. finally, for the reasons disclosed respondent no.4. Accordingly, notices hereinafter. were issued to respondent no.4. A counter affidavit has been filed by The record of the writ petition shows respondent no.4 in the matter on that while entertaining the writ petition 7.10.2014, copy whereof was made following orders were passed on available to Sri Neeraj Tiwari, learned 6.8.2014:- counsel appearing for the respondent no.2 3 All]. Ankit Tiwari & Ors. Vs. State of U.P. & Ors. 1363 and 3. The matter was adjourned to adjudicated at the earliest. Let matter 8.10.2014, by which time, learned counsel once again appear, as a case in the for the parties were granted opportunity additional cause list, on 16.10.2014, by to file further affidavits, if any. Hearing in which time, the required affidavit be filed the matter was concluded on 8.10.2014. in the matter." Learned counsel appearing for the respondent no.2 and 3, on the basis of the 8. On 16th October, 2014, an report of the Officiating Director dated affidavit was filed on behalf of the 18.7.2014, had stated that after the respondent nos.2 and 3 and, therefore, the Examination Controller had left, matter was adjourned to 17th October, complaints regarding bungling in 2014. Following orders thereafter were examination were received on 15.7.2014 passed on 17th October, 2014:- from the office of the Chief Minister and the Principal Secretary, Department of "Heard learned counsel for the Medical Education, which ultimately led petitioners and learned Advocate to cancellation of the examination, no General, assisted by the learned Chief record in support of the report, however, Standing Counsel, who has appeared for has been annexed. In response to the respondent nos. 2 and 3, at some length. query of the Court, learned counsel for However, It has been stated by the Chief the respondent no.2 and 3 stated that the Standing Counsel that records relating to only material available on record was the the matter, are not available and will report of Officiating Director dated have to be obtained from the office at 18.7.2014. Lucknow, therefore, the matter may be In the counter affidavit filed by deffered. respondent no.4, materials have been On the request made by the learned brought on record to show that he had Advocate General, the hearing of the acted in accordance with the directions matter is deffered to 27.10.2014, on which issued by the department. In such date relevant record shall be produced circumstances, as the reply of respondent before the Court." no.4 was filed on 7.10.2014 and the hearing was concluded on 8.10.2014, as 9. On 27th October, 2014, when the such, it would be appropriate in the hearing in the matter was resumed, learned interest of justice that a further counsel appearing for the respondents made opportunity be granted to respondents to a statement, which was noted and the file reply to the affidavit of respondent hearing commenced. The order dated 27th no.4. They may also bring on record October, 2014 is reproduced:- materials in support of the report of the Officiating Director dated 18.7.2014, if "Sri Ramesh Upadhyay, learned any, which prompted them to take the Chief Standing Counsel, states that he has impugned action or any other material instructions from Sri Arindam Chatterjee, existing on record. The respondents may Special Secretary of the State of U.P. that also produce relevant records, in this there exists no written complaint on regard. record of the State Government, which led Since counselling has been stayed by to cancellation of examination in this Court, the matter is required to be question. 1364 INDIAN LAW REPORTS ALLAHABAD SERIES

Learned Advocate General, who is 6. That in this reference complaints present in Court, states that the Court were filed before Principal Secretary, may proceed to adjudicate the matter on Medical Education as well as Chief merits in light of the aforesaid fact, on the Minister of the State and direction was basis of pleadings and material, which issued to carry out the enquiry on exist on record. 15.7.2014. Immediately thereafter Argument of Sri Ashok Khare, Institute has tried to contact the learned Senior Counsel appearing for the Controller of Examination but his all petitioners and Sri V.B. Singh, learned known mobile numbers were found Advocate General for the State, have been switched off. Thereafter Institute has tried concluded. to contact him by other means then at Submission of Sri R.K. Ojha, learned 8.45 PM he has informed that he is in Senior Counsel appearing for the seriously and unable to have any talk. At respondent no.4 remains inconclusive. this stage at 9.45PM after having contact Put up tomorrow i.e. on 28.10.2014." with him, he was directed to come back Institute without any evaluation of OMR 10. In view of the stand so taken by sheet but he has informed that he is the learned Advocate General, this Court suffering with heart disease and it is not proceeds to adjudicate the writ petition, possible to him to come back. Again on the basis of pleadings and materials around 12.00 night he has informed the available on record of the writ petition, Director that he is admitted in ICU and after noticing that there exists no record he will take at least 4-5 days in coming of any written complaint etc. on record of back to Institute. the State Government, against the examination held on 13th July, 2014. 7. That on 17.7.2014 Controller of Examination again first time informed his 11. A counter affidavit on behalf of location on telephone that he is admitted the respondent nos.2 and 3 was initially in ICU in Military Hospital, Lucknow and filed by the Director of the institute. prior to that he has never informed about Paragraph nos. 5, 6, 7 and 9 of the his location. Whole conduct of Controller affidavit are reproduced:- of Examination is very objectionable and which creates serious doubt about the "5. That it is further stated while relativity of examinations result. Under leaving the Institute neither he has taken these circumstances a meeting of officers any approval for arrangement of was held on 17.7.2014 and it was decided evaluation nor he has given any in the meeting to cancel the earlier information to the Director of Institute. entrance examination held on 13.7.2014 To maintain the transparency of and taken fresh examination on Examination it is necessarily required to 14.9.2014. In this reference a detail carry out OMR sheet and other report was also submitted vide letter documents out of institute with the dated 18.7.2014 to Principal Secretary, permission of Director and further OMR Medical Education, Lucknow. A sheet should be evaluated before a Team photocopy of letter dated 18.7.2014 is was constituted for that purpose and not being filed as Annexure CA-1 to this by one individual person. affidavit. 3 All]. Ankit Tiwari & Ors. Vs. State of U.P. & Ors. 1365

9. That thereafter the institute has "iSjkesfMdy ,oa uflZx egkfo|ky; ds 'kSf{kd decided to take fresh examination and it l= 2014 ds fofHkUu ikB~;dzeksa esa izos'k gsrq fnukad was decided to hold the same on 14.9.2014. 13 tqykbZ] 2014 dks vk;ksftr ijh{kk ls lacaf/kr For that purpose a press release dated xksiuh;@vfr vko';d dk;ksZ gsrq v/kksgLrk{kjh 8.8.2014 was issued and new date was also fnukad 15 tqykbZ] 2004 ls laLFkku ls ckgj izLFkku uploaded on the website Institute." dj jgk gSA d`i;k mDr dk;Z gsrq LVs'ku NksM+us dh vuqefr iznku djsaA v/kksgLrk{kjh dh vuqifLFkfr esa 12. Respondent no.4, pursuant to the ladk;k/;{k ds dk;ksZa dk fuokZg izks0 vHk; dqekj] notices issued by this Court, appeared in foHkkxk/;{k bZ0,u0Vh0 }kjk fd;k tk,xkA" the matter and filed his counter affidavit along with annexures. The stand taken by It is the case of respondent no.4 that the respondent no.4 was that the manner pursuant to the permission granted by the of holding of examination had been Director, he proceeded to take the OMR decided in the meeting of the institute sheets and got them delivered to the dated 26th March, 2014, pursuant to agency, selected for evaluation of OMR which, the then Director passed an order sheets by the Director. The Controller on 18th June, 2014 appointing respondent also stated that after he had delivered the no.4 as Coordinator and Examination OMR sheets to the agency, selected for Controller for the examination to be held the purposes, at Lucknow, he suffered on 13th July, 2014. The order dated serious heart ailment, and therefore, was 18.6.2014 provided as under:- admitted to Army Command Hospital at Lucknow, where he remained hospitalized "izks0 ds0,e0 'kqDyk dks ijh{kkvksa ls lEcfU/kr and ultimately got discharged on 20th leLr vfHkys[k] lhy vkfn ds j[kj[kko] iz'u&i= ,oa mRrj&iqLrdkvksa vkfn dks viuh vfHkj{kk July, 2014. The certificates and medical esa j[kus gsrq vf/kd`r fd;k tkrk gSA MkW0 'kqDyk prescription etc. have been brought on ijh{kkvksa ds ldq'ky lEiknu ds lkFk ijh{kk esa record as mi;ksx esa yk;s tkus okys iz'u&i= ,oa vU; vfHkys[kksa dh xksiuh;rk ,oa lqj{kk Hkh j[ksaxsA Annexure No.6 to the affidavit. mDr dk;Z gsrq og funs'kd ds fu;a=.k esa jgrs gq, ijh{kkvksa dk lapkyu djus ,oa fofHkUu ijh{kkvksa 13. Pursuant to the liberty granted ds vk;kstu gsrq vko';d lHkh izcU/k lqfuf'pr by this Court, an affidavit in rebuttal to djsaxs ,oa ijh{kk lEcU/kh leLr izfdz;kvksa ds lE;d the affidavit of respondent no.4 was filed fu"iknu gsrq mRrjnk;h gksaxsA" by the Registrar of the institute. Paragraph nos. 04 to 16 of the affidavit, which It was also stated that the agency for elaborates the stand of institute, are evaluating the answer sheets as well as reproduced:- rates payable to it, were all approved and settled by the Director himself. "4. That entrance examination for Respondent no.4 further brought on Paramedical Science and Nursing Course record a confidential letter addressed to was held on 13th July, 2014 the Director, upon which the permission simultaneously in 13 centres in Etawah. was granted by the Director for petitioners The examination was based on objective to leave the institute on 15.7.2014 in type of questions to be answered on OMR connection with confidential examination sheets. About ten thousand candidates work, which reads as under:- had participated in the examination for 1366 INDIAN LAW REPORTS ALLAHABAD SERIES about 610 seats. The OMR sheets (Answer 7. That it is pertinent to submit that sheets) were kept in about 10 boxes, this the second year when the Institute which itself is a bulky baggage. For the had conducted examination in the purposes of its transportation from U.P. previous year that is year 2013-14 even Rural Institute of Medical Sciences and the then Director Dr. J. B. Singh was Research (U.P.R.I.M.S.) to Lucknow at present in Lucknow at the time of S.R. Net Computer Services Pvt. Ltd., it evaluation of OMR sheet had taken place. was necessary to have additional But this time Dr. Shukla all alone by hands/officials, security men to ensure its maintaining opaque secrecy took up the safety and safe transportation. entire task by himself. The Institute tried 5. That from the records it transpires to contact Dr. Shukla about his movement that respondent no.4 all alone without and whereabouts on phone but he could taking security guards or without taking be contacted only at night on 15th July, any additional hands undertook the 2014 at about 8.45 PM, who disclosed journey himself to Lucknow, S.R. Net that he was ill. He was also instructed by Computers. Before leaving or before the Director on phone to return back taking the permission for visiting immediately with all the papers and OMR Lucknow he did not indicate or disclose sheets but he expressed his inability and that he would be carrying OMR sheets for disclosed he had a heart trouble and its evaluation to Lucknow. Entire travel cannot come back to Institute. Later on at and journey was kept a closely guarded about 12 in the midnight Dr. Shukla suo- secret. Before taking permission he moto informed that he is being admitted should have requested for security guards in ICU without disclosing the name of the and further would have disclosed that he hospital or the city. would be moving with OMR sheets and 8. That on 17th July, 2014 for the specific disclosure should have been first time respondent no.4 Dr. Shukla made to the Director of Institute that he informed that he has been admitted in was going to Lucknow for getting Lucknow hospital. Only on 17th the evaluation of OMR sheets. location of the city and the hospital could 6. That with a plan and design Dr. be known to the Director. Shukla appears to have completed a 9. That it is the settled practice that formality of by obtaining a permission to the movement of the answer sheets (OMR leave the station (Safai) from the Director sheets) for the purpose of its safety, of Institute but did not disclose which security, due precaution is taken and place/city he was visiting or that he would more than one individual/officials with be carrying valuable OMR sheets nor security personnels should accompany. there is any whisper that he required One official is not burdened with such security. It can be appreciated that serious responsibility as there may be carrying 10 or 9 boxes all alone which chances of its tampering and may be contain the answer sheets of near about injurious to ensure the fairness of 10,000 candidate was itself a risky affair examination system. and could not have been handled by one 10. That the way Dr. Shukla acted in individual all alone. There was an this matter coupled with many complaints inherent risk of tampering loss, received even in the government serious manipulations etc. doubts and suspicion about the sanctity of 3 All]. Ankit Tiwari & Ors. Vs. State of U.P. & Ors. 1367 the examination are being raised. The Examination. From the academic session Institute to maintain fairness of the 2013-14 admission are being made on the competitive examination and to ensure basis of entrance examination conducted absolute fairness in the selection process by the Institute itself. Last year also took a decision for re-examination which respondent no.4 was the controller of the has already been held and counselling examination and the entire process of had also commenced. It is also significant examination, evaluation of answer sheets, to notice that only 3 candidates out of declaration of results, and admission of 10,000 candidates who had appeared in students was done in the supervision and the examination have filed this writ control of the Director of the Institute. petition out of which one petitioner This year however, respondent no.4 chose namely Pooja Shukla has also appeared to transport the OMR sheets all by himself in the second examination. The Institute is without informing the Director and conducting the exercise of second without taking any other officer or examination at its own expenses and has authority of the Institute along with him. given a chance without charging fresh Movement of the answer sheet only in the examination fee to all the 10,000 sole custody of respondent no.4 without candidates to appear in the examination there being any other officer or authority to maintain purity, fairness of of the Institute, without information to the examination process. Director in this regard and without even 11. That the Director of Institute was taking the security personnel itself casts a in dark and was not made aware by doubt as to whether or not any tampering respondent no.4 that he was carrying may have been done in the OMR sheets. bulky baggage containing OMR sheets to The conduct of the respondent no.4 itself Lucknow for the purpose of its evaluation reinforces the complaints made to whereas respondent no.4 being different authorities. subordinate to Director and was under 14. That upto 17.7.2014 the Institute his control should have taken precaution was not aware about the location of of disclosing in brief details about his respondent no.4 as such the Director of movement and that of the answer sheets. the Institute requested the Additional 12. That the complaints were flooded Director (Administration) to carry out an in the office of Principal Secretary, enquiry and submit the report. Medical Education as well as office of the 15. That the matter was placed Chief Minister, the direction was issued before the examination committee of the for holding an enquiry in the entire matter Institute which came to the conclusion by the order dated 18th July, 2014. True that the sanctity of the examination had copy of the letter is being filed as become doubtful. Looking into the entire ANNEXURE No.1 to this affidavit. aspect of the matter the examination 13. That the Institute of the committee recommended for the answering respondent starting cancellation of the examination and a functioning from the academic session fresh examination has already been 2012-13. In the first year admissions were conducted. A copy of the report of the held on the basis of merit determined by Additional Director along with the report the marks obtained by the students in the of the Committee is being filed herewith High School and Intermediate as ANNEXURE NO.2 to this affidavit. 1368 INDIAN LAW REPORTS ALLAHABAD SERIES

16. That continuous absence of 110649 and (3) Priti Yadav, having Roll respondent no.4 and unavailability of his No. 215112. The deponent has also location for substantially long period with maintained a C.D. by dubbing voice the answer sheets created a doubt in the which deponent has received on his mind of the examination committee and Mobile number from the Mobile No. only with a view to maintain the sanctity 9411020906. The deponent is ready to of the examination the Institute has taken produce CD which was prepared by him, a decision for cancellation of examination at the time of hearing, whereas, for kind in question and for re-holding the perusal of this Hon'ble Court the examination for the purposes of deponent is annexing copy of the version admission of students." which was made on 10.7.2014 and 13.7.2014 on the Mobile phone of the 14. The aforesaid affidavit of the deponent by the Mobile No. 9411020906 Registrar has been replied by respondent is being filed herewith and marked as no.4 by filing a fresh affidavit, in which, Annexure CA-1 to this affidavit. Due to following averments have been made in the aforesaid reason and also as per paragraph no.4:- direction given by the then Director the deponent has no option but to maintain "4. That in reply to the contents of necessary secrecy for the aforesaid paragraph nos.4 and 5 of the counter purposes." affidavit filed on behalf of the Respondent Nos.2 and 3, it is submitted that it is the It has also been alleged that the OMR Sheets which were kept in 9 boxes, examination process was conducted with having total weight of 10 Kg. and in order due diligence and sanctity of the process to avoid any doubt or dispute over the was maintained by him. It has been stated issue the deponent has taken away those that he had acted in the best interest of boxes in a small vehicle with the transparency and fairness of examination permission of the Director and went process itself and disclosure of Lucknow and got those documents unnecessary details had been avoided so received on 15.7.2014 itself. It is further as to ward of extraneous influences being relevant to mention that deponent has exercised upon him. It is also stated that been given those responsibilities by the his movements in connection with the then Director with the direction that he affairs of the examination was with due will maintain all transparency and intimation and permission of the Director, secrecy over the issue, however, the and it was only on account of extraneous deponent has got certain direction/threat influence that the examination process has on telephone from the certain higher been scuttled, as he has refused to honour officials, whether said direction given influences unauthorizedly exercised in the from the office of the Chief Minister or matter. In the affidavit, the details of the not for that the deponent is not clear but calls received by him and the contents of the deponent has received telephone from the talks and the messages received have the office of the Chief Minister directing been annexed. Yet another affidavit has that deponent has to be selected 3 persons been filed by the respondent no.4 namely (1) Neeraj Kumar, having Roll explaining the circumstances and the No. 300413, (2) Diksha, having Roll No. manner, in which he had carried the OMR 3 All]. Ankit Tiwari & Ors. Vs. State of U.P. & Ors. 1369 sheets from institute at Saifai, Etawah to oblique and ulterior motive the Lucknow. It is also stated that any examination itself was scuttled. It has association of security guards and the been stated that there is absolutely no staff of the institute would have material available on record to show that obstructed the secrecy of the examination any illegality or infirmity was caused in process itself under the peculiar facts and holding of the examination and the OMR circumstances of the present case. The sheets based on the examination of petitioners have also filed a rejoinder 13.7.2014 are still in the safe custody of affidavit. the respondent institute itself and no discrepancy therein had been reported till 15. I have heard Sri Ashok Khare, now, and in such circumstances, the learned Senior Counsel assisted by Sri cancellation of the examination itself was V.D. Shukla for the petitioners, Sri Vijay arbitrary. Bahadur Singh, learned Advocate General assisted by Sri Ramesh Upadhyay, 18. Learned Advocate General, on learned Chief Standing Counsel on behalf the other hand, defended the action of the of the respondent nos.1, 2 and 3 along respondent institute. According to him, with Sri Neeraj Tiwari, who also appeared the decision to cancel the examination for respondent no.2 & 3 and Sri R.K. was taken in order to ensure sanctity of Ojha, learned Senior Counsel assisted by the process of examination itself, which Sri A.K. Ojha for the respondent no.4 and cannot be said to be arbitrary. He also have considered the materials available on submitted that even otherwise, merely record. holding of examination does not create right in favour of any one and it is always 16. Learned counsel for the the concern of the institute to assess petitioner submits that the entrance whether the examination has been examination in question had been conducted in a fair and transparent conducted in absolutely fair and manner and if any bonafide doubt is transparent manner and there was no created in the process, the decision to material to support any allegation of cancel it can always be taken. He also irregularity in the examination process, submitted that once the institute has and therefore, the cancellation of entrance exercised such a course and subsequent examination was wholly unjustified. examinations have been conducted, in which one of the petitioner has also 17. Sri R.K. Ojha, learned Senior participated, it would not be appropriate Advocate, appearing for the respondent for this Court to interfere in the matter. no.4, has submitted that holding of the examination was strictly, in accordance 19. From the materials brought on with the decision already taken for the record of the writ petition, as well as the purposes by the Director, and sanctity of submissions advanced, the factual the process had been maintained. The scenario emerges that the respondent no.3 argument advanced is that the extraneous institute was to conduct Para Medical and influence exercised to secure admission Nursing Entrance Examination- 2014. for some of the candidates since had not The institute proceeded to consider the been honoured by him, therefore, for modalities in its meeting dated 26.3.2014, 1370 INDIAN LAW REPORTS ALLAHABAD SERIES wherein respondent no.4 Dr. K.M. Shukla been annexed along with first counter was appointed as examination controller. affidavit, which clearly refers to letter The Director by his order dated 18.6.2014 issued by the Director on 18.6.2014, specifically appointed respondent no.4 to according to which, the entire act as coordinator and examination examination was to be conducted under controller for the examination to be held the supervision of the Director by the on 13.7.2014. The agency, which was to controller Dr. Shukla, who was carry out evaluation of OMR sheets was responsible to ensure entire process of also selected by the examination examination. The report of the Officiating controller on 30.4.2014, which decision Director states that after Dr. Shukla left was approved by the Director on the same the institute, a communication was day and the rates were also approved for received from the office of the Chief being paid to the agency on 1.5.2014 by Minister and from the office of Principal the Director. The respondent no.4 was Secretary, Department of Medical authorized to keep in his possession all Education, to the effect that complaints, records, seal, question paper and answer regarding widespread irregularities have books. In his capacity, as examination been received, and therefore, an controller and coordinator Dr. Shukla, immediate enquiry in the matter be got was also held responsible for secrecy and conducted. It is after receiving of such confidentiality of the examination instructions from the office of the Chief records. He was to function under the Minister and Principal Secretary, that the supervision of the Director and undertake Officiating Director proceeded to make all steps required for the smooth conduct telephonic contact with Dr. Shukla, but it of the examination itself. The entrance is stated that all his known mobile examination was conducted at different numbers were found switched off. The centres on 13.7.2014 and the OMR sheets report further states that attempts to (answer sheets) were specifically kept in contact him from other sources fructified the custody of respondent no.4, as per the only at 8.45 PM, when Dr. Shukla decision already taken by the Director. It informed that he has fallen ill and he is is also apparent from the record that the not in a position to talk. The Director in respondent no.4, as per the decision his report, which is Annexure-1 to the already taken, proceeded in connection counter affidavit dated 26.8.2014, states with the confidential examination work that when contact could be again made at from the institute on 15.7.2014 with the 9.45 PM, Dr. Shukla was asked to permission of the Director. immediately return, but Dr. Shukla responded by saying that he is sick and 20. The first counter affidavit filed having heart trouble, and therefore, he is on behalf of the institute states that the being hospitalized and it is not possible to complaints were filed before the Principal immediately return. The report further Secretary, Department of Medical states that at about 12.00 night Dr. Shukla Education, as well as the Chief Minister informed that he is hospitalized in ICU of the State, on the basis of which a and he will take 4-5 days to return. The direction was issued to conduct an Officiating Director in his report has enquiry on 15.7.2014. The report of the stated that no permission was obtained by Officiating Director dated 18.7.2014 has Dr. Shukla before proceeding from the 3 All]. Ankit Tiwari & Ors. Vs. State of U.P. & Ors. 1371 institute and generally OMR sheets are officials of the institute to contact opened before a committee, whereafter it respondent no.4 repeatedly failed, and should get assessed by computer, but Dr. therefore, the responsible officials Shukla has not got any committee become suspicious about the process constituted from the Director nor any adopted by the respondent no.4, and officer has gone with him, and therefore, therefore, the decision to cancel the the results of the entrance examination are examination was taken and that the Court entirely dependent upon Dr. Shukla and should not interfere in such the agency. The Director, therefore, states circumstances. that the results of the examination have no longer remained reliable and it is only on 22. It is not in dispute that sanctity 17.7.2014 that Dr. Shukla has informed of the examination process must be the Officiating Director that he is actually maintained and the decision of the admitted in the Military Hospital, Cantt., institute for the purposes is entitled to Lucknow, in ICU and prior to it, he has great weight. It is also not disputed that a never disclosed his location. The report bona fide exercise of power by the also stated that Dr. Shukla has not institute for the purposes, if is based upon disclosed the name of the agency with some material, is not liable to be whom, the OMR sheets were kept at interfered with. However, the facts, which Lucknow, and therefore, the sanctity of emerges on record, are rather disturbing the examination process itself is in doubt. and the Court is not satisfied that a bona Therefore, the decision has been taken to fide decision was taken to cancel the cancel the examination and to hold fresh examination. examination. 23. The order of the Director dated 21. Learned Advocate General has 18.6.2014 clearly authorized respondent also referred to another report dated no.4 to be responsible for the custody, 17.7.2014, which is Annexure-2 to the safety and holding of fair entrance counter affidavit of the Registrar of the examination. It is also not disputed that institute, which is signed by five persons, the custody of OMR sheets was with wherein also the contents of the report of respondent no.4. It is also not disputed Officiating Director have been reiterated. that respondent no.4 did proceed from the It has been stated that after the institute with a specific permission examination process was complete, it was obtained from the Director on 15.7.2014. found that OMR sheets have been taken The Director or for that matter any other by Dr. K.M. Shukla to unknown location, authority of the institute found no fault in which is indicated at some place at Delhi the conduct of examination or the and as neither security personnel nor any movement of respondent no.4 from the other officer was with Dr. Shukla, institute itself. therefore, the process itself, as held, lost its sanctity. Learned Advocate General, 24. The sudden anxiety on part of on the basis of these reports, has the institute to locate whereabouts of Dr. submitted that decision to cancel the Shukla or to doubt the examination examination was taken bonafidely, process itself was a direct consequence of inasmuch as the attempt on part of the the communication received from the 1372 INDIAN LAW REPORTS ALLAHABAD SERIES office of the Chief Minister and the other officer, therefore, this in itself is Principal Secretary, Department of sufficient to indicate that the conduct of Medical Education about complaints of respondent no.4 was strange in the matter widespread illegalities in holding of the and the decision to cancel the examination examination. This Court ever since cannot be said to be without any basis. entertaining of the writ petition and in almost all subsequent orders directed the 25. Learned counsel for the State to bring on record the alleged respondent no.4 submitted that respondent complaints, which are said to have been no.4 was being pressurized to ensure received by the office of the Chief induction of certain candidates in the Minister or the Principal Secretary, examination by any means. Department of Medical Education, but not a single complaint of any kind, has been 26. The respondent no.4 in his brought on record. The proceedings of the subsequent affidavit has brought on writ petition were deferred from time to record details of the telephone calls, time in order to enable the respondents to which he had received allegedly at the produce the alleged complaints which instance of somebody from Chief prompted the office of Chief Minister or Minister's residence at Saifai instructing the Principal Secretary of the Department him to ensure inclusion of certain to intervene and direct the institute to hold candidates in the entrance examination. an enquiry or monitor the whereabouts of The details of the telephone number and Dr. Shukla, but no such material has been the contents of the talks have been brought before the Court. The enclosed. This court is not going into the proceedings were specifically deferred on merits of such details offered by the request of learned Advocate General respondent no.4, as it can be a matter of assisted by Chief Standing Counsel to investigation by appropriate agency, but produce the material in this regard. the materials brought on record by However, learned Advocate General has respondent no.4, particularly in para 4 fairly stated that there exists no complaint therein does constitute sufficient material on record of the State, which led to for any prudent person to be apprehensive cancellation of the examination itself. He of extraneous interference being exercised also stated that no complaint of any kind in the matter of holding of examination, exits on record. The thrust of argument of and therefore, maintaining of complete learned Advocate General is that the secrecy by the officer concerned cannot institute is comparatively new and it is be said to be wholly unjustified. This only the second occasion when it has opinion of the Court gets support from the conducted such examination and as it fact that while the office of Chief Minister found that respondent no.4 was not had intervened in the matter, on the traceable, despite repeated attempts, pretext of receiving of complaints, therefore, suspicion got generated in the whereas it is admitted before this Court matter. He further contends that that no such complaint actually exists on respondent no.4 had no authority to take record. the OMR sheets without permission of the Director and since he went all alone, 27. It is not in dispute that OMR without any security guard, driver or any sheets were required to be in the safe 3 All]. Ankit Tiwari & Ors. Vs. State of U.P. & Ors. 1373 custody of the respondent no.4. It is also alleged interference at the instance of not in dispute that no order had been somebody claiming from the residence of passed by the Director which authorized Chief Minister itself. Even otherwise once other persons to have custody of the OMR the Director was granting permission to sheets and the record of the respondents respondent no.4 to proceed with itself proves that it was only on 7.8.2014 confidential work of examination, it can that a committee for the purpose was be safely assumed that the purposes of constituted. The records of the such movement was within the respondents also clearly shows that the knowledge of the Director and no OMR sheets of the examination exception can be taken to non mentioning conducted on 13.7.2014 had been of OMR sheets in the letter of respondent received by the institute from respondent no.4 seeking permission to leave from the no.4, pursuant to order of the Director on institute. This Court also finds that 19.7.2014. Learned Advocate General has Director at his level had no doubts about fairly stated that all such OMR sheets are the purpose of movement of respondent lying in the safe custody of the institute no.4 and the situation changed only on itself. account of the intervention by the office of Chief Minister. 28. The Director of the institute had already granted permission to respondent 29. The Director had authorized the no.4 to proceed from the institute on examination controller and holding of the 15.7.2014 in connection with the examination was specifically as per his confidential examination work. The instructions. The movement of the permission, however, does not examination controller on 15.7.2014 was specifically refer to taking of OMR sheets with his permission for the confidential by respondent no.4 along with him and examination purpose. If the Director this issue has been highlighted by learned sensed any irregularity, he could have Advocate General. In the opinion of the verified the matter or taken any action in Court, once the permission had been the matter. The Director, however, found granted to respondent no.4 to proceed no infirmity in the conduct of entrance from the institute in connection with the examination or movement of controller confidential examination work, it was not with the OMR sheets and even otherwise essential for him to have mentioned the no tempering or manipulation of any kind taking of OMR sheets with him. The in the OMR sheets has been reported even Court finds substance in the submission of after the records containing OMR sheets Sri R.K. Ojha, Senior Advocate that the were received by the institute. It is only applications seeking permission to leave the alleged complaint received in the for examination work are typed by the office of the Chief Minister regarding subordinate staff and considering the fact widespread illegality in the examination that holding of examination was a that the entire process was initiated to confidential matter, requiring utmost locate the whereabouts of respondent secrecy, it was a bonafide exercise of no.4. No such complaint or material restraint on his part in not mentioning the suggesting any irregularity in the taking of OMR sheets, particularly in examination till date has been brought on light of the bona fide apprehension of record despite repeated opportunity 1374 INDIAN LAW REPORTS ALLAHABAD SERIES granted to the State, in such "that there is a condition implied in this circumstances the alleged suspicion which as well as in other instruments which is cause of cancellation of examination is create powers, namely, that the powers without any material or basis. If the very shall be used bona fide for the purpose for initiation of the action is not in good faith which they are conferred". It was said by and is based on no material the exercise of Warrington, C.J. in Short v. Poole Corpn. power itself is vitiated. The observations that: made by the Apex Court in its judgment "No public body can be regarded as in 1986 (1) SCC 133: Express having statutory authority to act in bad Newspapers Pvt. Ltd. & others vs. Unino faith or from corrupt motives, and any of India & others as contained in para 119 action purporting to be of that body, but to 121, are clearly relevant for the present proved to be committed in bad faith or purposes and are therefore reproduced:- from corrupt motives, would certainly be held to be inoperative." "119. Fraud on power voids the In Lazarus Estates Ltd. v. Beasley order if it is not exercised bona fide for Lord Denning, L.J. said: the end design. There is a distinction "No judgment of a court, no order of between exercise of power in good faith a Minister, can be allowed to stand if it and misuse in bad faith. The former arises has been obtained by fraud. Fraud when an authority misuses its power in unravels everything." breach of law, say, by taking into account See also, in Lazarus case at p. 722 bona fide, and with best of intentions, per Lord Parker, C.J.: some extraneous matters or by ignoring "Fraud' vitiates all transactions relevant matters. That would render the known to the law of however high a impugned act or order ultra vires. It degree of solemnity." would be a case of fraud on powers. The All these three English decisions misuse in bad faith arises when the power have been cited with approval by this is exercised for an improper motive, say, Court in Pratap Singh case. to satisfy a private or personal grudge or 120. In Ram Manohar Lohia v. State for wreaking vengeance of a Minister as of Bihar it was laid down that the courts in S. Pratap Singh v. State of Punjab. A had always acted to restrain a misuse of power is exercised maliciously if its statutory power and more readily when repository is motivated by personal improper motives underlie it. Exercise of animosity towards those who are directly power for collateral purpose has similarly affected by its exercise. Use of a power been held to be a sufficient reason to for an "alien" purpose other than the one strike down the action. In State of Punjab for which the power is conferred is mala v. Ramjilal it was held that it was not fide use of that power. Same is the necessary that any named officer was position when an order is made for a responsible for the act where the validity purpose other than that which finds place of action taken by a Government was in the order. The ulterior or alien purpose challenged as mala fide as it may not be clearly speaks of the misuse of the power known to a private person as to what and it was observed as early as in 1904 matters were considered and placed by Lord Lindley in General Assembly of before the final authority and who had Free Church of Scotland v. Overtown acted on behalf of the Government in 3 All]. Ankit Tiwari & Ors. Vs. State of U.P. & Ors. 1375 passing the order. This does not mean specific allegations made by the that vague allegations of mala fide are petitioners, avers that they were "wholly enough to dislodge the burden resting on irrelevant" and that the Union of India the person who makes the same though adopts the counter-affidavit filed by what is required in this connection is not Respondent 2. The submissions advanced a proof to the hilt, as held in Barium at the Bar by learned counsel appearing Chemicals Ltd. v. Company Law Board for the Union of India were wholly the abuse of authority must appear to be inconsistent with the stand taken by the reasonably probable. respondents in their counter-affidavits. 121. In the present case, the The learned counsel made no attempt to petitioners have alleged several facts refute the charge that the impugned imputing improper motives which have notices were wholly mala fide and not been specifically denied and there is politically motivated." only a bare denial with the assertion that the facts are not relevant. Mere denial of 30. The aforesaid observation has allegations does not debar the courts from been reiterated in 2004 (4) SCC 666: inquiring into the allegations. In answer Vijay Shekhar & another vs. Union of to the rule nisi, the respondents here and India & others. in particular Respondent 1, the Union of India, Ministry of Works & Housing 31. In the absence of any complaint disdained from filing a counter-affidavit or material to suggest irregularity in and left it to Respondent 2, Lt. Governor holding of the examination or violation of of Delhi to controvert as best as he could any instructions issued in connection with the specific allegations made by the holding of the examination no fault can be petitioners that the impugned action was found with the process of examination wholly mala fide and politically motivated itself. Serious doubts arise upon the bona i.e. that there was malice in fact as well fide of the decision itself, when no as malice in law which actuated the material or complaint is actually available authorities in issuing the impugned on record of the State indicating even notices. Respondent 2 did not controvert allegation of alleged widespread these allegations but asserted that the illegality. In the backdrop of the stand allegations were "wholly irrelevant" to taken by the respondent no.4 that he had the matter in issue. He disclaimed all received direction allegedly by someone responsibility for the issue of the from the residence of the Chief Minister impugned notices and instead tried to to ensure induction of certain candidates, justify all his actions throughout the affair the holding of enquiry on account of as the Lt. Governor. As the hearing receiving of such non existed complaint progressed, on being put wise on the legal raises serious doubts on the entire action issues, Respondent 2 filed an additional of the respondent itself. affidavit trying to refute the allegations of personal bias and animosity on his part. 32. Learned Advocate General has As already stated, Respondent 1 put in a also relied upon the judgment of the Apex supplementary affidavit of M.K. Court in Shankarasan Dash v. Union of Mukherjee, Secretary, Ministry of Works India: 1991 (3) SCC 47, which has been & Housing which instead of meeting the followed in Union Territory of 1376 INDIAN LAW REPORTS ALLAHABAD SERIES

Chandigarh vs. Dilbagh Singh and others: them taken together could not be the basis 1993 (1) SCC 154 and in the judgment in of the decision to cancel the entire B. Ramanjini and others vs. State of A.P. election. There are no allegations on and others: 2002 (5) SCC 533 to contend record that the selections for backlog that mere selection in examination does vacancies were not widely advertised or not constitute any indefeasible right to that the selected persons did not belong to claim appointment and the scope of the categories for which the vacancies judicial review in cancellation of were existing. Further, there is no examination by government is extremely complaint that merit list in the descending limited. The proposition laid down by the order of the 1600 candidates was not aforesaid judgments are the law of the prepared strictly in accordance with the land but have no application to the facts marks awarded to them in their of the present case, inasmuch as the educational qualifications. The members judgment in Shankarasan Dash (supra) of the selection committee observed that also holds the action of the State to be wherever the marks were found to be valid when taken for bona fide and valid erroneously entered in the list the reasons and is not taken arbitrarily. In the mistakes were immediately corrected. present case, since the entire action is They did not report, that they did not have wholly without any material, and has been opportunity or did not award marks for taken on the basis of non existence interviews or that the marks awarded by material, such exercise of power them were not properly shown in the list. apparently lacks bona fide and even the The Government order dated 20.7.2002 limited extent of judicial review does for award of marks for achievements on permit the Court to interfere with the sports was superseded by the U.P. action, as it is based on no material and Procedure for Director Recruitment for lacks bona fide. Group-C posts (Outside the Purview of the U.P. Public Service Commission) 33. Sri Ashok Khare, learned Senior Rules, 2002, which clearly provided in Advocate, appearing for the petitioner has Rule 5 (3)(c) the number of marks to be referred to a division bench judgment of awarded for achievement in sports. The this Court in Ram Babu Sahu vs. State of members of the Committee did not agree U.P. & others: 2012 (2) ADJ 561 which in on any common method of awarding turn relied upon a decision rendered in marks in the interviews. They did not Writ Petition No.11394 of 2008 dated 2nd decide to award any minimum or March, 2009, Ram Prakash Singh vs. maximum marks to the candidates and State of U.P. reported in 2009 (9) ADJ thus it was open to each of the members 316 wherein the judgment in Shankarasan to award marks on their own assessments. Dash (supra) has also been considered. The enquiry committee has found the Para 15, 16, 17, 22 & 23 of the judgment variance of marks only in case of two in Ram Prakash Singh (supra) are candidates namely Kamal Pati and Sweta reproduced:- Kumari. In fact there are no allegations of mala fides or any undue favours raised "15. Having heard learned Counsel against the District Panchayat Raj for the parties and perusing the records, I Officer, except in stating that he had find that any of the seven reasons or all of awarded lesser marks to two candidates 3 All]. Ankit Tiwari & Ors. Vs. State of U.P. & Ors. 1377 in interviews and had not corrected the and the Enquiry Committee have not marks for achievements in sports. found any such illegality, which vitiates Further, it is stated that he had the selection or the selection of any maintained undue secrecy in preparing candidate. They have failed to point out the final results by typing out the any violation of the Rules of 2002, which appointment letters and their dispatch. may have affected the final result. It is 16. No exception could be taken nor thus apparent that the District Magistrate there were any directions given to the was acting either at the behest of the District Panchayat Raj Officer for Minister of the Direct Panchayati Raj, keeping the records of selection only in who did not succeed in getting their his office. His concern in keeping the candidates appointed. records of selections at safer place, could 22. In Inder Preet Singh Kahloon v. not be a ground to cancel the selection. State of Punjab, 2006 2 SCC 356, the Further, there is no allegation that the Supreme Court held that sufficient appointment letters were typed out at a materials should be collected to be private place. The District Panchayat Raj gathered through investigation in fair and Adhikari used the computer of Deputy transparent manner, and that the Director of his department for typing the illegalities must go to the root of the appointment letters and thereafter matter vitiating the entire selection deleting the entires on the computer to process, and the appointees in majority maintain secrecy. Thereafter he ensured must be found to be part of the fraudulent that the establishment clerk of his office purpose or may themselves must be found was engaged in dispatching the to be corrupt, to cancel the selections. appointment letters. Purchase of stamps The Supreme Court observed that High and the posting of the appointment letters Court should also consider the by Railway Mail Service cannot be said to consequence of en masse cancellation of be an illegality. If the appointment letters selection. It carries a big stigma were posted by a clerk other than the particularly, when the cancellation of clerk, who was routinely doing selection is directed on the serious dispatches, on the dates, when she did not charges of corruption. For the misdeeds affect the validity of the selections. of some candidates, honest and good 17. The Court finds that the District candidates should not suffer in en masse Panchayat Raj Officer took all reasonable cancellation. In the interest of all care to avoid unfairness in selections. He concerned and particularly in the interest was unnecessarily victimized by of honest candidates the State should have suspending him and thereafter in lodging undertaken the taks of finding out the an F.I.R. against him and clerks of his illegalities in respect of each selections. office. The Court prima facie finds that The unscrupulous candidates should not the entire action taken against the District be allowed to damage the entire system in Panchayat Raj officer and the clerks in such a manner, where innocent people his office, at the instance of some persons also suffer great ignominy and stigma. in the State Government, who have not The State also must not leave any stone been named, appear to be taken on their unturned to bring the guilty to book. If frustration in failing to break the secrecy. there is any stigma, no officer howsoever The members of the Selection Committee high should be spared. 1378 INDIAN LAW REPORTS ALLAHABAD SERIES

23.In the same report the Supreme "18. We have considered the Court observed in paras 71 to 73 that a submissions, and perused the documents decision to cancel the selection en masse annexed to the writ petition. We find should not be taken in undue haste. It was considerable substance in the argument found that a note containing 90 pages was advanced by Shri Ashok Khare, that the sent to the Chief Secretary of Punjab on findings of misconduct in the 22.5.2002 and that service of all the irregularities in selection process were officers were terminated on the next day. subject matter of adjudication by the High The undue haste was beyond anticipated Court. This Court had recorded specific apprehension. It was necessary for the findings that the irregularities alleged in State to show as to how records moved so the selection could not be a ground to as to satisfy the conscience of the Court cancel the entire selection. There were no that there had been proper and due allegation that the selections of backlog application of mind on the part of vacancies were not advertised or that the authorities concerned. An action taken in selected persons did not belong to the undue haste may be held to be mala fide categories in which the vacancies were vide Bahadur Singh Lakhubhai Gohil v. existing. Further, there was no complaint, Jagdish Bhai M. Kamalia 2004 2 SCC 65. that the merit list in the descending order The basic principle underlying the rule is of the 1600 candidates was not prepared that justice not only be done but must also strictly in accordance with the marks appear to be done. This rule is not awarded to them in their educational confined to the cases, where judicial power qualifications, which was the only criteria is exercised. It is appropriately extended to to award marks and in which there was all the cases, where an independent mind no discretion given to the Selection has to be applied to arrive at a just and Committee. Their discretion was only fair decision between rival claims of the available in the marks awarded for parties vide Ashok Kmar Yadav v. State of interviews. The members of the Selection Haryana 1985 4 SCC 417. It was held in Committee had observed that wherever this case, that justice i3 not function of the the marks were found to be erroneously Courts alone; it is also the duty of all entered in the list, the marks were those; who are expected to decide fairly immediately corrected. None of the between contending party. The strict members of the Selection Committee had standards applied to authorities exercising complained that they did not have judicial powers are being increasingly opportunity to interview the candidates or applied to administrative bodies, and it is that the marks awarded by them were not vital to maintain rule of law in welfare of properly shown in the list. The the State, where the jurisdiction of Government Order dated 20.7.2002 for administrative bodies is increasing at a award of marks for achievements on rapid pace that the instrumentality of the sports was superseded by the UP State should discharge their functions in a Procedure for Direct Recruitment for fair and just manner." Group 'C' Posts (Outside the Purview of UP Public Service Commission) Rules, 34. The division bench also observed 2002, which clearly provided in Rule 5 (3) as under in para 18, 19 & 20 in Ram Babu (c) the number of marks to be awarded in Sahu (supra):- achievement in sports. The members of 3 All]. Ankit Tiwari & Ors. Vs. State of U.P. & Ors. 1379 the Committee did not agree on any which vitiated the selections. If the common method of awarding marks for appointment letters were typed and posted the interview. They did not decide to by a clerk other than the clerk, who was award any minimum or maximum marks routinely doing such despatches, the to the candidates in interviews and thus it selection cannot be held to be bad in law. was open to each of the members to The Court also recorded specific findings award marks on their own assessment. that the District Magistrate, either at the The enquiry committee found variation of behest of the Minister, or Director, marks only in case of two candidates Panchayati Raj was making an attempt to namely Kamlapati and Swata Tiwari. break the secrecy, and since he did not There were no allegations of malafides succeed in getting their candidates and any undue favours against District appointed, he prepared a report, which in Panchayat Raj Officer except in stating any case could not dispute the validity of that he had awarded lesser marks to the the selection. There was no complaint by two candidates in the interviews, and had any person or any candidate that the not corrected the marks for achievements select list was not drawn in accordance and sports. with the categories, or that any person 19. The Court had also found that could not secure appointment or suffered the anxiety to maintain secrecy in on account of failure to prepare the list preparing the final result and by typing category-wise. " them out with the help of two clerks in the department, and its despatches by a 35. Reliance placed on the judgment person other than the despatch clerks of the Supreme Court in 1970 (1) SCC could not by itself be treated to be an 648 : The Bihar School Examination irregularity, which vitiated the selections. Board vs. Subhas Chandra Sinha and 20. The Court had also recorded others, dealt with a different factual findings that no exception could be taken scenario where mass copying has been nor there were any directions given to the resorted to, and therefore, it was held that District Panchayat Raj Officer, to keep principles of natural justice would not the records of the selection only in his apply. No such allegation with regard to office. His concern for safety of the conduct of examination has been pointed records could not be a ground to cancel out nor does it exit on record, and the selections. There was no allegation, therefore, the principle laid down in the that the appointment letters were typed said decision does not help the cause of out at a private place. The District respondents. Panchayat Raj Officer used the computer of the Deputy Director in his office for 36. It is also submitted that in the typing out the appointment letters and subsequent examination one of the thereafter deleted the entries to maintain petitioners has participated, and therefore, the secrecy. The deployment of the on this ground also the petition is not establishment clerk in preparing the liable to be entertained. It is not in dispute select list and in despatching the that the writ petition had been entertained appointment letters after purchasing the by this Court and the examination process stamps and posting by Railway Mail itself was undertaken during the pendency Service cannot be said to be an illegality, of the writ petition and 2 out of 3 1380 INDIAN LAW REPORTS ALLAHABAD SERIES petitioners have not taken part in it. In respondents to forthwith process the counter affidavit filed by the respondent OMR sheets of the examination held on State, it has been stated that fresh 13.7.2014, which are lying in the safe examination was to be held on 14.9.2014 custody of the institute itself, and based but during the course of submissions it upon the results thereof, the counselling has been pointed out that the examination and admission to Para Medical and was actually not conducted on that day Nursing course be offered, in accordance but was conducted on 18th September or with law. some date thereafter. The respondents have not brought on record any material 38. Accordingly, the writ petition is to show exact date of holding of second allowed. No order is passed as to costs. examination and whether the date was ------intimated to all. The advertisement for ORIGINAL JURISDICTION holding of fresh examination mentions the CIVIL SIDE date as 14.9.2014 but the holding of DATED: ALLAHABAD 12.09.2014 examination on some subsequent date BEFORE after 14.9.2014 has been claimed, which THE HON'BLE DR. DHANANJAYA YESHWANT also creates doubt as to whether the CHANDRACHUD, C.J. subsequent date was intimated to all the THE HON'BLE DILIP GUPTA, J. candidates. Nevertheless once this Court finds that the cancellation of first Civil Misc. Writ Petition [PIL] No. 42084 of examination conducted on 13.7.2014 2014 itself was without any basis and arbitrary, the holding of any subsequent Dr. Ravindra Shukla & Ors. ...Petitioners Versus examination will not be material. Even State of U.P. & Ors. ...Respondents otherwise all the students in both the examinations are same and once they Counsel for the Petitioners: have appeared in the examination on Sri Sushil Jaiswal, Sri Rakesh Chandra 13.7.2014 and the examination process Tiwari was fair and transparent, no prejudice would be caused if their OMR sheets are Counsel for the Respondents: assessed. C.S.C.

37. In view of the discussions and Wild Life Protection Act-Section 34(3)- consideration made above, this Court Grant of fire arm license without approval of Chief Wild Life Warden-applicants finds the impugned action of the residing withing 10 km area of sanctuary- respondent institute, in cancelling the such practice highly deappriciated-state examination dated 13.7.2014 to be government to issue necessary direction to without any basis, lacking bona fide, and all the District Magistrate for strict based upon non existed material, and as compliance of direction of NOC from CWLW such, it cannot be sustained. The before grant of fire arm license. impugned order dated 17.7.2014, Held: Para-8 cancelling the examination held on We also issue a general direction to the 13.7.2014 is, therefore, quashed. A effect that hereafter, no licence under direction is further issued to the the Arms Act, 1959 shall be granted in 3 All]. Dr. Ravindra Shukla & Ors. Vs. State of U.P. & Ors. 1381 the State of U.P. without the NOC of the months from the declaration of any area Chief Wild Life Warden in those areas as a sanctuary, every person residing in or which fall within the purview of Section within ten kilometers of any such 34 of the Act of 1972. The State Government shall take necessary steps sanctuary and holding a licence granted to issue directions to all the District under the Arms Act, 1959 (54 of 1959), Magistrates concerned to take steps with for the possession of arms or exempted reference to those arms licences which from the provisions of that Act and have been granted without complying possessing arms, shall apply in such form, with the provisions of Section 34 (3) in on payment of such fee and within such respect of those areas which fall within a radius of ten kilometers of a sanctuary. time as may be prescribed, to the Chief Wild Life Warden or the authorised (Delivered by Hon'ble Dr. Dhananjaya officer, for the registration of his name. Yeshwant Chandrachud, C.J.) (2) On receipt of an application 1. In a petition which has been filed under sub-section (1), the Chief Wild Life in the public interest, the petitioners have Warden or the authorised officer shall highlighted a serious issue relating to the register the name of the applicant in such issuance of arms licences without the manner as may be prescribed. prior concurrence of the Chief Wild Life (3) No new licences under the Arms Warden, in violation of the provisions of Act, 1959 (54 of 1959) shall be granted Section 34 (3) of the Wild Life within a radius of ten kilometers of a (Protection) Act, 19721. sanctuary without the prior concurrence of the Chief Wild Life Warden." 2. A wild life sanctuary by the name of Hastinapur sanctuary, spread over an 5. Under sub-section (1) of Section area of 2073 sq km, is situated in the 34, on the declaration of an area as a districts of Meerut, Ghaziabad, Bijnore sanctuary, every person residing within a and Jyotiba Phule Nagar. The population radius of ten kilometers and holding a of the sanctuary includes various species licnece under the Arms Act, 1959, and of antelope, sambhar, cheetal, blue bull, even a person exempted from the leopard, hyena, wild cat and different provisions of the that Act and possessing types of birds. It also has alligators. arms, has to apply to the Chief Wild Life Warden for the registration of his name. 3. The grievance of the petitioners is Under sub-section (3), no new licences that the District Magistrate, Jyotiba Phule can be granted within a radius of ten Nagar () has issued arms licences kilometers of a sanctuary without the without observing the requirement of the prior concurrence of the Chief Wild Life prior concurrence of the Chief Wild Life Warden. Warden. 6. The counter affidavit which has 4. Section 34 of the Act of 1972 been filed by the present District provides as follows: Magistrate, who has taken charge on 8 June 2014, states that as many as 166 arms "34. Registration of certain persons licences were granted in 2005-06, 2006-07 in possession of arms.- (1) Within three and 2007-08 without a No Objection 1382 INDIAN LAW REPORTS ALLAHABAD SERIES

Certificate2 from the Chief Wild Life position of the arms licences which were Warden. Notices have been issued on 31 granted between 2005 to 2008, in the May 2014 to all such arms licence holders, event that arms licences were granted numbering 166. In the case of 33 arms thereafter without complying with the lience holders, the Chief Wild Life Warden provisions of Section 34 (3) of the Act of found that NOC had been issued. In respect 1972, necessary action shall be taken in of the balance 133 arms licence holders, accordance with law. neither has any reply to the show cause notices been received nor have any NOCs 10. The learned Standing Counsel granted by the Chief Wild Life Warden shall take steps to transmit a copy of this been submitted. Consequently, fresh notices order to the Principal Secretary (Home) have been issued by the Chief Wild Life who shall take necessary steps for Warden on 29 August 2014 to 133 arms compliance of this order by issuing licence holders for cancellation of licences instructions to all the concerned District as they do not have the NOC of the Chief Magistrates. Wild Life Warden, and hearing is to take place on 20 September 2014. 11. The writ petition is, accordingly, disposed of. There shall be no order as to 7. We, accordingly, direct that the costs. competent authority shall take necessary ------steps in accordance with law in pursuance ORIGINAL JURISDICTION of notices to show cause which have been CIVIL SIDE issued on 29 August 2014 and even DATED: ALLAHABAD 11.09.2014 earlier, in respect of those arms licence BEFORE holders who do not have the NOC of the THE HON'BLE DR. DHANANJAYA YESHWANT Chief Wild Life Warden under Section 34 CHANDRACHUD, C.J. (3) of the Act of 1972. THE HON'BLE DILIP GUPTA, J.

8. We also issue a general direction to Civil Misc. Writ Petition No. 47953 of 2014 the effect that hereafter, no licence under the Arms Act, 1959 shall be granted in the State Swami Brhamanand Saraswati Charitable Trust & Anr. . .Petitioners of U.P. without the NOC of the Chief Wild Versus Life Warden in those areas which fall within State of U.P. ...Respondent the purview of Section 34 of the Act of 1972. The State Government shall take necessary Counsel for the Petitioners: steps to issue directions to all the District Sri Tarun Agarwal Magistrates concerned to take steps with reference to those arms licences which have Counsel for the Respondent: been granted without complying with the C.S.C. provisions of Section 34 (3) in respect of those areas which fall within a radius of ten U.P. Zamindari Abolution & Land kilometers of a sanctuary. Reforms Act, 1950-Section-154(2) and (3)-Petitioner a charitable society- sought permission from state 9. We also clarify that since the government to purchase more than State Government has referred to the 12.50 acre land-for residence of student 3 All]. Swami Brahamanand Saraswati Charitable Trust &Anr. Vs. State of U.P. 1383 and ancillary purposes-earlier while Deed of Trust contains an exhaustive quashing the impugned order- enumeration of the objects of the trust. considering willingness to pay the fines petition disposed again without considering the direction-without any 2. The first petitioner applied on 10 finding of charitable-general public June 2000 for the grant of permission for interest-rejection on ground more than the purchase of land in excess of 12.50 12.50 acre land purchased-held can not acres, in public interest for the be said-no specific purpose/project accomplishment of a proposed project behind acquisition-order quashed with which envisaged setting up educational direction to take fresh decision-if required take additional evidence-after institutions for the dissemination of Vedic affording full opportunity to petitioner. knowledge, construction of residences for students and for ancillary purposes. The Held: Para-11 permission was sought in order to enable In the present case, prima facie, it the trust to purchase land in excess of cannot be held that the petitioners have 12.50 acres, as mandated by Section 154 no specific project or purpose behind the acquisition of the land. The petitioners of the Uttar Pradesh Zamindari Abolition have submitted a detailed project report and Land Reforms Act, 19501. When no to the State Government. The proposal action was taken, the petitioners again was recommended both by the District applied to the Commissioner, Kanpur Magistrate as well as by the Division, Kanpur on 21 August 2000 for Commissioner to the State Government. the grant of permission under Section 154 Having regard to this factual background, it was necessary for the (2) for the purchase of 725.50 acres of State Government to take those land spread over 21 villages on the banks recommendations of responsible officers of river of Kanpur Nagar. On 21 of the State into consideration. In the October 2000, the Commissioner present case, having considered all recommended to the State Government materials on record, we have come to for the grant of permission as sought by the conclusion that the impugned order the first petitioner. Thereafter, there was does not take into account relevant and germane circumstances and has been an exchange of correspondence regarding passed without a due and proper certain queries being raised with the application of mind. petitioners.

(Delivered by Hon'ble Dr. Dhananjaya 3. On 14 December 2006, the State Yeshwant Chandrachud, C.J.) Government passed an order to the effect that since the petitioners had purchased 1. The first petitioner is a public land admeasuring 544 acres in excess of charitable trust and the second petitioner the prescribed limit under Section 154 (1) is its authorized representative. The trust without the permission of the State was set up with the object to revive and Government, the land stood vested in the resuscitate Vedic Science and promote its State under Section 167 of the Act. The study as a primary source of knowledge, order was challenged in Writ - C No. establish the correlation of Vedic Science 2982 of 2007 which was disposed of by a and other branches of knowledge and with Division Bench of this Court on 11 March the discipline of life and to disseminate 2010. The Division Bench recorded the the same amongst people. Clause 3 of the statement of the petitioners that an 1384 INDIAN LAW REPORTS ALLAHABAD SERIES application would be filed under Section infructuous with liberty to file a fresh writ 154 (3) before the State Government petition. Thereupon, the petitioners filed a which was directed to pass an appropriate fresh writ petition, being Civil Misc Writ order in accordance with law, after Petition No 67058 of 2013 for challenging furnishing to the petitioners an the order dated 31 May 2013. The opportunity of being heard. Division Bench allowed the petition on 9 December 2013 with the following 4. The petitioners, thereupon, made observations: a representation on 23 August 2010 to the Commissioner, which "Once land in question belonged to was forwarded to the State Government private land holders and petitioners have on 1 September 2010. The petitioners proceeded to purchase the same for have stated that the District Magistrate charitable purpose, and educational had also duly recommended to the State purpose and provision for post facto Government the grant of an exemption ratification of the said transaction, on under Section 154 (2), and that the fulfillment of terms and conditions as Tehsildar, in the course of an enquiry in contained in the first proviso to sub- April 2011, had opined that the activities section 3 of Section 154 of U.P. proposed by the first petitioner were in Zamindari Abolition and Land Reforms the interest of the general public. A Act, 1950, then request made by separate recommendation was made by petitioner ought to have been considered the District Magistrate on 2 September by reasoned order as to why petitioners' 2011. The State Government, however, request cannot be accepted. Merely rejected the application on 25 June 2012 because mutation has been made in favour on the ground that the purpose for which of the State Government, same cannot be the land was purchased, did not qualify as made foundation and basis for not a public purpose. considering the request of the petitioners. Mutations are made for a specific 5. The order of the State purpose, and are always subject to Government was challenged by the transactions and proceedings that take petitioners in Writ-C No. 45114 of 2012. place. Once there is a provision, then the During the pendency of the petition, the claim of petitioners should have been petitioners made an unconditional considered on merit, instead of statement of their readiness and proceeding to non suit the claim of willingness to deposit an amount of fine petitioners, merely on the premises that as required by the first proviso to Section mutation has taken place. 154 (3). On 17 April 2013, the Court was apprised on behalf of the State that in 6. Consequently, in view of the fact view of the readiness expressed by the stated above, order dated 31.5.2013 passed petitioners, a decision was expected by the State Government is hereby quashed shortly by the State Government under and set aside and the State Government is Section 154 (3). On 31 May 2013, the directed to take a fresh decision in the matter application submitted by the petitioners in accordance with law, preferably within was once again rejected, following which period of next four months from the date of the earlier writ petition was disposed of as production of certified copy of this order. 3 All]. Swami Brahamanand Saraswati Charitable Trust &Anr. Vs. State of U.P. 1385

With these observations, writ petition (2) Subject to the provisions of any is allowed." other law relating to the land tenures for the time being in force, the State Following the order of remand, a fresh Government may, by general or special order has been passed by the Principal order, authorise transfer in excess of the Secretary (Revenue) to the State limit prescribed in sub-section (1) if it is Government on 14 August 2014 rejecting of the opinion that such transfer is in the representation. The Principal Secretary favour of a registered co-operative society has held that the petitioners had acquired or an institution established for a land in excess of the prescribed limit under charitable purpose, which does not have Section 154 (1) without the approval of the land sufficient for its need or that the State Government and without any precise transfer is in the interest of general public. policy or project and, hence, it was not appropriate to grant permission. Explanation.- For the purposes of this section, the expression 'family' shall Section 154 of the Act provides as mean the transferee, his or her wife or follows: husband (as the case may be) and minor children and where the transferee is a "154. Restriction on transfer by a minor also his or her parents. bhumidhar.-(1) Save as provided in sub- section (2), no bhumidhar shall have the (3) For every transfer of land in right to transfer by sale or gift, any land excess of the limit prescribed under sub- other than tea garden to any person where section (1) prior approval of the State the transferee shall, as a result of such Government shall be necessary: sale or gift, become entitled to land which together with land, if any, held by his Provided that where the prior family will in the aggregate, exceed approval of the State Government is not 5.0586 hectares (12.50 acres) in Uttar obtained under this sub-section, the State Pradesh. Government may on an application give its approval afterward in such manner and Explanation.- For the removal of on payment in such manner of an amount, doubt it is hereby declared that in this as fine, equal to twenty five per cent of sub-section the expression "person" shall the cost of the land as may be prescribed. include and be deemed to have included The cost of the land shall be such as on June 15, 1976 a "Co-operative determined by the Collector for stamp Society": duty.

Provided that where the transferee is Provided further that where the State a Co-operative Society, the land held by it Government is satisfied that any transfer having been pooled by its members under has been made in public interest, it may Clause (a) of sub-section (1) of Section 77 exempt any such transferee from the of the Uttar Pradesh Co-operative payment of fine under this sub-section." Societies Act, 1965 shall not be taken into account in computing the 5.0586 hectares 7. Sub-section (1) of Section 154 (12.50 acres) land held by it. imposes a limit of 12.50 acres beyond 1386 INDIAN LAW REPORTS ALLAHABAD SERIES which, save as provided in sub-section before the Court would indicate, the (2), no bhumidhar shall have the right to orders passed by the State Government transfer, by way of sale or gift, any land have been interfered with in the exercise to any person where the transferee shall, of the writ jurisdiction under Article 226 by virtue of the sale or gift, be entitled to of the Constitution by directing the land which together with land, if any, held Government to apply its mind to the by his family, in the aggregate, exceeds requirements which are contained in sub- 12.50 acres. However, the limit under section (2) and the provisos to sub-section sub-section (1) of Section 154 is expressly (3) of Section 154 at various stages. The subject to sub-section (2), as the opening State Government, in the present case, has words of sub-section (1) would indicate. declined to exercise the discretion which Sub-section (2) empowers the State has been conferred upon it under sub- Government, either by a general or section (3) of Section 154 on the ground special order, to authorise a transfer in that the petitioners have acquired land in excess of the prescribed limit in sub- excess of the prescribed limit and, hence, section (1) if the State Government is of there was no reason or justification to the opinion that such a transfer is in grant approval. The second reason which favour of a registered co-operative society has weighed for the rejection is that the or an institution established for a petitioners have proceeded to purchase charitable purpose, which does not have the land without any specific purpose or land sufficient for its need or where the project in mind. transfer of the land is in the interest of the general public. Under sub-section (3), for 9. We find merit in the contention of every transfer in excess of the prescribed the learned counsel appearing on behalf of limit under sub-section (1), prior approval the petitioners, that the State Government of the State Government is necessary. has, once again, rejected the application However, under the first proviso to sub- without considering the circumstances section (3), the State Government is which are relevant and germane to the empowered to grant its approval post exercise of the power. The fact that the facto, subject to the payment of an holding of the petitioners would exceed amount equal to 25 percent of the cost of the limit prescribed under sub-section (1) the land as prescribed. The second cannot be a reason, in itself, to reject the proviso to sub-section (3) further application. As a matter of fact, sub- empowers the State Government to section (1) of Section 154 begins with an exempt from the payment of fine, where it expression that save as provided in sub- is satisfied that any transfer has been section (2), no bhumidhar shall have the made in public interest. right to transfer land in excess of the limit as prescribed, where the transferee shall, 8. In the present case, it is apparent as a result of the sale or gift, become that the State Government has repeatedly entitled to land which together with his disabled itself from applying its mind to existing holding exceeds 12.50 acres. The the considerations relevant to the exercise provisions of sub-section (2) indicate that of the power under sub-section (2) or, as the State Government is duly empowered, the case may be, sub-section (3) of by general or special order, to authorise a Section 154 of the Act. As the record transfer in excess of the limit prescribed, 3 All]. Swami Brahamanand Saraswati Charitable Trust &Anr. Vs. State of U.P. 1387 where it is satisfied that (i) the transfer is transfer in excess of the limit prescribed in favour of a registered cooperative under sub-section (1). There is absolutely society; or (ii) the transfer is in favour of no reference in the impugned order to an institution established for a charitable whether the petitioners satisfy any of the purpose which does not have land guiding factors which are stipulated in the sufficient for its need; or (iii) that the statutory provision. There has been no transfer is in the interest of the general application of mind to whether the public. Obviously, if the limit of 12.50 institution is established for a charitable acres is to be an inflexible norm which purpose; whether it does not have land does not admit of any exception, there sufficient for its need; or whether the was no occasion for the legislature to transfer is in the interest of the general make a provision under sub-section (2) public. Merely holding that the petitioners for transfer in excess of the limit had acquired land in excess of the prescribed under sub-section (1). Sub- prescribed limit under sub-section (1) section (3) of Section 154 mandates the does not, by itself, disable the State prior approval of the State Government. Government from exercising the powers The first proviso to sub-section (3) also vested in it by sub-section (2) and by the contemplates a situation in which a post first proviso to sub-section (3) of Section facto permission can be granted, the 154. The infirmity in the impugned order discretion being vested in the State lies in the fact that the State Government Government to do so, subject to the has abdicated its discretion and has payment of a fine. The second proviso to rejected the application without sub-section (3) further authorises the State considering circumstances relevant and Government to dispense with the payment germane to the exercise of discretion of fine, where it is satisfied that the under the statute. Where an application is transfer has been made in public interest. made to the State Government for the exercise of its discretion under sub- 10. In the present case, a statement section (2) or the first proviso to sub- was made on behalf of the petitioners in section (3) of Section 154, the burden lies earlier writ proceedings that they were on the institution to establish the element ready and willing to deposit the fine as of public interest or, as provided in sub- required by the first proviso to sub-section section (2), to demonstrate that the (3) of Section 154. Hence, there would be institution is established for a charitable no occasion to dispense with the condition purpose. Where an institution has of a fine, as is contemplated in the second purchased a tract of land in excess of the proviso, where the State Government is prescribed limit without the approval of satisfied that the transfer is in public the State Government, this judgment interest. But more importantly, the State should not be construed to mean that the Government has to exercise its discretion State Government is bound to grant its on objective considerations and the statute permission without application of mind to itself provides the guidelines and whether the institution has a concrete circumstances in which the discretion can proposal or project which would sub- be exercised. Sub-section (2) of Section serve its charitable purpose or which has 154 provides the circumstances in which an element of public interest. The the State Government may authorise a petitioners would have to duly establish 1388 INDIAN LAW REPORTS ALLAHABAD SERIES the purpose that is involved and the public Government for a decision afresh, which interest that would be subserved by the shall be made after furnishing to the project. The prescribed limit of 12.50 petitioners a reasonable opportunity of acres has been introduced as a part of the being heard. legislation which subserves the wider social policy of the State, made in 13. We grant liberty to the pursuance of the Directive Principles of petitioners to produce any additional State Policy in the Constitution. material upon which they seek to place Consequently, any dispensation from the reliance before the State Government. We prescribed limit of 12.50 acres will have also leave it open to the State Government to meet the conditions of exemption to direct the petitioners to produce further which have been stipulated in the statute information and material, as may be and it is only subject to compliance with required by the State Government to those conditions that a dispensation can arrive at a proper conclusion for the be granted in the exercise of discretion by exercise of its discretion, in accordance the State. with the provisions of Section 154 (3) of the Act. 11. In the present case, prima facie, it cannot be held that the petitioners have 14. The petition is accordingly no specific project or purpose behind the disposed of. In the circumstances of the acquisition of the land. The petitioners case, there shall be no order as to costs. have submitted a detailed project report to ------the State Government. The proposal was ORIGINAL JURISDICTION recommended both by the District CIVIL SIDE Magistrate as well as by the DATED: ALLAHABAD 15.09.2014 Commissioner to the State Government. BEFORE Having regard to this factual background, THE HON'BLE AMRESHWAR PRATAP SAHI, J. it was necessary for the State Government THE HON'BLE VIVEK KUMAR BIRLA, J. to take those recommendations of responsible officers of the State into Civil Misc. Writ Petition No. 49075 of 2014 consideration. In the present case, having considered all materials on record, we M/S Jupiter Information Tech. Pvt. Ltd., have come to the conclusion that the Delhi ...Petitioner Versus impugned order does not take into State of U.P. & Ors. ...Respondents account relevant and germane circumstances and has been passed Counsel for the Petitioner: without a due and proper application of Sri V.K. Jaiswal, Sri H.R. Mishra mind. Counsel for the Respondents: 12. In view of the above, the petition C.S.C., Sri Shivam Yadav deserves to be allowed and is, accordingly, allowed. The order dated 14 Constitution of India, Art.-226- August 2014 passed by the Principal Restoration of allotment of plot -on Secretary (Revenue) is set aside. The certain default-considering huge investment-as per clause 'L' of the matter is remanded to the State policies & Procedures for industrial 3 All]. M/S Jupiter Information Tech. Pvt. Ltd., Delhi Vs. State of U.P. & Ors. 1389 property management-subject to "The Policies and Procedures for fulfillment of the conditions-authority to Industrial Property Management" of consider and take appropriate decision- October, 2012. petition disposed of.

Held: Para-8 7. Sri Shivam Yadav has invited the Having considered the submissions attention of the Court to Clause L of the said raised, we dispose of the writ petition policy, which is extracted herein under: with a direction to the respondent no. 2, to consider the aforesaid claim of the Restoration of Industrial Plot/Shed petitioner and pass appropriate orders within two months from the date of production of a certified copy of this The Authority can exercise order provided there is no legal cancellation of industrial plot/shed for impediment or any other policy of breach of terms and conditions of Government Order contrary to the above. allotment/lease deed/Transfer deed. However, the Chief Executive Officer/or (Delivered by Hon'ble Amreshwar Pratap any other officer authorised by him can Sahi, J.) restore the plot. the restoration will be subject to the following conditions:- 1. Heard Sri H.R. Mishra, learned 1. The allottee would pay restoration senior counsel for the petitioner and Sri charges @ 10% of the prevailing Shivam Yadav, learned counsel for the rate/reserve price. . respondents no. 2, 3 and 4. 2. The allottee has to produce NOC 2. The petitioner had been allotted a of accounts department. commercial plot. 3. The allottee has to pay time 3. The contention of the respondents extension, charges as per terms of appears to be that the petitioner has allotment/lease. defaulted and, therefore, the plot has been cancelled as per the conditions applicable. 4. The allottee will submit project implementation schedule in the shape of 4. The petitioner contends that he affidavit. The maximum time allowed is has made huge deposits and, therefore, the one year for plot size upto 4000 sq. mtrs. prayer is that the plot may be allowed to And two years for plot size above 4000 sq. be retained by the petitioner on the terms mtrs. and conditions that may be applicable for the said purpose. 5. The allottee has to submit performance guarantee valid for more than 5. This matter had been adjourned to three months period of Pis given by him and enable the learned counsel for the value of performance guarantee will be 10% respondent authority to inform the Court of the prevailing price of the plot. whether such a course is permissible or not. 6. Transfer and/or Change In 6. Sri Shivam Yadav has presented Constitution of the unit would not be before the Court a document titled as allowed outside the blood relation, till the 1390 INDIAN LAW REPORTS ALLAHABAD SERIES unit is declared functional by the Nagar Palika Parishad, Mawana, Merrut through a written communication. ...Petitioner Versus State of U.P. & Ors. ...Respondents 7. If there is any court case pending before any court, it has to be withdrawn Counsel for the Petitioner: by the allottee. All legal expenses would Sri Nipun Singh be borne by the allottee. Counsel for the Respondents: 8. In case allotment has been C.S.C., Sri Anand Kumar cancelled due to commercial activities the restoration of the plot shall only be U.P. Palika (Centralized) Service Rules considered on submission of affidavit for 1966-Rule-31-Additional or temporary not carrying out the commercial activities charge of executive officer-by G.O. Dated 24.01.2014-proposal for appointment be in future and on inspection of the site send to state government-District about closing the commercial activities. Magistrate-no authority to give additional/temporary charge-quashed. 9. In case of restoration in prepossession cases, the allottee shall be Held: Para-7 required to get the unit functional as per A perusal thereof leaves no room for doubt that any ad hoc or temporary terms of the Lease Deed. In such cases officiating appointment is within the they will have to comply with the clauses jurisdiction of the State Government and 1,2,5,6 & 7, as stated above. which stands fortified by the judgment in paragraph 29 aforesaid. The Government 8. Having considered the submissions Order dated 24.1.2014 is also to the raised, we dispose of the writ petition with a same effect. direction to the respondent no. 2, to consider Case Law discussed: the aforesaid claim of the petitioner and pass 2014 (1) A.D.J. Page 368.paragraph 29. appropriate orders within two months from the date of production of a certified copy of (Delivered by Hon'ble Amreshwar Pratap this order provided there is no legal Sahi, J.) impediment or any other policy of Government Order contrary to the above. 1. Heard Sri Nipun Singh learned counsel for the petitioner, Sri Rajiv Singh 9. With the above directions, the learned Standing Counsel for the writ petition is disposed off. respondent nos. 1 to 3 and Sri Anand ------Kumar for the respondent no. 4. ORIGINAL JURISDICTION CIVIL SIDE 2. The Office of the Executive DATED: ALLAHABAD 16.09.2014 Officer of the Nagar Palika, Mawana, was

BEFORE lying vacant and one Mr. Manoj Kumar THE HON'BLE AMRESHWAR PRATAP SAHI, J. Rastogi was transferred for taking over THE HON'BLE VIVEK KUMAR BIRLA, J. charge as such by the State Government. However, Mr. Rastogi has not taken over Civil Misc. Writ Petition No. 49946 of 2014 charge as yet. 3 All]. Nagar Palika Parishad, Mawana, Merrut Vs. State of U.P. & Ors. 1391

3. The District Magistrate, Meerut as provided under Rule 31 of the U.P. Palika an interim measure, pending taking over (Centralized) Service Rules, 1966 has to charge by a regular appointee, has passed be sent to the State Government for the impugned order whereby he has orders. The said rule is extracted directed the respondent no. 4 Shailendra hereinunder:- Kumar Singh, who is the Executive Officer, Hastinapur to also additionally "31- Temporary Arrangments- Ad take charge of Nagar Palika Parishad, hoc and temporary officiating Mawana. appointments- Notwithstanding anything contained in Rule 21 the State 4. The petitioner is the Chairman of Government may also make ad hoc the Nagar Palika Parishad, Mawana and it appointments or temporary officiating is alleged that this order of the District arrangements for the posts falling vacant Magistrate is without jurisdiction keeping Substantively or temporarily." in view the ratio of the decision in the case of Girdhari Lal Swarnkar Vs. State 7. A perusal thereof leaves no room of U.P. and others reported in 2014 (1) for doubt that any ad hoc or temporary A.D.J. page 368. Paragraph 29 of the said officiating appointment is within the judgment is extracted hereinunder:- jurisdiction of the State Government and which stands fortified by the judgment in "29- The U.P. Palika (Centralized) paragraph 29 aforesaid. The Government Service Rules, 1966, do not contemplate Order dated 24.1.2014 is also to the same any delegation of powers by the State effect. Government in the matter of appointment upon the District Magistrate or any other 8. There is no ambiguity in the authority. Therefore, the Government source of the power available with the Order impugned also suffers from the vice State Government in this regard. The of excessive delegation." petitioner therefore is correct in her submission that the District Magistrate 5. This matter was taken up and we did not have any jurisdiction to pass any had called upon the learned Standing order with regard to such arrangment as Counsel to obtain instructions about the per Rule 31 aforesaid. exercise of powers by the District Magistrate in such a contingency keeping 9. The writ petition therefore in view the aforesaid decision of the deserves to be allowed. The impugned Court. order dated 12.8.2014 Annexure 1 to the writ petition is quashed leaving it open to 6. Learned Standing Counsel has the State Government-respondent no. 1 to invited the attention of the Court to the pass an appropriate order with regard to Government Order dated 24.1.2014 to proposal of appointment of the Executive urge that the State Government has Officer of the Nagar Palika Parishad already issued instructions as per the concerned in accordance with law. judgment in the case of Girdhari Lal ------Swarnkar (Supra) and any such proposal ORIGINAL JURISDICTION for additional or temporary charge as CIVIL SIDE 1392 INDIAN LAW REPORTS ALLAHABAD SERIES

DATED: ALLAHABAD 31.10.2014 reason as to why they should be treated differently, therefore, I am of the view BEFORE that the respondents may consider the THE HON'BLE RAJAN ROY, J. case of the petitioners for grant of such benefits as has been extended by the Civil Misc. Writ Petition No. 52637 of 2014 Supreme Court in Brij Mohan Lal's Case (supra) to the Fast Track Courts' Judges Sanjeev Kumar & Ors. ...Petitioners vide paragraph 207.9 thereof, subject to Versus such variations as may be necessary, State of U.P. & Ors. ...Respondents unless there are exceptional and compelling reasons for not extending such benefit to them. Counsel for the Petitioners: Sri Shashi Nandan, Sri Santosh Kumar Case Law discussed: Srivastava, Smt. Alka Srivastava 2006 (4) SCC 1; 2014 (7) SCC 233; 2010 (9) SCC 247; 2014 (7) SCC 2; 2012 (6) SCC 502; Counsel for the Respondents 2012 (11) SCC 656. C.S.C., Sri Manish Goyal, Sri G.K. Singh Sri Samir Sharma (Deliverd by Hon'ble Rajan Roy, J.)

Constitution of India, Art.-226- 1. Heard Sri Shashi Nandan, learned Regularization-employees working in Senior Counsel assisted by Sri Santosh fast tract Court-after regularization-the Kumar Srivastava for the petitioners, Sri reconsidered as per circular issued by High Court-following dictum of 'Uma G.K. Singh, learned Senior Counsel Devi' case-neither State Government nor assisted by Shri Samir Sharma for the High Court ever given direction for respondents No. 2, 3 and 4 and the regularization-revocation although not learned Standing Counsel for the faulty-but High Court not considered the respondent No. 1. case law of Apex Court of Brij Mohan Lal- where direct or Adhoc judges of Fast track Court were directed to regularized- 2. The issue involved herein is the both judges and employees of fast track entitlement of the petitioners to court-being part of same scheme-should regularization of their ad hoc services not be treated differently-direction for against sanctioned posts in the regular fresh consideration of their cadre of service in the District Courts and regularization given. the validity of the orders passed by the Held: Para-42 concerned District Judge and the High Having said so, I am also of the view that Court, on the Administrative Side, in this the High Court does not appear to have regard. considered the judgment of the Supreme Court in Brij Mohan Lal's Case (supra), 3. The scheme of Fast Track Courts specially Paragraph 207.9 thereof, was introduced by the Union of India and whereby direct recruit ad hoc judges of Fast Track Courts were ordered to be funds were allocated for the said purpose considered for regular by the 11th Finance Commission. The appointment/regularisation subject to said Courts were created for short the terms and conditions mentioned duration, which were extended from time therein. As both judges and employees to time. Ultimately, the aforesaid of Fast Track Courts were part of the arrangement came to an end on 31.3.2011 same Scheme, in my view, there is no when the Union of India refused to extend 3 All]. Sanjeev Kumar & Ors. Vs. State of U.P. & Ors. 1393 further financial assistance for the said absorption as per the Circular dated Courts. Thereafter, in some States, the 27.7.1994. Fast Track Courts have continued and the expenses have been borne by the 6. On 28.8.2010, a Government concerned State Government, whereas in Order was sent by the State Government other States, the employees engaged for to the Registrar General of the Allahabad running of the said Courts have been High Court communicating extension of absorbed in the regular Courts on such the Fast Track Courts w.e.f. 1.6.2010 to terms and conditions as has been deemed 28.2.2011 subject to the terms and fit. conditions mentioned therein. The said Government Order also mentioned that 4. An advertisement was issued by Union of India vide its letter dated the District Judge, Baghpat on 27.5.2003 9.8.2010 had informed that the financial inviting applications for selection and assistance provided by it for the Fast appointment of Track Courts for the period up to Stenographers/Clerks/Typists and Class- 31.3.2011, was limited to 480 lacs per IV employees for the Fast Track Courts year and any expenditure beyond it will referred above and in pursuance thereof a have to be borne by the State selection was held wherein the petitioners Government, therefore, the High Court participated and on being found fit for the should consider keeping the post of post in question, were selected and Presiding Officer vacant as and when the appointed on ad hoc basis with a clear incumbent relinquishes the post on stipulation that the post in question were account of promotion or other such reason purely temporary and likely to continue and not to fill up the same and also to for short duration unless abolished earlier absorb the supporting staff elsewhere. and that no lien etc. will be claimed for further appointment on these posts. 7. On 18.3.2011, a Circular was issued by the Registrar General, High 5. The Fast Track Courts Scheme Court, Allahabad to all the District Judges continued till 2005 when the same was in the State to the effect that if they withdrawn, however, on revival of the wanted to make appointments in the said scheme in the same year, the ex-ad regular establishment of Class III and IV hoc employees, such as the petitioners, of their judgeship, they will leave vacant who were earlier working, were allowed or keep reserved posts for the purpose of to continue on the same terms and adjustment of the employees of the Fast conditions but with the condition that the Track Courts working in their judgeship. salary shall be payable only from the date of fresh joining. The earlier period was to 8. On 31.3.2011, presumably, be counted for other purposes, except consequent to the refusal of the Union of salary. This was provided by the Circular India to extend further financial assistance of the High Court dated 24.5.2005. The for such Courts, a Government Order was employees of the Fast Track Courts who sent by the State Government to the were declared surplus on account of Registrar General, Allahabad High Court shifting of such Courts from one judiciary regarding creation of 780 ex-cadre posts to another, were to be considered for for speedy disposal of cases for the period 1394 INDIAN LAW REPORTS ALLAHABAD SERIES

1.4.2011 to 29.3.2012 unless abolished 12. Based on another report of the earlier. These posts were created subject Grievance Committee dated 2.2.2014, the to the condition that as and when the petitioners were granted the first financial regular posts in the regular cadre fall upgradation from respective dates on vacant, the aforesaid ex-cadre posts shall completion of 10 years satisfactory be adjusted/absorbed against said posts service, including the ad hoc services and thereafter, the vacancy shall be filled rendered by them and the same was up in accordance with the procedure approved by the District Judge on prescribed in the Rules. On 1.4.2011, the 2.7.2014. Registrar General communicated the Government Order dated 31.3.2011 to all 13. On 30.8.2014, the Joint Registrar the District and Sessions Judges in the (Judicial) (Inspection), Allahabad High State of U.P. For necessary action. The Court issued a letter to the District Judge, Adhoc employees of the Fast Track Baghpat communicating him the decision Courts were continued against these ex- of the High Court to the District Judges cadre post, albeit on Adhoc basis. asking them to re-visit the order of regularization/absorption and to bring the 9. The records reveal that in view of same in conformity with the law laid the letter of the Registrar General dated down by the Apex Court in the case of 1.4.2011 and the G.O. Dated 31.3.2011 Secretary, State of Karnatka Vs. Uma referred therein, a representation was Devi reported in 2006 (4) SCC 1 and to submitted by the petitioners and others for issue a show-cause-notice to the their absorption/regularization, employees concerned to explain as to why whereupon a Screening Committee was orders of regularization/absorption may constituted by District Judge vide order not be withdrawn and after considering dated 12.2.2013, which recommended their reply suitable orders may be passed. their absorption/regularization vide It was made clear that these employees of undated report, a copy of which is Fast Track Courts, shall not go out of annexed as Annexure 12 to the writ employment because of withdrawal of petition. order of regularization/absorption. They were to be continued till regular 10. Consequent to the report appointments are made against the posts, submitted by the Screening/Grievance on same terms and conditions as they Committee, the District Judge, Baghpat were working prior to the issuance of the issued an order dated 23.5.2013 orders of regularization/absorption. regularising the services of the petitioners herein allegedly against vacant posts in 14. In pursuance to the aforesaid, the the regular cadre of the judgeship. District Judge, Baghpat issued notices to the petitioners who submitted their 11. Thereafter, on 26.11.2013, the replies. It appears that a report was sought Grievance Committee submitted another from the Administrative Committee of the report recommending confirmation of the judgeship, which was submitted on petitioners on the respective posts in the 8.9.2014, based thereon, the impugned service, which was approved by the order dated 9.9.2014 was passed restoring District Judge on the same date. their status and service, as it was, prior to 3 All]. Sanjeev Kumar & Ors. Vs. State of U.P. & Ors. 1395 the passing of orders of absorption/regularization of such regularization/absorption on 23.5.2013 employees in the regular cadre of the and 30.8.2013 and continuing them as District Courts. Learned counsel also such on ad hoc basis. Thus, the order placed reliance upon Paragraph 53 of the regularising their services and those judgement in Uma Devi's Case as granting consequential benefits have been elucidated further in the case State of rendered inoperative. Jharkhand Vs. Mamal Prasad reported in 2014 (7) SCC 223, in support of his 15. Being aggrieved by this order contention that the petitioners having dated 9.9.2014, the petitioners have completed more than 10 years of service approached this Court. and their initial appointments neither being illegal nor through back door, their 16. The contention of Sri Shashi services were rightly regularized. Nandan, learned Senior Counsel is that the appointments of the petitioners was 17. Learned counsel contended that made after due advertisement and selection the direction of the High Court vide letter based on open competition, albeit, on ad dated 30.8.2014 to the District Judge to hoc basis, therefore, it can neither be termed re-visit the order of regularization and as illegal nor irregular appointment. It can issue show-cause-notice to the concerned also not be termed as back door entry. He employees etc. amounted to an further contended that the genesis of the encroachment upon the authority of the dictum of the Supreme Court in Uma Devi's District Judge to take an independent case was appointments made without any decision in the matter thereby reducing advertisement and selection i.e. through the entire exercise to a mechanical back door and the observations contained formality indicative of pre-determination, therein have to be understood in this on the part of the respondents, of the background. As, by no stretch of issue. The High Court did not give any imagination, the entry of the petitioners in reason as to how there was a violation of the service of the Fast Track Courts can be Uma Devi's case. The consequential order termed as back door entry, therefore, the of cancellation of regularization passed by observations contained in Uma Devi's the District Judge on 9.9.2014 is also not case regarding dis-entitlement of such sustainable as he has merely mechanically appointees to regularization are not followed the dictates of the High Court attracted to their case. The petitioners without considering the reply submitted possessed the requisite qualification for by the petitioners to show-cause-notice the respective posts and went through a and without considering and mentioning process of selection, which was in as to how the dictum in Uma Devi's case consonance with the requirements of has been violated in the matter of the Article 14 and 16 of the Constitution of petitioners. The learned counsel India, therefore, the District Judge, rightly contended that the petitioners have not regularized their services and absorbed only been regularized in service but also them in terms of the letter of the High confirmed and granted the first Court dated 1.4.2011 and the Government promotional pay scale, therefore, the Order dated 31.3.2011, which, according impugned action is unjustified, to him contained a decision for unreasonable and illegal. 1396 INDIAN LAW REPORTS ALLAHABAD SERIES

18. The learned Senior Counsel the petitioners, an error which has now invited the attention of the Court to the been rectified. There was no provision of Government Order dated 31.3.2011 and law under which the District Judge could the Circular of the High Court dated have passed the order of regularization of 1.4.2011 as also the letter of the High services of the petitioners. There was no Court dated 18.3.2011 by which the policy decision of the Competent District Judges were directed to keep the Authority for regularization of employees posts in the regular cadre reserved for such as the petitioners. The District Judge adjustment of the employees of the Fast clearly exceeded his power. Track Courts working in the judgeship, as well as various other documents which 20. He further contended that the have already been referred to reliance placed by the petitioners on hereinabove. Paragraph 53 of the judgement of the Supreme Court in Uma Devi's case is 19. Sri G.K. Singh, learned Senior misplaced as the said paragraph has been Counsel appearing for the Respondent considered and explained by it in a nos. 2 to 4 submitted that the petitioners subsequent judgement in M.L. Kesri's were never appointed substantively case reported in (2010) 9 SCC 247, against any sanctioned post in the regular wherein, it has been held that period of 10 cadre of the District Courts. He referred to years of service should have been the advertisement annexed with the writ completed, on the date of decision in the petition to show that the selection on the Uma Devi's case i.e. 10.4.2006. As the basis of which the petitioners were petitioners herein had not completed 10 appointed, was for Fast Track Courts, that years of service on the said date they were too, on ad hoc basis, wherein, even retired not entitled to be regularized even as per employees could participate. The Fast the exception carved out in Para 53 of the Track Courts were created for short dictum of the Supreme Court in Uma duration. He referred to the Government Devi's case. The reliance placed by the Order dated 31.3.2011, to show that the petitioners upon the judgement reported same only spoke of absorption of ex-cadre in 2014 (7) SCC 2 is also misplaced as it posts against the regular vacancies in the only follows M.L. Kesri's case and does regular cadre of the District Courts but it not overrule it. Both the judgements have does not speak of absorption of to be read and understood in harmony. incumbents thereof. The petitioners were The employees in the latter case had made to work against ex cadre posts only completed 10 years of service prior to the on ad hoc basis and not on regular basis. decision in Uma Devi's case. In nut shell, No such decision was taken by the State the submission was that the orders of Government or by the High Court to regularization were contrary to the dictum confer status of regular or permanent of the Supreme Court in Uma Devi's employee upon the petitioners. The Case, therefore, remedial measures have Circular dated 1.4.2011 of the High Court been taken which do not suffer from any and the G.O. dated 31.3.2011 were error. misconstrued and misread by the District Judge, Baghpat resulting in an illegal 21. No doubt the petitioners were exercise of regularization of services of appointed after Advertisement and after 3 All]. Sanjeev Kumar & Ors. Vs. State of U.P. & Ors. 1397 going through a process of selection but alone, it would not be appropriate to indisputably, the petitioners were not jettison the constitutional scheme of appointed against regular posts in the appointment and to take the view that a regular cadre of the Judgeship of District, person who has temporarily or casually Baghpat. A perusal of the advertisement got employed should be directed to be and other documents relating to their continued permanently. By doing so, it selection and appointment leaves no will be creating another mode of public doubt that their appointment was for appointment which is not permissible. If working in the Fast Track Courts, which the court were to void a contractual had been created for short duration, that employment of this nature on the ground too, purely on ad hoc basis without any that the parties were not having equal right to claim any further appointment on bargaining power, that too would not regular basis. The appointment was not a enable the court to grant any relief to that regular appointment nor against a regular employee. A total embargo on such casual sanctioned post in the regular Class III or temporary employment is not possible, and IV cadre in the judgeship of District given the exigencies of administration and Baghpat. The petitioners from the very if imposed, would only mean that some date of their entry in the service of the people who at least get employment when Fast Track Courts knew the nature of their securing of such employment brings at appointment, the duration of the Scheme least some succour to them. After all, of Fast Track Courts and also the innumerable citizens of our vast country limitations of the terms and conditions of are in search of employment and one is service of such appointments, yet they not compelled to accept a casual or chose to accept the same. temporary employment if one is not inclined to go in for such an employment. 22. In this context reference may be It is in that context that one has to made to Paragraph 45 of the judgement in proceed on the basis that the employment Uma Devi's Case, which reads as under: was accepted fully knowing the nature of it and the consequences flowing from it. "While directing that appointments, In other words, even while accepting the temporary or casual, be regularised or employment, the person concerned knows made permanent, the courts are swayed the nature of his employment. It is not an by the fact that the person concerned has appointment to a post in the real sense of worked for some time and in some cases the term. The claim acquired by him in for a considerable length of time. It is not the post in which he is temporarily as if the person who accepts an employed or the interest in that post engagement either temporary or casual in cannot be considered to be of such a nature, is not aware of the nature of his magnitude as to enable the giving up of employment. He accepts the employment the procedure established, for making with open eyes. It may be true that he is regular appointments to available posts in not in a position to bargain-- not at arm's the services of the State. The argument length--since he might have been that since one has been working for some searching for some employment so as to time in the post, it will not be just to eke out his livelihood and accepts discontinue him, even though he was whatever he gets. But on that ground aware of the nature of the employment 1398 INDIAN LAW REPORTS ALLAHABAD SERIES when he first took it up, is not (sic) one is a basic feature of our Constitution and that would enable the jettisoning of the since the rule of law is the core of our procedure established by law for public Constitution, a Court would certainly be employment and would have to fail when disabled from passing an order upholding tested on the touchstone of a violation of Article 14 or in ordering the constitutionality and equality of overlooking of the need to comply with opportunity enshrined in Article 14 of the the requirements of Article 14 read with Constitution." Article 16 of the Constitution. Therefore, consistent with the scheme for public 23. Paragraph 19 of the aforesaid employment, this Court while laying down judgement is also relevant, which reads as the law, has necessarily to hold that under: unless the appointment is in terms of the relevant rules and after a proper "One aspect arises. Obviously, the competition among qualified persons, the State is also controlled by economic same would not confer any right on the considerations and financial implications appointee. If it is a contractual of any public employment. The viability of appointment, the appointment comes to an the department or the instrumentality of end at the end of the contract, if it were the project is also of equal concern for the an engagement or appointment on daily State. The State works out the scheme wages or casual basis, the same would taking into consideration the financial come to an end when it is discontinued. implications and the economic aspects. Similarly, a temporary employee could Can the court impose on the State a not claim to be made permanent on the financial burden of this nature by expiry of his term of appointment. It has insisting on regularisation or permanence also to be clarified that merely because a in employment, when those employed temporary employee or a casual wage temporarily are not needed permanently worker is continued for a time beyond the or regularly? As an example, we can term of his appointment, he would not be envisage a direction to give permanent entitled to be absorbed in regular service employment to all those who are being or made permanent, merely on the temporarily or casually employed in a strength of such continuance, if the public sector undertaking. The burden original appointment was not made by may become so heavy by such a direction following a due process of selection as that the undertaking itself may collapse envisaged by the relevant rules. It is not under its own weight. It is not as if this open to the court to prevent regular had not happened. So, the court ought not recruitment at the instance of temporary to impose a financial burden on the State employees whose period of employment by such directions, as such directions may has come to an end or of ad hoc turn counterproductive." employees who by the very nature of their appointment, do not acquire any right. 24. In paragraph 43, the Constitution High Courts acting under Article 226 of Bench held as under: the Constitution of India, should not ordinarily issue directions for absorption, "Thus, it is clear that adherence to regularization, or permanent continuance the rule of equality in public employment unless the recruitment itself was made 3 All]. Sanjeev Kumar & Ors. Vs. State of U.P. & Ors. 1399 regularly and in terms of the consultation with the Public Service constitutional scheme. Merely because, an Commission. Therefore, the theory of employee had continued under cover of legitimate expectation cannot be an order of Court, which we have successfully advanced by temporary, described as 'litigious employment' in the contractual or casual employees. It earlier part of the judgement, he would cannot also be held that the State has held not be entitled to any right to be absorbed out any promise while engaging these or made permanent in the service. In fact, persons either to continue them where in such cases, the High Court may not be they are or to make them permanent. The justified in issuing interim directions, State cannot constitutionally make such a since, after all, if ultimately the employee promise. It is also obvious that the theory approaching it is found entitled to relief, cannot be invoked to seek a positive relief it may be possible for it to mould the of being made permanent in the post." relief in such a manner that ultimately no prejudice will be caused to him, whereas 26. The Constitution Bench held that an interim direction to continue his such employees do not have any employment would hold up the regular enforceable right of regularization of their procedure for selection or impose on the services nor of being declared permanent. State the burden of paying an employee who is really not required. The courts 27. Having said so, the Supreme must be careful in ensuring that they do Court carved out an exception in Para 53 not interfere unduly with the economic thereby permitting, as a one time measure, arrangement of its affairs by the State or the regularization of such employees its instrumentalities or lend themselves irregularly appointed (not illegally the instruments to facilitate the bypassing appointed) who have completed 10 years of the constitutional and statutory or more of service without intervention of mandates." the order of the Courts/Tribunal and were duly qualified persons appointed against 25. Paragraph 47 of the said duly sanctioned vacant posts. judgement reads as under: 28. The Purport of Paragraph 53 has "47. When a person enters a been clarified by the Supreme Court in a temporary employment or gets subsequent judgement in M.L. Kesri's engagement as a contractual or casual case (supra) wherein Their Lordships worker and the engagement is not based have held that the period of 10 years of on a proper selection as recognized by the continuous service referred in para 53 of relevant rules or procedure, he is aware Uma Devi's case should be before the date of the consequences of the appointment of decision in Uma Devi i.e. 10.4.2006. being temporary, casual or contractual in The said Paragraph 53 has also been nature. Such a person cannot invoke the considered in the subsequent judgement theory of legitimate expectation for being in State of Jharkhand Vs. Kamal Prasad confirmed in the post when an reported in 2014 (7) SCC 223 relied upon appointment to the post could be made by the petitioners and on a perusal of the only by following a proper procedure for same, I find that the dictum of M.L. selection and in concerned cases, in Kesri's case, has not been deviated from, 1400 INDIAN LAW REPORTS ALLAHABAD SERIES in any manner. Thus, on a conjoint years. Now, financing of the FTC Scheme reading of both the judgements, the has already been stopped by the Central requirements of 10 or more years of Government with effect from 31.3.2011. service before the date of decision in Uma No permanent posts were ever created. In Devi's Case still holds good. other words, their appointments were temporary appointments against 29. It is not out of place to mention temporary posts. that the Supreme Court had the opportunity to consider the issue of 172. The prayer for regularisation of regularization of ad hoc judges appointed service and absorption of the petitioner in the Fast Track Courts in the case of appointees against the vacancies Brij Mohan Lal Vs. Union of India and appearing in the regular cadre has been Others reported in 2012 (6) SCC 502, made not only in cases involving the case wherein their Lordships after considering of the State of Orissa, but even in other the dictum in Uma Devi's Case (supra), States. Absorption in service is not a held that such appointees of the Fast right. Regularisation also is not a Track Courts did not have any statutory or a legal right enforceable by enforceable right of regularization of their the persons appointed under different services, however, in Para 207.9, in rules to different posts. Regularisation exercise of their powers under Article 142 shall depend upon the facts and of the Constitution of India, they gave an circumstances of a given case as well as opportunity to such appointees for regular the relevant rules applicable to such class appointment in the regular cadre, subject of persons. to the terms and conditions mentioned 173. As already noticed, on earlier therein. occasions also, this Court has declined the relief of regularisation of the persons 30. Reference may be made in this and workmen who had been appointed regard to Paras 76, 172, 173, 174, 181 and against a particular scheme or project. A 207 of the said judgement, which read as Constitution Bench of this Court has under: clearly stated the principle that in matters of public employment, absorption, "76. Upon an analysis of the regularisation or permanent continuance abovestated Rules relating to the different of temporary, contractual or casual daily States, the appointment letters issued to wage or ad hoc employees appointed and the appointees and the methodology that continued for long in such public was adopted for appointment of the FTC employment would be dehors the Judges, it becomes clear that the constitutional scheme of public appointees cannot be said to have any employment and would be improper. It legal, much less an indefeasible right to would also not be proper to stay the the posts in question. Firstly, the posts regular recruitment process for the posts themselves were temporary, as they were concerned. [Refer to Umadevi (3)] created under and within the ambit and 174. It is not not necessary for us to scope of the FTC Scheme sponsored by deliberate on this issue all over again in the Union of India, which was initially view of the above discussion. Suffice it to made only for a limited period of five notice that the petitioner appointees have 3 All]. Sanjeev Kumar & Ors. Vs. State of U.P. & Ors. 1401 no right to the posts in question as the 207.2. All the States which have posts themselves were temporary and taken a policy decision to continue the were bound to come to an end by efflux of FTC Scheme beyond 31.3.2011 shall time. With reference to the letters of their adhere to the respective dates as appointment and the Rules under which announced, for example in the cases of the same were issued, it is clear that these States of Orissa (March 2013), Haryana petitioners cannot claim any indefeasible (March 2016), Andhra Pradesh (March right either to regularisation or 2012) and Rajasthan (February 2013). absorption. It may also be noticed that 207.3. The States which are in the under the Orissa Superior Judicial process of taking a policy decision on Service and Judicial Service Rules, 2007, whether or not to continue the FTC there is no provision for absorption or Scheme as a permanent feature of regularisation of ad hoc Judges. administration of justice in the respective 181. The issues arising for the States are free to take such a decision. consideration of this Court under this 207.4. It is directed that all the head, though ancillary, are of significant States, henceforth, shall not take a importance. Having held that the decision to continue the FTC Scheme on petitioner appointees to FTCs do not have ad hoc and temporary basis. The States any right to the post and such are at liberty to decide but only with appointments were temporary, ad hoc and regard either to bring the FTC Scheme to on urgent basis for a limited period, we an end or to continue the same as a have yet to examine whether these permanent feature in the State. petitioners would at all be entitled to 207.5. The Union of India and the some relief within the framework of law, State Government shall reallocate and with particular reference to certain utilise the funds apportioned by the 13th constitutional provisions. Finance Commission and/or make 207. Without any intent to interfere provisions for such additional funds to with the policy decision taken by the ensure regularisation of the FTC Judges Government, but unmistakably, to protect in the manner indicated and/or for the guarantees of Article 21 of the creation of additional courts as directed Constitution, to improve the justice in this judgement. delivery system and fortify the 207.6. All the decisions taken and independence of judiciary, while ensuring recommendations made at the Chief the attainment of constitutional goals as Justices and Chief Ministers' Conference well as to do complete justice to the lis shall be placed before the Cabinet of the before us, in terms of Article 142 of the Centre or the State, as the case may be, Constitution, we pass the following orders which alone shall have the authority to and directions: finally accept, modify or decline the 207.1. Being a policy decision which implementation of such decisions and, has already taken effect, we decline to that too, upon objective consideration and strike down the policy decision of the for valid reasons. Let the minutes of the Union of India vide Letter dated Conference of 2009, at least now, be 14.9.2010 not to finance the FTC Scheme placed before the Cabinet within three beyond 31.3.2011. months from the date of pronouncement of 1402 INDIAN LAW REPORTS ALLAHABAD SERIES this judgement for its information and (c) There shall be 150 marks for the appropriate action. written examination and 100 marks for 207.7. No decision, recommendation the interview. The qualifying marks shall or proposal made by the Chief Justices be 40 per cent aggregate for general and Chief Minsters' Conference shall be candidates and 35 per cent for rejected or declined or varied at any SC/ST/OBC candidates. The examination bureaucratic level, in the hierarchy of the and interview shall be held in accordance Governments, whether in the State or the with the relevant Rules enacted by the Centre. States for direct appointment to Higher 207.8. We hereby direct that it shall Judicial Services. be for the Central Government to provide (d) Each of the appointees shall be funds for carrying out the directions entitled to one mark per year of service in contained in this judgement and, if the FTCs, which shall form part of the necessary, by re-allocation of funds interview marks. already allocated under the 13th Finance (e) Needless to point out that this Commission for Judiciary. We further examination and interview should be direct that for creation of additional 10 conducted by the respective High Courts per cent posts of the existing cadre, the keeping in mind that all these applicants burden shall be equally shared by the have put in a number of years as FTC Centre and the State Governments and Judges and have served the country by funds be provided without any undue administering Justice in accordance with delay so that the courts can be established law. The written examination and as per the schedule directed in this interview module, should, thus, be framed judgement keeping in mind the peculiar facts and 207.9. All the persons who have been circumstances of these cases. appointed by way of direct recruitment (f) The candidates who qualify the from the Bar as Judges to preside over the written examination and obtain FTCs under the FTC Scheme shall be consolidated percentage as afore- entitled to be appointed to the regular indicated shall be appointed to the post of cadre of the Higher Judicial Services of Additional District Judge in the regular the respective State only in the following cadre of the State. manner : (g) If, for any reason, vacancies are (a) The direct recruits to the FTCs not available in the regular cadre, we who opt for regularization shall take a hereby direct the State Governments to written examination to be conducted by create such additional vacancies as may the High Courts of the respective States be necessary keeping in view the number for determining their suitability for of candidates selected. absorption in the regular cadre of (h) All sitting and/or former FTC Additional District Judges. Judges who were directly appointed from (b) Thereafter, they shall be the Bar and are desirous of taking the subjected to an interview by a Selection examination and interview for regular Committee consisting of the Chief Justice appointment shall be given age and four senior-most Judges of that High relaxation. No application shall be Court. rejected on the ground of age of the 3 All]. Sanjeev Kumar & Ors. Vs. State of U.P. & Ors. 1403 applicant being in excess of the (2002) (supra), by taking and being prescribed age. selected through the requisite 207.10. The members of the Bar who examination, as contemplated for out-of- have directly been appointed but whose turn promotion. services were either dispensed with or (b) If the appointee has the requisite terminated on the ground of doubtful seniority and is entitled to promotion integrity, unsatisfactory work or against against 25 per cent quota for promotion whom, on any other ground, disciplinary by seniority- -cum-merit, he shall be action had been taken, shall not be promoted on his own turn to the Higher eligible to the benefits stated in clause 5 Judicial Services without any written of the judgement. examination. 207.11. Keeping in view the need of (c) While considering candidates the hour and the Constitutional mandate either under category (a) or (b) above, to provide fair and expeditious trial to all due weightage shall be given to the fact litigants and the citizens of the country, that they have already put in a number of we direct the respective States and the years in service in the Higher Judicial Central Government to create 10 per cent Services and, of course, with reference to of the total regular cadre of the State as their performance. additional posts within three months from (d) All other appointees in this today and take up the process for filling category, in the event of discontinuation such additional vacancies as per the of the FTC Scheme, would revert to their Higher Judicial Service and Judicial respective posts in the appropriate Services Rules of that State, immediately cadre." thereafter. 31. The aforesaid judgement has 207.12. These directions, of course, been followed in the case of Mahesh are in addition to and not in derogation of Chandra Varma Vs. State of Jharkhand, the recommendations that may be made 2012 (11) SCC 656, wherein a similar by the Law Commission of India and any issue regarding regularization of ad hoc other order which may be passed by the judges of Fast Track Courts in the regular Courts of competent jurisdiction, in other cadre of the Higher Judiciary was under such matters. consideration.

207.13. The candidates from any 32. The terms and conditions of State, who were promoted as FTC Judges Class III employees in the District Courts from the post of Civil Judge, Senior in the State of U.P. are governed by Rules Division having requisite experience in known as The Subordinate Courts service, shall be entitled to be absorbed Ministerial Establishment Rule, 1947, and and remain promoted to the Higher those of Class IV employees are governed Judicial Services of that State subject to : by the Rules known as The U.P. (a) Such promotion, when effected Subordinate Civil Courts Inferior against the 25 per cent quota for out-of- Establishment Rules, 1955. The aforesaid turn promotion on merit, in accordance rules do not contain any provision for with the judgement of this Court in the regularisation nor is it mentioned as a case of All India Judges' Association mode of recruitment therein. 1404 INDIAN LAW REPORTS ALLAHABAD SERIES

33. It is not out of context to refer to G.O. dated 31.3.2011 speaks of the U.P. Regularization of Ad hoc adjustments of the ex-cadre posts against Appointments (on posts outside the regular vacancies in the regular cadre and purview of Public Service Commission) the need to fill up the same as per the Rules, 1979 as amended from time to prescribed procedure (not time, which contains a provision for regularization/absorption of ad hoc regularization of ad hoc appointments and employees of Fast Track Courts). None of Rule 4 thereof provides a cut off date i.e. the said orders justify the regularization of 30.6.1998, thus, only those who are the services of the petitioners in the directly appointed on ad hoc basis on or regular cadre of the judgeship. The after the said date were eligible for District Judge clearly misconstrued the consideration for regularization subject to said orders and treated them to be orders other conditions mentioned therein. for regularization/absorption of such Indisputably, the petitioners herein have employees in the regular cadre and been appointed subsequent to 30.6.1998, erroneously proceeded to regularize the that too, not against a post in the regular services of the petitioners, therefore, the cadre, therefore, they are not covered by orders of regularization of service of the the aforesaid regularization Rule, 1979. petitioners issued by the District Judge on 23.5.2013 were bereft of any sustainable 34. The validity of the impugned factual and legal basis, therefore illegal. orders is to be considered against the aforesaid factual and legal background. 38. There was no provision under which their services could have been 35. The petitioners have not been regularized as was done by the District able to place before the Court any Judge. decision of the State Government or the High Court whereby such ad hoc 39. The petitioners herein were ad hoc employees of Fast Track Courts were employees engaged for short duration in a ordered to be absorbed on regular basis Scheme of Fast Track Courts which itself against regularly sanctioned posts in was temporary, therefore, in view of the regular cadres of the judgeship or for dictum of the Supreme Court in Uma Devi's regularisation of their services. case and Brij Mohan Lal's Case, as quoted hereinabove, they did not have any 36. The District Judge passed the enforceable right for order dated 23.5.2013 regularising the regularization/absorption of their services. services of the petitioners only on the They had not completed 10 years of service basis of G.O. Dated 31.3.2011 and Letter on the date of decision in Uma Devi's case of High Court dated 1.4.2011. i.e. 10.4.2006, therefore, in view of the pronouncement in M.L. Kesri's case they 37. I have care fully perused the were also not covered by the exception G.O. dated 31.3.11, the Circular of the carved out in Paragraph 53 thereof. High Court dated 1.4.2011 and 18.3.2011. None of the said orders provide for 40. Thus, even if, the letter of the absorption/regularization of the High Court dated 30.8.2014 does not spell petitioners in the regular cadre. In fact out in clear terms the violation of the dictum 3 All]. Laxman Prasad alias Nand Lal Vs. Uttar Pradesh Power Corporation, Lko & Ors. 1405 in Uma Devi's case and the decision of the acted in conformity thereof nor for District Judge dated 9.9.2014 also does not cancelling orders of regularization after do so, but, in view of the apparent factual and issuing show-cause-notice to them. legal position and the discussion made hereinabove, as, the only possible conclusion 42. Having said so, I am also of the is that the regularization of the services of the view that the High Court does not appear to petitioners was not permissible and it was in have considered the judgment of the violation of the dictum of the Supreme Court Supreme Court in Brij Mohan Lal's Case in Uma Devi's case, I do not find any valid (supra), specially Paragraph 207.9 thereof, ground for interfering with the impugned whereby direct recruit ad hoc judges of Fast orders. Reference may be made in this regard Track Courts were ordered to be considered to the dictum of the Supreme Court : M.C. for regular appointment/regularisation Mehta Versus Union of India (1999) 6 SCC subject to the terms and conditions 237, wherein their Lordships have observed mentioned therein. As both judges and as under: employees of Fast Track Courts were part of the same Scheme, in my view, there is no " ...... If the High Court had quashed reason as to why they should be treated the said order, it would have restored an differently, therefore, I am of the view that illegal order - it would have given the the respondents may consider the case of the Health Centre to a village contrary to the petitioners for grant of such benefits as has valid resolutions passed by the Panchayat been extended by the Supreme Court in Brij Samithi...... Mohan Lal's Case (supra) to the Fast Track Courts' Judges vide paragraph 207.9 thereof, The above case is a clear authority subject to such variations as may be for the proposition that it is not always necessary, unless there are exceptional and necessary for the Court to strike down an compelling reasons for not extending such order merely because the order has been benefit to them. passed against the petitioner in breach of natural justice. The Court can under 43. Subject to the above, the writ Article 32 or Article 226 refuse to petition is dismissed. exercise its discretion of striking down the ------order if such striking down will result in ORIGINAL JURISDICTION restoration of another order passed earlier CIVIL SIDE in favour of the petitioner and against the DATED: ALLAHABAD 28.10.2014 opposite party, in violation of the BEFORE principles of natural justice or is THE HON'BLE DR. DHANANJAYA YESHWANT otherwise not in accordance with law." CHANDRACHUD, C.J. THE HON'BLE PRADEEP KUMAR SINGH 41. In the aforesaid background, the BHAGHEL, J. High Court cannot be faulted for having issued the letter dated 30.8.2014 to the Civil Misc. Writ Petition No. 53361 of 2014 District Judge, Baghpat for taking remedial measures in conformity with the Laxman Prasad alias Nand Lal .Petitioner Versus dictum of the Supreme Court. The District Uttar Pradesh Power Corporation Lko & Judge can also not be faulted for having Ors. ...Respondents 1406 INDIAN LAW REPORTS ALLAHABAD SERIES

Counsel for the Petitioner: AIR 2010 Allahabad 117; AIR 1998 Allahabad Deepali Srivastava, Sri Amit Kumar Sinha 1: 1998 All LJ 1.

Counsel for the Respondents (Delivered by Hon'ble Dr. Dhananjaya C.S.C., Sri Mahboob Ahmad Yeshwant Chandrachud, C.J.)

Police Liability Insurance Act, 1991-Section 1. In these proceedings the petitioner 6(2), 3 (c)-compensation-death caused due has called into question the legality of an to electrician deceased 24 years young boy- order dated 2 January 2014 passed by the snapped of high tension electric cable- Collector and District Magistrate, claimed 5 lac compensation along with 12% interest-District Magistrate under no Allahabad on an application which was fault liability awarded 1 lac after adjusting moved under Section 6 of the Public amount already paid-held-as per Section Liability Insurance Act, 19911. The 2(e) of Environment (Protection) Act 1896- Collector has, taking due note of the fact electricity would fall within expression that an amount of Rs. 20,000/- was paid 'hazardous substance'-nature of accident- over to the petitioner on account of an undisputed-District Magistrate to pass fresh order within period of 3 month-petition accidental death of his son caused due to disposed of. electrocution, directed the payment of a further sum of Rs.80,000/-. The petitioner Held: Para-10 seeks to challenge the order and claims an The provisions of Section 7(1) of the Act enhancement of the compensation to an empower the Collector to determine the amount of Rs. 5 lacs, on which interest amount of relief which appears to him to has been claimed at the rate of 12% per be just. Under sub-section (4) of Section 7 of the Act the Collector is empowered to annum. follow such summary procedure as he thinks fit, subject to any rule made in that 2. The residential house of the behalf. Under sub-section (5) the Collector petitioner is situated in Mohalla has been vested with the powers of a Civil Ramkiyan Gandhi Nagar, Nagar Court for certain specific purposes. The Panchayat Sirsa, Allahabad. A high award of compensation under Section 6 is not in the nature of an ex gratia. The Act tension electric overhead cable passes in recognises a statutory entitlement and close proximity. On 8 August 2004, the imposes a corresponding statutory high tension electric cable snapped, as a obligation. An Undertaking, which engages result of which the petitioner's son Raj itself in the supply and distribution of Kumar, who was about 24 years of age, electricity, cannot be unmindful of the came into contact with the wire and serious hazard to life and property that may result as a consequence of its sustained grievous injury. The petitioner's activities. The award of compensation son succumbed to the injuries. A report of under the Act has, therefore, to be the incident was lodged by the petitioner construed to be in recognition of the right at Police Station Meja, District Allahabad to life under Article 21 of the Constitution. on 9 August 2004. The police prepared an The Collector ought to have furnished a inquest report and sent the dead body for reasoned justification in quantifying the award of compensation following the well post-mortem. The cause of the death was settled principles in that regard. ascertained in the post-mortem report to be due to shock as a result of passage of Case Law discussed: electricity in the body. The petitioner's 3 All]. Laxman Prasad alias Nand Lal Vs. Uttar Pradesh Power Corporation, Lko & Ors. 1407 son was, at the material time, a student of Section 2(a) of the Act defines the IInd year of the B.A. Degree course. The expression 'accident', as follows: petitioner moved the U.P. Power Corporation for the grant of "(a) "accident" means an accident compensation. A detailed enquiry was involving a fortuitous or sudden or conducted by the Joint Director. Since no unintended occurrence while handling any further steps were taken for the disbursal hazardous substance resulting in of the compensation, the petitioner moved continuous or intermittent or repeated proceedings2 before this Court. In the exposure to death of, or injury to, any said proceedings, an order was passed on person or damage to any property but 29 October 2010 by a Division Bench of does not include an accident by reason this Court by which a direction was issued only of war or radio-activity;" to the effect that if the petitioner furnished all the relevant documentary material to 4. The expression 'handling' is the Executive Engineer, his claim for the defined in Section 2(c), thus: grant of compensation shall be decided in accordance with law. In compliance with "(c) "handling", in relation to any the order, the petitioner submitted a copy hazardous substance, means the of the first information report, post- manufacture, processing, treatment, mortem report and succession certificate package, storage, transportation by to the Executive Engineer in the vehicle, use, collection, destruction, Electricity Distribution Division of the conversion, offering for sale, transfer or first respondent. Since no action was the like of such hazardous substance;" initiated, the petitioner filed an application before the District Magistrate, 5. Section 3 of the Act provides for Allahabad under Section 6 of the Act. At the payment of no fault compensation in that stage, on 11 September 2013, the first the following terms: respondent awarded an amount of Rs.20,000/- to the petitioner by way of "3. Liability to give relief in certain compensation. The District Magistrate by cases on principle of no fault an order dated 2 January 2014 partly allowed the claim and directed the (1) Where death or injury to any payment of compensation quantified as person (other than a workman) or damage Rs.1 lac after giving due credit for the to any property has resulted from an amount of Rs.20,000/-, which has already accident, the owner shall be liable to give been paid. The petitioner is aggrieved by such relief as is specified in the Schedule the quantum of compensation that has for such death, injury or damage. been awarded. (2) In any claim for relief under sub- section (1) (hereinafter referred to in this 3. The Public Liability Insurance Act as claim for relief), the claimant shall Act, 1991 was enacted by Parliament to not be required to plead and establish that provide for public liability insurance for the death, injury or damage in respect of the purpose of providing immediate relief which the claim has been made was due to persons affected by accidents occurring to any wrongful act, neglect or default of while handling any hazardous substance. any person. 1408 INDIAN LAW REPORTS ALLAHABAD SERIES

Explanation: For the purpose of this (3) No application for relief shall be section-- entertained unless it is made within five years of the occurrence of the accident." (i) "workman" has the meaning assigned to it in the Workmen's 7. Under Section 7(1) of the Act, on Compensation Act, 1923 (8 of 1923); the receipt of an application under Section (ii) "injury" includes permanent total 6(1), the Collector is empowered to hold or permanent partial disability or sickness an enquiry consistent with the principles resulting out of an accident." of natural justice, into the claim and to make an award determining the amount of 6. Section 6 of the Act provides for relief which appears to him to be just and the making of an application for a claim specifying the person or persons to whom for relief. Section 6 is in the following such amount of relief shall be paid. Under terms: sub-section (4) of Section 7 of the Act, the Collector is empowered to follow such "6. Application for claim for relief summary procedure as he thinks fit for (1) An application for claim for relief holding the enquiry. Under sub-section may for made-- (5) of Section 7, the Collector has all the (a) by the person who has sustained powers of a Civil Court inter alia for the injury; taking the evidence on oath and for (b) by the owner of the property to enforcing the attendance of witnesses and which the damage has been caused; for compelling the discovery and (c) where death has resulted from the production of documents and material accident, by all or any of the legal objects as well as for such other purposes, representatives of the deceased; or as may be prescribed. Section 8(1) of the (d) by any agent duly authorised by Act makes it clear that the right to claim such person or owner of such property or relief under sub-section (1) of Section 3 in all or any of the legal representatives of respect of death or injury to any person or the deceased, as the case may be: damage to any property shall be in addition to any other right to claim PROVIDED that where all the legal compensation in respect thereof under any representatives of the deceased have not other law for the time being in force. joined in any such application for relief, the application shall be made on behalf of 8. Under Section 3(1) of the Act the or for the benefit of all the legal compensation is based on the no fault representatives of the deceased and the liability principle where death or injury legal representatives who have not so has been caused to any person, other than joined shall be impleaded as respondents a workman, or damage to any property to the application. has resulted from an accident. The expression 'accident' is defined to mean (2) Every application under sub- an accident involving a fortuitous or section (1) shall be made to the Collector sudden or unintended occurrence while and shall be in such form, contain such handling any hazardous substance particulars and shall be accompanied by resulting in continuous or intermittent or such documents as may be prescribed. repeated exposure to death, among other 3 All]. Laxman Prasad alias Nand Lal Vs. Uttar Pradesh Power Corporation, Lko & Ors. 1409 things. The expression 'handling' in regard, the order which has been passed Section 2(c) of the Act in relation to a by the Collector is completely bereft of hazardous substance includes use, transfer any reason or justification for the award or the like of such hazardous substance. of compensation in the amount which the 'Hazardous substance' is defined under Collector found to be just and proper. The Section 2(d) of the Act to have the same provisions of Section 7(1) of the Act meaning as under the Environment empower the Collector to determine the (Protection) Act, 1896. Section 2(e) of the amount of relief which appears to him to Environment (Protection) Act, 1986 be just. Under sub-section (4) of Section 7 defines the expression 'hazardous of the Act the Collector is empowered to substance' as follows: follow such summary procedure as he thinks fit, subject to any rule made in that "(e) "hazardous substance" means behalf. Under sub-section (5) the any substance or preparation which, by Collector has been vested with the powers reason of its chemical or physico- of a Civil Court for certain specific chemical properties or handling is liable purposes. The award of compensation to cause harm to human beings, other under Section 6 is not in the nature of an living creatures, plants, micro-organism, ex gratia. The Act recognises a statutory property or the environment;" entitlement and imposes a corresponding statutory obligation. An Undertaking, 9. Electricity is clearly a hazardous which engages itself in the supply and substance covered by the definition distribution of electricity, cannot be contained in Section 2(e) of the unmindful of the serious hazard to life Environment (Protection) Act, 1986. A and property that may result as a learned Single Judge of this Court in Uttar consequence of its activities. The award Pradesh Power Corporation Ltd. and anr. of compensation under the Act has, v. Kaleemullah and ors.3, following an therefore, to be construed to be in earlier decision in U.P. Electricity Board recognition of the right to life under and another v. District Magistrate, Article 21 of the Constitution. The Dehradun and others4, held that the Collector ought to have furnished a electricity would fall within the reasoned justification in quantifying the expression 'hazardous substance'. award of compensation following the well settled principles in that regard. 10. In the present case, an application was moved by the petitioner 11. In this view of the matter, we are to the Collector and District Magistrate inclined to allow the petition and to remit under the provisions of Section 6 of the the proceedings back to the Collector for Act. The facts, which have been pleaded a fresh assessment of the quantum of by the petitioner, are not in dispute. There compensation payable under the is no challenge on the part of the first provisions of Section 6(1) of the Act. We respondent to the legality of the order clarify that we have not set aside the passed by the Collector awarding findings of fact which are contained in the compensation under the Act and, as we order of the Collector in regard to the have noted, the challenge of the petitioner nature of the incident and in regard to the is to the quantum of compensation. In this liability to pay the compensation since 1410 INDIAN LAW REPORTS ALLAHABAD SERIES there is no challenge before the Court to Court-held-not proper-quashed-direction be considered at the behest of the first for immediate release with interest respondent. On remand, the Collector given. shall duly hear both the petitioner and the Held: Para-8 first respondent and pass an appropriate Learned counsel for the petitioners order in accordance with law quantifying submits that in the instant case, in view of the amount of compensation. This the above, this Court finds that the exercise shall be completed within a Tribunal has taken a very rigid stand and period of three months of the receipt of a had mechanically passed the order without understanding and without appreciating certified copy of this order. In the the distinction drawn by the Supreme meantime, we direct that any payment Court. The guidelines, which have now which has been made in compliance with been incorporated in the Rules was only to the impugned order of the Collector, shall safeguard the interest of the claimants necessarily abide by the final result of the particularly the minors and the illiterates. proceedings. In the instant case the Court finds that the application was meant for the release of the money so that the petitioner's can get 12. The petition is, accordingly, her house repair by making boundary wall disposed of. There shall be no order as to and plaster, but the Tribunal has failed to costs. understand the need and urgency in the ------matter and has mechanically passed the ORIGINAL JURISDICTION order while rejecting the application. CIVIL SIDE DATED: ALLAHABAD 09.10.2014 Case Law discussed: 2014 (1) T.A.C. 630 (All.). BEFORE THE HON'BLE MAHESH CHANDRA TRIPATHI, J. (Delivered by Hon'ble Mahesh Chandra Tripathi, J.) Civil Misc. Writ Petition No. 53815 of 2014 1. Heard learned counsel for the Smt. Sudha & Anr. ...Petitioners petitioners and learned Standing Counsel Versus for the respondents. Motor Accident Claims Tribunal/D.J. Etah & Ors. ...Respondents 2. By means of present writ petition, Counsel for the Petitioner: the petitioners has challenged the Sri Upendra Upadhyay impugned order dated 24.03.2014 passed by the the Motor Accident Claims Counsel for the Respondents Tribunal / District Judge, Etah.in Misc. C.S.C. Case No. 18 of 2014 in M.A.C.P. No. 14 of 2012 (Smt. Sudha and another Vs. Constitution of India, Art.-226-Release Kamrujjama and others). claimed amount-deposited by Insurance company towards accident 3. Learned counsel for the compensation-claimant being poor illiterate widow of deceased-application petitioners submits that petitioners has to release Rs. 2 lacs for repairing of filed the Motor Accident Claims Petition dilapidated house-rejection by Tribunal- No. 14 of 2012 (Smt. Sudha and another's misinterpreting the guidelines of Apex Vs. Kamrujjama and others) for 3 All]. Smt. Sudha & Anr. Vs. Motor Accident Claims Tribunal/D.J. Etah & Ors. 1411 compensation of the death of her husband 2014 (1) T.A.C. 630 (All.). The relevant Subodh Kumar who died on account of portion of the said judgment is reproduced injuries sustained in the accident, which herein below:- was occurred on 13.12.2011. "5. The purpose of keeping the 4. The award was passed on amount in a fixed deposit is for a specific 17.10.2013 and compensation of Rs. purpose. The Supreme Court in the case 3,99,000/- alongwith 7% per annum of General Manager, Kerala State Road interest was awarded by the Motor Transport Corporation Vs. Sushamma Accident Claims Tribunal, Etah. Thomas & Others, 1994 (1) TAC 323 issued certain guidelines to the Claims 5. Learned counsel for the Tribunal while awarding compensation. petitioners submits that it is admitted The said guidelines are extracted below:- position that entire amount of the award was deposited by the Insurance Company. "(i).The claims Tribunal should, in As per the directions given in the award, the case of minors, invariably order Rs. 50,000/- was deposited in fixed amount of compensation awarded to the deposit scheme in the name of petitioner minor invested in long term fixed no.2, Rishav Kumar Minor son of late deposited at least till the date of the minor Subodh Kumar and Rs. 2,00,000/- was attaining majority. The expenses incurred deposited in fixed deposit in the name of by the guardian or next friend may petitioner no.1, Smt. Sudha wife of late however, be allowed to be withdrawn. Subodh Kumar and remaining amount of (ii). In the case of illiterate claimants the award of Rs. 1,49,000/- was released also the Claims Tribunal should follow in favour of petitioner no.1. the procedure set out in (i) above, but if lump sum payment is required for 6. Learned counsel for the effecting purchases of any movable or petitioners submits that at present immovable property such as agricultural petitioners is suffering great hardship due implements, rickshaw, etc. to earn a living to dilapidated position of her house. She the Tribunal may consider such a request had moved Misc. Application No. 18 of after making sure that the amount is 2014 before the respondent no.1 to release actually spent for the purpose and the of Rs. 2,00,000/- which was kept in fixed demand is not a ruse to withdraw money. deposit scheme, so that she may construct (iii). In the case of semi-literate boundary wall and plastered of her house, persons the Tribunal should ordinarily but said application has been rejected by resort to the procedure set out in (i) above the respondent no.1 and same was unless it is satisfied for reasons to be assailed by means of present writ petition. stated in writing, that the whole or part of the amount is required for expending any 7. Learned counsel for the existing business or for purchasing some petitioners has relied the judgment passed property as mentioned in (ii) above for in Civil Misc. Writ Petition No. 36701 of earning his livelihood in which case the 2013 (Smt. Farmoodi Vs. Additional Tribunal will ensure that the amount is District Judge, Court No.9, invested for the purpose for which it is Muzaffarnagar and Others), reported in demanded and paid. 1412 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv). In the case of literate persons 9. The Supreme Court held that these also the Tribunal may resort to the guidelines were issued to keep the amount procedure indicated in (i) above subject in a fixed deposit for a period of time was to the realization set out in (ii) and (iii) mandatory only in the case of minors, above, if having regard to the age, fiscal illiterate claimants and widows." background and strata of society to which the claimant belongs and such other 8. Learned counsel for the considerations, the Tribunal in the larger petitioners submits that in the instant case, interest of the claimant and with a view to in view of the above, this Court finds that ensuring the safety of the compensation the Tribunal has taken a very rigid stand awarded to him thinks it necessary to so and had mechanically passed the order order. without understanding and without appreciating the distinction drawn by the (v). In the case of widows the claims Supreme Court. The guidelines, which Tribunal should invariably follow the have now been incorporated in the Rules procedure set out in (i) above. was only to safeguard the interest of the claimants particularly the minors and the (vi). In personal injury cases, if illiterates. In the instant case the Court further treatment is necessary the Claims finds that the application was meant for Tribunal on being satisfied about the the release of the money so that the same, which shall be recorded in writing, petitioner's can get her house repair by permit withdrawal of such amount as is making boundary wall and plaster, but the necessary for incurring the expenses for Tribunal has failed to understand the need such treatment. and urgency in the matter and has (vii). In all cases in which investment mechanically passed the order while in long term fixed deposits is made it rejecting the application. should be an condition that the bank will not permit any loan or advance on the 9. Learned counsel for the fixed deposit and interest on the amount petitioners submits that petitioner no.1 is invested is paid monthly directly to the a literate widow. On the other hand, a claimant or his guardian, as the case may genuine reason has been given for the be. release of the balance amount. (viii). In all cases Tribunal should grant to the claimants liberty to apply for 10. Consequently, without further withdrawal in case of an emergency. To adverting on this issue, the Court is of the meet with such a contingency if the opinion that the impugned order cannot be amount awarded is substantial the Claims sustained and is quashed. Tribunal may invest it in more than one fixed deposit so that if need be one such 11. The writ petition is allowed. F.D.R. can be liquidated." 6. These guidelines have now been 12. The petitioner is entitled for the incorporated by the legislature and Rule release of the amount as prayed by her. 220-B of the U.P. Motor Vehicle Rules, The Tribunal is directed to release the 1998 have been inserted in the Rules. amount along with the interest so accrued 3 All]. Rajendri Devi & Ors. Vs. State of U.P. & Ors. 1413 immediately upon the receipt of the right upon the State Government to certified copy of this order. withdraw from the acquisition any land, ------possession whereof has not been taken, meaning thereby that where the ORIGINAL JURISDICTION possession of the acquired land has been CIVIL SIDE taken, there cannot be a withdrawal of DATED: ALLAHABAD 14.10.2014 any land from the acquisition proceedings covered by Sections 4 and 6 BEFORE of the Land Acquisition Act. THE HON'BLE ARUN TANDON, J. THE HON'BLE ARVIND KUMAR MISHRA-I, J. Case Law discussed: 2008 (1) AWC 399 Civil Misc. Writ Petition No. 54866 of 2014 (Delivered by Hon'ble Arun Tandon, J.) Rajendri Devi & Ors. ...Petitioners Versus State of U.P. & Ors. ...Respondents 1. Heard learned counsel for the petitioner, learned counsel for respondent Counsel for the Petitioner: no.4 and learned Standing Counsel for the Sri Gopal Srivastava State-respondents.

Counsel for the Respondents 2. It is admitted on record that the C.S.C., Suresh Singh land of the petitioners was acquired under the provisions of Land Acquisition Act, Constitution of India, Art.-226-Release 1894. It is also admitted on record that the of land-acquired under Land Acquisition petitioners have taken compensation for Act-without disclosing particular of date the land, which had been so acquired. of notification u/s 4 and 6 of Act-without disclosing the date on which compensation received-claim based upon 3. What is missing from the writ letter dated 24.04.2014 by Principle petition is as to on what date the Secretary Industrial development-held- notifications under Sections 4 and 6 of the can not be ground of release under Land Acquisition Act, 1894 were made section 48 without denotification of and on what date petitioners had actually government-where no possession taken- where compensation given and received the entire compensation. possession taken-can not be released pursuant to letter referred above- 4. Learned counsel for the petition dismissed. petitioners refers to the letter of the Principal Secretary, Industrial Held: Para-6 & 7 Development Department, Government of 6. We are of the considered opinion that such Government Orders/Letters of the U.P. at Lucknow dated 24th April, 2010 Principal Secretary cannot be made a enclosed as Annexure-2 to the writ tool to reopen the settled acquisition petition for the reliefs prayed for in the proceedings specifically where the land present writ petition i.e. for the acquired holder has accepted the compensation land being leased in his favour. without protest.

7. The State Government has to keep in 5. We have gone through the letter mind the provisions of Section 48 of the of the Principal Secretary dated 24th Land Acquisition Act which confers a April, 2014 and we find that in the letter it 1414 INDIAN LAW REPORTS ALLAHABAD SERIES has been recorded that in exceptional 9. What logically follows is that the circumstances i.e. where there is a dispute letter of the Principal Secretary dated 24th with regard to the acquired land being April, 2010 can be read to mean that Abadi, where there is public agitation power to de-notify the land would be against acquisition or law and order available to the State Government only situation has arisen, the Noida, Greater where the possession of the land has not Noida and Yamuna Express-way been taken under the Land Acquisition Industrial Development Authorities, while Act. Where the possession has been taken, recommending de-notification of the the letter of the Principal Secretary dated acquisition, may examine the leasing out 24th April, 2010 will have no application. of property in favour of the person whose land has been so acquired. 10. Therefore, there cannot be any mandamus as prayed for in the facts of the 6. We are of the considered opinion case. that such Government Orders/Letters of the Principal Secretary cannot be made a 11. In view of the aforesaid, the tool to reopen the settled acquisition present writ petition is dismissed. proceedings specifically where the land ------holder has accepted the compensation ORIGINAL JURISDICTION without protest. CIVIL SIDE DATED: ALLAHABAD 31.10.2014 7. The State Government has to keep BEFORE in mind the provisions of Section 48 of THE HON'BLE RAJAN ROY, J. the Land Acquisition Act which confers a right upon the State Government to Civil Misc. Writ Petition No. 55500 of 2013 withdraw from the acquisition any land, possession whereof has not been taken, Dharmendra Singh Rathor ..Petitioner meaning thereby that where the Versus possession of the acquired land has been Hon'ble Chief Justice Hon. High Court Judicature at Alld. & Ors. taken, there cannot be a withdrawal of any ...Respondents land from the acquisition proceedings covered by Sections 4 and 6 of the Land Counsel for the Petitioner: Acquisition Act. Sri Anil Tiwari

8. We may record that a Division Counsel for the Respondents Bench of this Court in the case of Abdul Sri Samir Sharma, Sri Ashish Mishra Salam alias Babu versus State of U.P. & Sri Manish Goyal, S.C. Others, reported in 2008 (1) AWC 399, has specifically held that once the land Constitution of India, Art.-226-Petitioner has been acquired under the provisions of seeking benefit Division Bench judgment -denied-while all other 7 persons the Land Acquisition Act and possession appointed as Routine Grade Clerk-along has been taken, no application for release with petitioner-got extended same of the acquired land from the acquisition benefits-held-once it is found that post proceedings can be made before the State of RGC abolished and merged to ARO- Government. petitioner and 7 others representationst 3 All]. Dharmendra Singh Rathore Vs. Hon’ble Chief Justice Hon. High Court Judicature at Alld. & Ors. 1415 being appointed by the Chief Justice-can routine grade clerks and his appointment not be termed illegal one-petitioner would be regularised and confirmed only entitled for every consequential benefit if he was selected in that examination/ of judgment in special appeal-even may not be party-committee earred treating test. This condition existed in the differently having no rational basis- appointment orders of all the 14 persons. impugned order quashed-consequential Six other persons were appointed on directions given. various dates, whose appointment order did not mention the word 'Ad Hoc'. Held: Para-34 On a perusal of the decision dated 31.05.2012 taken by the High Court on 3. Prior to such appointment, an the administrative side pursuant to the advertisement was issued for selection on judgment dated 20.09.2011 reveals that the same post in March, 2004. the High Court did not at all consider and failed to appreciate that the remaining 4. One Devendra Kumar Pandey, seven persons including the petitioner who claimed to be eligible for were similarly situated to the seven 'representationists', referred therein, nor consideration as per the aforesaid did it draw any distinction on the ground advertisement filed a writ petition before that the remaining seven were not this court being Civil Misc. Writ Petition entitled to the benefit of the judgment No.45922 of 2004 praying for a writ of as they were not parties to the said certiorari for quashing the appointments proceedings. The Committee simply of respondents No.3 to 14 therein, vide treated these seven persons differently without considering as to whether they orders dated 26.07.2004, 01.09.2004 and were similarly situated and entitled to 02.09.2004 (Annexures No.2, 3, 4, 5 & 6 same benefit. I am of the view that it to the writ petition) and other similarly erred in doing so. situated employees, if any. His claim was that the respondents should hold the Case Law discussed: recruitment as per the advertisement 2006 (4) SCC 1; 1978 (1) SCC 405; 1983 (1) issued in March, 2004. LCD 201.

(Delivered by Hon'ble Rajan Roy, J.) 5. The memo of the said writ petition is annexed with the writ petition, 1. Heard Sri Anil Tiwari, learned which shows that the respondents No.3 to counsel for the petitioner and Sri Samir 14 were those who were appointed along Sharma, learned counsel for the with the petitioner on 01.09.2004 and four respondents. others, whose order of appointment did not mention the word ad hoc. 2. The petitioner herein was appointed as routine grade clerk in the 6. The petitioner was not impleaded High Court along with 13 other persons as respondent, but the fact is that in the vide orders of the Registrar General dated relief clause, relief had been sought for 01.09.2004 on the same terms and quashing the appointment of 'other conditions. The appointment was on ad similarly situated employees, if any'. hoc basis with the condition that he was permitted to appear in the examination/ 7. Ultimately, the advertisement test to be held for direct recruitment of referred above was cancelled. 1416 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The aforesaid writ petition came administrative side also felt aggrieved and up for hearing and the same was decided also filed a special appeal against the said vide judgment dated 27.07.2007. This judgment. Both the aforesaid appeals court observed that once the were clubbed together and allowed vide advertisement had been cancelled and the judgment dated 20.09.2011. writ petition had not been amended, the cause of action in favour of the petitioner 10. A Division Bench of this court therein did not survive any further. The held that the appointments in question court also took note of the fact that a fresh were validly made, therefore, the advertisement had been issued on observations in Uma Devi's case were not 31.07.2006, but the petitioner therein had attracted. It also held that once the cadre not applied pursuant thereto. The service of routine grade clerks had been declared Rules had also undergone a change, a dead cadre and a new cadre had been according to which, the requisite created, for which new Rules had been qualifications had also undergone a framed, the conditions mentioned in the change. In fact, the cadre of routine grade appointment order of the appointees dated clerk was declared as a dead cadre and its 01.09.2004 etc. became redundant. The employees were merged in the new cadre Division Bench was of the view that once of Assistant Review Officer, for which the learned Single Judge had held that the new Rules prescribing new qualifications petitioner therein was not entitled to any had been prescribed. For the aforesaid relief in view of the change in reasons, this court held that the petitioner circumstances and his failure to amend therein was not entitled to any relief, the writ petition, the same should have however, referring to the Constitution been dismissed, and that, it erred in Bench judgment of the Supreme Court proceeding to make the observations in reported in Secretary, State of Karnatka the operative portion of the judgment and others Vs. Uma Devi (3) and others, based upon the Constitution Bench 2006 (4) SCC 1 held that appointments Judgment in Uma Devi's case. made by Hon'ble Chief Justice in exercise of his powers under Rules 41 & 45 of the 11. The Division Bench considered Allahabad High Court Officers and Staff the scope of the powers of Hon'ble the (Condition of Service and Conduct) Chief Justice under Rules 41 & 45 of the Rules, 1976, i.e. the respondents before Rules of 1976 in the light of various the court, will be subject to regular decisions and held that the Chief Justice selection by direct recruitment in was empowered to make such accordance with Rule 8 of the Service appointments and as the same had been Rules and these appointees will not be made as per the relevant Rules, therefore, confirmed and regularised. they were not illegal nor irregular. Accordingly, the directions given by the 9. Being aggrieved the respondents learned Single Judge in para-21 of the therein, who were similarly situated to the impugned judgment dated 27.07.2007 petitioner herein filed special appeal following the observations of the before a Division Bench of this court Supreme Court in Uma Devi's case were challenging the aforesaid judgment dated set aside. The writ petition was treated to 27.07.2007. The High Court on the be dismissed on the basis of the 3 All]. Dharmendra Singh Rathore Vs. Hon’ble Chief Justice Hon. High Court Judicature at Alld. & Ors. 1417 observations of the learned Single Judge respondents before the writ court who himself in the earlier paragraphs of the were not even appellants in the appeal as impugned judgment. Registrar General of referred hereinabove were also treated this court was directed to take appropriate similarly to the seven appellants referred steps with regard to confirmation/ to hereinabove. regularisation and consequential relief to the employees. 14. The petitioner herein submitted a representation to the High Court on the 12. A review petition was filed by administrative side dated 19.09.2012 the High Court, which was dismissed on seeking confirmation on the post of 08.11.2012, inter alia, with the routine grade clerk with all consequential observation that the judgment in question benefits including promotion from the had already been given effect to and all date of promotion of his juniors as has the concerned employees had been been done in the case of similarly situated confirmed/ regularised and given persons. In the representation, the consequential reliefs by way of promotion petitioner referred to the benefit given to etc. vide various orders. the seven other persons, who were similarly appointed vide order dated 13. Pursuant to the judgment of the 01.09.2004 and were respondents in the Division Bench dated 20.09.2011, a writ petition filed by Devendra Kumar meeting of the concerned Committee of Pandey and were appellants before the the High Court on the administrative side Division Bench, as already referred was held on 31.05.2012, wherein, out of hereinabove. The representation also the 14 persons referred hereinabove, referred to the similar treatment having seven who were respondents before the been given to six other persons, who were writ court and appellants in appeal were appointed without there being any given benefit of regularisation/ stipulation in their appointment about confirmation etc., whereas, the remaining their appointment being ad hoc. He seven persons were treated differently. In referred to the judgments of the learned respect to them, it was stated that as no Single Judge dated 27.07.2007 and the rule had been framed by the High Court judgment of the Division Bench dated for regularisation of ad hoc employees, 20.09.2011 and sought similar reliefs. therefore, as per sub-clause (2) of Rule 40 of the High Court Rules, the 15. On receipt of the decision of the Regularisation Rules applicable to the Committee dated 31.05.2012, the Hon'ble State Government employees were Chief Justice passed an order on applicable and, as, the High Court had not 01.06.2012 referring the matter of all such issued any order of modification, employees, who could not get benefit of variation and exception, therefore, the the said judgment dated 20.09.2013, same were applicable without any including that of the petitioner to the modification and since the said seven Rules Revision Committee which, on persons including the petitioner did not 27.05.2013, took a decision as quoted in fall within the date mentioned therein, i.e. paragraph-12 of the counter affidavit of 30.06.1998, therefore, they cannot be the respondents and pursuant thereto, the given benefit of regularisation. The four impugned order was passed indicating the 1418 INDIAN LAW REPORTS ALLAHABAD SERIES last three lines thereof, which stated that the seven persons who have been given 'Committee recommends that those have the benefit of confirmation and further become over-age be given relaxation in promotion in pursuance to the judgment age in the next examination provided they of the Division Bench dated 20.09.2011, possess minimum qualification for therefore, there is no reason as to why the appointment'. The relevant extract of the petitioner should be treated differently. decision of the Committee dated Learned counsel invited the attention of 27.05.2013 as quoted in paragraph-12 the court to one of the appointment orders shows that the Committee had taken into of the other persons, which is annexed as consideration the conditions mentioned in part of Annexure-3 and the appointment the appointment order regarding order of the petitioner, which is also appearance in examination and also the annexed with the writ petition, to show fact that the Regularisation Rules for that except for the difference in the name, class-III employees provided for a cut off all the orders were verbatim similar, with date, i.e. 20.12.2001, but the petitioner the same terms and conditions. and others, who had represented likewise did not fall within the said cut off date. 19. He invited the attention of the court to the decision of the Committee 16. Being aggrieved, the petitioner pursuant to the judgment of the Division has filed this writ petition. dated 20.09.2011 to impress upon that the committee decided to treat the seven 17. The court was informed during 'representationists', who were respondents the course of argument that six other in the writ petition and appellants in the persons, who had also represented and special appeal, referred above, as, on whose representations had been rejected probation for one year from the date of likewise had approached this High Court their initial appointment and as confirmed sitting at Lucknow and their writ petitions on the expiry of the said period, the six are still pending. Learned counsel for the persons, whose appointment orders did petitioner also informed the court that, as, not contain words 'ad hoc' and who did fresh advertisement was issued by the not prefer any appeal against the respondents on 19.07.2014 for filling up judgment of the learned Single Judge the vacant posts in question, therefore, a dated 27.07.2007 were given similar writ petition being W.P. No.5288 (S/S) of benefits. However, the remaining seven 2013 was filed at Lucknow, wherein, an persons including the petitioner were interim order had been passed on dealt with differently. 25.08.2014 to the effect that though the selection for the post of routine grade 20. The contention is that the High clerk, pursuant to the advertisement dated Court completely failed to appreciate that 19.07.2014, may go on, but, the result of the seven persons including the petitioner, the same shall not be declared. A copy of who were not parties in the writ petition the said order was placed before the court. and were not appellants in the special appeal were similarly situated to those 18. The contention of Sri Tiwari, who were parties therein and once the learned counsel for the petitioner is that Division Bench upheld the appointment the petitioners were similarly situated to of others as being legal entitling them to 3 All]. Dharmendra Singh Rathore Vs. Hon’ble Chief Justice Hon. High Court Judicature at Alld. & Ors. 1419 confirmation/ regularisation, then the 23. The learned counsel invited the same benefit was required to be extended attention of the court to paragraphs-8, 9, to these persons also, and there was no 10, 11 & 12 of the counter affidavit filed rational distinction for treating them by the respondents in support of his differently as has been done by the contentions. The contention of the learned Committee, vide decision dated counsel is that as the petitioner did not file 31.05.2012. any special appeal against the judgment of the Single Judge dated 27.07.2007, 21. Learned counsel further therefore, the benefits under the judgment submitted that out of the six persons, who passed in special appeal were not liable to were not similarly situated to the 14 be extended to him and the decisions of persons, referred to hereinabove, only the respective committees in this regard four were respondents in the writ petition did not suffer from any error. and none of them filed special appeal Consequently, the impugned order passed against the judgment dated 27.07.2007, pursuant to the same does not warrant any yet, all the six of them were extended the interference. same benefits by treating them as on probation for a period of one year from 24. In rejoinder, Sri Tiwari the date of their initial appointment and as submitted that the reliance being placed confirmed on completion of the aforesaid by the learned counsel for the respondent probation, under Rule 33. The contention upon the words 'employees hereunder' is that the petitioner was entitled to mentioned in the judgment of the appellate similar treatment under Rule 33. court, as also mentioned in the counter affidavit, does not find any mention in the 22. On the other hand, Sri Samir earlier decision of the Committee dated Sharma, learned counsel for the High 31.05.2012 nor in the subsequent decision Court submits that a perusal of the dated 27.05.2013, therefore, the same is by Division Bench judgment dated way of an afterthought, as such 20.09.2011 will show that the same was impermissible. He further submitted that applicable only to the employees who even out of the six persons, whose were parties thereto, as is evident from the appointment order did not mention the use of the word 'employees hereunder' in words 'ad hoc', only four were respondents the last line of the said judgment. In this in the writ petition and none filed special context, he also invited the attention of appeal against the judgment dated the court to the judgment dated 27.07.2007, yet, the respondents have 08.11.2012 passed in the review petition extended the benefit of the said judgment to filed by the High Court, wherein, this all the six persons. The petitioner herein court had taken notice of the fact that the was similarly situated to the seven judgment had been given effect to and all representationists referred in the decision of the concerned employees had been the Committee of the High Court dated confirmed/ regularised. Based thereon it 31.05.2012 and there was no reason for was contended that this court clearly treating him differently. meant that the said judgment dated 20.09.2011 was only confined to the 25. He further submitted that as the parties therein and not others. High Court had also filed a special appeal 1420 INDIAN LAW REPORTS ALLAHABAD SERIES against the judgment dated 27.07.2007, of the judgment dated 27.07.2007, the therefore, there was no need for the aggrieved respondents (therein) filed petitioner to file such an appeal as his special appeal. The High Court on the interest was being looked after and administrative side also filed special protected by the High Court itself, appeal. In special appeal, the Division therefore, the contention to the contrary Bench categorically held such on behalf of the respondents is not appointments to be legal and valid having acceptable. He contended that the seven been made as per Rules and also that the 'representationists' have not only been Chief Justice was empowered to do so. confirmed but have been promoted to the The relevant observations of the Division next higher post of Review Officer and Bench are as under: the petitioner is also entitled to the same benefit. "In the instant case, High Court, which is the employer, and the employees, 26. There is no doubt about the fact who have been appointed by the then that the petitioner herein and the seven Hon'ble the Chief Justice and whose representationists, as referred in the appointments were challenged in the writ decision dated 31.05.2012, who were petition, both are aggrieved by the same respondents in the writ petition filed by order of the learned Single Judge and Devendra Kumar Pandey, were similarly have preferred these appeals appointed by verbatim similar orders of independently from the same order, the same date, on the same terms and therefore, it can be safely construed that conditions. Except for the difference in there is no conflict of interest between the the name, the appointment orders did not High Court as an employer and its differ in any manner. It is also not in employees. Against this background, we dispute that when Devendra Kumar have to see whether passing of such order Pandey filed the Writ Petition No.45922 at the instance of the respondent/writ of 2004, he sought the quashing of petitioner, who had no locus, was justified appointment orders of respondents No.3 or not. At least the ratio propounded in to 14 dated 01.09.2004, 02.09.2004 and 2001 (10) SCC 447 (Mohd. Shafi Pandow 26.07.2004 and 'other similarly situated Vs. State of J&K and others), 2003 (8) employees, if any'. For the reasons best SCC 567 (Chairman & MD, BPL Ltd. Vs. known to him, he impleaded only some of S.P. Gururaja and others), 2006 (3) SCC the appointees excluding the petitioner 758 (Gurpreet Singh Bhullar and another herein but claimed relief against all of Vs. Union of India and others), 2008 (3) them. SCC 512 (K. Manjusree Vs. State of Andhra Pradesh and another) and 2009 27. In any case, the subject matter in (1) SCC 386 (Mukul Saikia and others Vs. issue in the writ petition was the validity State of Assam and others) does not say of the appointments made by the so. respondents and if the court had held that Admittedly, appointment of the they were illegal, then obviously the appointees, who are either appellants or petitioner's (herein) appointment would respondents in these appeals, were made also have been rendered illegal as it was on adhoc basis by the then Hon'ble the also on the same terms. After the passing Chief Justice in the year 2004 under 3 All]. Dharmendra Singh Rathore Vs. Hon’ble Chief Justice Hon. High Court Judicature at Alld. & Ors. 1421 Rules 41 and 45 of the Rules, 1976. Rules So far as Constitution Bench 41 and 45 of the Rules, 1976, which are judgement of the Supreme Court in Uma relevant for the purpose, are as follows: Devi (supra) is concerned, it criticised "41. Residuary powers.-- Nothing in passing of orders by the Courts these rules shall be deemed to affect the regularising the services through back power of the Chief Justice to make such door process making burden on the Union orders, from time to time, as he may deem of India or the State only out of sympathy fit in regard to all matters, incidental or for the continuance of service ignoring ancillary to these rules, not specifically the process of appointment. In this case provided for herein or in regard to employer and employees are not in matters as have not been sufficiently dispute. Even the Supreme Court in Uma provided for: Devi (supra) has eliminated irregular Provided that if any such order appointments under certain relates to salaries, allowances, leave or circumstances from illegal appointments pension, the same shall be made with the with the intervention of orders of the approval of the Governor of U.P." Courts or of tribunals. "45. Notwithstanding anything Moreover, by an order of the then contained in these rules, the Chief Justice Chief Justice dated 19th October, 2005 shall have the power to make such orders, the cadre of Routine Grade Clerk was as he may consider fit, in respect of declared as dead cadre as per Rule 40 (3) recruitment, promotion, confirmation or of the Rules, 1976 and merged with the any other matter." cadre of Assistant Review Officer (Lower Division Assistant in the pattern of civil The preamble of the Rules, 1976 secretariat). As a result whereof, the speaks that in exercise of the powers condition stipulated in the appointment conferred by Clause (2) of Article 229 of letters of all the incumbents working as the Constitution of India, the Chief Justice Routine Grade Clerk looses force. A of the High Court of Judicature at deponent on the part of the Registry of the Allahabad makes the following rules with High Court has stated that by virtue of respect to the conditions of service of merger of the posts of Routine Grade persons serving on the staff attached to Clerk with the Assistant Review Officer the High Court of Judicature at and the advertisement as made on 17th Allahabad. The appointments under April, 2004 for 79 posts of Routine Grade challenge made on adhoc basis appear to Clerks having been cancelled, no be on the post of Routine Grade Clerk. recruitment can be made to such posts Source of recruitment on Class-III posts and accordingly, holding of any regular as per Rule 8(a)(i), substituted by selection by direct recruitment to the post notification dated 27th October, 1989, is of Routine Grade Clerk does not arise. It that direct recruitment will be made has been contended by the appellants that through competitive examination the adhoc appointments as made in the conducted by the Appointing Authority or case herein are neither temporary nor in any manner so directed by the Chief contractual nor casual, as was in the case Justice. Therefore, the appointments of of Uma Devi (supra). Moreover, such such employees are as per the respective appointments are neither illegal nor rules. irregular but in accordance with the 1422 INDIAN LAW REPORTS ALLAHABAD SERIES relevant Rules and powers of the Chief the validity of the appointments and the Justice of a High Court. Such power is entitlement of such appointees to sovereign and plenary in nature, which confirmation/ regularisation is applicable can not be questioned with the reference to all such appointees, and there is no of Uma Devi (supra). Learned Counsel rational basis for making any distinction appearing for the respondent-writ in this regard. petitioner has only contended that he has nothing to say with regard to availability 29. So far as the use of the words of power of the Chief Justice but with 'employees hereunder' in the last line of regard to use of such power of the Chief the said judgment is concerned, I have Justice. perused the decision of the Committee dated 31.05.2012 taken pursuant to the Upon hearing the parties, it can be aforesaid judgment dated 20.09.2011 and construed that when the Chief Justice is I do not find any distinction having been empowered to appoint a person under the drawn by the Committee based on the Rules framed in exercise of powers aforesaid ground. Thus, it is clearly an conferred under Article 229 (2) of the afterthought, a post facto attempt to Constitution of India, the appointment of justify a prior action, which is the person can not be said to be illegal or impermissible. The validity of an action irregular...... impugned is to be judged on the basis of the reasons mentioned in the impugned Thus, in totality, both the appeals order/ decision, which cannot be allowed succeed and are allowed. The direction to be supplemented by means of a counter given by the learned Single Judge in affidavit, therefore, this plea is not open Paragraph-21 of the impugned judgement to the respondents. Reference may be dated 27th July, 2007 following the made in this regard to the judgment of the observations of the Supreme Court Supreme Court in the case of Mohinder judgement in Uma Devi (supra) stands set Singh Gill Vs. The Chief Election aside. The writ petition is treated to be Commissioner, 1978 (1) SCC 405, para-8 dismissed on the basis of the observations of which is quoted hereinbelow: of the learned Single Judge himself in the earlier paragraphs of the impugned "The second equally relevant matter judgement. Registrar General of this is that when a statutory functionary makes Court is hereby directed to take an order based on certain grounds, its appropriate steps with regard to validity must be judged by the reasons so confirmation/ regularisation and mentioned and cannot be supplemented consequential relief of the employees by fresh reasons in the shape of affidavit hereunder. or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to However, no order is passed as to court on account of a challenge, get costs." validated by additional grounds later brought out. We may here draw attention 28. This court is not in any doubt to the observations of Bose J. in that the observations of the Division Gordhandas Bhanji (1) "Public orders, Bench, referred hereinabove, regarding publicly made, in exercise of a statutory 3 All]. Dharmendra Singh Rathore Vs. Hon’ble Chief Justice Hon. High Court Judicature at Alld. & Ors. 1423 authority cannot be construed in the light "3. A qualifying examination for of explanations subsequently given by the promotion of Junior Engineers, to the officer making the order of what he post of Assistant Engineers was held in meant, or of what was in his mind, or 1970. The Government took a decision to what he intended to do. Public orders allow grace marks upto 9 in respect of made by public authorities are meant to candidates of irrigation department and have public effect and are intended to not to P.W.D., whereupon five persons affect the actings and conduct of those to filed two writ petitions nos.690 of '78 and whom they are addressed and must be 1523 of '78 complaining of construed objectively with reference to discrimination. These writ petitions were the language used in the order itself." allowed on 08.04.1982 by this court and the government was directed to consider Orders are not like old wine the case of the petitioners who belonged becoming better as they grow older: " to the P.W.D., by allowing grace marks, such as was done in respect of officers of 30. Mere use of the words the irrigation department. The state 'employees hereunder' does not mean government has, accordingly, declared others similarly situated are to be those petitioners passed after allowing deprived of similar benefits. their 9 grace marks. This order dated 3.2.83 is Annexure 4 to this writ petition. 31. It is trite that judgments of the Petitioner is one of the remaining officers court are not to be read as statutes. Before of the P.W.D. who could have succeeded the Division Bench, it was not an issue as to if 9 grace marks were allowed. The state whether the benefit of regularisation/ government has, however, given the confirmation etc. is to be confined to only benefit only to the persons who had those who were parties in the writ petition earlier approached this court and not to and the appeal or it was to be extended to persons who were similarly situated and others also, therefore, the said judgment can had failed to approach this court. We find not be read or understood to mean that the no justification for the government benefits therein were to be confined to the decision to deny the benefit of the parties therein. It is the ratio of the decision in 'Madan Gopal Popli Vs. State' judgment, which is to be read and (Writ Petition No.1523 of 1978) to understood. The issue before the Division persons who were similarly situated with Bench was the validity of the appointments, the petitioners of that case. Once the legal which was upheld. It is also trite that once position is declared by this court and the the legal position has been settled by the same is not challenged before the Hon'ble High Court in a writ petition at the behest of Supreme Court, it is obligatory on the some persons, then other similarly situated State Government to given effect to the should be extended the same benefit instead law so declared. We, therefore, allow the of being compelled to approach the court Writ Petition and direct that the case of for the same relief. Reference may be made the petitioner and also of other persons in this regard to a Divison Bench judgment similarly situated be dealt with after of this court reported in R.N. Dixit Vs. State allowing them the benefit of 9 grace of U.P., 1983 (1) LCD 201, in para-3 of marks in respect of 1970 qualifying which it has been held as under: examination and to declare the result 1424 INDIAN LAW REPORTS ALLAHABAD SERIES accordingly, at an early date, being, 35. The decision of the High Court within a month from today." on the administrative side dated 27.05.2013 also does not consider the 32. The petitioner was not made a issue of these persons being similarly party in the writ petition filed by Sri situated to the seven 'representationists', Devendra Kumar Pandey, though he instead, it refers to the conditions of claimed relief against similarly situated appointment mentioned in their persons. Whether petitioner herein can be appointment order, ignoring that the faulted or made to suffer on account of Division Bench, vide its judgment dated the above. The answer is in the negative. 20.09.2011, had already held that those The High Court having already conditions have lost force and these challenged the order of the Single Judge observations of the Division Bench are dated 27.07.2007, obviously the rights applicable as much to the appointment and interests of the petitioner herein were letter of the petitioner as to that of others being looked after and were protected in who were before it. The said observations its special appeal. have become final. The review petition had been dismissed. This court has been 33. It is also important to note that informed that no special leave petition out of the six persons whose appointment was preferred. order did not mention the words 'ad hoc', only four were respondents in the writ 36. In my view, what has been held by petition and none of them filed special the Division Bench in respect of the seven appeal against the judgment dated 'representationists', is applicable to the 27.07.2007, yet, the Committee extended petitioner herein also and there is no rational the benefit of the Division Bench basis for treating him differently. The judgment dated 20.09.2011 to all the six respondents have erred in treating him so. persons. 37. In view of the above discussion, 34. On a perusal of the decision dated the impugned order cannot be sustained. 31.05.2012 taken by the High Court on the The same is accordingly quashed. The administrative side pursuant to the judgment respondents are directed to extend the dated 20.09.2011 reveals that the High Court same benefits as has been extended to the did not at all consider and failed to appreciate seven 'representationists' as referred by that the remaining seven persons including the High Court in its decision dated the petitioner were similarly situated to the 31.05.2012 pursuant to the judgment seven 'representationists', referred therein, dated 27.07.2007 and the judgment dated nor did it draw any distinction on the ground 20.09.2011. The petitioner shall also be that the remaining seven were not entitled to entitled to consequential benefits as has the benefit of the judgment as they were not been granted to the said persons. This parties to the said proceedings. The exercise shall be done within a period of Committee simply treated these seven two months from the date a certified copy persons differently without considering as to of this order is produced before the whether they were similarly situated and competent authority. The writ petition is entitled to same benefit. I am of the view that allowed in the aforesaid terms. it erred in doing so. ------3 All]. Panna Lal & Ors. Vs. The Collector, Allahabad. & Ors. 1425

ORIGINAL JURISDICTION Dadanpur, Tehsil Chail District CIVIL SIDE Allahabad. Under the Urban Land DATED: ALLAHABAD 16.10.2014 (Ceiling and Regulation) Act, 1976, the competent authority declared 3372.94 sq. BEFORE meter as surplus land. The petitioners are THE HON'BLE TARUN AGARWALA, J. THE HON'BLE SHRI NARAYAN SHUKLA, J. the children and grand children of late Baladeen who have filed the present writ Civil Misc. Writ Petition No. 64061 of 2013 petition alleging that they are still in possession of the land in question and that Panna Lal & Ors. ...Petitioners the order of the District Magistrate dated Versus 22.5.2013 rejecting their application The Collector, Allahabad & Ors. should be set aside and the name of State ...Respondents of U.P. should be deleted from the Counsel for the Petitioner: revenue records and their names should Sri Harish K. Yadav. be incorporated in view of the fact that all the proceedings under the Urban Land Counsel for the Respondents (Ceiling and Regulation) Act, stood C.S.C., Sri S.P. Srivastava, Sri S.P. Singh repealed by virtue of the Urban Land (Ceiling and Regulation) Repeal Urban Land (Ceiling & Regulation) Act Act,1999. This court under the earlier 1976-Section 10 (b), 19 (5)-petitioner ground of litigation had directed the seeking direction to delete the State petitioner to make a representation which from revenue record-claimimg in actual has been rejected by an order dated physical possession-no specific denial- mere taking possession on paper without 15.5.2013. following procedure under Section 19 (5)-no possession in eye of law-direction 2. The petitioner in paragraph 10 of to struck of the name of state as well as the writ petition has made a categorical ADA given-petition allowed. statement that they are in actual and physical possession. This fact has not Held: Para-4 From the impugned order, it is been denied by the respondents in apparently clear that no proceeding was paragraph 6 of the counter affidavit. initiated under section 10(6) of the Act and consequently, the alleged possession 3. From a perusal of the order of the taken on paper and thereafter District Magistrate,the court finds that the transferring the same to Allahabad possession was alleged to have been taken Development Authority appears to be wholly illegal and without any by the delegate of the District Magistrate justification. on 18.9.1984 pursuant to the order dated 18th September, 1984 declaring the land Case Law discussed: as surplus. The order of District 2013 (4) SCC 280; 2014 (4) ADJ 305 Magistrate aforesaid further indicates that the land was transferred to Allahabad (Delivered by Hon'ble Tarun Agarwala, J.) Development Authority on 10.1.1990 and possession of such transfer was recorded 1. Baladeen was the original tenure in the notice under section 10(5) of the holder of Gata No. 139 having an area Act. Nothing has been indicated in the 4872.94 sq. meter situate in village 1426 INDIAN LAW REPORTS ALLAHABAD SERIES impugned order that voluntary possession remove the name of the State of U.P. was given by the original tenure holder or and/or remove the name of the Allahabad children or by the grand children under Development Authority from the revenue section 10(5) of the Act nor anything has record and record the names of the been indicated that upon failure to give petitioners on the land in question. voluntary possession under section 10(5) ------by the original tenure holder or by his heirs, actual and physical possession was taken pursuant to the proceedings initiated under section 10(6) of the Act.

4. From the impugned order, it is apparently clear that no proceeding was initiated under section 10(6) of the Act and consequently, the alleged possession taken on paper and thereafter transferring the same to Allahabad Development Authority appears to be wholly illegal and without any justification.

5. In State of U.P. Versus Hari Singh 2013 (4) SCC 280 the Supreme Court has held that actual physical possession is required to be taken by the State under section 19(5) and 10(6) of the Act otherwise the benefit of the Repeal Act would have to be given to the tenure holder. Similar view was held by this Court in the case of Yasin and others Versus State of U.P. and others 2014 (4) ADJ 305.

6. We also find that inspite of time being granted no counter affidavit has been filed by the Allahabad Development Authority nor the counsel is present before the Court In the light of the aforesaid the impugned order of the District Magistrate cannot be sustained and is quashed. Writ petition is allowed. A writ of mandamus is issued directing the respondents not to interfere in the possession of the petitioners over the land in dispute. Further a writ of mandamus is issued commanding the State of U.P. to