Indian Law Report - Allahabad Series - Dec2011

3 All] C.B.Pandey 7770(M/B) 2011 V. Sri Narain Singh, Minister Of Horticulture Deptt. Lko.
and others 1389

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.12.2011

BEFORE
THE HON'BLE UMA NATH SINGH,J.
THE HON'BLE ANIL KUMAR,J.

Review Petition No. - 294 of 2011

Chandra Bhushan Pandey 7770
(M/B)2011 ...Petitioner
Versus
Sri Narain Singh, Minister Of Horticulture
Deptt. Lko.and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Pande

Constitution of India-Article 226-Review
Application-Writ petition dismissed-
petitioner not within meaning of
aggrieved person-hence no locus
standi-Review can be entertained strictly
within scope of order 47 Rule 1 read with
Section 141 C.P.C.-no apparent error on
record or fallibility by over sighting by
the court-disclosed-Application not
maintainable.

Held: Para 15

In view of the abovesaid facts and taking
into consideration that the writ petition
filed by the review petitioner initially
dismissed on the ground that the
petitioner is not a "person aggrieved" in
the subject matter, hence no right to
approach this Court by filling a writ
petition under Article 226 of the
Constitution of India, so on the facts and
grounds on which the present review
petition filed, the same can not be
entertained and decided, because as
stated above under the garb of review, a
party cannot be permitted to re-open the
case and to gain a full-fledged inning, for
taking the Court to take a view contrary
to what had been taken earlier. Review
lies only when there is error apparent on
the face of the record and that fallibility
is by the over-sight of the Court.
Case law discussed:
AIR 1964 SC 1372; AIR 2002 SC 2537; AIR
1977 All. 163; AIR 1963 SC 1909; (2004) 5
SCC 353; (1980) 4 SCC 680; (1999) 9 SCC
323; AIR 2001 SC 2231; AIR 2003 SC 3365

(Delivered by Hon'ble Anil Kumar,J.)

1. Heard Sri Ashok Pande, learned
counsel for review petitioner and Sri J.N.
Mathur, learned Additional Advocate
General, State of Uttar Pradesh.

2. Facts of the present case are that
review petitioner, Sri Chandra Bhushan
Pandey, initially approached this Court by
filling a writ petition under Article 226 of
the Constitution of India, and the reliefs
claimed by him petitioner in the Writ
Petition No. 7770 (MB) of 2011 (
Chandra Bhushan Pandey Vs. Sri Narain
Singh and others) are quoted
hereinbelow:-

"i) to issue a writ in the nature of
mandamus thereby directing the Minister
for Horticulture, the respondent no. 1 to
remove Sri Jeevan Lal Verma for the post
of his Personal Secretary.

ii) to issue a writ in the nature of
mandamus to respondent no. 2 hold an
enquiry regarding the misconduct of Sri
Jeevan Lal Verma.

iii) to issue a writ in the nature of
mandamus to respondent no. 3, the
Principal Secretary, Horticulture to ensure
the proper application of the order passed
by Principal Secretary dated 30th June,
2007 and to remove the officers wrongly
posted accordingly.

iv) to issue a writ in the nature of
mandamus directing the respondent No. 1
and 3 to give dual charge to all District
1390 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Horticulture Officers till the shortage of
cadre officers is fulfilled by fresh
appointment.

v) to issue a writ, order or direction
which this Hon'ble Court may deem fit
and proper may also be issued in favour
of the petitioner."

3. By order dated 30.08.2011, the
above noted writ petition was dismissed
on the ground that the petitioner is not a
"person aggrieved" in regard to subject
matter involved in the instant case, hence
, he has no locus standi to file the present
writ petition under Article 226 of the
Constitution of India with the observation
that "Sri J.N. Mathur, learned Additional
Advocate General, State of U.P. has very
fairly submitted that he will look into the
matter and bring it to the notice of
respondents no. 1 and 2 to take
appropriate action, if the same is correct.
We hope and trust on the submission
made by Sri Mathur, who will use his
office to do the needful."

4. Sri Ashok Pande, learned counsel
for review petitioner submits that the
petitioner is a "person aggrieved" because
he is a citizen of India and being an
officer of the Horticulture Department as
well as the President of the Horticulture
Officers Association. Due to corruption
prevailing in the department the public
money is being mis-utilized and the
honest cadre officers including the
petitioner are being subjected to cruelty,
torture and misbehaviour. So, on the basis
of some judgments of the Hobn'ble
Supreme Court, which were not
applicable in the facts and circumstances
of the case, it is highly unjust, improper,
illegal and unconstitutional to not grant
relief to the petitioner, as such the
judgment needs to be reviewed.

5. He further submits that in spite of
the assurance given by Sri J.N. Mathur,
learned Additional Advocate General,
State of U.P. that he will look into the
matter and bring to the notice of the
respondent Nos. 1 and 2 to take
appropriate action, if the same is correct
but nothing has been done. Sri Jeevan Lal
Verma is still working as Personal
Secretary to Minister, posted against the
rules, still enjoying his office and the
petitioner who approach this Hon'ble
Court with an expectation that the Court
will do justice, has been transferred from
Headquarter to Sant Ravidas Nagar
(Bhadohi). So, the order dated 30.08.2011
may be reviewed.

6. Sri J.N. Mathur, learned AGA had
informed that the order dated 30.08.2011
of this Court passed in Writ Petition No.
7770 (MB) of 2011 ( Chandra Bhushan
Pandey Vs. Sri Narain Singh and others)
has been communicated to the Minister
concerned for necessary compliance.

7. After hearing learned counsel for
petitioner and Sri J.N. Mathur, learned
Additional Advocate General, State of
Uttar Pradesh, the sole question which is
to be considered and decided in the
present case is the scope of review which
is summarized as under:-

8. In M/s. Thungabhadra
Industries Ltd. Vs. The Government of
Andhra Pradesh represented by the
Deputy Commissioner of Commercial
Taxes, Anantapur, AIR 1964 SC 1372,
The Apex Court held that a review is by
no means an appeal in disguise whereby
an erroneous decision is reheard and
3 All] C.B.Pandey 7770(M/B) 2011 V. Sri Narain Singh, Minister Of Horticulture Deptt. Lko.and others 1391
corrected. but lies only for patent error.
We do not consider that this furnishes a
suitable occasion for dealing with this
difference exhaustively or in any great
detail, but it would suffice for us to say
that where without any elaborate
argument one could point to the error and
say here is a substantial point of law
which stares one in the face, and there
could reasonably be no two opinions
entertained about it, a clear case of error
apparent on the face of the record would
be made out.

9. Hon'ble the Apex Court in
Subhash Vs. State of Maharastra &
Another, AIR 2002 SC 2537, the Apex
Court emphasised that Court should not
be misguided and should not lightly
entertain the review application unless
there are circumstances falling within the
prescribed limits for that as the Courts
and Tribunal should not proceed to re-
examine the matter as if it was an original
application before it for the reason that it
cannot be a scope of review.

10. This Court in the case of
Bhagwant Singh Vs. Deputy Director of
Consolidation & Another, AIR 1977
All. 163, rejected the review application
filed on a ground which had not been
argued earlier because the counsel, at
initial stage, had committed mistake in
not relying on and arguing those points,
held as under:-

"It is not possible to review a
judgment only to give the petitioner a
fresh inning. It is not for the litigant to
judge of counsel's wisdom after the case
has been decided. It is for the counsel to
argue the case in the manner he thinks it
should be argued. Once the case has been
finally argued on merit and decided on
merit, no application for review lies on
the ground that the case should have been
differently argued."

11. In Shivdeo Singh v. State of
Punjab, AIR 1963 SC 1909, in a review
petition filed under Order 47 Rule 1 CPC
the Supreme Court held that the power of
review under Article 226 of the
Constitution of India, in reviewing its
own orders, every Court including High
Court inheres plenary jurisdiction, to
prevent miscarriage of justice or to correct
grave and palpable errors committed by it.

12. Further, the review lies only on
the grounds mentioned in Order 47, Rule
1 read with Section 141 CPC. The party
must satisfy the Court that the matter or
evidence discovered by it at a subsequent
stage could not be discovered or produced
at the initial stage though it had acted with
due diligence. A party filing a review
application on the ground of any other "
sufficient reason" must satisfy that the
said reason is analogous to the conditions
mentioned in the said provision of C.P.C.

13. Thus, in view of the abovesaid
facts, review can be allowed only on (1)
discovery of new and important matter of
evidence which, after exercise of due
diligence, was not within the knowledge
of the person seeking review, or could not
be produced by him at the time when the
order was made, or (2) when some
mistake or error on the face of record is
found, or (3) on any analogous ground.
But review is not permissible on the
ground that the decision was erroneous on
merits as the same would be the province
of an Appellate Court."

14. Hon'ble Supreme Court in the
case of Zahira Habibullah Sheikh Vs.
State of Gujarat, (2004) 5 SCC 353,
after placing reliance on its earlier
judgments i.e. P.N. Eswara Iyer etc. Vs.
Registrar Supreme Court of India,
(1980) 4 SCC 680; Sutherdraraja Vs.
State, (1999) 9 SCC 323; Ramdeo
Chauhan Vs. State of Assam, AIR 2001
SC 2231; and Devender Pal Singh Vs.
State of NCT of Delhi, AIR 2003 SC
3365; observed that review applications
"are not to be filed for the pleasure of the
parties or even as a device for ventilating
remorselessness, but ought to be resorted
to with a great sense of responsibility as
well."

15. In view of the abovesaid facts
and taking into consideration that the writ
petition filed by the review petitioner
initially dismissed on the ground that the
petitioner is not a "person aggrieved" in
the subject matter, hence no right to
approach this Court by filling a writ
petition under Article 226 of the
Constitution of India, so on the facts and
grounds on which the present review
petition filed, the same can not be
entertained and decided, because as stated
above under the garb of review, a party
cannot be permitted to re-open the case
and to gain a full-fledged inning, for
taking the Court to take a view contrary to
what had been taken earlier. Review lies
only when there is error apparent on the
face of the record and that fallibility is by
the over-sight of the Court.

16. For the foregoing reasons, the
review petition filed by the review
petitioner lacks merit and is dismissed.

17. No order as to costs.
--------

APPELLATE JURISDICTION
CIVIL SIDE

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE D. K. UPADHYAYA, J.

Special Appeal No. 305 of 2007

Lal Bahadur Singh ...Petitioner
Versus
U.P. State Roadways Transport
Corporation and others ...Respondents

U.P.S.R.T.C. Employees (other than
officer) Regulation 1981-Regulation 67
(5)-Disciplinary Proceeding-after
setting-a-side earlier dismissal with
liberty to proceed in accordance with
law-subsequent dismissal-without
reinstatement without treating as
suspended employee-entire proceeding
with consequential dismissal-order held
illegal-quashed-direction to reinstate
and pay current salary and the salary
during suspension to Quash of dismissal
order-shall be subject to final outcome of
disciplinary proceedings.

Held: Para 11 and 18

Any order of punishment based on an
enquiry, which has been illegally
initiated or which is void cannot be
saved. Simply because there is a
provision of deemed suspension under
Clause (5) of Regulation 67 of the
Regulations known as 'U.P. State Road
Transport Corporation Employees (Other
than Officers) Service Regulations, 1981'
that would not give a defense to
U.P.S.R.T.C. to cover the default.

The legal position thus, is that on
quashing of the order of removal from
service, liberty to hold an enquiry afresh
from a particular stage could have been
availed of, only after the appellant was
reinstated into service and may be that
after reinstatement, the appointing
authority could have passed an order of
3 All] Lal Bahadur Singh V. U.P. State Roadways Transport Corporation and others 1393
suspension and till the enquiry was
concluded, he could have remained
under suspension. But in any case,
without reinstating the appellant,
enquiry could not have been conducted
afresh.
Case law discussed:
2011 (40 ESC 351 (SC)

(Delivered by Hon'ble Pradeep Kant, J.)

1. Heard learned counsel for the
appellant Sri R.P. Singh and Sri Ritesh
Kumar Singh for U.P.S.R.T.C.

2. Under challenge is the order
passed by the learned Single Judge dated
22.2.07, by means of which, the writ
petition preferred by the appellant,
challenging his order of removal from
service has been virtually dismissed,
though it stands allowed in part, under
which direction, the appellant has been
directed to be paid arrears of salary for the
period commencing from 13.10.03 to
12.2.04. The learned Single Judge has
described the order as order of dismissal
from service, though in fact, it is an order
of removal from service.

3. In nutshell, the facts of the case
are that the appellant while working as
Bus Conductor in U.P.S.R.T.C. was
removed from service on 4.3.1983. He
was suspended for holding the
departmental enquiry, but later on, the
suspension order was revoked and he was
allowed to resume duties, and while
working as such, an order of removing
him from service was passed on 4.3.1983.

4. The appellant challenged the
aforesaid order of removal from service
by filing Writ Petition No. 8975 (SS) of
1992, which was allowed and liberty was
given to U.P.S.R.T.C. to hold the enquiry
afresh from the stage of submission of
reply to the charge sheet, as it was found
that the enquiry was not held in
accordance with rules. The operative
portion of the order passed by the learned
Single Judge reads as under:

"In the result, the writ petition is
dismissed in part. The impugned order of
removal from service of the petitioner
dated 4.4.1983 passed by the opposite
party no. is hereby quashed. However, it
will be open for the opposite parties to
make inquiry afresh after stage of
submission of the reply to the charge-
sheet in accordance with law. In case no
fresh inquiry is conducted against the
petitioner within a period of three months
from the date of production of certified
copy of this order, the petitioner shall be
deemed to have been reinstated in service
with all consequential benefits. But in
case, the inquiry as observed is initiated
against him, the same shall be conducted
in accordance with law and the parties
shall abide by the decision of the said
inquiry."

5. After the decision of the aforesaid
writ petition, fresh enquiry was conducted
from the stage of submission of reply to
the charge sheet and the impugned order
dated 12.12.04 was passed, removing the
appellant from service. This order again
became the subject matter of challenge in
the present writ petition, against which
order, this special appeal has been filed.

6. From perusal of the order
impugned and the arguments advanced by
the parties' counsel, it can be easily
inferred that the sole question which was
urged before the learned Single Judge was
that the entire enquiry proceedings taken
afresh after the decision in the earlier writ
petition were illegal and void, as the
appellant was not reinstated into service
and the enquiry continued without
reinstatement, as per the directives issued
by the learned Single Judge in the earlier
writ petition.

7. It is an admitted fact that the
appellant was not reinstated into service
after the judgment was passed in the
earlier writ petition and that the enquiry
was conducted and concluded, treating
him as an ex-employee of the
U.P.S.R.T.C.

8. The fact that the appellant was
treated as an ex-employee is also evident
from the impugned order of removal from
service where a specific recital has been
made against the name, Lal Bahadur
Singh, as Bhootpoorva Parichalak (Ex-
Conductor).

9. The learned Single Judge though
accepted the plea of the appellant that in
view of the directives issued by the High
Court in the earlier writ petition, it was
obligatory upon the U.P.S.R.T.C. to
reinstate the appellant into service before
proceeding with the enquiry, but refused
to grant relief by observing that the
enquiry has already been held and in view
of Clause (5) of Regulation 67, the
appellant would be deemed to have been
suspended and accordingly, no illegality
can be said to have been committed.
However, the learned Single Judge
directed that the appellant would be
entitled for salary for the period
commencing from 13.10.03 to 12.2.04 i.e.
from the date of the order passed in the
earlier writ petition, till the passing of the
present order of removal.

10. The learned Single Judge having
come to the conclusion that illegality was
committed by the U.P.S.R.T.C. in not
reinstating the appellant into service, the
order of removal from service ought to
have been set aside, as the very initiation
of fresh disciplinary proceedings was
illegal and bad in law.

11. Any order of punishment based
on an enquiry, which has been illegally
initiated or which is void cannot be saved.
Simply because there is a provision of
deemed suspension under Clause (5) of
Regulation 67 of the Regulations known
as 'U.P. State Road Transport Corporation
Employees (Other than Officers) Service
Regulations, 1981' that would not give a
defense to U.P.S.R.T.C. to cover the
default.

12. In the case of Chairman-cum-
M.D. Coal India Ltd. and others vs.
Ananta Saha and others, 2011 (4) ESC
351 (SC), the apex court observed that if
there had been no proper initiation of
disciplinary proceedings after the first
round of litigation, all consequential
proceedings stood vitiated. Their
Lordships also observed that on facts, a
fresh enquiry was to be conducted and if
the appellant had chosen to hold a fresh
enquiry, they would be bound to reinstate
the delinquent and put him under
suspension and the delinquent would be
entitled for subsistence allowances, till the
conclusion of enquiry.

Nothing of this sort was done in the
instant case.

Regulation 67 (5) reads as under:

"67 (5)Where a penalty of dismissal
or removal from service imposed upon an
3 All] Lal Bahadur Singh V. U.P. State Roadways Transport Corporation and others 1395
employee is set aside or declared or
rendered void in consequence of or by a
decision of a court of law and the
appointing authority, on a consideration
of the circumstance of the case, decides to
hold a further inquiry against him on the
allegations on which the penalty of
dismissal or removal was originally
imposed, whether to allegations remain in
their original form or are clarified or
their particulars better specified or any
part thereof of a minor nature omitted-

(a) if he was under suspension
immediately before the penalty was
awarded to him, the order of his
suspension shall, subject to any direction
of the appointing authority, be deemed to
have continued in force on and from the
date of the original order of dismissal or
removal;

(b) if he was not under such
suspension, he shall, if so directed by the
appointing authority, be deemed to have
been placed under suspension by an order
of the competent authority on and from
the date of the original order of dismissal
or removal."

13. It envisages two contingencies
with respect to suspension as given in the
aforesaid sub-clause (a) and (b).

14. The matter in issue is not
covered by sub-clause (a), as the appellant
was not under suspension immediately
before penalty was awarded to him. So far
sub-clause (b) is concerned, that would
also not be of any assistance to
U.P.S.R.T.C. for the reason that the
appointing authority did not issue any
such direction nor pass any order for
suspending the appellant during the
course of enquiry.
15. Thus, Clause (5) of Regulation
67 was not at all attracted in the instant
case.

16. The departmental enquiry could
be conducted only against an employee
who is in service, unless, of course, there
is a provision under the rules permitting
an enquiry against the retired or ex-
employee. In the instant case, the
U.P.S.R.T.C. also proceeded on the
assumption that it is dealing with a ex-
employee and not with an existing
employee. There is no such power to hold
the enquiry against an ex-employee in the
service regulations.

17. The learned Single Judge in his
order, directed that in case no fresh
enquiry is conducted against the appellant
within a period of three months from the
date of production of certified copy of this
order, the appellant shall be deemed to
have been reinstated into service with all
consequential benefits. But in case, the
inquiry as observed is initiated against
him, the same shall be conducted in
accordance with law and the parties shall
abide by the decision of the said inquiry.
This obviously means that in case no
enquiry was conducted within the time
provided, the appellant would be deemed
to have been reinstated into service with
all consequential benefits, but in case the
enquiry was held as directed, then he
would be reinstated into service, but
consequential benefits would depend
upon the final outcome of the enquiry.

18. The legal position thus, is that on
quashing of the order of removal from
service, liberty to hold an enquiry afresh
from a particular stage could have been
availed of, only after the appellant was
reinstated into service and may be that
after reinstatement, the appointing
authority could have passed an order of
suspension and till the enquiry was
concluded, he could have remained under
suspension. But in any case, without
reinstating the appellant, enquiry could
not have been conducted afresh.

19. For the reasons aforesaid, the
order of removal from service of the
appellant dated 12.2.04 is liable to be set
aside, which is hereby set aside and the
order passed by the learned Single Judge
dated 22.2.07 is also set aside. As a
consequence of the aforesaid order, we
direct that the appellant shall be reinstated
into service forthwith, but the enquiry
shall be conducted afresh from the stage
of submission of reply to the charge sheet,
which shall be done within a maximum
period of three months. The appellant
shall cooperate in the enquiry. The
appellant shall be paid regular salary from
the date of his reinstatement, but the
arrears of salary for the period
commencing from date of passing of the
original removal order i.e. 4.3.1983 till
the date of reinstatement shall abide the
result of fresh enquiry.

20. The award of salary for the
period aforesaid by the learned Single
Judge, without setting aside the order of
removal from service, would not validate
the order of removal from service nor
such an order is covered by any
provisions of the service regulations.

21. The special appeal is allowed.
No order as to costs.
---------

CIVIL SIDE
DATED LUCKNOW 05.12.2011

BEFORE
THE HON'BLE UMA NATH SINGH, J.
THE HON'BLE DEVENDRA KUMAR ARORA, J.

Writ Petition No. 479 (SB) of 2010

State of U. P. and another ...Petitioner
Versus
Dev Raj Vishwakarma & another
...Respondents

U. P. Government Servants (Disposal of
the representation against adverse
annual confidential reports & allied
matters) Rules, 1995-Rule 4 and 5-
Annual confidential Report-direction of
Tribunal regarding conflict between
Reporting-Reviewing and Accepting
officer-remark given by reporting officer
shall prevail-for want of recording the
reasons by the reviewing officer-held-
incorrect-Tribunal ought to remand the
remand matter to Reporting Officer to
communicate such entries with
opportunity of representation and decide
the same in accordance with law-entry
word outstanding and good denotes
inferior in comparison of previous year-
could not effective unless communicated
and opportunity of hearing given-Govt.
to issue clear guidelines with clear
terms, whether good, fair, average, very
good-in view of Dev Dutta Case.


This Court is of the view that the learned
Tribunal cannot take up the role of the
reviewing or accepting authority and
cannot direct the authorities to take into
consideration the views recorded by the
Reporting Officer ignoring the entry
recorded by the Reviewing or Accepting
Authority. While setting aside entry
given by the Reviewing and Accepting
Authority, it was incumbent upon the
learned Tribunal to remand the matter to
3 All] State of U.P. and another V. Dev Raj Vishwakarma & another 1397
the concerned authority with the
direction to act in accordance with law.

Considering the background of present
case, we hereby direct the Chief
Secretary to State Government of U.P. to
issue appropriate Government Order/
Circular for communication of all the
entries (whether poor, fair, average,
good or very good) to all the state
employees as per dictum of Hon'ble
Supreme Court, as laid down in paras 36
& 37 of case of Dev Dutt vs. Union of
India, (2008) 8 SCC 725, with a further
provision for making representation to
the higher authorities and if necessary,
appropriate amendment be made in U. P.
Government Servants (Disposal of the
representation against adverse annual
confidential reports & allied matters)
Rules, 1995.
Case law discussed:
1996 (2) SCC 363; 2006 (3) UPLBEC 2834;
(2008) 8 SCC 725; AIR 1963 SC 395; 1970
SLR 116; 1970 SLR 926; AIR 1981 SC 215;
AIR 1988 SC 1069

(Delivered by Hon'ble D.K. Arora, J.)

1. This bunch of writ petitions have
been filed on behalf of the State of U. P.
for quashing of judgment & order passed
by the learned U. P. State Public Services
Tribunal in different claim petitions.

2. In all these writ petitions a
common legal issue is involved regarding
the issuance of the directions by the
learned Tribunal to the effect that where-
ever there is a conflict of entries between
those recorded by the Reporting Officer,
Reviewing Authority or the Accepting
Authority, the entry as is recorded by the
Reporting Officer would prevail and
should be read as the actual entry of the
concerned government servant. Such a
direction of the learned Tribunal is based
on the reasoning that the Reviewing or the
Accepting Authority while altering /
changing the entry from a higher one
(higher grading) to a lower one, has failed
to record any justifiable reason for the
same and the same were recorded in utter
violation of the principles of natural
justice. Accordingly, all the writ petitions
are being considered and decided by
means of the common judgment & order.

3. Writ Petition No. 479 (SB) of
2010 (State of U. P. & others vs. Dev Raj
Vishwakarma & another) is taken up as a
leading case in this judgment.

4. By means of this writ petition, the
petitioner (State) has challenged the
judgment & order dated 28.7.2009, passed
by State Public Services Tribunal in
Claim Petition No. 375 of 2009 (Dev Raj
Vishvakarma vs. State of U. P. and
another) whereby the learned Tribunal
allowed the claim petition of the opposite
party no. 1 and the gradings recorded by
the Reviewing Authority and the
Accepting Authority lowering down the
category of the petitioner from "Utkrisht"
(outstanding) to "Ati Uttam" (very good )
were quashed and a further direction was
issued to treat these entries as
"Outstanding" and take necessary steps
for promotion and grant of other service
benefits.

5. The learned Standing Counsel
appearing for the petitioner-State
challenged the order passed by the learned
Tribunal on mainly two grounds. Firstly,
the learned Tribunal failed to appreciate
correctly the procedure prescribed by
various Government Orders for recording
entries in Annual Confidential Rolls
(hereinafter referred to as 'ACRs') of
employees. Secondly, the learned
Tribunal exceeded its jurisdiction in
giving a direction to the State to treat the
entry recorded by the Reporting officer as
the final entry and take consequential
steps regarding promotion of the
claimant-respondent from the date the
junior persons had been promoted.

6. Substantiating the first ground,
the learned counsel for petitioner-state
relied upon three Government Orders
orders dated 28th March, 1984, 30th
October, 1986 and 5th March, 1993,
respectively. The Government Order
dated 28th March, 1984 provides that in
the event of conflict between the grading
as given by the Reporting Officer,
Reviewing Officer and Accepting Officer,
it is the grading given by the Accepting
Officer which would be treated as the
actual grading of an employee. It further
provides that the Reporting Officer should
give clear and specific grounds for
grading an employee as 'Utkrisht'
(Outstanding). The Government Order
dated 30th Oct., 1986 reiterates the same
policy in principle, while enumerating
various Government Orders, issued on the
subject of recording entries in ACRs and
summarising them in a concise manner in
the annexure attached to it. In the
Government Order of 5th March, 1993,
the earlier Government Order issued on
28th March, 1984 has been reiterated, and
in para 2 (2) thereof it has been provided
that in the event of a conflict of grading at
any level, the grading as recorded by the
Accepting Officer would be treated as
final and actual grading of an employee
concerned. The learned Standing Counsel
appearing for the State- Petitioner further
submitted that the record reveals that none
of these Government Orders were
challenged by any of the claimant-
respondents in any of the claim petition.
The learned counsel for the State also
submitted that in the normal hierarchal set
up of Government, the grading recorded
by the reporting officer who is
subordinate to the Reviewing Officer and
Accepting Officer, initiates or sets into
motion the process of recording ACRs.
The reviewing officer furthers the process
set into motion which culminates in final
grading given by the Accepting Officer. If
the Reporting Officer's grading is treated
as final, it would result in administrative
chaos.

7. The learned Tribunal has treated
the process of reviewing and accepting as
that of "down grading". "Down grading"
of an entry as understood in Service
Jurisprudence is only when a comparison
is undertaken with previous years' entries
which results in lowering down of marks
of an earlier period of service as recorded
in the earlier ACR.

8. The learned Standing Counsel has
referred to the judgment of the Hon'ble
Supreme Court in the case of U. P. Jal
Nigam vs. Prabhat Chand Jain,
reported in 1996 (2) SCC 363 where the
Hon'ble Apex Court in para 2 has
observed that if an employee legitimately
had earned an 'outstanding' report in a
preceding year which, in a succeeding
one, and without his knowledge, is
reduced to the level of satisfactory
without any communication to him, it
would certainly be adverse and affect him
at one or the other stage of his career.

9. In the bunch of cases, at hand, the
learned Tribunal had actually drawn no
comparison whatsoever of the grading of
an incumbent going down from the one
recorded in the previous year. On the
other hand, for the same year, where there
has been a conflict between the entry
recorded by the Reporting, Reviewing and
Accepting Officers, the learned Tribunal
has read it as 'downgrading' which clearly
is a misunderstanding of the term.

10. The learned counsel for the
State-petitioner has, in support of the
second ground of challenge, referred to
the direction issued by the learned
Tribunal that not only the entry impugned
by the claimant respondent be treated as
non-existent, it be replaced by the entry of
'outstanding' as recorded by the Reporting
Officer and the employee be considered
for promotion w.e.f. date his juniors have
been promoted. The learned Tribunal had
usurped the jurisdiction of the
Administrator in replacing the impugned
entries by an entry of "Outstanding." The
learned Tribunal could at the most have
remanded the matter to the competent
authority for taking appropriate steps for
re-recording of the quashed entry after
giving opportunity of hearing to the
employees concerned.

11. Sri Shreesh Kumar, learned
counsel for claimant-respondent while
countering the arguments raised on behalf
of the petitioner-state has relied upon a
judgment of coordinate Bench of this
Court in Surendra Kumar Vs. State of
U.P. 2006 (3) UPLBEC 2834 wherein the
Bench interfered in the grading of "good"
given by Reviewing Officer, the D.M.
Faizabad to a Tehsildar. The Division
Bench has held that no opportunity of
hearing was given to the employee, nor
the D.M. has given any reason for
converting the entires from "outstanding"
to "good".

12. The Division Bench has relied
upon the Supreme Court decision in the
case of U.P. Jal Nigam Vs. Prabhat
Chandra Jain (1996) (2) SCC 363 where
the Hon'ble Apex Court has held that even
where the entry is going a step down, like
falling from "Very good" to "good" , it
may reflect adversely upon the career
prospects of an employee and, therefore,
before recording such an entry in the
succeeding year, the authorities must give
an opportunity of hearing. The
downgrading being reflected by
comparison to an earlier year; such an
entry may be qualitatively downgrading
and cannot be sustained without any
reason for recording of the same being
apparent from the record.

13. Mr. Shreesh Kumar has also
referred to a Government Order dated
07.5.1981 whereby guidelines were laid
down for awarding fresh remarks in case
of expunction of adverse remarks and it
has been provided therein that if adverse
remarks are expunged by competent
authority on representation of an
employee, then there is no justification for
awarding fresh remarks as the entry in the
character roll can be made by the same
officer who had seen the work of the
subordinate officer for a minimum and
continuous period of three months.

14. It is further submitted by Sri
Shreesh Kumar that since the entire
procedure for recording A.C.Rs. is
governed by executive instructions and
there are no statutory rules in this regard
and the Government Order dated
07.5.1981 having not been superseded by
any of the Government Orders, issued
subsequently, it has to be followed by the
administrative authorities. On the
expunction of the entries made by the
Reviewing and Accepting Officers, the
matter could not have been remanded by
the Tribunal to the State Government for
making fresh entry for the year in
question as the present incumbents on the
post of Reviewing and Accepting
Authority have not seen the working of
the respondent for three months
continuously, as required by the Govt..
Orders.

15. Shri Shreesh Kumar has also
relied upon the judgment rendered by
Hon'ble Supreme Court in the case of Dev
Dutt vs. Union of India and others,
reported in (2008) 8 SCC 725 in which a
Division Bench of the Apex Court has
laid down the law with regard to
communication of all entries, of whatever
nature to an employee concerned in case
he wished to represent against the same to
the competent authority for its up-
gradation. The Hon'ble Apex Court has
expanded the principles of natural justice
to become applicable to the process of
recording of A.C.Rs.

16. Sri Shreesh Kumar has argued
that in the case of the claimant-
respondent, the Reviewing and Accepting
Authority had not given any opportunity
of hearing to the employee before
recording the entry and even after the
recording of the same, it was not
communicated. Thus, neither pre-
decisional nor post decisional hearing was
given to the claimant respondent.

17. The learned Standing Counsel
for the petitioner-state submitted in
rejoinder that the judgment in the case of
Surendra Kumar (supra) has not
considered the Government Orders dated
28th March, 1984 nor the Compilation
dated 30th October, 1986, nor the
Government Order dated 5th March, 1993
though it does refer to the judgment of the
Hon'ble Supreme Court in the case of
Prabhat Chand Jain (supra), it fails to
appreciate that the said judgment was
rendered in a different context and related
to downgrading of an entry in A.C.R. of
an employee in a subsequent year. The
Division Bench has not recorded any
reason for applying the concept of
downgrading to the process of decision
making in recording entry in A.C.R. of
the same year.

18. The learned counsel for the State
further submitted that after the judgment
in the case of Dev Dutt vs. Union of India
(supra), the legal situation has changed
completely regarding communication of
A.C.Rs. Now, every entry needs to be
communicated to an employee, thus,
giving him an opportunity to make a
representation against the same which is
to be decided by an authority next higher
in rank to the one giving such entry.

19. Communication of the entry
recorded by the Reviewing and Accepting
Officer was not done at the time of
recording of the same as it was not
required in any of the Government Orders
that mid-way in the process of finalisation
of an entry for a particular year, the
officer responsible for the same should
consult the employee concerned and
invite objections to the proposed entry, to
be finally recorded.

20. Having considered the
arguments raised by both the sides and
having gone through the case laws
submitted viz. U.P. Jal Nigam v. P.C.
Jain, Dev Dutt v. Union of India and
Surendra Kumar vs. State of U.P. we find
that while Government Orders dated 28th
March, 1984, 30th October, 1986 and 5th
March, 1993 clearly provide that the entry
recorded by the reporting officer is not to
be considered as final and in the event of
a conflict between the grading given by
the Reporting Officer and that given by
Reviewing Officer or Accepting Officer,
the grading of the Accepting Officer shall
be final grading for the particular period
of service tenure of an employee
concerned. Moreover, other Government
Orders referred to in the compilation
dated 30th October, 1986 do not cast any
duty on the Reviewing or Accepting
Officer to give pre-decisional hearing to
the employee concerned. The only duty
cast upon the Reviewing or Accepting
Officer is to give detailed reasons for not
accepting the grading proposed by the
Reporting Officer and in case an
outstanding grading is recorded, special
reasons for the same are required to be
stated. The State Government has not
framed any statutory rules for recording
of A.C.Rs. and maintenance of service
books. The executive instructions that
govern the field, have not been challenged
by any of the claimant respondents nor
have been considered by the learned
Tribunal.

21. It stands to reason that the
process as started by the Reporting
Officer is furthered by the observations
recorded by the Reviewing Officer and
finalised by the entry made by the
Accepting Authority. The Hon'ble
Supreme Court in the constitution bench
decision rendered in the case of
Bachchittar Singh vs. State of Punjab
reported in AIR 1963 SC 395 has held
that internal notings on the files during
the process of decision making do not
confer any enforceable right upon a
litigant seeking benefit from the same.
Unless the order is duly authenticated by
the competent authority and is issued and
thereafter communicated, the whole
situation is in a flux and the authority is
prone to change its mind mid-way and to
decide the same issue in a completely
different manner than it earlier proposed.

22. While going through the law on
the subject of A.C.Rs., we have come
across judgments rendered earlier by the
Constitution Benches of the Hon'ble
Supreme Court which have neither been
referred to in the afore-cited three
decisions relied upon by the counsel for
both the sides nor have been cited before
us at any stage. However, it is settled
position in law that this Court can take
judicial notice of earlier binding
precedents even if the same are not cited
at the Bar.

23. A Constitution Bench of the
Hon'ble Supreme Court in the case of
Prakash Chandra Sharma vs. O.N.G.C.
1970 SLR 116 was dealing with an
employee who challenged his
supercession by his juniors on the ground
that adverse remarks made in his A.C.R.
had not been communicated to him and as
per the Circular governing the said entries
to be recorded in A.C.Rs, it was necessary
that every employee should know as to
what were his defects. It was argued that
had the appellant therein been given
opportunity, he would have represented
against the adverse remarks relied upon
by the Commission for his supercession
and might have easily satisfied the higher
authority that the remarks were uncalled
for and unjustified. Because of lack of
communication of such adverse remarks,
the petitioner had been discriminated and
therefore, the said adverse remarks could
not be allowed to remain in his A.C.Rs
and stand in the way of his promotion.
The Hon'ble Supreme Court refused to
interfere in the said case.

24. Another Constitution Bench of
the Hon'ble Supreme Court in the case of
R.L.Butail vs. Union of India reported
in 1970 SLR 926, while considering the
arguments raised by the appellant therein,
that the Reporting Officer was bound to
hear the appellant before deciding to
make the entry and such recording of
adverse remarks amounted to censure and
a penalty under rule 11 of the Central
Civil Services (Control, Classification&
Appeals)) Rules 1965 and therefore, could
not have been given without affording an
opportunity of hearing, did not agree with
the said argument of the appellant.

25. The Hon'ble Supreme Court held
that a confidential report is intended to be
a general assessment of work
performance of a government servant
subordinate to the Reporting Authority.
Such reports are maintained for the
purposes of serving a data for determining
the comparative merit when questions of
promotion, confirmation etc. arise. Only
in cases where a 'censure' or a 'warning' is
issued, the officer making the order is
expected to give reasonable opportunity
to the Government Servant to represent
his case.

26. The Constitution Bench in the
case of R.L. Butail rejected as
unsustainable the argument of the
appellant that the omission to provide
opportunity of hearing before making
adverse remarks in the A.C.R would
render such report vitiated. The
Constitution Bench was of the view that
rules do not provide for a prior
opportunity to be heard before adverse
entry is made in the A. C. R.

27. The Constitution Bench further
observed that it is true that such adverse
remark may be taken into consideration
when a question such as that of promotion
arose and when comparative merits of
persons eligible are considered, but when
a government servant is aggrieved by
adverse remark, he has an opportunity of
making representation. Such
representation would be considered and
the higher authority, if satisfied may
either amend, correct or even expunge a
wrong entry, so that it cannot be inferred
that a government servant aggrieved by an
confidential report is without a remedy.
Making of an adverse entry is, thus, not
equivalent to imposition of penalty which
would necessitate an enquiry and giving
of reasonable opportunity of being heard
to the concerned government servant.

28. In other words, the Hon'ble
Supreme Court was of the opinion that
before making any adverse remark in
Annual Character Roll, the Reporting
Officer need not to give any opportunity
of hearing. It is only after such an adverse
entry is made, the same should be
communicated to the government servant
concerned, who may make a
representation to the higher authorities
against such a report. It is only 'post
decisional' hearing that is envisaged in
cases where reports in Annual Character
Rolls are adverse.

29. In the case of Gurdayal Singh
Fiji Vs. The State of Punjab & others,
AIR 1981 SC 215, the Hon'ble Supreme
Court was considering the case of the
appellant who had been deprived of
selection in Indian Administrative Service
cadre by promotion from Punjab Civil
Service cadre on the ground that the
Government of Punjab had refused to give
integrity certificate to him. The appellant
had made a representation which was
rejected. The Hon'ble Supreme Court in
the said case held that although the
decision of the Selection Committee
could not be influenced by an adverse
report in a confidential roll unless such
report is communicated to the person
concerned so that he has an opportunity to
improve his work and conduct or to
explain the circumstances leading to such
adverse report, the Court was not
competent to issue a direction for
promotion of the appellant. It could only
direct for reconsideration of the whole
case by the competent executive authority
in accordance with relevant Regulations
by applying the test of merit or suitability
cum seniority. It was left to the discretion
of the competent authority to work out the
details and pass appropriate order after
appellant.

30. That in the case of Union Public
Service Commission Vs. Hiranyalal
Dev AIR 1988, SC 1069 the Hon'ble
Supreme Court set aside the directions
issued by the Central Administrative
Tribunal for promotion of the petitioner
after ignoring certain adverse remarks in
his confidential character roll. The
Hon'ble Court has held that the proper
course to be adopted was that the
direction be issued to the authority
concerned to consider the case of the
employee afresh by indicating a broad
frame work within which the competent
authority should act. No direction could
be issued usurping the jurisdiction of the
competent authority.

31. On examining the issue in light
of the aforesaid facts and circumstances
as well as legal position, we are inclined
to accept the submission of learned
counsel for the petitioner 'State' that the
learned Tribunal completely
misunderstood the concept of down
grading. It is really a misnomer to refer to
the disagreement between the reporting,
reviewing and accepting authorities as
''downgrading'. Actually, recording of
Annual Confidential Remarks (ACRs) is a
complete process in itself. The process is
set rolling (as per the time schedule laid
down in G.O.'s) with the first recording
made by reporting officer. In the second
step, the said recording is reviewed by the
reviewing authority and in the next stage
of the process the accepting authority
records his grading. It is this final grading
as is given by the accepting authority that
ends the process of recording of grading.

32. In normal parlance, as also based
on the literal meaning of the term ''down-
grading', it would imply when the grade
of an incumbent is pushed down or goes
down. The grade of an incumbent, as per
the Government Orders is the one that has
been recorded by the Accepting
Authority. The other grades as given by
the Reporting or the Reviewing officer
were only part of the decision making
process ending in the recording of the
ACR of the government servant.

33. In Service Jurisprudence when
we talk about downgrading of incumbent,
it is actually meant that the grading of an
incumbent has gone down as compared to
his grading over the previous years. This
interpretation of downgrading is
deducible also from the judgment of the
Hon'ble Supreme Court in the case of U.
P. Jal Nigam Vs. Prabhat Chandra Jain,
reported in 1996, 2 SCC, 363, in para 2
whereof it has been so observed:

"..........If an employee legitimately
had earned an 'outstanding' report in a
particular year, which, in a succeeding
one, and without his knowledge, is
reduced to the level of 'satisfactory'
without any communication to him, it
would certainly be adverse and affect him
at one or the other stage of his career".

34. In the bunch of cases, at hand,
the learned Tribunal had actually drawn
no comparison whatsoever over the
grading of an incumbent going down from
the one recorded in the previous year.

35. On the other hand, for the same
year, where there has been a conflict
between the entries recorded by the
Reporting, Reviewing and Accepting
Authorities, the learned Tribunal has
termed it as ''down grading' which is
clearly a misunderstanding of the term.

36. The only judgment on the
subject (which has also been relied upon
by the concerned government servants) is
in the case of Surendra Kumar Vs. State
of U.P. ( 2006), 3 UPLBEC , 2834
wherein it has been held that the entry as
given by the Reviewing Authority could
not be sustained inasmuch as it went
down by two steps without affording
opportunity and without giving reasons.
Noticeably, the said judgment does not
take into consideration the Government
Orders dated 28th March 1984, or the
compilation dated 30th October, 1986 or
the Government Order dated 5th March
1993. Though it does refer to the
judgment of the Hon'ble Supreme Court
in the case of P. C. Jain which relate to
down gradation in subsequent years, but it
does not record any reasons for applying
the concept of down gradation to the entry
of the same year.

37. Learned counsel for petitioner
has placed reliance upon a case of Dev
Dutt Vs. UOI, (2008) 8 SCC, 725 in
which the Hon'ble Supreme Court has
developed the principle of natural justice
by enlarging the ambit and scope of
Article 14 to reach a conclusion that every
Annual Confidential Entry, whether
adverse or good or very good, deserves to
be communicated to an incumbent
inviting objections thereon and the same
are to be disposed of by an authority
higher than the one who gave the entry.
However, the said judgment does not deal
with situations where the reviewing and
accepting authorities differ in giving
grading and observations as compared to
the reporting authority.

38. In the present circumstances,
there is no dispute between the parties
that in view of prevailing law, none of the
entries were communicated to any of the
government servants. Hence, the impact
of such non-communication may render
the entire entry as being violation of
Article 14 inasmuch as it takes away the
right of representation as has been
elucidated in the Dev Datt's case. Still an
entry would stand adverse or otherwise, in
the character roll of the incumbent and
would form the basis of future service
benefits to the incumbent concerned.

39. As such, the judgment and order
of the learned Tribunal which directs
reading of annual entry recorded only by
the Reporting Authority over and above
Reviewing and Accepting Authorities,
can not be sustained and has to be
necessarily set aside.

40. The Hon'ble Supreme Court in
the case of U.P. Jal Nigam vs. P.C Jain,
(1996), 2, SCC 363, in paragraph 3 had
laid down three guide lines regarding
downgrading in the character roll of an
officer-

(i) communication;

(ii) recording of reasons and

(iii) opportunity to representation

41. The Hon'ble Supreme Court in
the case of Dev Dutt vs. Union of India
(Supra) while dealing with the issue of
Annual Confidential Reports (A.C.R.)
was pleased to observe that it is well
settled that no rule or government
instruction can violate Article 14 or any
other provision of the Constitution, as the
Constitution is the highest law of the land.
The Government Orders, if they are
interpreted to mean that only adverse
entries are to be communicated to the
employee concerned and not other entires,
would become arbitrary and hence,
illegal, being violative of Article 14. All
similar rules, government orders/office
memorandum, in respect of all services
under the State, whether civil, judicial,
police, or other service (except the
military), will hence also be illegal and
are, therefore, liable to be ignored. The
Hon'ble Supreme Court held that fairness
and transparency in public administration
require that all entries (whether poor, fair,
average, good or very good) in the annual
confidential report of a public servant,
whether in civil, judicial, police or any
other State service (except military), must
be communicated to him within a
reasonable period so that he can make a
representation for its up-gradation.

42. The concerned paras 36 & 37 of
the aforesaid judgment are being
reproduced as under:
36."In the present case, we are
developing the principles of natural
justice by holding that fairness and
transparency in public administration
requires that all entries (whether poor,
fair, average, good or very good) in the
annual confidential report of a public
servant, whether in civil, judicial, police
or any other State service (except the
military), must be communicated to him
within a reasonable period so that he can
make a representation for its up-
gradation. This in our opinion is the
correct legal position even though there
may be no rule/G.O. requiring
communication of the entry, or even if
there is a rule/G.O. prohibiting it,
because the principle of non-arbitrariness
in State action as envisaged by Article 14
of the Constitution in our opinion requires
such communication. Article 14 will
override all rules or government orders.

37. We further hold that when the
entry is communicated to him the public
servant should have a right to make a
representation against the entry to the
authority concerned, and the authority
concerned must decide the representation
in a fair manner and within a reasonable
period. We also hold that the
representation must be decided by an
authority higher that the one who gave
the entry, otherwise the likelihood is that
the representation will be summarily
rejected without adequate consideration
as it would be an appeal from Caesar to
Caesar. All this would be conductive to
fairness and transparency in public
administration, and would result in
fairness to public servants. The State must
be a model employer, and must act fairly
towards its employees. Only then would
good governance be possible."

43. At the end of judgment, the
Hon'ble Supreme Court directed for
communication of the entry to the
concerned appellant within a period of
two months with liberty to make
representation against the said entry with
further direction to decide the same within
further two months thereafter and if the
authorities upgrade the entry of the
appellant then the opposite parties shall
consider him for promotion
retrospectively by the Departmental
Promotion Committee (DPC) within three
months thereafter and if the appellant gets
selected for promotion retrospectively, he
should be given higher pension with
arrears of pay and interest @ 8% per
annum till the date of payment.

44. In State of Uttar Pradesh there
are statuary rules regarding disposal of
representations made against the adverse
Annual Confidential Reports and allied
matters namely U. P. Government
Servants (Disposal of the
representation against adverse annual
confidential reports & allied matters)
Rules, 1995 which provide a very strict
time frame for disposal of representation
made against the adverse Annual
Confidential Reports and Rule 5 of the
said Rules further provides that where an
adverse report is not communicated or a
representation against an adverse report
has not been disposed of in accordance
with Rule 4, such report shall not be
treated as adverse for the purposes of
promotion, crossing of Efficiency Bar and
other service matters of the Government
Servant concerned. As per the law laid
down by the Hon'ble Apex Court in the
case of Dev Dutt (Supra) every
report/entry (whether poor, fair, average,
good or very good) is required to be
communicated to the concerned
government servant in order to enable him
to make representation for its up-
gradation.

45. We have also examined the
Government Order dated 7th May, 1981,
relied upon by Sri Shreesh Kumar,
learned counsel for the claimant-
respondents; we do not agree with the
submissions as the said Government
Order is not applicable in the facts of
present cases, as it has been provided
therein that if adverse remarks are
expunged by competent authority on
representation of an employee, then there
is no justification for awarding fresh
remarks as the entry in the character roll
can be made by the same officer who had
seen the work of the subordinate officer
for a minimum and continuous period of
three months. The cases at hand are
neither the case of wrongful recording of
the entry by the officer and nor that the
same has been decided to be expunged by
the competent authority. In the present
case, it is the Tribunal which issued
directions for not taking into
consideration the grade given by the
reviewing and accepting authority as no
reasons have been recorded by the
concerned authority.

46. This Court is of the view that the
learned Tribunal cannot take up the role
of the reviewing or accepting authority
and cannot direct the authorities to take
into consideration the views recorded by
the Reporting Officer ignoring the entry
recorded by the Reviewing or Accepting
Authority. While setting aside entry given
by the Reviewing and Accepting
Authority, it was incumbent upon the
learned Tribunal to remand the matter to
the concerned authority with the direction
to act in accordance with law.
3 All] State of U.P. V. N.B.Singh Advocate 1407
47. On the basis of above analysis
and after considering all the facts and
circumstances of the case as well as the
legal position, we hereby allow all the
writ petitions and quash the judgment and
order of the learned Tribunal dated
28.7.2009 as well as all the other
impugned judgments of learned Tribunal
and direct the State Government to
communicate the entries to the concerned
government servants with liberty to them
to make representation to the higher
authorities within period of two months,
which would consider and decide the
same in accordance with law within a
further period of two months and
thereafter follow up action would be taken
by the competent authorities within period
of further two months in accordance with
law.

48. Considering the background of
present case, we hereby direct the Chief
Secretary to State Government of U.P. to
issue appropriate Government Order/
Circular for communication of all the
entries (whether poor, fair, average, good
or very good) to all the state employees as
per dictum of Hon'ble Supreme Court, as
laid down in paras 36 & 37 of case of Dev
Dutt vs. Union of India, (2008) 8 SCC
725, with a further provision for making
representation to the higher authorities
and if necessary, appropriate amendment
be made in U. P. Government Servants
(Disposal of the representation against
adverse annual confidential reports &
allied matters) Rules, 1995.

49. All the Writ Petitions stand
allowed accordingly.

50. Registrar of this Court is
directed to transmit a copy of this
judgment & order to the Chief Secretary
to State Government of U.P, Lucknow for
its necessary compliance.
---------
CIVIL SIDE

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.
THE HON'BLE S. V. SINGH RATHORE,J.

Contempt No. - 634 of 2001

State of U.P. ...Petitioner
Versus
N.B.Singh Advocate ...Respondent

Govt. Advocate (Reference)

Counsel for the Respondents:
Sri G.K. Mehrotra
Sri N.S. Chauhan

Contempt of Court Act-1971-Section 2
(a)-criminal contempt-containing a
practicing lawyer-forcibly entered in
chamber of A.D.J.-abusing by cost
Chirkut, Chorkatai etc. as to how
succession application dismissed in
default-notice issued 2011-No
unconditional apology tendered at first
opportunity-can not be claimed as a
matter of right-considering grown age of
60 years-apart from 13 years previous
incident-even conduct shows lack of
honest repentance, bona fide
unconditional apology cannot be allowed
unpunished-fine of Rs. 2000/-would
meet end of justice


Considering the language which
contemnor has used in the matter and
also the fact that the incident, the
behaviour and the utterances have not
been disputed, we have no hesitation but
to hold that the contemnor Sri N.B. Singh
is guilty of committing criminal contempt
of this Court.
Now the question of our consideration
whether contemnor's alleged
unconditional apology is genuine,
deserves to be accepted without
imposing any punishment or this Court
should punish him suitably in view of
above finding upholding his guilt.
Case law discussed:
(2011) 2 SCC (Crl) 821; 1984 (3) SCC 405

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

1. This criminal contempt
proceeding has arisen on a reference made
by Sri Sheetal Singh, the then Incharge
District Judge, Raebareli forwarding copy
of complaint of Sri A.K. Srivastava, the
then IIIrd Additional District Judge,
Raebareli about misbehaviour,
misdemanor and abuse by N.B. Singh,
Advocate, the contemnor.

2. The facts as discerned from the
report of the complainant namely the third
Additional District Judge, Raebareli in
brief are as under.

3. In a matter relating to succession
certificate, the contemnor moved an
application seeking time for approaching
appropriate Court for transfer of the case.
The application was allowed and time was
granted. Thereafter the matter was
adjourned on several occasions. On
7.11.1998, the contemnor and his
companion lawyers forcefully entered the
chamber of IIIrd Additional District Judge
inquiring as to why misc. case relating
disposal of succession was put on an
earlier date and dismissed in default of
appearance. The presiding officer claimed
to have explained the things but
contemnor continued to shout and raised
slogans "SRIVASTAVA MURDABAD",
"CHORKAT" and "CHORKATAI". It is
said that aforesaid conduct of contemner
and his companion lawyers of creating
nuisance and hampering judicial working
amounts to willful criminal contempt of
Court and the proceedings be initiated
against the erring lowers.

4. Initially this matter was placed
before a Division Bench at Allahabad
wherefrom it was transferred to this
Court, pursuant to Division Bench order
dated 3rd March, 1999 since district
Raebareli comes within the territorial
jurisdiction of this Bench.

5. The matter when taken up today,
an application supported by an affidavit
has been filed by contemnor, Sri N.B.
Singh, Advocate through Sri A.S.
Chaudhary, Advocate.

contemnor at the outset stated that
misdemeanor and misbehavior on the part
of the contemnor cannot be justified and
hence he is tendering unconditional
apology for the aforesaid incident which
took place 13 years back. He further
undertake to maintain good behavior in
future. Mr. Chaudhary, learned counsel
for contemnor has placed reliance on the
Apex Court's decision O.P. Sharma and
others Vs. High Court of Punjab and
Haryana (2011) 2 SCC (Crl) 821 and
submitted that contemnor at the first
opportunity has extended apology which
should be accepted. This Court must show
magnanimity in this matter and should
drop the proceedings. The fact that at the
first opportunity this unconditional
apology is being tendered which shows
bonafide and honest repentance on the
part of contemnor. He thus prayed that his
undertaking be accepted and the contempt
notice be discharged.

3 All] State of U.P. V. N.B.Singh Advocate 1409
7. We have heard the learned
Counsel and perused the record.

8. It is really unfortunate that the
contemnor who is a practicing Advocate
of district Raebareli had a long standing
even 13 years ago since his age is shown
today as 60 years. Having failed to
persuade learned Additional District
Judge, he switched gear to derogatory
remarks, abusive language from
persuasive advocacy, may be in that hope
that such tactic would succeed. To his
utter dismay, not only he failed but the
learned Judge made of a stern stuff, not
only refused to succumb such
unprofessional conduct but made a record
of disrespectful, abusive and derogatory
language used by contemnor with
intention to tarnish his image as Judicial
Officer and forwarded report to the
District Judge who in turn reported the
matter to this Court to initiate appropriate
proceedings.

9. Words uttered by contemnor no
doubt show his clear intention of casting
aspersions on learned Judge and lower
him in the esteem of others. He intended
to create doubt regarding judicial
impartiality, independence and honesty of
the learned Judge. This tendency of a
Member of Bar is really unfortunate and
needs to be nipped in the bud. A Member
of noble legal profession is not expected
to resort such cheap gimmicks. It is really
painful. An attempt to scandalise not only
reputation of the Judge but in the
consequence the entire institution needs
be deprecated in the strongest words. Use
of abusive language, abrasive behaviour,
veiled threats and some times
condemnatory verbal attack like the
present one raise larger issues touching
reputation and independence of not only
the individual Judge but the entire
institution. If such an attitude is pardoned
in a lighter way, it may give a wrong
massage. If disparaging and derogatory
remarks made by such impertinent person
are shown any leniency, it may shake the
very confidence of people in the system.
Independent and bold judiciary is in
essence a need of the time. The members
of legal profession, in order to seek small
gains, if endeavor to this extent, it shall
betray a lack of respect for those who
have fought for independence of judiciary
and have made it to see light of this day.

10. The contemnor claims that he
rendered apology at the first opportunity.
This matter is pending since 2001 and
after service of notice the contemnor put
in appearance for the first time on 20th
July, 2001. He has taken more than 10
years in submitting alleged unconditional
apology claiming it to be at the earliest
opportunity.

11. Can it be said to be honest and
bonafide apology showing repentance in
the conduct of contemnor or a mere
shallow and hollow attempt on his part to
wriggle out the clutches of law. He has
shown, admittedly, a conduct which is
highly disrespectful to the institution of
justice, though the utterances are in
respect to an individual member of a
judicial institution. It is not unworthy to
reiterate that a Court of Majesty or the
High Court is sacrosanct. The integrity
and sanctity of institution which has been
bestowed upon itself the responsibility of
dispensing justice is ought to be
maintained at all cost. Judges, advocates
and staff of the court all constitute part of
this system. They are supposed to act in
accordance with morals and ethics. An
advocate's professional conduct is as
important as of a Judge. He has serious
and important responsibility towards
society and in particular to the institution
of justice. He plays a vital role in the
preservation of society and justice system.
He is under an obligation to uphold the
rule of law. He must ensure that the
justice system enabled to function at its
potential. He should be dignified in his
dealings to the Court. He must believe
that the legal profession has an element of
service. He has a social duty to be a
model for the people and to show them a
beacon of light by his conduct, actions
and utterances. Unfortunately, the conduct
of contemnor fails in all these respects
which shows that the contemnor has not
preserved professional ethics and moral as
also his duties towards Court in correct
perspective. We can not loose sight of the
fact that subordinate courts are
functioning in a very different
atmosphere, charged, tense and full of
extraordinary work load. They are reeling
under huge pendency of court cases. Most
of the Judges are working for long hours
and have no time virtually to raise their
neck. The working atmosphere in
subordinate courts is quite unfavourable
yet we must give due credit to Presiding
Officers in discharging their duties
diligently and untirelessly. The
subordinate judiciary forms the backbone
of administration of justice. This Court,
exercising administrative and supervisory
powers, is under an obligation to ensure
that the Judges of the subordinate courts
are not subjected to scrupulous and
indecent attacks or anything which lowers
or has tendency to lower their authority.
No affront to the Majesty of Justice of law
can be permitted. The fountain cannot be
allowed to be polluted by disgruntled
elements. No one can be allowed to
terrorise or intimidate Judges of
subordinate courts. This is basic and
fundamental. A civilized system of
administration of justice can neither
permit nor tolerate it.

12. Considering the language which
contemnor has used in the matter and also
the fact that the incident, the behaviour
and the utterances have not been disputed,
we have no hesitation but to hold that the
contemnor Sri N.B. Singh is guilty of
committing criminal contempt of this
Court.

13. Now the question of our
consideration whether contemnor's
alleged unconditional apology is genuine,
deserves to be accepted without imposing
any punishment or this Court should
punish him suitably in view of above
finding upholding his guilt.

14. In L.D. Jaikwal Vs. State of
U.P. 1984 (3) SCC 405 the Court
observed that acceptance of an apology
from a contemnor should only be a matter
of exception and not that of a rule. Any
other view may be treated by scrupulous
persons as licence to scandalise courts and
commit contempt of court with impunity
and whenever the proceedings are
initiated, tender apology and escape from
punitive liability. It may also hamper
confidence of the Judges of subordinate
courts and may have the effect of
demoralizing them. This situation cannot
be countenanced else it may damage the
very foundation of system.

15. In order to stress his case,
learned counsel for the contemnor has
relied upon the decision rendered in the
case of O.P. Sharma (supra) but we find
therein that when matter was pending
before High Court, the unconditional
3 All] Ram Chandra V. Board of Revenue and others 1411
apology was tendered and thereafter the
contemnors also appeared before the
Magistrate concerned and expressed their
regret and tendered unconditional
apology. Even thereafter the High Court
after convicting contemnors imposed
punishment of simple imprisonment of six
months/three months with a fine of rupees
one thousand to rupees two thousand
each. There the incident took place in
1999 and the High Court decided the
matter in 2004. During very this period
the contemnors had already tendered
unconditional apology therein. In the
present case, contemnor had put in
appearance before this Court for the first
time on 20th July, 2001 but did not show
any repentance to his conduct by filing his
response or affidavit etc. The order-sheet
shows that the matter was adjourned since
his counsel was not present and the Court
was constrained to direct for his personal
appearance. This order was passed on
29th September, 2011 and despite thereto
the contemnor remained absent. On the
next date i.e. 21th November, 2011 when
again this Court directed for his personal
appearance, it is only thereto the
contemnor is present today and has filed
affidavit.

16. In view of the facts and
circumstances, as discussed above, we are
of the view that the contemnor's conduct
show lack of honest repentance and
bonafide in tendering unconditional
apology and, therefore, we are not
satisfied that the same should be accepted
so as to not impose any punishment upon
him and let him go unpunished. Having
held him guilty of committing contempt
but considering the fact that the
contemnor is now in advance age of 60
years and the incident is 13 years old, the
ends of justice would meet by imposing
punishment of fine of Rs. 2,000/-.

17. We order accordingly.
---------
CIVIL SIDE

BEFORE
THE HON'BLE RITU RAJ AWASTHI,J.

Misc. Single No. - 1003 of 1994

Ram Chandra ...Petitioner
Versus
Board of Revenue and others
...Respondnets

Counsel for the Petitioners:
Sri S.P. Srivastava

C.S.C.

Code of Civil Procedure-Order 47 rule 1-
scope of review-explained-while
exercising power-no authority to inter
into merit of case except on limited
grounds given in statute-however at the
time of deciding reference non
consideration-of public utility-order not
sustainable-matter remitted back to
decide fresh in light of judgment
observation.

Held: Para 10

However, this fact is also to be taken
note of that the Additional Commissioner
while passing the order dated
15.05.1992 had not considered the
relevant provisions of Section 132 (c)(vi)
of the U.P.Z.A. & L.R. Act and Section 29-
C of U.P. Consolidation of Holdings Act,
1953, which are very much necessary for
proper adjudication of the claim of the
petitioner. As such, although, I do not
agree with the finding given in the
impugned order, however, in the interest
of justice I find it necessary that the
matter requires to be re-considered by
the competent court in accordance with
law, in deciding the claim of the
petitioner.
Case law discussed:
1991 (1) Supreme Court cases 170

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

petitioner as well as learned Standing
Counsel.

2. The writ petition has been filed
challenging the order dated 13.01.1994
passed in Review Application moved by
the State, whereby the review was
allowed setting aside the order dated
08.06.1993 and the order dated
15.05.1992 of the Additional
Commissioner and remanded the matter
back to the opposite party no.3 for
deciding afresh on merit.

3. The facts of the case in brief are
that the petitioner was allotted patta
with sirdari rights in the year 1969 on a
land which was ear-marked as
Khalihan. On the basis the patta the
name of the petitioner was entered in
the consolidation proceedings in the
year 1980. Against the order of the
consolidation officer the Gaon Sabha
had filed an appeal before the
Settlement Officer Consolidation in the
year 1985. The said appeal was rejected
by the Settlement Officer Consolidation
in the year 1985. It was thereafter that
in the year 1989 the Pradhan of the
village made a complaint against the
allotment of lease to the petitioner and
cancellation of the same. The
application of Pradhan filed under
Section 198(4) of the U.P.Z.A. Act was
rejected by order dated 18.10.1989 of
the Additional Collector, Barabanki.
Against this order a revision was filed
under Section 333 of the U.P.Z.A. &
L.R. Act before the Commissioner. The
learned Commissioner while
considering the revision made a
reference to the Board of Revenue by
order dated 15.05.1992 with a request to
issue direction for the trial court to
decide the matter afresh, in case it is
required. The said reference was
rejected by order dated 08.06.1993 on
the ground that the patta was allotted on
12.05.1969 and on that basis the order
was passed by the Consolidation Officer
on 22.02.1980, by which the name of
son-in-law of Ram Prasad was entered
in the consolidation records. The appeal
preferred against the said order by the
Gaon Sabha was also rejected. It
appears that thereafter the State as well
as Gaon Sabha filed the review petition,
which was allowed by the impugned
order.

4. Learned counsel for the
petitioner vehemently submitted that the
order impugned has been passed beyond
the scope of review as it indicates that
while reviewing the order the learned
court below has re-considered the merits
of the case. In support of his
submission, he has relied on a decision
of the Apex Court in the case of Meera
Bhanja (Smt) Versus Nirmala Kumari
Choudhary (Smt), reported in 1995 (1)
Supreme Court Cases 170 wherein it
has been held that the review
proceedings are not by way of an appeal
and have to be strictly confined to the
scope and ambit of Order 47 Rule 1,
C.P.C. The relevant paragraphs of the
said judgment are quoted below:

"8. It is well settled that the review
proceedings are not by way of an appeal
3 All] Ram Chandra V. Board of Revenue and others 1413
and have to be strictly confined to the
scope and ambit of Order 47, Rule 1,
C.P.C. In connection with the limitation
of the powers of the court under Order
47, Rule 1, while dealing with similar
jurisdiction available to the High Court
while seeking to review the orders under
Article 226 of the Constitution of India,
this Court, in the case of Aribam
Tuleshwar Sharma V. Aribam Pishak
Sharma, speaking through Chinnappa
Reddy, J., has made the following
pertinent observations: (SCC p 390,
para 3).

"It is true as observed by this Court
in Shivdeo Singh v. State of Punjab,
there is nothing in Article 226 of the
Constitution to preclude the High Court
from exercising the power of review
which inheres in every Court of plenary
jurisdiction to prevent miscarriage of
justice or to correct grave and palpable
errors committed by it. But, there are
definitive limits to the exercise of the
power of review. The power of review
may be exercised on the discovery of
new and important matter or evidence
which, after the exercise of due
diligence was not within the knowledge
of the person seeking the review or
could not be produced by him at the
time when the order was made; it may
be exercised where some mistake or
error apparent on the face of the record
is found; it may also be exercised on
any analogous ground. But, it may not
be exercised on the ground that the
decision was erroneous on merits. That
would be the province of a court of
appeal. A power of review is not to be
confused with appellate power which
may enable an appellate court to
correct all manner of errors committed
by the subordinate court."
9. Now it is also to be kept in view
that in the impugned judgment, the
Division Bench of the High Court has
clearly observed that they were
entertaining the review petition only on
the ground of error apparent on the face
of the record and not on any other
ground. So far as that aspect is
concerned, it has to be kept in view that
an error apparent on the fact of record
must be such an error which must strike
one on mere looking at the record and
would not require any long-drawn
process of reasoning on points where
there may conceivably be two opinions.
We may usefully refer to the
observations of this Court in the case of
Satyanarayan Laxminarayan Hegde v.
Mallikarjun Bhavanappa Tirumale
wherein, K.C. Das Gupta, J., speaking
for the Court has made the following
observations in connection with an
error apparent on the face of the
record:

An error which has to be
established by a long-drawn process of
reasoning on points where there may
conceivably be two opinions can hardly
be said to be an error apparent on the
fact of the record. Where an alleged
error is far from self-evident and if it
can be established, it has to be
established, by lengthy and complicated
arguments, such an error cannot be
cured by a writ of certiorari according
to the rule governing the powers of the
superior court to issue such a writ."

5. Learned Standing Counsel on
the other hand while defending the
impugned order submitted that in fact
the public utility land such as Khalihan
could not have been given on patta. The
patta, if any, made in favour of the
original allottee was void abinitio. In
support of his submission, he has relied
on Section 132 sub-section (c)(vi) of the
U.P. Z.A. & L.R. Act, 1950. The
relevant provision is quoted below:

"132. Land in which bhumidhari
rights shall not accrue-
Notwithstanding anything contained in
section 131, but without prejudice to the
provisions of section 19, [Bhumidhari]
rights shall not accrue in-

(a) pasture lands or lands covered
by water and used for the purpose of
growing singhara or other produce or
land in the bed of a river and used for
casual or occasional cultivation;

(b) such tracts of shifting or
unstable cultivation as the State
Government may specify by notification
in the Gazettee, and

[(c) lands declared by the State
Government by notification in the
official Gazettee to be intended or set
apart for taungya plantation or grove
lands of a [Gaon Sabha] or a local
authority or land acquired or held for a
public purpose and in particular and
without prejudice to the generality of
this clause-

(i) lands set apart for military
encamping grounds,

(ii) lands included within railway
or canal boundaries,

(iii) lands situate within the limits
of any cantonment,

(iv) lands included in sullage farms
or trenching grounds belonging as such
to a local authority,

(v) lands acquired by a town
improvement trust in accordance with a
scheme sanctioned under section 42 of
the U.P. Town Improvement Act, 1919
or by a municipality for a purpose
mentioned in clause (a) or clause (c) of
section 8 of the U.P. Municipalities Act,
1916 and

(vi) lands set apart for public
purposes under the U.P. Consolidation
of Holdings Act, 1953.]

6. It is further submitted that under
Section 29-C of U.P. Consolidation of
Holdings Act, 1953 the land contributed
for public purposes under this Act shall,
with effect from the date on which the
tenure-holder became entitled to enter
into possession of the chaks allotted to
them, vests and be always deemed to
have vested in the Gaon Sabha.

7. The contention of the learned
Standing Counsel is that the land vested
in the Gaon Sabha for the public
purpose could not have been given on
patta to any individual person. His
contention is that this fact was not
considered in the order dated
15.05.1992 while rejecting the
reference, therefore, the matter was
rightly remanded back to the competent
authority to decide afresh on merit.

8. I have considered the
submissions made by the parties'
counsel and gone through the record.

9. There is no denial of the fact
that the order impugned clearly
3 All] Atma Ram Prajapati and others V. State of U.P. and another 1415
indicates that the Board of Revenue
while reviewing its order has made
certain observations on the merits of the
case. There is no dispute, so far about
the legal proposition with regard to the
scope and ambit of review is concerned,
the law in this regard is well settled as
held in the case of Meera Bhanja (Smt)
Vs. Nirmala Kumari Choudhary
(Supra).

10. However, this fact is also to be
taken note of that the Additional
Commissioner while passing the order
dated 15.05.1992 had not considered the
relevant provisions of Section 132
(c)(vi) of the U.P.Z.A. & L.R. Act and
Section 29-C of U.P. Consolidation of
Holdings Act, 1953, which are very
much necessary for proper adjudication
of the claim of the petitioner. As such,
although, I do not agree with the finding
given in the impugned order, however,
in the interest of justice I find it
necessary that the matter requires to be
re-considered by the competent court in
accordance with law, in deciding the
claim of the petitioner.

11. In this view of the matter, the
writ petition is disposed of finally with
the observation that the Collector,
Barabanki, shall pass fresh order under
Section 198(4) of the Z.A. Act after
parties concerned, in accordance with
law, expeditiously, say within a period
of three months from the date a certified
copy of this order is produced before the
Collector concerned.

12. With the aforesaid
observations, the writ petition is
disposed of finally.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.11.2011

BEFORE
THE HON'BLE S.C. AGARWAL,J.

Criminal Revision No. - 1147 of 2011

Atma Ram Prajapati and others
...Petitioner
Versus
State of U.P. and another ...Respondents

Sri Sriprakash Dwivedi

Counsel for the Respondnets:
Govt. Advocate
Sri Vipin Chandra Pandey

Code of Criminal Procedure-Section
397/401-Criminal Revision-against
summoning passed-ignoring compromise
between parties offence under Section
147,323,504,506,498 A-I.P.C.-with
section D.P. Act -held-pure personal
family dispute settled by mediation
Center of High Court-held-without hope
of success of prosecution-futile exercises
to continue with proceeding-summoning
order quashed.

Held: Para 11

The present dispute between the parties
is of purely personal nature and is a
matrimonial dispute, which has been
mutually and amicably settled by the
parties with the intervention of
Mediation and Reconciliation Centre of
this Court. After compromise between
the parties, it would be futile to permit
criminal case pending against the
applicants to continue any further. As
parties have come to terms, it shall be
sheer waste of time of the Court, if the
criminal proceeding pending against the
revisionist is permitted to reach its
logical end without any hope for a result
in favour of the prosecution. In these
circumstances the revision deserves to
be allowed.
Case law discussed:
(2008) 4 SCC 582

(Delivered by Hon'ble S.C. Agarwal,J. )

1. Affidavit filed today is taken on
record.

2. Heard Sri Prakash Dwivedi,
learned AGA for the State and Sri Vipin
Chandra Pandey, learned counsel for the
complainant- opposite party no. 2.

3. This revision under Section
397/401 Cr.P.C. is directed against the
order dated 14.1.2011 passed by C.J.M.,
Mirzapur in Complaint Case No. 4485 of
2010, Pooja Devi Vs. Atma Ram and
others, under Sections 147, 323, 504, 506,
498A IPC and D.P. Act, P.S. Kotwali
Katra, District- Mirzapur, whereby the
revisionist- Atmaram Prajapati, Ramnath
Prajapati, Ranno Devi, Dinesh Kumar,
Mahesh and Anita were summoned to
face trial, under Sections 147, 323, 504,
506 498A IPC and D.P. Act.

4. Since it is matrimonial dispute, in
pursuance of order dated 24.2.2011
passed by Hon. B.K. Narayan, J, the
matter was referred to Mediation and
Conciliation of this Court.

5. Parties appeared before Mediation
and Conciliation Centre of this Court on
20.4.2011and 17.5.2011 and settlement
was arrived at between the parties and
settlement-agreement was executed on
19.5.2011.

6. Para 5 of the settlement-
agreement is as follows :-

"The parties hereto confirm and
declare that they voluntarily and of their
own free will arrived at this Settlement
Agreement in the presence of the
Mediation/ Conciliator.

a. That Sri Atma Ram Prajapati
(revisionist no.1-husband) and Smt. Pooja
Devi (opposite party no. 2-wife) have
amicably resolved all their matrimonial
issues that have arisen between them over
the years by opting for separation and
divorce.

b. That wife Smt. Pooja Devi has
accepted a sum of Rs. 1,00,000/- from her
husband Atma Ram Prajapati through a
demand draft bearing no. 964402 dated
16.5.2011 purchased from Punjab and
Sindh Bank, Katra Bazi Rao Branch,
Mirzapur as a lumpsum settlement of all
her claims to maintenance, alimony,
stridhan and other cognate claims by
whatever name called.

c. That in addition, the husband has
delivered to his wife a gold ring and a
gold chain which Smt. Pooja Devi/ wife
has accepted.

d. That both parties do now agree
that they have no other claim monetary or
otherwise against one another arising out
of their matrimonial relationship.

e. that Atma Ram Prajapati and his
wife Smt. Pooja Devi agree that they will
file for divorce by mutual consent before
the Judge, Family Court, Mirzapur within
15 days from date u/s 13B Hindu
Marriage Act ; and, both parties do
further undertake that they will not
withdraw their consent from those
proceedings until decree for divorce is
passed by the Family Court,. Both parties
3 All] Atma Ram Prajapati and others V. State of U.P. and another 1417
also agree that the Hon'ble Court may in
its discretion and subject to its pleasure
direct the Family Court Judge to expedite
of the divorce matter.

f. That the wife Smt. Pooja Devi
undertakes to withdraw proceeding for
maintenance initiated by her u/s 125
Cr.P.C. against her husband, said to be
pending before the concerned Magistrate
at Mirzapur, unconditionally within 15
days from date.

g. That the husband Atra Ram
Prajapati undertakes to unconditionally
withdraw a petition for restitution of
conjugal right filed by him u/s 9 Hindu
Marriage Act before the Judge, Family
Court, Mirzapur within 15 days from
date, which the wife undertakes not to
oppose for costs.

h. That both parties agree that the
proceeding of Criminal Case No. 4485 of
2010 u/s 147, 323, 504, 506, 498A IPC
and D.P. Act, P.S. Kotwali Katra,
Mirzapur, pending in the Court of the
learned CJM, Mirzapur may in the
discretion and subject to pleasure of the
Hon'ble Court be quashed.

i. That both parties hereby covenant
that they will not institute or prosecute
any fresh or further legal proceeding
against one another or their family
members of any nature, either civil or
criminal".

7. Learned counsel for respondent
no. 2 admits that respondent no. 2 has
received a sum of Rs. 1 lac from her
husband as provided in para 5 (b) of the
settlement-agreement and she has no
objection if the proceedings pending
before the Magistrate are quashed.
8. Though the revisionist has
challenged the summoning order by
means of criminal revision, since it is a
matrimonial dispute and parties have
come to terms and, therefore, this court
can also exercise power under Section
482 Cr.P.C. and can quash the
proceedings on the ground of
compromise.

9. The revisionist no. 1 and opposite
party no. 2 have also filed a petition for
divorce by mutual consent under Section
13 (b) of the Hindu Marriage Act before
the Principal Judge, Family Court,
Mirzapur and parties have decided not to
withdraw their consent.

10. The Apex Court in the case of
'Madan Mohan Abbot v. State of
Punjab' reported as (2008) 4 SCC 582
emphasized in para No. 6 as follows :-

"6. We need to emphasize that it is
perhaps advisable that in disputes where
the question involved is of a purely
personal nature, the Court should
ordinarily accept the terms of the
compromise even in criminal proceedings
as keeping the matter alive with no
possibility of a result in favour of the
prosecution is a luxury which the Courts,
grossly overburdened as they are, cannot
afford and that the time so saved can be
utilised in deciding more effective and
meaningful litigation. This is a common
sense approach to the matter based on
ground of realities and bereft of the
technicalities of the law."

11. The present dispute between the
parties is of purely personal nature and is
a matrimonial dispute, which has been
mutually and amicably settled by the
parties with the intervention of Mediation
and Reconciliation Centre of this Court.
After compromise between the parties, it
would be futile to permit criminal case
pending against the applicants to continue
any further. As parties have come to
terms, it shall be sheer waste of time of
the Court, if the criminal proceeding
pending against the revisionist is
permitted to reach its logical end without
any hope for a result in favour of the
prosecution. In these circumstances the
revision deserves to be allowed.

12. The revision is allowed. The
impugned summoning order dated
14.1.2011 is quashed.
---------
CIVIL SIDE

BEFORE
THE HON'BLE UMA NATH SINGH,J.
THE HON'BLE D.K ARORA,J.

Service Bench No. - 1347 of 2010

Dr.Rakesh Kumar Mishra and others
...Petitioner
Versus
State of U.P. Through Principal
Secy.Medical and Health Lko.
...Respondents

Sri L.P.Singh

C.S.C.
Sri A.K. Vishwakarma
Sri Asit Kumar Chaturvedi
Sri Prashant Singh Atal

Constitution of India, Article 226-
Selection-preference to local candidate
go by to merit-if local candidate much
below in merit in comparison of outside
candidates-no right to question the
mode of selection-petition dismissed.

Held: Para 9

Thus, priority or precedence would not
mean a reservation for local candidates
nor would it mean drawing of a separate
merit list for them. It is only on the
comparative assessment on merit of
local candidates vis-a-vis outsiders that
the local candidates if otherwise found
eligible but left behind with narrow
margin may get priority and sympathetic
consideration in comparison with the
outsiders. But in the instant case, the
selected candidates secured 50 marks
and above whereas the petitioners have
obtained the marks only within the
range of 30. Thus, in that case, they
would not be entitled to get any priority
over the outsiders.
Case law discussed:
Civil Appeal Nos.5757-5759 of 2002 (State of
U.P. & another vs. Om Prakash and others);
[2007 (25) LCD 1427]

(Delivered by Hon'ble Uma Nath Singh,J.)

1. We have heard learned counsel
for parties and perused the pleadings of
writ petitions.

2. This order shall also dispose of
connected Writ Petition No.1614 (S/B) of
2010 as both the writ petitions impugn the
same cause of action, namely, the exercise
of selection process completed pursuant
to the advertisement dated 23.06.2010
(Annexure-2 to the writ petition).

3. Learned counsel for petitioners
submitted that as per condition no.1 of the
advertisement, the candidates of the
district concerned are to get priority/
precedence over other candidates in the
selection, whereas in the instant case the
local candidates have not been given any
priority and instead the outsiders have
3 All] Dr.Rakesh Kumar Mishra and others V. State of U.P. 1419
been selected for appointment on the
posts in question, namely, Ayush Medical
Officer and Pharmacist.

4. Learned counsel also submitted
that condition no.1 should not be
interpreted to read as preference, but it is
to be read only as 'priority' and, thus, a
separate merit list should have been
drawn for the local candidates at district
level.

5. On the other hand, learned
counsel for respondents submitted that in
the selection process, merit is to be given
preference and once the advertisement has
been issued for the entire State, applicants
from outside the district, particularly from
neighbouring districts can not be
prevented in any manner from applying
and participating in the selection process.

6. Beside, learned State Counsel,
Shri Sanjay Bhasin also submitted that the
last selected candidate in the general
category has obtained 53 marks, the
O.B.C. Candidate has secured 50 marks,
and the candidate selected for Pharmacist
44 marks, whereas all the petitioners have
remained within 30 marks.

7. On due consideration of rival
submissions, we do not find any force in
the contentions of learned counsel for
petitioners. Priority/precedence does not
mean that merit should be given a
complete go by, particularly in the
selection process for appointment on the
specialized and technical posts, like
Medical Officers and Pharmacists. Thus
the submission in regard to drawing of a
separate select list for local candidates
does not find favour with the Court.

8. The Hon'ble Apex Court in Civil
Appeal Nos.5757-5759 of 2002 (State of
U.P. & another vs. Om Prakash and
others) has held that the word 'preference'
would mean that when the claims of all
candidates who are eligible and who
possess the requisite educational
qualification prescribed in the
advertisement are taken for consideration,
and when one or more of them are found
equally positioned, then only the
additional qualification may be taken as a
tilting factor, in favour of candidates vis-
a-vis others in the merit list prepared by
the Commission. But preference does not
mean en bloc preference irrespective of
inter-se merit and suitability. This
judgment has been considered by a Full
Bench of this Court in Daya Ram Singh
vs. State of U.P. [2007 (25) LCD 1427]
wherein it has been held as under:

"The word 'Variyata' has been
defined in the Oxford Hindi into English
Dictionary, as priority or precedence.
Besides from the two Government
Circulars, which are referred to above
and which were issued subsequently, i.e.,
one dated 21.11.2005 and the latter dated
24.4.2006, the intention has been further
clarified. As we have noted, the
Government Circular dated 21.11.2005,
gives the clarification specifically stating
that an Instructor/ Supervisor, who has
worked in the non-formal education
Scheme, if available and if having the
other conditions of eligibility, and if falls
in the prescribed category of reservation,
will be appointed, even if he is having less
number of marks. The Government
Circular of 24.4.2006, clearly states that
amongst the Instructors/ Supervisors, one
who has put in longer years of service,
will be preferred. In the earlier
Government Circular dated 10.10.2005,
those who had passed B.Ed./ L.T., were to
be given the preference while stating that
the work used was Adhimanyata
(preference). That clause has been
removed and the terms used in Clause
No.4, are Prathama Variyata, which will
mean 'first priority' or 'precedence'. The
provisions contained in this Clause, when
read with the clarification dated
21.11.2005, clearly lead to the inference
that the Instructors/ Supervisors, who
have worked in the non-formal education
Scheme ought to be preferred en bloc with
priority over the others, if such persons
are available."

9. Thus, priority or precedence
would not mean a reservation for local
candidates nor would it mean drawing of
a separate merit list for them. It is only on
the comparative assessment on merit of
local candidates vis-a-vis outsiders that
the local candidates if otherwise found
eligible but left behind with narrow
margin may get priority and sympathetic
consideration in comparison with the
outsiders. But in the instant case, the
selected candidates secured 50 marks and
above whereas the petitioners have
obtained the marks only within the range
of 30. Thus, in that case, they would not
be entitled to get any priority over the
outsiders.

10. Thus, we may hold that 'priority',
in the present context would mean
precedence of the local candidates who
are not left behind with a wide margin in
the merit, but are positioned at a
reasonable distance, in comparative
assessment vis-a-vis the outsiders.

11. Thus, the writ petitions are
dismissed.
---------
CIVIL SIDE

BEFORE
THE HON'BLE PRADEEP KANT,J.
THE HON'BLE S.V. SINGH RATHORE,J.

Service Bench No. - 1468 of 2011

Surendra Vikram Singh ...Petitioner
Versus
State of U.P.Through Prin. Secy.
Appointment Deptt. Lko. and other
...Respondents

Sri Ashwani Kumar
Sri Adarsh Saxena

C.S.C.
Sri Manish Kumar

U.P. Higher Judicial Services Rule 1975-
placement in seniority-petitioner's
batchmates recommended for officiating
promotion-ignoring petitioner due to
adverse entry 1994-95 on 27.03.2000-
but approved subsequent on 18.08.2001-
Regular promotion on 13.04.2005 given-
in tentative seniority list published on
03.03.2011-petitioner placed at serial
no. 455-but in revised list got placed at
Serial no. 678-un-communicated adverse
entry can not be ground for super
seating-once placed properly-hardly any
occasion to disturb such placement-
direction issued accordingly.

Held: Para 27

As per the own criteria/principles
determined by the Seniority Committee,
this was a case which will fall in the third
category viz. where the officiating
promotion was denied because of the
presence of the adverse entry, which
entry was not to be taken into account
and consequently the officiating
promotion was given. The Seniority
3 All] Surendra Vikram Singh V. State of U.P. 1421
Committee in its criteria has observed
that for such officers, the seniority
position would be restored back. That
being so, we do not find any reason as to
why the petitioner should be denied his
seniority to which he was entitled
otherwise.
Case law discussed:
(2008) 8 SCC 725; (1999) 1 SCC 241

(Delivered by Hon'ble Pradeep Kant,J.)

1. Heard Sri S.K.Kalia, learned
Senior Advocate, assisted by Sri Adarsh
Saxena, counsel for the petitioner, Sri
Manish Kumar, learned counsel for the
High Court and learned standing counsel
appearing for the State.

2. The petitioner, who was initially
appointed as Munsif on 5.11.1979,
belongs to 1977 batch of U.P.Nyayik
Sewa (hereinafter referred to as UPNS),
was promoted as Civil Judge (Senior
Division) in the year 1996. During the
year 1994-95, he was communicated an
adverse entry when he was posted as Civil
Judge (Senior Division) at Moradabad. He
made a representation against the said
adverse entry but the same was rejected
on 14.3.1997, aggrieved by which he
preferred a writ petition bearing no.
41334 of 1997, which was disposed of on
6.12.2000 with a direction to the
respondents to decide the representation
of the petitioner keeping in view the
observations of the Division Bench and
the Hon'ble Supreme Court in the case of
Hon'ble High Court of Judicature at
Allahabad versus Sarnam Singh and
another, reported in 2000(2) SCC 339.

3. In the meantime, when the
aforesaid writ petition was pending, the
batch mates of the petitioner were
considered for officiating promotion
under Rule 22(3) of the U.P.Higher
Judicial Services Rules, 1975 (hereinafter
referred to as the UPHJS Rules), but the
petitioner was not recommended for
promotion by the Selection Committee
because of the aforesaid adverse entry. He
was again not recommended for
promotion by the Selection Committee on
27.3.2000 because of the said adverse
entry. He was also having 'fair' entries for
four successive years.

4. The writ petition preferred by the
petitioner, as referred to above, was
decided on 6.12.2000 and thereafter the
Administrative Committee of the High
Court resolved on 27.4.2001 that the
remarks of the Inspecting Judge for the
year 1994-95 be not taken into account
while considering his promotion. The
selection committee thereafter approved
the petitioner for officiating promotion
vide resolution dated 18.8.2001 and he
was promoted vide High Court's
notification dated 30.10.2001 under the
provisions of Rule 22(3) of the UPHJS
Rules.

5. After the petitioner was given
officiating promotion in U.P.Higher
Judicial Service, he was considered for
regular promotion and was given such
promotion on 13.4.2005. The notification
in this regard was issued on 17.5.2005. In
this Government notification promoting
the petitioner under Rule 22(1) of the
UPHJS Rules alongwith his batch mates,
he was rightly placed as per his seniority
position.

6. It was thereafter on 3.3.2011 that
the first tentative seniority list of the
officers of UPHJS cadre was published.
In this list, the petitioner was again rightly
placed at serial no. 455 i.e. in between
Mr. Rakesh Kumar at serial no. 454 and
Mr. Gyan Chandra at serial no. 456.
Subsequently, on 18.5.2011, revised
tentative seniority list was published, in
which the petitioner was placed at serial
no. 678 whereas Mr. Rakesh Kumar was
placed at serial no. 451 and Mr. Gyan
Chandra at serial no. 452. This
necessitated a representation by the
petitioner against the revised tentative
seniority list, which was made on
30.5.2011, wherein he requested that his
seniority be restored at due place i.e.
above Mr. Gyan Chandra and below Mr.
Rakesh Kumar.

7. Besides the petitioner, several
other officers who were similarly
circumstanced and were pushed down in
the revised tentative seniority list, also
represented their cases and in the final
seniority list, they were given their due
places. The petitioner was, however,
denied the said relief.

8. Later on, final seniority list was
published alongwith the seniority
committee report, from where it revealed
that the petitioner's representation has not
been accepted and his place in the
seniority list remains unchanged.

9. The placement so made in the
seniority list of UP HJS officers has given
a cause of action to the petitioner to
approach this Court under Article 226 of
the Constitution of India.

petitioner has submitted that the principle
applied in the case of the petitioner for
denying him the benefit of seniority with
effect from the year 1999 i.e. when the
persons junior to him belonging to his
batch were given seniority, is not based
on any rational and fair criteria; rather this
is against the rules which govern the
seniority.

11. His further submission is that by
no stretch of imagination, merely because
there were four successive 'fair' entries
after the adverse entry for the assessment
year 1994-95, which were never
communicated to the petitioner, he could
have been pushed down in the seniority
list on the ground that he was superseded
in officiating promotion, not because of
the adverse entry of 1994-95 alone but
looking to the entire record which
included four fair entries awarded to him
successively.

12. In support of his above
submissions, learned counsel for the
petitioner has relied upon Dev Dutt versus
Union of India and others (2008) 8 SCC
725, U.P.Jal Nigam versus S.C.Atri and
another (1999) 1 SCC 241 and R.K.Singh
versus State of U.P. & others 1991 Supp.
(2) SCC 126.

13. Sri Manish Kumar, appearing for
the High Court has vehemently urged that
the petitioner was since superseded in
officiating promotion and his service
record was found bad by the Full Court
where he was found not fit for promotion,
he cannot claim restoration of his
seniority alongwith his batch mates of
1997 and in other words, from the year
1999.

14. Sri Manish Kumar has also
drawn our attention to the criteria fixed by
the Seniority Committee for awarding
seniority to the UPHJS officers, who were
first given ad hoc officiating promotion
and were subsequently given regular
promotion, wherein such officers were
allowed the benefit of officiating
promotion and were given seniority from
the date of their officiation.

15. Seniority Committee laid down
the criteria for determining the seniority
of those officers, who were given ad hoc
promotion and were promoted on regular
basis while working on officiating
promotion and also of those officers who
could not be given officiating promotion
because of the adverse entries, but were
subsequently promoted when adverse part
of their service record was expunged.

16. In fact, the following criteria
was adopted by the Seniority Committee
for determining seniority of three sets of
officers, after observing that there are
certain principles on matters not
specifically covered by Rule 26 of 1975
Rules; viz.

" (A) Under Rule 26 (before
15.3.1996), for D.Rs., the reckoning point
of seniority is the date of joining but a few
days difference in the matter of joining of
D.Rs., appointed by same order, amongst
themselves, would not disturb their
position inter se. This principle was
followed by earlier Seniority Committee
which has attained finality. Same
principle would be followed this time
also. Therefore, amongst D.Rs., we
maintain their inter se position as per
their merit position and order of
appointment. A few days difference, either
way n the matter of joining would make
no difference.

(B) Similarly in the matter of
promotee Officers also, all appointed on
substantive vacancies by a common
appointment order, in case of minor
variation in d ate of continuous officiation
of such Officers, on account of difference
in joining, their inter se seniority has also
not been touched and is in tact as it was
in feeder cadre, i.e., in order of their
appointment. This was the principle
followed while preparing earlier seniority
list dated 6.5.1992.

(C) The earlier seniority committee
headed by Dr. B.S.Chauhan, J. (as His
Lordship then was) in regard to issue-3
took a decision that D.Rs., who could not
join on account of interim orders will be
entitled for seniority from the date of
passing restraining order. In respect to
Issue-3 also relating to D.Rs of 1984
recruitment, the committee decided,
where appointments are delayed due to
fault on the part of Government, no
benefit would be given but where the
appointments were delayed due to orders
of Court, they may be given benefit of
decision taken in issue but confined to the
date the person higher in merit was
appointed.

(D) In our second TR having taken
the decision that continuous officiation
upto the date when an Officer was found
unfit for promotion on substantive basis
would not be given any consideration for
seniority, we received some
representations from affected Officers
amongst 58 total representations we have
received. We find from the analysis of
aforesaid objections and other record that
there are three types Officers:

(i) First, those, who were initially
approved for officiating appointment and
given such appointment, thereafter in
their turn approved for substantive
appointment and given such appointment.
There is no difficulty in respect to such
Officers, if they are governed by pre-
amended Rule 26 of 1975 Rules to reckon
their seniority from the date of the
continuous officiation and the vacancy
available in their quota, whichever is
later.

(ii) Second, the Officers approved for
officating appointment, given such
appointment, but in their turn once or
more disapproved for substantive
appointment under Rules 22(2) but
continued to officiate and later on
approved for substantive appointment.
These Officers have demanded that their
seniority should remain unaffected and
even if the members of UPNS junior to
them have superseded at the time of
substantive appointment, but ultimate
approval shall restore seniority and they
would not be affected in any manner.

(iii)Third, those approved for
officiating/ad hoc promotion but could
not be so promoted for any reason, may
be on account of some inquiry etc.,
rejected for promotion on ad hoc basis
and ultimately given only substantive
appointment when the above inquiry
resulted in exoneration or the other
reason disappeared, like expunction of
adverse entry etc.

(E) So far as the Officers in first
category is concerned, as already noticed,
there is no difficulty. So far as second
category Officers are concerned, we find
the proposition difficult to accept that
they can be allowed to reckon their
seniority from the date of continuous
officiation. It is true that under Rule 26,
the reckoning point of seniority for
promotees is the date of continuous
officiation and the date of availability of
vacancies within their quota, but when
they are found unfit for promotion on
substantive basis in their turn and juniors
are promoted on substantive basis
superseding them, the vacancies are
provided earlier in pointy of time to the
juniors approved for substantive
appointment when senior is rejected.
Therefore, the later approval would not
result in automatic restoration of
seniority from the date of association so
as to score a march over juniors who had
already superseded the senior Officer for
substantive appointment. Any other view
would amount to treating unequals as
equal. Rule nowhere provides that an
Officer superseded for substantive
appointment by his juniors can restore his
seniority due to later approval. To adjust
equity amongst all the Officers so as not
to nullify effect of supercession in
substantive appointment, officiation of
superseded Officers would count from one
day later than the last rejection for
promotion and immediately preceding
approval for promotion on substantive
basis.

(F) There may be some Officers who
were found unfit on account of some
punishment or adverse entry etc. which
subsequently disappeared, may be on
account of some judicial order or in
appeal or representation on the
administrative side resulting in vanishing
the very basis on account whereof the
incumbent was superseded. IN such cases,
as we have already decided earlier,
following the decision on similar aspect
by earlier committee also such Officers, if
approved in following selection, would
restore their position back over their
juniors.

(G) In this regard, we have followed
the decision of earlier Seniority
Committee headed by Hon'ble S.D.
Agarwal, J. in finalizing 1992 S.L. (see
para 83(e) of this report where it said that
the Officers who were not given
promotion under Rule 22(3) or 22(4) due
to any adverse entry or enquiry pending
against them, which has subsequently
been wiped out, seniority of such officers
shall be counted from the date next junior
member of UPNS or JOS, as the case may
be, of their batch who were promoted to
the service prior to them started
officiation). This principle was also
followed by the later Seniority Committee
headed by Dr. B.S.Chauhan, J. (as his
Lordship then was) and was never
disputed earlier or before us.

(H) Now comes third category. The
Officers considered in their turn for
officiating appointment or subordinative
appointment but the consideration was
deferred, may be for non completion of
record of A.C.R. Or otherwise, vacancies
kept reserved and subsequently they were
approved and promoted. In such cases,
these officers shall be assigned seniority
from the date their next junior I UPNS
has been assigned seniority inasmuch
such Officers were neither ever
superseded nor denied officiating
appointment nor have been otherwise
allowed to suffer. The Court kept the
vacancy reserved and, therefore, in the
matter of seniority also they cannot be
allowed to suffer."

17. So far as the petitioner is
concerned, the Seniority Committee
observed as under:

227. Sri Surendra Vikram Singh, a
quite senior in UPNS made
representation for not providing him
seniority at his due place alongwith his
juniors in UPNS. In the tentative seniority
list circulated with our Second TR he has
been placed at Sl. No. 678. In his
representation he has said that he belongs
to 1977 batch of UPNS appointed on
05.11.1979 and promoted as Civil Judge
(Senior Division) on 20.02.1990. From
his report we find that he was awarded an
adverse entry in 1994-95 to the following
effect:

"Disposal adequate being 202 per
cent. The officer enjoyed a stinkingly bad
reputation as revealed in my surprise
inspection made incognito on 18th of
April, 1995. the remarks of the District
Judge in the annual confidential report
for the year 1994-95 affirmed.

Assessment of judicial performance
adjudged 'very poor' on the basis of my
inspection note for the year 1994-95.

Integrity doubtful."

228. His integrity was also assessed
as doubtful. His representation against
the aforesaid remark was also rejected on
14.03.1997. He filed Writ Petition No.
41334 of 1997 seeking a writ of certiorari
for quashing the aforesaid adverse
remark. Vide judgment dated 06.12.2000
this Court partly allowed his writ petition
required for reconsideration of his
representation against the aforesaid
adverse entry in the light of decision of
the Apex Court in High Court of
Judicature at Allahabad Vs. Sarnam
singh and another, 2000(2) SCC 339.
Direction issued by this Court reads as
under:

"In view of what has been stated
above, the writ petition succeeds partly
and is allowed in part. The respondents
are directed to decide the representation
of the petitioner keeping in view the
observations of the Hon'ble Division
Bench and the Hon'ble Supreme Court in
Sarnam Singh case and dispose if of
afresh.

The parties will bear their own
costs."

229. In the meantime, the selection
committee considered him for promotion
in UPHJS and vide report dated
18.05.1998 solely on the basis of adverse
entry awarded for 1994-95 did not
recommend him and this report was
accepted by Full Court on 11.07.1998.
Again he was considered by selection
committee and vide report dated
27.03.2000 it did not recommend Sri
Surendra Vikram Singh for promotion
referring not only adverse entry of 1994-
95 but also referring to his performance
in the subsequent four years as is evident
from the following:

"In the year 1994-95 he was rated to
be a very poor officer and his integrity
has been assessed as doubtful. He made
two representations but th same were
rejected on 14.03.1997 and 16.08.1997
respectively. Challenging the entry for the
year 1994-95 he has filed Civil Misc. Writ
Petition No.41334/1998 whch is pending
but there is no interim order staying the
operation of the adverse entry. However,
in the successive four years he was
assessed to be merely a fair officer.
Therefore he is not recommended for
promotion."

230. This report was also accepted
by Full Court vide resolution dated
09.04.2000 and Surendra Vikram Singh
was not recommended for promotion.
After the decision of Court vide judgment
dated 06.12.2000 the representation of
Surendra Vikram Singh was considered
by Administrative Committee in its
meeting dated 27.04.2001 and it resolved
as under:

"Resolved that the remarks made by
the inspecting judge against the officer for
the year 1994-95 be not taken into
account."

231. Thereafter, the Full Court
approved him for promotion vide
resolution dated 18.8.2001. It is evident
that, his supercession vide Full Court
resolution dated 9.4.2000 was not solely
on account of adverse entry of 1994-95
but also in the light of his performance
adjudged as merely a "fair officer" in the
successive four years. Therefore, our
decision that if the sole basis disappear,
the incumbent shall be restored to his
position would not apply to the case of
Surendra Vikram Singh. We are also
informed that while considering the
Officers for promotion in HJS,m mainly
preceding five year entries used to be
considered by the Court and, therefore,
the subsequent entries being available in
respect to officer concerned which are
considered when he is recommended for
promotion in later year would not entitle
him for restoration of his position. It will
apply only when he is superseded on the
basis of something which ultimately
disappeared but if there is anything more
then the aforesaid logic will not apply."

18. A perusal of the criteria adopted
by the Seniority Committee for
determining the seniority of the petitioner
shows that the reason for not giving him
the seniority, which he was claiming, is
that though the adverse entry of the year
1994-95 was not taken into account while
making his promotion on officiating basis,
but he was superseded not because of the
said adverse entry alone but also because
of the four 'fair' entries awarded to him in
four successive years.

19. Needless to mention that
seniority is governed by Rule 26 of the
UPHJS Rules, which reads as under:

"26. Seniority.- (1) Seniority of the
officers appointed in the service shall be
determined in accordance with the order
of appointment in the Service under sub-
rules (1) and (2) of Rule 22 of these Rules.

(2) Seniority of members of the
service who have been confirmed in the
service prior to the commencement of
these rules shall be as has been
determined by the order of the
Government as amended from time to
time."

20. The appointment is dealt with
under Rule 22 of the aforesaid Rules.

21. The Seniority Committee has
kept the petitioner's case in third category
but has refused seniority for the aforesaid
reason. Here, it is worthwhile to consider
the plea of the petitioner that firstly, the
successive four fair entries after adverse
entry for the year 1994-95 could not be
treated as adverse nor were they adverse;
secondly, had these entries been taken as
adverse, they ought to have been
communicated to the petitioner, which
was never done; thirdly, any entry which
had not been communicated to the
petitioner, could not be considered as
adverse nor could be taken into
consideration while making promotion,
and lastly, when the petitioner was given
officiating promotion on 30.10.2001 after
the directive issued by the High Court in
the writ petition preferred by him, these
four 'fair' entries were on record and in
the presence of these four 'fair' entries he
was given officiating promotion simply
ignoring the adverse entry of 1994-95.
Submission is that these four fair entries
were neither taken to be adverse nor
against the petitioner for the purposes of
officiating promotion; rather, after
expunction of the adverse entry of 1994-
95, the Selection Committee did not find
anything adverse so as to deny the
petitioner the officiating promotion and
for that reason he was given officiating
promotion.

22. Thus, if the petitioner was given
officiating promotion on the basis of
existing material including the four
successive 'fair' entries, it cannot be said
that he would not be entitled to restoration
of his seniority merely because at the time
of officiating promotion, there were four
'fair' entires as observed above. At the
time of promotion, the entire record,
which is relevant for the purpose, remains
under scrutiny and if the selection
committee finds that there is anything
adverse on record, may be adverse entry
or any restraint order or any such factor
which prohibits such promotion to an
officer, the selection committee would not
make his promotion, but on consideration
of entire record if promotion is made, then
it would not be open later on to suggest
that the promotion has been made but the
adverse material still is to be taken into
consideration while determining his
seniority.

23. Admittedly, the four fair entries
were never communicated to the
petitioner; therefore, he could not get a
chance to make any representation against
them. He was given officiating promotion
after ignoring the adverse entry for the
year 1994-95 but in the presence of four
'fair' entries awarded to him in the
successive four years.

24. The observation of the Seniority
Committee that the petitioner was
superseded in officiating promotion not
only because of the adverse entry of
1994-95 but also because of the four
successive fair entries, is not borne out
from record for the reason that when the
said adverse entry was ignored, he was
given officiating promotion in the
presence of same very four 'fair' entries.
Thus, the 'fair' entries were not taken as a
bar or obstacle for giving promotion to
the petitioner in UPHJS cadre on
officiating basis.

25. It is significant to note that when
the petitioner was promoted on regular
basis on 13.4.2005, he was placed rightly
as per his seniority position and also in
the first tentative seniority list, he was
given the correct position, but in the
second tentative seniority list, his position
was changed and he was pushed down
and despite representations made he was
not given due place in the final seniority
list also which was published later on.

26. Grant of officiating promotion
immediately after the expunction of the
adverse entry of 1994-95 in the presence
of four 'fair' entries itself reveals that the
officiating promotion of the petitioner
was earlier denied only because of the
adverse entry and not for 'fair' entries.

27. Once at the time of regular
promotion, the petitioner was placed at
the proper place in the seniority list, there
was hardly any occasion to disturb his
seniority at the time of issuing second
tentative seniority list and that too on a
ground which was non-existent..

28. As per the own
criteria/principles determined by the
Seniority Committee, this was a case
which will fall in the third category viz.
where the officiating promotion was
denied because of the presence of the
adverse entry, which entry was not to be
taken into account and consequently the
officiating promotion was given. The
Seniority Committee in its criteria has
observed that for such officers, the
seniority position would be restored back.
That being so, we do not find any reason
as to why the petitioner should be denied
his seniority to which he was entitled
otherwise.

29. For the reasons aforesaid, we
allow the writ petition and direct that the
petitioner shall be given his original
seniority and shall be placed in between
Mr. Rakesh Kumar and Mr. Gyan
Chandra, who have been placed at serial
nos. 451 and 452 in the final seniority list
of UPHJS officers cadre. Let the seniority
list dated 18.5.2011 be corrected
accordingly.
---------

3 All] Pankaj Pandey V. S.B.I. Central Recruitment and Promotion Deptt and another 1429
APPELLATE JURISDICTION
CIVIL SIDE

BEFORE
THE HON'BLE S.R. ALAM, C.J.
THE HON'BLE RAN VIJAI SINGH, J.

SPECIAL APPEAL No. - 2319 of 2011

Pankaj Pandey ...Petitioner-Appellant
Versus
S.B.I. Central Recruitment and
Promotion Deptt and another
...Respondents

Sri N.K. Pandey,
Sri H.L. Pandey

Sri Satish Chaturvedi

Constitution of India Article 226-
Cancellation of appointment letter-
appellant was finally selected on post of
clerk-cum-cashier-appointing authority
considering decleration column of
application regarding pendency of Trails
of cases under Section 323, 504, 506,
498-A, and D.P. Act-decided to
withdraw the offer letter-held-proper-
sole domain of appointing authority-can
not be interfered by Court-selected
candidate-no feasible right to claim
appointment-Single Judge rightly
declined to interfere.

Held: Para 11

Otherwise also, it is within the domain of
the Appointing Authority/employer to
verify, before issuing the letter of
appointment, the antecedents of a
person to whom it is going to offer letter
of appointment. Therefore, in the facts of
the case, even if the appellant was
selected, since the respondents have
decided not to offer him appointment
because of his involvement in criminal
cases, we have no reason to differ with
the view taken by the learned Single
Judge. No other point has been urged
before us.
Case law discussed:
(1996) 11 SCC 605; (2011) 1 SCC (L&S) 734;
2011 (4) ESC 634; 2007 (5) ADJ 280

(Delivered by Hon'ble S.R. Alam, C.J. )

1. This intra-court appeal arises
from the judgment and order of the
learned Single Judge dated 2nd
November, 2011 rendered in Civil Misc.
Writ Petition No.62473 of 2011,
dismissing the appellant's writ petition.

2. We have heard learned counsel
for the appellant and the learned counsel
for the respondents.

3. The short facts giving rise to the
present appeal, briefly stated, are that the
State Bank of India advertised few
vacancies of Clerk-cum-Cashier for
selection and appointment. Pursuant to the
said advertisement, the appellant also
applied for the said post and appeared in
the written examination and was declared
successful hence called for interview,
which was to be held on 7th May, 2010.
However, in the declaration form, he
disclosed about the pendency of three
criminal cases against him, i.e. (1) Case
No......... of 2000 under Sections 323, 504
& 506 IPC, (2) Case No........ of 2007
under Sections 323, 498-A, 504, 506 IPC
and Section 3 of the D.P. Act, and (3)
Case No.........of 2008 under Sections 323,
504 & 506 IPC. The respondent Bank,
therefore, keeping in view his
involvement in the aforesaid criminal
cases involving moral turpitude, decided
not to appoint him and, therefore, vide
letter dated 23.09.2011, the offer made to
appoint him was withdrawn/cancelled.
The aggrieved appellant, therefore, filed
aforesaid writ petition for quashing of
aforesaid order dated 23.09.2011 and
further for a direction commanding the
respondents to appoint him as Clerk in
Gaurabadshahpur, Jaunpur Branch or any
other Branch of the State Bank of India of
the Zone and to pay salary as and when it
falls due.

4. The learned Single Judge was of
the view that it is not desirable to issue
letter of appointment to a person against
whom criminal cases are pending even if
he has cleared the written examination,
interview and has provisionally been
selected. The learned Single Judge,
therefore, following the judgment of the
Apex Court in Delhi Administration
through its Chief Secretary & Ors. Vs.
Sushil Kumar, (1996) 11 SCC 605,
dismissed the writ petition. The appellant,
therefore, preferred this appeal under the
Rules of the Court.

5. Learned counsel for the appellant
vehemently contended that the alleged
offences against the appellant, which are
pending trial and being of trivial nature,
the respondents are not justified in
withdrawing the offer of appointment to
the appellant. He placed reliance on the
judgments of the Apex Court in
Commissioner of Police & Ors. Vs.
Sandeep Kumar, (2011) 1 SCC (L&S)
734 and Ram Kumar Vs. State of U.P.
& Ors., 2011 (4) ESC 634.

6. We do not find any force in the
submission and the authorities cited has
no application in the facts of the present
case, as we are of the view that it is within
the sole domain of the Appointing
Authority/employer to verify the
antecedents of a person before issuing
appointment letter. Admittedly, the
appellant is facing criminal charges which
are pending trial. The respondents,
keeping in view his involvement in the
aforesaid offences involving moral
turpitude, decided not to offer him
appointment.

7. In Commissioner of Police &
Ors. (supra), the Apex Court has
observed that the Court should condone
minor indiscretions made by young
people rather than to brand them as
criminals for the rest of their lives. In that
case, the selection of Sri Sandeep Kumar
(the respondent therein) was cancelled on
the ground that he had not disclosed in the
declaration form the pendency of criminal
case against him registered as F.I.R. No.
362 under Sections 325/34 IPC. The Apex
Court, observing that since it was a minor
offence, therefore, lenient view should
have been taken by the authorities,
quashed the order of cancellation of
selection. Similarly, in Ram Kumar
(supra), Ram Kumar was appointed as
Constable. However, subsequently, it was
found that he was involved in a criminal
case under Sections, 324, 323 and 504
IPC and, therefore, his appointment was
cancelled on the ground that he withheld
the information about his involvement in
the aforesaid criminal case. The Apex
Court, in view of the fact that before
applying for selection and appointment,
since Ram Kumar was already acquitted,
following the judgment in Commissioner
of Police & Ors. (supra), set aside the
order cancelling his appointment.
Therefore, in the aforesaid cases,
whereupon reliance has been placed by
the counsel for the appellant, admittedly,
the selected candidates, at the time of
issuance of appointment letter, were not
facing any criminal charges nor any
criminal case was pending trial, whereas
3 All] Pankaj Pandey V. S.B.I. Central Recruitment and Promotion Deptt and another 1431
in the case in hand, it is not in dispute that
three criminal cases are pending against
the appellant and some of them involves
moral turpitude and, therefore, looking to
the past antecedents of the petitioner-
appellant, the Appointing Authority did
not consider it fit to issue appointment
letter to him.

8. More so, it is settled law that
mere selection does not confer
indefeasible right to claim appointment.
In in State of Haryana Vs. Subhash
Chander Marwaha & Ors., (1974) 1
SCR 165, the Apex Court held as under:

"... One fails to see how the
existence of vacancies gives a legal right
to a candidate to be selected for
appointment. The examination is for the
purpose of showing that a particular
candidate is eligible for consideration.
The selection for appointment comes
later. It is open then to the Government to
decide how many appointments shall be
made. The mere fact that a candidate's
name appears in the list will not entitle
him to a mandamus that he be
appointed."

9. In Shankarsan Dash Vs. Union
of India, (1991) 3 SCC 47, the Hon'ble
Supreme Court held as under:-

"Even if vacancies are notified for
appointment and adequate number of
candidates are found fit, the successful
candidates do not acquire an indefeasible
right to be appointed. Ordinarily, the
notification merely amounts to an invitation
to qualified candidates to apply for
recruitment and on their selection they do
not acquire any right to the post. Unless the
relevant recruitment rules so indicate, the
State is under no legal duty to fill up all or
any of the vacancies. However, it does not
mean that the State has the licence of acting
in an arbitrary manner. The decision not to
fill up the vacancies has to be taken bona
fide for appropriate reasons. And if the
vacancies or any of them are filled up, the
State is bound to respect the comparative
merit of the candidates, as reflected at the
recruitment test, and no discrimination can
be permitted."

10. A Division Bench of this Court in
U.P. Public Service Commission,
Allahabad & Anr. Vs. State of U.P. &
Anr., 2007 (5) ADJ 280, took the similar
view and observed as under:-

"Moreover, even in the case of a select
list candidate, the law is well settled that
such a candidate has no indefeasible right to
claim appointment merely for the reason
that his name is included in the select list as
the State is under no legal duty to fill up all
or any of the vacancy and it can always be
left vacant or unfilled for a valid reason."

11. Otherwise also, it is within the
domain of the Appointing
Authority/employer to verify, before issuing
the letter of appointment, the antecedents of
a person to whom it is going to offer letter
of appointment. Therefore, in the facts of
the case, even if the appellant was selected,
since the respondents have decided not to
offer him appointment because of his
involvement in criminal cases, we have no
reason to differ with the view taken by the
learned Single Judge. No other point has
been urged before us.

12. The appeal, being without merit, is
dismissed. However, there shall be no order
as to costs.
---------

CRIMINAL SIDE

BEFORE
THE HON'BLE SHRI KANT TRIPATHI,J.

Criminal Misc. Application No. 4479 of 2005
(U/S 482 Cr.P.C.)

Surya Nath & another ...Petitioner
Versus
State of U.P. & another ...Respondents

Sri Brij Nath Singh
Sri Umesh Vats

Govt. Advocate

Code of Criminal Procedure, Section 482-
Quashing of criminal proceeding-offence
under section 419, 420,409 IPC-
allegation of bribery of Rs. 3000/-charge
framed on 08.12.1997 during 8 years
prosecution failed to produce witness-
speedy investigation and Trail-integral
part of fundamental right to life and
liberty-applicant can not be thrown at
mercy of prosecution-fit case for
quashing criminal proceeding.

Held: Para 9 and 10

Therefore, the petitioner who is an
accused of embezzlement of a meager
amount of Rs. Three thousand relating to
the occurrence of the year 1982, can not
be kept waiting for the final decision of
the case according to the mercy of the
prosecution. His fundamental right to
have speedy trial of his case seems to
have violated by the State without any
proper reason, therefore, I find sufficient
merit in the petition.

Keeping in view the aforesaid decisions
of the Apex Court and the fact that the
prosecution failed to examine any
witness during the period of eight years
and the trial remained pending without
any progress and there does not appear
to be any justification for the delay, I
consider it proper in the interest of
justice to quash the proceedings of the
criminal case no. 2211 of 1993, State vs.
Surya Nath Yadav and another, under
sections 467, 468, 419, 420 and 409 IPC,
police station Kotwali Deoria, district
Deoria.
Case law discussed:
AIR 2008 SC 3077; AIR 2009 SC 1822

(Delivered by Hon'ble Shri Kant Tripathi,J. )

1 . Heard the learned counsel for the
petitioners and the learned AGA and
perused the progress report dated
10.5.2011 submitted by the C.J.M.
Deoria.

petitioners submitted that the criminal
case is of the year 1993 and since then
eighteen years have elapsed, even then the
trial is pending for want of prosecution
evidence. According to the progress
report, the trial remained pending for
several years for want of attendance of the
accused persons. However, the charges
were framed on 8.12.1997 and case
remained pending for prosecution
evidence for several years and the
prosecution failed to examine any
witness. The trial is lying stayed from
2005 under orders of this Court.

3. A copy of the order sheet of the
concerned criminal case is on record,
perusal whereof reveals that several dates
had been fixed for prosecution evidence
but the prosecution failed to produce any
evidence during the period of eight years,
i.e. from the year 1997 to 2005.

4. It was the duty of the prosecution
to produce relevant evidence on the dates
3 All] Surya Nath and another V. State of U.P. and another 1433
fixed by the Magistrate but the
prosecution had been quite negligent in
not cooperating with the trial and also not
in examining the witnesses, though about
eight years were granted to the
prosecution to examine its witnesses. No
criminal case can be permitted to be kept
pending with no progress for indefinite
period at the mercy of the prosecution and
the valuable right of speedy trial of the
accused can not be allowed to be taken
away by the State.

5. The Apex Court had occasion to
consider the question of expeditious
disposal of criminal cases and has
emphasized the need of speedy
investigations and criminal trials and has
held that speedy investigations and trial
are integral part of the fundamental right
to life and liberty contained in Article 21
of the Constitution of India. Some of the
decisions are as follows:

(1) Pankaj Kumar vs. State of
Maharashtra & others, AIR 2008 SC
3077,

(2) Vakil Prasad Singh vs. State of
Bihar, AIR 2009 SC 1822.

6. In the case of Pankaj Kumar
(supra) the Apex Court reiterated the
aforesaid principles and held in para 17 as
follows:

17. It is, therefore, well settled that
the right to speedy trial in all criminal
persecutions is an inalienable right under
Article 21 of the Constitution. This right is
applicable not only to the actual
proceedings in court but also includes
within its sweep the preceding police
investigations as well. The right to speedy
trial extends equally to all criminal
persecutions and is not confined to any
particular category of cases. In every
case, where the right to speedy trial is
alleged to have been infringed, the court
has to perform the balancing act upon
taking into consideration all the attendant
circumstances, enumerated above, and
determine in each case whether the right
to speedy trial has been denied in a given
case. Where the court comes to the
conclusion that the right to speedy trial of
an accused has been infringed, the
charges or the conviction, as the case may
be, may be quashed unless the court feels
that having regard to the nature of
offence and other relevant circumstances,
quashing of proceedings may not be in the
interest of justice. In such a situation, it is
open to the court to make an appropriate
order as it may deem just and equitable
including fixation of time for conclusion
of trial.

7. In the case of Vakil Prasad Singh
(supra), the Apex Court while reiterating
the aforesaid principles, propounded the
following principles:

24. It is, therefore, well settled that
the right to speedy trial in all criminal
persecutions is an inalienable right under
Article 21 of the Constitution. This right is
applicable not only to the actual
proceedings in court but also includes
within its sweep the preceding police
investigations as well. The right to speedy
trial extends equally to all criminal
prosecutions and is not confined to any
particular category of cases. In every
case, where the right to speedy trial is
alleged to have been infringed, the court
has to perform the balancing act upon
taking into consideration all the attendant
circumstances, enumerated above, and
determine in each case whether the right
to speedy trial has been denied in a given
case. Where the court comes to the
conclusion that the right to speedy trial of
an accused has been infringed, the
charges or the conviction, as the case may
be, may be quashed unless the court feels
that having regard to the nature of
offence and other relevant circumstances,
quashing of proceedings may not be in the
interest of justice. In such a situation, it is
open to the court to make an appropriate
order as it may deem just and equitable
including fixation of time frame for
conclusion of trial.

8. The present case needs to be
examined in the backdrop of the aforesaid
principles. The occurrence is of the year
1982 and the charge sheet was filed in the
year 1993, therefore, the investigating
agency took about eleven years to finalise
the investigation. The matter remained
pending for charge for about four years in
the court of the Magistrate. Ultimately the
charge was framed on 8.12.1997 and the
prosecution failed to examine any witness
up to 13.5.2005 being the date of the stay
order passed by this Court, therefore,the
prosecution was granted about eight years
to adduce evidence but it failed to
examine any witness nor assigned any
reason as to why witnesses were not
examined during the aforesaid period of
about eight years. These facts are evident
from the progress report dated 10.5.2011
submitted by the Chief Judicial
Magistrate, Deoria. The State
(Respondent no.1) has, in the counter
affidavit, stated that the complainant
Mumtaz Ahmad had come in the year
2004 in the court but his mere presence in
the court cannot be treated to be one of
the grounds to hold that the prosecution
was vigilant in examining its witnesses. I
am failing to understand as to why the
complainant Mumtaz Ahmad was not
examined specially when he was present
in the court, therefore, the prosecution has
not been able to express any plausible
explanation for not examining any
prosecution witness during the aforesaid
period of about eight years. As such the
entire delay after framing of the charge
occurred due to laches on the part of the
prosecution.

9. Therefore, the petitioner who is
an accused of embezzlement of a meager
amount of Rs. Three thousand relating to
the occurrence of the year 1982, can not
be kept waiting for the final decision of
the case according to the mercy of the
prosecution. His fundamental right to
have speedy trial of his case seems to
have violated by the State without any
proper reason, therefore, I find sufficient
merit in the petition.

10. Keeping in view the aforesaid
decisions of the Apex Court and the fact
that the prosecution failed to examine any
witness during the period of eight years
and the trial remained pending without
any progress and there does not appear to
be any justification for the delay, I
consider it proper in the interest of justice
to quash the proceedings of the criminal
case no. 2211 of 1993, State vs. Surya
Nath Yadav and another, under sections
467, 468, 419, 420 and 409 IPC, police
station Kotwali Deoria, district Deoria.

11. The petition is accordingly
allowed. The proceedings of the aforesaid
criminal case are quashed.
---------

3 All] Dildar and others V. The State of U.P. 1435
CRIMINAL SIDE

BEFORE
THE HON'BLE SUDHIR KUMAR SAXENA,J.

U/S 482/378/407 No. - 5430 of 2011

Dildar and others ...Petitioner
Versus
The State of U.P. ...Respondents

Sri B.Q Siddiqui

Govt. Advocate

Code of Criminal Procedure-Section 309
and 311-witness are guest of court-like
eye and ears of justice-if witness appear
before court-proceeding should not be
adjourned except for unfair reasons-but
engagement of accused counsel in
another court or engagement of new
counsel-can not be ground for
adjournment-order passed by Trail
Court-justified-considering inadequate
amount towards money to the witness-
recommendation made for necessary
amendment in Cr.P.C. itself diet


Once witness is in attendance they
should not be returned unexamined,
keeping in view the provisions of Section
309 Cr.P.C. as amended. Section 309
Cr.P.C. permits adjournments for special
reasons. Section 309(2) Cr.P.C., excludes
certain reasons like engagement of
counsel in other Courts etc. A joint
reading of Section 309(1) and Section
309(2) Cr.P.C would show that the
intention of legislature is unambiguous
i.e. once witness comes to court he
should be examined. If adjournment is
necessary, then case can be adjourned to
next day but that too for special reasons
like sudden violence, incapability of
witness on account of illness etc.

Witnesses are guest of the court as they
are assisting the court in reaching at the
correct conclusion, therefore, they are
entitled to be treated with respect as
they are eyes and ears of the justice.
Their stature is above the other stake
holders and reluctance of the witness to
depose in the court amounts to failure in
dispensation of justice. This has to be
checked and it is high time High Court
looked into this malady and identified
the problems faced by them and made
their job hassle-free.
Case law discussed:
State of U.P. Vs. Shambhu Nath Singh and
Ors. made in Appeal (Criminal) No. 392 of
2001; {1999(7) SCC 604}

(Delivered by Hon'ble S.K. Saxena,J. )

Heard learned counsel for the
petitioners and learned AGA.

1. The petitioners through this petition
have challenged the order dated 30-11-2011
whereby application for recalling
prosecution witnesses Balak Ram and
Surendra Pal has been rejected.

2. It appears that the petitioners are
accused under Section 302 and 201 IPC. On
11.11.2010, prosecution examined Balak
Ram and Surendra Pal who had identified
the skeleton as well as the clothes belonging
to the deceased. It is mentioned in the order
sheet that opportunity for cross-examination
has been given but none came to cross-
examine, consequently, cross-examination
was closed. On 30.11.2011,
petitioners/accused moved application for
recalling the above witness as for some
reason they could not be cross-examined.
This application has been rejected by the
trial court vide order dated 30.11.2011. This
very order has been impugned herein.

3. Learned counsel for the petitioners
submits that he was prepared to cross-
examine now and one opportunity may be
given. In the petition ground taken is that
previous counsel did not cross-examine as
such, new counsel has been engaged.

4. It is necessary to have a look at
Sections 309 & 311 Cr.P.C.. Relevant
provisions are quoted below:-

"309. Power to postpone or adjourn
proceedings- In every inquiry or trial the
proceedings shall be held as expeditiously
as possible, and in particular, when the
examination of witnesses has once begun,
the same shall be continued from day to day
until all the witnesses in attendance have
been examined, unless the Court finds the
adjournment of the same beyond the
following day to be necessary for reasons to
be recorded:

Provided further that when witnesses
are in attendance, no adjournment or
postponement shall be granted, without
examining them, except for special reasons
to be recorded in writing."

Fourth proviso to Section 309(2)
which has been inserted by Code of
Criminal Procedure(Amendment) Act,
2008(5 of 2009) has taken care of such
situation. The said proviso is reproduced
below:

"(a) no adjournment shall be granted
at he request of a party, except where the
circumstances are beyond the control of
that party;

(b) the fact that the pleader of a party
is engaged in another Court, shall not be a
ground for adjournment;

(C) where a witness is present in Court
but a party or his pleader is not present or
the party or his pleader though present in
Court, is not ready to examine or cross-
examine the witness, the Court may, if
thinks fit, record the statement of the
witness and pass such orders as it thinks fit
dispensing with the examination-in-chief or
cross-examination of the witness, as the
case may be."

5. It is apparent that once witness is in
attendance, adjournment has to be refused
and has to be granted very rarely and in
exceptional circumstances for which special
reasons have to be recorded. Even if case is
to be adjourned for some reasons then
adjournment would be granted only till next
day. It is also evident that engagement of
lawyer in other court is not a ground for
adjournment and court is not supposed to
wait for counsel, if witness is present in the
court. The court is left with no option but to
record the statement of witness and pass
further orders dispensing with the cross-
examination.

6. In the case at hand, trial court has
done the same. It recorded the statement of
witnesses and as none came to cross-
examine them, opportunity for cross-
examination was closed. The order was
strictly in accordance with amended
provisions of Section 309 Cr.P.C.

7. Section 311 Cr.P.C. gives a
discretion to the court to recall or re-
examine any person, if the evidence appears
to be essential for just decision of the case.
This provision has to be read with Section
309 Cr.P.C. as both the provisions provide a
light into the scheme envisaged by Code.

3 All] Dildar and others V. The State of U.P. 1437
8. It has become a common practice
that once a witness of the prosecution
appears, defence would make all efforts to
get the case adjourned. One of the common
grounds is engagement of the new counsel
or illness of the counsel. Lawyers strike is
also taken as a ground for adjournment.

9. So far as strike is concerned, Apex
Court in unambiguous terms has held that
lawyers have no right to go on strike as
such, the Trial Court cannot adjourn the
examination of the witnesses if they are
present in court, on the ground of the
resolution of the Bar Association or
Abstention of lawyers from attending
judicial work. Moreover, in a Sessions
Trial, lawyer is supposed to appear after
making preparations and they are not
supposed to accept brief on the day, the case
is posted for evidence. If client has taken a
chance to engage a new lawyer on the day
the trial is fixed for evidence changing his
previous counsel, Trial Court is not bound
by this arrangement and will be fully
justified in refusing adjournment on this
ground. Similarly, engagement of counsel
in other courts is not the ground for
adjournment as has been clarified by the
amendment of 2009. Speedy trial being the
fundamental right of the accused, delay in
trial causes immense harm to the society as
a whole.

10. If in this background, Section
309 and 311 of Cr.P.C. are interpreted, it
is manifest that engagement of new
counsel cannot be a ground for recalling
the witnesses. Similarly, inadvertence,
ignorance, absence or even incompetence
of a counsel cannot be the sole ground for
exercising powers under Section 311
Cr.P.C.

11. Observations of the Hon'ble Apex
Court given in the case of State of U.P. Vs.
Shambhu Nath Singh and Ors. made in
Appeal (Criminal) No. 392 of 2001 are
being quoted below:

"We make it abundantly clear that if a
witness is present in court he must be
examined on that day. The court must know
that most of the witnesses could attend the
court only at heavy cost to them, after
keeping aside their own avocation.
Certainly they incur suffering and loss of
income......

"It is a sad plight in the trial courts
that witnesses who are called through
summons or other processes stand at the
doorstep from morning till evening only to
be told at the end of the day that the case is
adjourned to another day. This primitive
practice must be reformed by presiding
officers of the trial courts and it can be
reformed by every one provided the
presiding officer concerned has a
commitment to duty.......... "Even when
witnesses are present cases are adjourned
on far less serious reasons or even on
flippant grounds. Adjournments are granted
even in such situations on the mere asking
for it. Quite often such adjournments are
granted to suit the convenience of the
advocate concerned. We make it clear that
the legislature has frowned at granting
adjournments on that ground. At any rate
inconvenience of an advocate is not a
special reason for bypassing the mandate
of Section 309 of the Code.(emphasis mine)

"In Rajdeo Sharma (II) Vs. State of
Bihar {1999(7) SCC 604} this Court
pointed out that the trial court cannot be
permitted to flout the mandate of parliament
unless the court has very cogent and strong
reasons and no court has permission to
adjourn examination of witnesses who are
in attendance beyond the next working
day."

12. Once witness is in attendance they
should not be returned unexamined, keeping
in view the provisions of Section 309
Cr.P.C. as amended. Section 309 Cr.P.C.
permits adjournments for special reasons.
Section 309(2) Cr.P.C., excludes certain
reasons like engagement of counsel in other
Courts etc. A joint reading of Section
309(1) and Section 309(2) Cr.P.C would
show that the intention of legislature is
unambiguous i.e. once witness comes to
court he should be examined. If
adjournment is necessary, then case can be
adjourned to next day but that too for
special reasons like sudden violence,
incapability of witness on account of illness
etc.

13. Thus, court would be fully
justified in rejecting the adjournment on the
ground that a new counsel has been
engaged or that counsel is engaged in
another court if witness is in attendance,
Trial Courts have been very lenient in
giving adjournments that is why legislature
intervened and amended Section 309
Cr.P.C. Provisions of Section 309 Cr.P.C.
as amended are mandatory in nature and
Trial Court would be failing in duty, if they
do not implement this mandate in letter and
spirit. Trial Courts are supposed to work
with the sense of urgency keeping in mind
the intention of legislature while amending
Section 309 Cr.P.C.

14. Strike of lawyers, engagement of
counsel in other cases or engagement of
fresh counsel are definitely the reasons not
contemplated under Section 309 Cr.P.C.
and Trial court would see that no case be
adjourned on this ground. If witnesses are
present in the court, Sessions Judge would
ensure that the courts working under them
do not return the witnesses unexamined.

15. From the above, it is apparent that
the Trial Court had rightly closed the
opportunity of cross-examination and has
committed no irregularity/illegality in not
recalling those witnesses.

16. Court can take notice of the fact
that witnesses in criminal cases are unwilling
to testify. While insecurity of witnesses
could be one reason, equally important
reasons are frequent adjournments, ordeal of
criminal cases and lack of proper facilities in
court campus for witnesses, which further
dampens their spirit.

17. Witnesses are guest of the court as
they are assisting the court in reaching at the
correct conclusion, therefore, they are
entitled to be treated with respect as they are
eyes and ears of the justice. Their stature is
above the other stake holders and reluctance
of the witness to depose in the court amounts
to failure in dispensation of justice. This has
to be checked and it is high time High Court
looked into this malady and identified the
problems faced by them and made their job
hassle-free.

18. So far as threat or coercion to
witnesses is concerned, this is already
engaging the attention of law makers and
soon they may evolve a witness protection
programme so that safety of witnesses is
ensured before, during and after trial. One
thing significant to note here is that even
inside the court premises, witnesses are not
safe and incident of beating/misbehaviour
with the witnesses in the court premises or
inside the court rooms are on the rise.
Needless to point out that District Judge
being in-charge of the campus is duty-
3 All] Sharifunnisa V. State of U.P. and others 1439
bound to ensure that no violence occurs in
the court's campus. If violence takes place,
it should be immediately taken care of and
police be immediately moved to arrest the
culprits and bring them to justice
irrespective of their position whether they
are pairokar of the litigants or lawyer or
police personnel. Violence in the court
campus cannot be tolerated and if the
District Judge is unable to check this, it will
be treated as failure on his part and the High
Court may take suitable action against such
District Judge, who failed to prevent
violence in the court campus or take proper
action in time. The presiding officer in
whose court witnesses are not allowed to
depose freely without fear will immediately
report the matter to the District Judge and
ensure proper security as well as conducive
ambience for a witness to depose
independently and fearlessly.

19. It is also the duty of the District
Judge to ensure proper sitting place with
minimum infrastructure i.e. toilets, drinking
water etc.

20. It is seen that inadequate amount
is paid as diet-money to the witnesses under
General Rule(Criminal). Witness comes to
court from his house missing his one day
wages. Even in the National Rural
Employment Guarantee Scheme, one gets
more the Rs. 100. Rs. 10/- to 15/- is pittance
and not sufficient even for snacks what to
say for meal.

21. Registrar General and Principal
Secretary(Judicial), State of U.P. are
directed to take steps and ensure that the
amount of diet money which is ridiculously
low i.e. Rs. 10/- and 15/-(figures supplied
by Registry) is raised now looking to the
inflation, minimum wages and the
assistance that is provided by witness to the
Court.

22. With the aforesaid observation
petition is dismissed.

23. Copy of the judgment be sent to
Registrar General for placing it before
Hon'ble the Chief Justice so that efforts can
be made for amending the General
Rule(Criminal).

24. Copy of the judgment be sent to
Registrar General, High Court and Principle
Secretary, Judicial Government of U.P. for
necessary action.
---------
CIVIL SIDE

BEFORE
THE HON'BLE AJAI LAMBA, J.

Writ Petition No. 6489(MS) of 2011

Sharifunnisa ... Petitioner
Versus
State of U.P. & others ...Opposite parties

Constitution of India -Article 226-
Quashing of criminal proceeding-offence
u/s 363, 366 I.P.C.-victim after attaining
majority-married with accused and living
in her matrimonial house-application for
disposes of Petition on merit keeping in
view of subsequent development of
compromise-direction of Magistrate to live
with her father-futile exercise-Petition
allowed in term of compromise.

Held: Para 8

In view of the above facts and
circumstances of the case, it would be in
the interest of peace and harmony to allow
the petition. Direction issued by the
Magistrate in the impugned order dated
10.10.2011 is to the effect that the
petitioner be directed to live with her
parents. The petitioner, however, being
married and having been rehabilitated in
her matrimonial home, no purpose would
be served in law, nor it would be in the
interest of families to have the petitioner
live in her parental house.

(Delivered by Hon'ble Ajai Lamba, J.

(C.M.A. No.126252 of 11:Application for
disposal of writ petition)

1. This application prays for disposal
of the main petition in view of changed
circumstances.

2. Mohd. Iliyas, father of the alleged
victim namely Sharifunnisa, lodged an
F.I.R. alleging commission of offence under
Sections 363 and 366 of the Indian Penal
Code. The alleged victim Sharifunnisa,
petitioner, admittedly has attained age of
majority and has married of her own accord
with Halim S/o Mohd. Sajjad on
17.09.2011.

3. As per contents of the application,
the parties have settled their disputes by
way of compromise, which has also been
placed on record alongwith application.

4. Learned counsel contends that in
view of the stand of the complainant and the
alleged victim, who is living in her
matrimonial home, no purpose would be
served by continuance of proceedings.
Rather, matrimonial life of the petitioner
and her husband would be disturbed.

5. Learned counsel for parties pray
that the petition be disposed of and order
dated 10.10.2011 passed by the concerned
Magistrate be quashed.

6. I have considered the contention of
the learned counsel for parties.

7. It appears that the parties have
settled their disputes by way of compromise
and the husband and wife are now living
together. Even the complainant, who
happens to be the father of the alleged
victim, has prayed for disposal of the
petition in view of compromise.

8. In view of the above facts and
circumstances of the case, it would be in the
interest of peace and harmony to allow the
petition. Direction issued by the Magistrate
in the impugned order dated 10.10.2011 is
to the effect that the petitioner be directed to
live with her parents. The petitioner,
however, being married and having been
rehabilitated in her matrimonial home, no
purpose would be served in law, nor it
would be in the interest of families to have
the petitioner live in her parental house.

9. Writ petition is accordingly
allowed. Order dated 10.10.2011 is hereby
quashed.
---------
CIVIL SIDE

BEFORE
THE HON'BLE RAJIV SHARMA, J.

Writ Petition No. 6743 (MS) of 2011

Abhimanyu and others ...Petitioners
Versus
State of U.P. and others
...Opposite parties

admission in under graduate program-
minimum eligibility criteria fixed by the
Govt. as 50% for general candidate and
45% for reserve category in 10+2 exam-
3 All] Abhimanyu and others V. State of U.P. and others 1441
challenge on ground once the Apex body
in meeting dated 30.06.2011 decided
criteria as 45% for general and 40 % for
SC/ST under AICTE Act 1987-examining
body ample power to regulate improving
academic standers-policy unless mala
fide, arbitrary or unfair-can not be
subjected to judicial review by Writ
Court.

Held: Para 20

It may also be noted that the policy
decision must be left to the Government
as it alone can adopt which policy should
be adopted after considering all the
points from different angles. In matter of
policy decisions or exercise of discretion
by the Government so long as the
infringement of fundamental right is not
shown, it is not open for the court to
interfere. At the same time, it is also true
that the courts, in exercise of their
power of judicial review, do not
ordinarily interfere with the policy
decisions of the executive unless the
policy can be faulted on ground of
malafide, unreasonableness,
arbitrariness or unfairness.
Case law discussed:
[(2000) 5 SCC 231]; [(2000) 9 SCC 1]; [AIR
2004 SC 1861]; [(1999) 7 SCC 120]; [(2001) 9
SCC 157]; [(2011) 4 SCC 527]

(Delivered by Hon'ble Rajiv Sharma, J. )

1. As the common question of facts
and law are involved in both the writ
petitions, they are taken up together for
common orders.

2. Heard Mr. Kapil Dev, Senior
Advocate assisted by Mr. Pratyush
Tripathi, Mr. Anurag Narain, learned
Counsel for the petitioners, Mr. Sanjay
Sarin, learned Standing Counsel, Mr.
Sailesh Kumar, learned Counsel for the
AICTE and Mr. Waseequddin Ahmed,
learned Counsel for the University.

3. Afore-captioned writ petitions are
directed against the impugned orders dated
10.10.2011 and 15.11.2011 issued by the
State Government, by means of which the
eligibility criteria in entry level
qualification for admission in Under-
Graduate programmes has been fixed as
50% for the General Candidates and 45%
for the SC/ST candidates, which is against
the decision of the Apex Body, i.e. All
India Council for Technical Education
approved in its meeting dated 28.6.2011 by
which the entry level qualification for
admission in Under-Graduate programmes
was fixed as 45% for the General
Candidates and 40% for the SC/ST
candidates.

4. Learned Counsel for the
petitioners submit that under the All India
Council for Technical Education Act, 1987
(hereinafter referred to as the Act for the
sake of brevity), it has been empowered to
frame rules and regulations for proper
management of norms and standard of
technical education. The said Regulations
are applicable to the Universities and
Technical Institutions of Government,
Government Aided and Private (Self-
Financing) institutions conducting the
courses in the field of Technical Education,
Training and Research in Engineering,
Technology, including MCA, MBA,
Pharmacy, Hotel Management etc. notified
by the Council from time to time.

5. Petitioners of aforementioned writ
petitions are having the requisite
qualification as per the eligibility criteria
fixed by the AICTE. According to them,
by notification dated 4.7.2011, the Apex
Body has defined the entry level
qualifications for admission in Under-
Graduate programmes. The matter was
reviewed by the Executive Committee of
the Apex Body in its 69th meeting held on
28th June, 2011 and by the Council in the
21st meeting held on 30th June, 2011 and
as per the decision of the Council, the
eligibility for under-graduate programmes
(full time) given under 1.1 of Appendix-1
of Approval Process Handbook 2011-12 is
now 45% at qualifying level for general
category students and 40% for reserved
category students for admission for the
year 2011-12.

6. The grievance of the petitioners is
that they are being denied regular
admission in B.Tech course against the
vacant seats though they possess 45%
marks as prescribed by the AICTE and as
such denial of regular admission is wholly
arbitrary and unjustified.

7. It has been argued by the Counsel
for the petitioners that the University or the
State Government cannot impose any
restriction on the institution which is in
utter disregard and contravention of the
provisions of the AICTE as no policy can
be laid down, which lies outside the scope
of the Act. The action of the opposite
parties is in gross breach of the provisions
contemplated under Article 19 (1) (g) of
the Constitution of India and the same is
also in violation of the Jaya Gokul
Educational Trust v. Commissioner-cum-
Secretary, Higher Education and others
[(2000) 5 SCC 231] and 'State of
Maharashtra v. Sant Dhyaneshwar
Shikshan Shastra Mahavidyalaya and
others [(2000) 9 SCC 1].

8. In rebuttal, Mr. Waseequddin
Ahmed, learned Counsel for the University
submits that the UPSEE - 2011 was
conducted by Mahamaya Technical
University, which was held on 16.4.2011
and 17.4.2011 respectively for different
technical courses, including B.Tech.,
M.B.A., M.C.A., etc. The minimum marks
to appear in the examination were
modified as 50% marks for General
Category and 45% marks for reserved
category as per eligibility criteria laid
down by the AICTE in its Approval
Process Handbook 2011. He further
submits that the Mahamaya Technical
University had already informed the public
at large vide notice dated 7.2.2011 and in
all the leading newspapers and also
through its website much before
examination scheduled for 16.4.2011 and
17.4.2011 respectively.

9. Elaborating his arguments,
Counsel for the respondents submitted that
the petitioners possessed below 50 %
marks in 10+2 and as such they do not
fulfill the minimum eligibility criteria as
fixed by the Mahamaya Technical
University while conducting UPSEE-
20011, therefore, they are not entitled to
any relief from this Hon'ble Court.

10. Lastly, it has been submitted that
number of writ petitions involving similar
controversy have already been dismissed
and the petitioners have been refused the
relief so sought and as such on this ground
alone, writ petitions are liable to be
dismissed.

11. The main and the only question
that arises for consideration is whether it
was open for the State Government to
prescribe higher qualifications than the
minimum qualifications prescribed by the
AICTE.

12. Considered the submissions made
by the learned counsel for the parties and
perused the record.

13. It needs to be noticed that the
AICTE has only prescribed the minimum
qualifications. The State Government, in
its wisdom, could therefore, prescribe
qualifications higher than the qualifications
prescribed by the AICTE but certainly
could not have prescribed lower
qualifications. This view of mine is
strengthened by the decisions of the Apex
Court in State of Tamil Nadu and
another v. S. V. Bratheep (minor) and
others [AIR 2004 SC 1861], following its
earlier decision in Dr. Preeti Srivastava
and another v. State of M.P. And others
[(1999) 7 SCC 120] and the observations
are as under:-

"..... The appellant in the present case
prescribed the qualification of having
secured certain percentage of marks in the
related subjects which is higher than the
minimum in the qualifying examination in
order to be eligible for admission. If higher
minimum is prescribed by the State
Government than what had been
prescribed by the AICTE, can it be said
that it is in any manner adverse to the
standards fixed by the AICTE or reduces
the standards fixed by it? In our opinion, it
does not. On the other hand, if we proceed
on the basis that the norms fixed by the
AICTE would allow admission only on the
basis of the marks obtained in the
qualifying examination the additional test
made applicable is the common entrance
test by the State Government. If we
proceed to take the standard fixed by the
AICTE to be the common entrance test
then the prescription made by the State
Government of having obtained certain
marks higher than the minimum in the
qualifying examination in order to be
eligible to participate in the common
entrance test is in addition to the common
entrance test. In either event, the streams
proposed by the AICTE are not belittled in
any manner. The manner in which the
High Court has proceeded is that what has
been prescribed by the AICTE is
inexorable and that that minimum alone
should be taken into consideration and no
other standard could be fixed even the
higher as stated by this Court in Dr. Preeti
Srivastava's case. It is no doubt true as
noticed by this Court in Adhiyaman's case
that there may be situations when a large
number of seats may fall vacant on
account of the higher standards fixed. The
standards fixed should always be realistic
which are attainable and are within the
reach of the candidates. It cannot be said
that the prescriptions by the State
Government in addition to those of AICTE
in the present case are such which are not
attainable or which are not within the
reach of the candidates who seek
admission for engineering colleges. It is
not very high percentage of marks that has
been prescribed as minimum of 60%
downwards, but definitely higher than the
mere pass marks. Excellence in higher
education is always insisted upon by series
of decisions of this Court including Dr.
Preeti Srivastava's case. If higher
minimum marks have been prescribed, it
would certainly add to the excellence in the
matter of admission of the students in
higher education.

Arguments advanced on behalf of the
respondents is that the purpose of fixing
norms by the AICTE is to ensure
uniformity with extended access of
educational opportunity and such norms
should not be tinkered with by the State in
any manner. We are afraid, this argument
ignores the view taken by this Court in
several decisions including Dr. Preeti
Srivastava's case that the State can always
fix a further qualification or additional
qualification to what has been prescribed
by the AICTE and that proposition is
indisputable. The mere fact that there are
vacancies in the colleges would not be a
matter, which would go into the question of
fixing the standard of education.
Therefore, it is difficult to subscribe to the
view that once they are qualified under the
criteria fixed by the AICTE they should be
admitted even if they fall short of the
criteria prescribed by the State. ............."

14. Thus, it cannot be said that the
impugned order issued by the State
Government whereby the eligibility criteria
in entry level qualification for admission in
under-graduate programmes has been fixed
as 50% for the general candidates and 45%
for the SC/ST candidates is unjustified or
suffer from infirmities. The State
Government is well competent to prescribe
higher qualifications than the minimum
qualifications prescribed by the AICTE in
its notification dated 7th February, 2011.

15. Fixing of percentage for entry
level examination in professional courses
is a policy decision of the State
Government or the Examining Body.
Therefore, the Court should not substitute
its own opinion for that of the expert body
which is entrusted with the work to find
out as to what principle or policy would
best serve the objects and purposes of the
examination and the Courts shall not sit in
judgment over the wisdom and
effectiveness or otherwise of the policy
laid down by the academic body. It is
exclusively within the domain of the
academic body to determine, as a matter of
policy, what measures should be
incorporated for the efficient holding of
examination.

16. It has been brought to the notice
of the Court that 19 petitioners of Writ
Petition No. 6743 (MS) of 2011,
Abhimanyu and others Versus State of
U.P. and others having below 50% marks
in 10+2 and as such, they do not fulfill the
minimum eligibility criteria fixed by the
University while conducting the UPSEE-
2011. Therefore, the State Government
vide order dated 10.10.2011 passed a
detailed order in compliance of the
judgment and order dated 25.8.2011
passed in Writ Petition No. 47505 of 2011.
The relevant portion of the order dated
25.8.2011 is reproduced hereunder:-

"State Government is the best judge to
see what should be standard in technical
education in the State of U.P. and State
Government is fully empowered to fix
eligibility criteria of qualifying
examination over and above the eligibility
criteria fixed by AICTE. In this
background once decision has been taken
on 04.07.2011 by AICTE and discussion
has been made by Central Committee in its
meeting dated 13.07.2011 and there it has
been mentioned that Central Admission
Committee would consider the matter after
counselling process is over. The matter is
thus engaging attention. As per Resolution
No. 7.6 quoted above as such Technical
University Noida is directed to ensure that
said meeting is held at the earliest as per
convenience of the members who are to
participate therein preferably within two
months and thereafter on the basis of
decision so taken matter be referred to the
Principal Secretary Technical Education
who will take final decision in the matter in
accordance with law, keeping in view the
over all situation."

17. In Thapar Institute of
Engineering & Technology and another
versus Gagandeep Sharma and another
[(2001) 9 SCC 157], the Apex Court
observed that the court would normally not
interfere with such prescribed standards
and especially when they are intended to
improve the academic standards in their
respective institutes.

18. In Bhartia Education Society
and another versus State of Himachal
Pradesh and others [(2011) 4 SCC 527,
the Apex Court held that the examining
body can impose its own requirements in
regard to eligibility of students for
admission to a course in addition to those
prescribed by NCTE.

19. Thus, it is imminently clear that
the State Government and the examining
body has ample power to regulate the
manner of admission for improving the
academic standards in Institutions. The
impugned government orders cannot be
said to be in breach of the
recommendations of the AICTE or in
violation of any Article of the Constitution
as if, higher minimum marks are
prescribed, it would certainly add to the
excellence in the matter of admission of
the students in higher education.
Furthermore, it cannot be said that the
prescriptions formulated by the State
Government in addition to those of AICTE
in the present case are such which are not
attainable or which are not within the reach
of the candidates who seek admission in
professional courses.

20. It may also be noted that the
policy decision must be left to the
Government as it alone can adopt which
policy should be adopted after considering
all the points from different angles. In
matter of policy decisions or exercise of
discretion by the Government so long as
the infringement of fundamental right is
not shown, it is not open for the court to
interfere. At the same time, it is also true
that the courts, in exercise of their power
of judicial review, do not ordinarily
interfere with the policy decisions of the
executive unless the policy can be faulted
on ground of malafide, unreasonableness,
arbitrariness or unfairness.

21. In view of the aforesaid
discussions, I am of the firm opinion that
the petitioners are not entitled to any relief
and the writ petition is liable to be
dismissed.

22. It is not disputed by the Counsel
for the parties that number of the writ
petitions involving similar question have
already been dismissed. However, the
Counsel for the petitioners made a feign
attempt to show that the points raised in
the instant writ petition have not been
considered on earlier occasions. Having
examined the material on record and the
submissions made by the Counsel for the
parties, I find no force in the submission
advanced by the Counsel for the
petitioners.

23. It is pertinent to add that
uniformity and consistency is core of
judicial discipline. There should be
similarity in the orders passed by the Court
in the cases having identical facts and the
judgment passed in earlier case should be
respected by the co-ordinate bench in
identical matter. In these circumstances, it
would not be permissible to take different
view on the same set of facts and question
of law when earlier writ petitions involving
identical question of law have been
dismissed.

24. Thus these writ petitions are
liable on this ground too as the similar writ
petitions have already been dismissed.

25. Taking the holistic view of the
matter, I find no good ground to interfere
under Article 226 of the Constitution and
the writ petitions are hereby dismissed.
---------
CIVIL SIDE

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE S.C. CHAURASIA,J.

Misc. Bench No. - 11512 of 2011

Munnu and another ...Petitioner
Versus
State of U.P.Through Prin. Secy. Revenue
Lko. and others ...Respondents

A.P.Singh Vats

C.S.C.

Urban Land (Ceiling & Regulation ) Act
1976-repealed by Urban Land (Ceiling &
Regulation) Repeal Act 1999-Section-4-
Abatement of proceeding-pending-on
date of enforcement date 18.03.1989-all
proceedings stand automatically abated
in view of law laid down by Apex Court in
Ritesh Tiwari case.

Held: Para 5

In view of above, we dispose of the writ
petitions finally directing the revenue
authorities/respondents to abide by the
judgment of Hon'ble Supreme
Court(supra) and not to interfere with
the petitioners' peaceful possession of
the land in question in case in view of
the provisions contained in 1976 Act
(supra), the State had not taken
possession of the land in dispute.
Case law discussed:
(2007) 11 SCC 90; 2011 (3) SCCD 1382 (SC)

(Delivered by Hon'ble Devi Prasad Singh,J. )

1. In this bunch of writ petitions,
common question of facts and law are
involved, hence, the writ petitions are
taken up together and are being disposed
of by the present common judgment with
the consent of the parties' counsel.

2. The land in dispute falls within
the domain of Urban Land (Ceiling and
Regulation)Act, 1976. It was repealed by
Urban Land (Ceiling and Regulation)
Repeal Act, 1999. According to the
petitioners' counsel, after repeal of the
Act, the proceedings initiated in
pursuance to the Repeal Act became
nonest and the petitioners are entitled to
retain the possession of land in question
with hereditary right. Attention of this
Court has been invited to the judgment of
Hon'ble Supreme Court in the case
reported in (2007)11 SCC 90 Mukarram
Ali Khan versus State of U.P and others
and other other judgment reported in
2011(3) SCCD 1382 (SC) Ritesh Tewari
and another versus State of U.P. &
others.

3. In the case of Mukkarram Ali
Khan (supra), their Lordships of Hon'ble
Supreme Court ruled that in view of
repeal of 1976 Act(supra) and being
adopted by the State of U.P by a
resolution as required under Art. 252(2)
of the Constitution and the repealing Act
having come into force in the State of U.P
with effect from 18.3.1999, all pending
proceedings under 1976 Act shall be
treated to have abated. The operation
3 All] Munnu and others V. State of U.P.Through Prin. Secy. Revenue Lko. and others 1447
portion of the judgment from Mukarram
Ali Khan (supra) is reproduced as under :

2. Though many points were urged
in support of the appeal, the primary
point urged was that possession has not
been taken pursuant to orders passed by
the authorities under the Act. An
affidavit has been filed indicating that
the possession of the land has not been
taken and the land in question continues
to be in possession of the appellant and
his sons.

3. Learned Counsel for the
respondent-State and its functionaries
on the other hand contended that the
point regarding earlier adjudication was
not urged before the High Court and
therefore the High Court has rightly
decided that in the absence of any
specific plea a new plea cannot be taken
before it.

4. It is to be noted that the Act has
been replaced under the Urban Land
(Ceiling and Regulation) Act, 1999 (in
short the 'Repeal Act'). Admittedly the
State of Uttar Pradesh has since adopted
the provisions of the Repeal Act by a
resolution as required under Article
252(2) of the Constitution of India,
1950 (in short the 'Constitution').
Repealing Act has since come into force
in the State of Uttar Pradesh with effect
from 18.3.1999.

5. Section 4 of the Repeal Act reads
as follows:

4. Abatement of legal proceedings-
All proceedings relating to any order
made or purported to be made under the
principal Act pending immediately
before the commencement of this Act,
before any court, tribunal or other
authority shall abate;

Provided that this section shall not
apply to the proceedings relating to
Sections 11, 12, 13 and 14 of the
principal Act insofar as such
proceedings are relatable to the land,
possession of which has been taken over
by the State Government or any person
duly authorised by the State
Government in this behalf or by the
competent authority.

6. In view of the affidavit filed by
the appellant to which no objection has
been filed, undisputed position is that
the State has not taken the possession
over the surplus land. Therefore, the
proceedings have to be treated to have
abated under Section 4 of the Repeal
Act.

7. That being so, the appeal
deserves to be allowed which we
direct."

4. In the case of Ritesh Tewari
(supra), again their Lordships of
Hon'ble Supreme Court have considered
the question with regard to the affect of
the repeal Act. Their Lordships held that
the communication between the officers
of the department shall not be a ground
to affect the rights of the parties. With
regard to Repeal Act in the case of
Ritesh Tewari (supra), Hon'ble Supreme
Court has considered earlier judgment
and held that all pending proceedings
under 1973 Act shall be abated
automatically on the commencement of
Repealing Act, 1999 provided the
possession of the land involved in a
particular case has not been taken taken
by the State. To quote relevant portion :
"13. We find full force in the
submissions so made by Shri Jayant
Bhushan to a certain extent, and hold
that all proceedings pending before any
court/authority under the Act, 1976,
stood abated automatically on
commencement of the Act 1999 in
force, provided the possession of the
land involved in a particular case had
not been taken by the State. Such a view
is in consonance with the law laid down
by this Court in Pt. Madan Swaroop
Shrotiya Public Charitable Trust vs.
State of U.P. And others, (2000) 6 SCC
325: Ghasitey Lal Sahu and another vs.
Competent Authority, (2004) 13 SCC
452: Mukarram Ali Khan vs. State of
Uttar Pradesh and others, (2007) 11
SCC 90: 2007 (3) SCCD 1344 (SC) and
Smt. Sulochana Chandrakant Galande
vs. Pune Municipal Transport and
others, JT 2010 SC 298."

5. In view of above, we dispose of
the writ petitions finally directing the
revenue authorities/respondents to abide
by the judgment of Hon'ble Supreme
Court(supra) and not to interfere with
the petitioners' peaceful possession of
the land in question in case in view of
the provisions contained in 1976 Act
(supra), the State had not taken
possession of the land in dispute.

6. The writ petitions are disposed
of accordingly. No order as to costs.
---------

CIVIL SIDE

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE S. V.SINGH RATHORE, J.

Misc. Bench No. - 12692 of 2011

Ram Lallan and others ...Petitioner
Versus
State of U.P. Through Secy. Home U.P.
Govt. Lucknow and others ...Respondents

Sri Dileep Singh Yadav

Govt. Advocate

Constitution of India, Article 226-stay of
arrest-offence under section 452, 323,
504, 506 I.P.C.-with allegations police
trying to arrest ignoring law laid down
by this Hon'ble Court as well as the Apex
Court-No doubt-direction of Apex Court
equally binding upon every court as
including Police officer-in absence of
specific pleading in writ petition-arrest
can not be stayed-as prima faci offence
made out-petition dismissed with liberty
if any illegality committed by Police
contrary to direction of Apex Court-ca
approach before appropriate forum.

Held: Para 7

In our view, in this particular case there
is no such pleading substantiated with
appropriate material that any Police
officer is acting illegally so as to warrant
any protection/direction from this Court.
However, we make it clear that in case
any authority acts illegally, it is always
open to petitioners to approach
appropriate Forum including this Court
for appropriate protection but no
mandamus at this stage ought be issued
particularly when the first information
3 All] Ram Lallan & others V. State of U.P. Through Secy. Home U.P. Govt. Lucknow & others 1449
report shows commission of an offence
warranting no interference.
Case law discussed:
Criminal Misc. Writ Petition No. 17410 of 2011
(Shaukin Vs. State of U.P. & others)

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

1. Heard learned counsel for
petitioners.

2. Petitioners have come to this Court
in this writ petition with prayer for quashing
of first information report dated 2.12.2011
in case crime no. 276 of 2011, under
Sections 452, 323, 504, 506 I.P.C., Police
Station Mandhata, District Pratapgarh.

3. From a bare perusal of first
information report, it cannot be said that no
offence is made out. Learned counsel for
petitioners, at this stage, submitted that
Police is unauthorizedly trying to arrest the
petitioners and, therefore, their arrest should
be stayed till the report is submitted by
Police. He placed reliance on a Division
Bench Judgment of this Court in Criminal
Misc. Writ Petition No. 17410 of 2011
(Shaukin Vs. State of U.P. & others)
decided on 14.12.2011. A perusal of
aforesaid judgment clearly shows that
considering the peculiar facts and
circumstances involved in that matter, the
Court expressed its displeasure at the casual
and routine manner by which the concerned
Judicial Magistrate allowed judicial remand
of accused on mere application moved by
the concerned police officer without
examining pre-conditions for granting
judicial remand laid down in Section 41 (1)
(b) Cr.P.C. and the decision of this High
Court and Apex Court.

4. It admits no doubt that whenever a
law is laid down by Apex Court, it is
binding on all the authorities, whether
executive or judicial, in the entire Country.
The law laid down by Apex Court is the law
of land and everybody in this Country is
bound to obey the same. Article 141 of
Constitution declares that the law declared
by the Apex Court shall be binding on all
Courts within the territory of India and
Article 144 says that all authorities, civil
and judicial, shall act in aid of Supreme
Court. The supremacy of the law laid down
by Apex Court with the binding effect
admits no doubt. The executive authorities
including the Police, therefore, are neither
expected nor can act in a manner which
would be contrary to law laid down by
Apex Court else the erring official(s) would
be responsible to face its consequences.
Similarly, if a law has been laid down by
this Court, in the State it is binding and
ought to be complied by all the authorities
concerned whether executive or judicial.

5. However, it cannot be said that
whenever a person, against whom a first
information report has been lodged, comes
to this Court, on his mere asking this Court
should pass an order restraining the Police
from arresting him unless the pleading in
writ petition demonstrate that Police is
likely to arrest the petitioner and that too
unauthorizedly and illegally. In other words,
a petitioner must plead and substantiate that
Police authorities are trying to illegally
arrest the petitioner before he seeks
indulgence of this Court restraining the
Police authorities from doing so. The scope
of writ petition under article 226 in which a
request has been made for quashing of first
information report should not be extended
like a bail application to be considered by
this Court in a routine manner without there
being appropriate pleading and material to
substantiate the same. It is well settled that
Court shall not issue futile and superfluous
writs. Unless an allegation is made and
substantiated, such direction ought not to be
issued. There is no presumption that the
executive authorities including Police shall
not act strictly in accordance with law
which includes the statutory law as well as
the judicial orders issued by Court and in
particular the Apex Court. We cannot
presume that any authority will be acting
illegally unless a specific case is pleaded
and substantiated before this Court. The
presumption lies in favour of executive
authorities that they are acting in
accordance with law unless shown
otherwise. It is true that at ground level,
scenario has deteriorated to some extent and
time and again the matters have come
wherein the highhandedness, brutality and
other illegal acts of Police authorities have
been reported to the Courts and the Courts
have also passed stern appropriate orders
therein but that does not mean that the same
would form a rule of practice in every case
for such presumption.

6. It is also noteworthy to mention that
mere lodging of first information report
does not mean that a person has to be
arrested necessarily unless the
circumstances so justify and the Police
authorities have appropriate and genuine
reasons for the same. The people's liberty is
of paramount importance and cannot be
curtailed merely for the reason that a first
information report regarding commission of
an offence has been lodged since for the
purpose of arrest, different conditions are
required to exist before any Police officer
shall proceed to arrest any person. We have
no hesitation in saying that in a suitable and
appropriate case, if any illegality on the part
of any Police officer is brought out before
this Court, we shall not hesitate in taking
appropriate stern action in the matter but
that would not mean that in every case in a
routine manner, this Court should/shall pass
order staying arrest of the person accused in
a criminal case.

7. In our view, in this particular case
there is no such pleading substantiated with
appropriate material that any Police officer
is acting illegally so as to warrant any
protection/direction from this Court.
However, we make it clear that in case any
authority acts illegally, it is always open to
petitioners to approach appropriate Forum
including this Court for appropriate
protection but no mandamus at this stage
ought be issued particularly when the first
information report shows commission of an
offence warranting no interference.

8. With the aforesaid observation, the
writ petition is dismissed.
---------
CIVIL SIDE

BEFORE
THE HON'BLE RAKESH TIWARI,J.
THE HON'BLE DINESH GUPTA,J.

Civil Misc. Writ Petition no. 22220 of 2002

Chhotey Lal Dubey ...Petitioner
Versus
State of U.P. through Secy. Home and
others ...Respondents

Sri Madhusudan Dikshit

C.S.C.

punishment withholding integrity for one
year-petitioner working as constable in
civil police-charged for permitting
unauthorized traveling-whole on duty
along with six member of Escort Police-
no specific allegation against individual
3 All] Chhotey Lal Dubey V. State of U.P. through Secy. Home and others 1451
role-DIG by order dated 18.05.1994-
allow the representation by
exhonorating a Sub-Inspector and
Constable but rejected the claim of
Petition-Tribunal also declined to
interfere-no differentiating
circumstances brought on recordfor
giving different treatment-punishment
based upon arbitrary illegal preliminary
enquiry-held-not sustainable.

Held: Para 17

In view of the fact that two persons
namely, Sri Shyamdev and Sri Chandrika
Prasad, Sub-Inspector and Head
Constable have been exonerated from
the charge and their integrity has been
directed to be certified by the Deputy
Inspector General of Police, Railways,
Allahabad and that no differentiating
circumstances had brought on record by
the respondents for giving a different
treatment in punishment on basis of an
illegal and arbitrary preliminary enquiry
conducted in unfair manner against the
principles of natural justice to the
petitioner, we quash the impugned order
dated 7.3.2002 passed by respondent
no.2 and the orders dated 27.4.1995 and
18.5.1994 passed by the respondents.

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

parties and perused the record.

2. This writ petition has been filed
challenging the validity and correctness of
the impugned order dated 7.3.2002 passed
by the Member, U.P. State Public
Services Tribunal, Lucknow, appended as
Annexure-2 to the writ petition as well as
the order dated 27.4.1995 passed by the
Deputy Inspector General of Police,
Railways, Allahabad, appended as
Annexure-4 to the writ petition. The
petitioner also challenges the order of
punishment dated 18.5.94 by which his
integrity has been withheld.
3. Brief facts of the case as appears
from the record are that the petitioner is
serving as constable in civil police. He
along with six members of the Police
Escort was charged for permitting two
persons to travel in Train no. 2418 Down
Prayagraj Express while they were on
duty as GRP Escort on the train. After
preliminary enquiry a show cause notice
dated 18.5.1994 was issued to all the six
persons in the escort including a Sub-
Inspector and a Head Constable. They
were found guilty and awarded
punishment of withholding integrity
certificate for one year. It appears from
the charges levelled against all the six
persons that there was no specific
allegation against any one of them.

4. It also appears from the record
that Sri Shyamdev, Sub-Inspector and Sri
Chandrika Prasad, Head Constable
preferred a representation against the
order dated 18.5.1994 challenging the
findings of the preliminary enquiry by
pleading not guilty. The representation
was decided by the Deputy Inspector
General of Police, Railways, Allahabad in
which two aforesaid persons were
exonerated from the charge vide order
dated 20.5.1995. The petitioner also
preferred a representation against the
order withholding of integrity which was
rejected vide order dated 27.4.1995 by the
Deputy Inspector General of Police,
Railways, Allahabad holding the
petitioner guilty while on the same facts
the other two persons namely, Sri
Shyamdev and Chandrika Prasad were
exonerated. The petitioner, who was
constable in the aforesaid escort also
moved the U.P. State Public Services
Tribunal, Lucknow against the order
dated 18.5.1994 by preferring Claim
Petition No. 1290 of 1996. It was rejected
vide impugned order dated 7.3.2002
passed by the Member (Administrative),
State Public Services Tribunal, Lucknow.

5. The impugned orders are assailed
on the ground that the Tribunal has failed
to consider the submissions made on
behalf of the petitioner and the orders
passed by respondent nos. 2,3 and 4 are
wholly illegal, arbitrary, contrary to
record and are liable to be quashed by this
Court.

6. According to the learned counsel
for the petitioner, it is settled law that
there can be no discrimination in
punishing the persons who have been
charged for the same offence arising from
same incident and found guilty for it,
therefore, the petitioner could not have
been discriminated by withholding of his
integrity with Sri Shyamdev and Sri
Chandrika Prasad, the Sub-Inspector and
Head Constable who had been exonerated
by the same authority particularly in view
of the fact that none of the six persons in
the escort had been mentioned by the
Checking Staff of having taken any bribe
or committing any illegality.

7. It is submitted by the learned
counsel for the petitioner that once it is
found that all the six persons were
involved in the same commission of
offence then discrimination in the matter
of awarding punishment cannot be
sustained. It is stated that after the
punishment was awarded the petitioner
moved an application before the
Superintendent of Police, Railways,
Allahabad regarding payment of his
bonus for the years 1993-94 and 1994-95
which was not given till date on the
ground of punishment having been
awarded to him.
8. Learned Standing counsel has
supported the judgment of the Tribunal by
stating that the Tribunal has rightly held
that the show cause notice regarding
awarding the punishment of misconduct
and other show cause notice regarding
withholding of integrity certificate are
separate, hence mere withdrawal of show
cause notice regarding awarding the
punishment of misconduct will not be
enough to withdraw the other show cause
notice, though the aforesaid two show
cause notices are based on same facts.

9. After hearing learned counsel for
the parties and on perusal of the record we
find that in the order dated 20.5.1995,
appended as Annexure-1 to the writ
petition, certifying the integrity and
exonerating Sri Shyamdev and Sri
Chandrika Prasad it has been specifically
stated that no berth was allotted for the
GRP escort in the Coach B-1 in which the
Escort was travelling and wherein two
unauthorized persons had been found
travelling, hence when no berth was
allotted by the Railways to the GRP
escort in the said Coach. The order dated
20th May, 1995 reads thus:-

i i

la i- ( ( r i a //s l i
i ,ii lin -i( i l iii ( ,
;irii i i i z,s li
srs l(, r l ,ii ln( i (i
ss: i n-( l-i -ii i i i i i
iln li ni r , i (i li|

i - i i (nin r r l (i ss:
- ln( ni r a i a iaia; a
;irii - l n ii ni li zss: i
i l -i - i z/ ( zs i
in i -i - i-i ii
nii ni ii| ( l(iin i ai (li-
ia-iai; ( i -i r i lii
--i ii li :,ss: i -
i zs i in i i l n
i ni i a c i a cs i
-i i- ii l,ni ii i l- l r
ilin (i -i ii ni i (
l(iin ,ii iaiaia i - i-i i i l-n
i ni ii| s nii l iaiaia
(ii i a -i r| ; lnln
l i - -ai aia -iiln i ni ii -
l(( ii i- i ln li l-- ii
n r i ni| l nii l (r
iaiaia -i - (ii ii ri r|
l n --i ,ii i i lni i i li
ni|

liin in ri lin i i
i l iiii ( ;irii ,ii
-iln i ni lri i ln( i
i ii ii| -( ln( i -l-i -ii
i- liii ,ii i i i i i iln
li ni| iln i i i i ri ln(
-nn -i( - l(iii lin li r|

- ln( ,ii -n -i(
l iii ( ;irii ,ii i ni -n
(i l-ii nii i(i i li ii i
- lii li|

i(i i li ii (
il-i i ii (i -- r l
ln( ( l(iin ,ii i -ii i i ;
ii ri nii ni r i ii ni n r (r
( ilii r|

ri n aia i - -ai aia
-iiln l i i r li ii
(i -- r l ln( ( (
in ii n l -- i i i
i i - i i i - i i -iiln l i
i i iln r n n ;i i - - i i
-iiln i ini ri n i i - -
i i -iiln l i rn ln( -i i ri
i ii ri -rii i ni r|

li ii (i r ii - r l
( l(iin ,ii ii l- i - ii i
-i - i-i i i ; i llin i l-n
ri i ni ii i ri ; -i - i ;
i i ri lnn l n |

i n (lin ll-ilni - ln( i
(i ss: i - l-i -ii i i i
i ; il- i ri r i l-iln - ln(
-i( i -(ii l i lnln i
i ; l(~ ri r|

ln( -i( i n,ii -(ii
n r l iii ( ;irii ,ii iln
nn i i i l-n li ini r i r ii
i i li ini r l l iii (
;irii ln( i (i ss: i - l-i
-ilin |

raa
(aial-i)
l -rilii (
;irii|

10. In the circumstances above,
there was no occasion for them to allow
any other person to sleep on the said berth
alleged to have been allotted to them.
Consequently, the question of payment
for the berth also does not arise and the
finding in this regard in the impugned
order is illegal and against the record.
Annexure-1 to the writ petition shows that
when Train No. 2418 Down Prayagraj
Express was checked by the Checking
Staff it was found that in Coach No. S-6
one Rajendra Kumar was sleeping on
berth no. 68 who was having ticket of
second class. Another person Sri
Vishwanath was found to be travelling
without ticket. Sri Rajendra Kumar has
stated before the Checking Staff that he
has been allowed to sleep on a berth by
some GRP constables by paying Rs.40/-
whereas Sri Vishwanath has stated that he
was along with the GRP Escort. On the
complaint aforesaid two persons who
were found to be travelling
unauthorizedly in the coach a preliminary
enquiry appears to have been held by the
Deputy Superintendent of Police,
Railways, Allahabad in which he found
all the persons to be guilty of charge.
11. A further perusal of Annexure-1
to the writ petition shows that no berth
was allotted to the GRP Escort. Therefore,
the contention of learned counsel for the
petitioner is that in the aforesaid
circumstances it cannot be said that the
petitioner or any other member of the
Escort team had allowed him to sleep on a
berth by taking bribe of Rs.40/-.
Moreover, it appears that the
Superintendent of Police, Railways,
Allahabad has given credence and
weightage to the statements of two
aforesaid persons who were
unauthorizedly travelling in the train
which was not just and proper as they
have made this statement to save their
own skin and in any case statement of
such culprit/offender of law ought not to
have been given credence unless and until
there existed incorrigible evidence against
the accused. Even the person who has
been given berth was neither named nor
recognized by them.

12. It further appears from the
record that during departmental
proceedings the petitioner was neither
permitted to cross-examine the
complainant nor he was afforded any
opportunity to submit documents in his
favour as punishment has been awarded to
the petitioner on basis of a preliminary
enquiry and not a departmental enquiry ,
therefore, the punishment imposed upon
the petitioner suffers from arbitrariness in
a very arbitrary manner. The contention
of learned counsel for the petitioner that if
any complaint has been made and
preliminary enquiry was conducted then a
copy of said enquiry report ought to have
been supplied to the petitioner has force,
hence the enquiry on the basis of which
the petitioner has been punished can not
be said to have been conducted in a
proper manner.

13. The record speaks that Sub-
Inspector and Head Constable of the GRP
Escort were let off on their representation
and there was neither any differentiating
circumstances mentioned in the charge
against all the six persons for different
treatment nor any one of them named was
identified by the complainant of having
committed the alleged misconduct for
which they were charged. The order of
punishment to the petitioner in the
aforesaid circumstances appears to be
discriminated.

14. In paragraph nos. 9 and 10 of the
judgment the Tribunal has not given any
reason as to why it was not unable to
agree with the contention of the petitioner
for not following the procedure and
giving of opportunity of hearing to the
petitioner in defence and why withholding
of integrity certificate did not amount to
punishment particularly when bonus and
other benefits were not given to the
petitioner till date on the ground that his
integrity had been withheld pursuant to a
preliminary enquiry conducted against all
cannons of the principles of natural
justice. Paragraph nos. 9 and 10 of the
judgment read thus:-

"9. It was also argued that the
impugned order contained in annexure-1
is a non speaking order. I have gone
through the impugned order and I find
that the Punishing Authority has given
cogent reason for coming to the
conclusion that the integrity of the
petitioner is doubtful. In my opinion, this
is a speaking order and no interference is
required in this order.

10. It was further argued on behalf of
the petitioner that integrity certificate has
been withheld by way of punishment and
as such the procedure prescribed for
giving punishment order should have
been followed. I am unable to agree with
the contention of the learned counsel for
the petitioner. I am of the opinion that
withholding of integrity certificate is not a
punishment and there appears to be no
irregularity or illegality in this case in
passing the impugned order. It is apparent
from the perusal of the record that the
show cause notice was issued before
withholding the integrity certificate of the
petitioner and his explanation was duly
considered by the Punishing authority."

15. Sri H.P. Mishra,Deputy
Inspector General of Police, Railways,
Allahabad, who has rejected the
representation of the petitioner appended
as Annexure-4 to the writ petition( which
was Annexure-1 in the claim petition
before the Tribunal) and had allowed the
representation of Sub-Inspector and Head
Constable on the same facts arising out of
the same incident, has also not given any
facts which may be different in the case
set up in the two representations one by
the Sub-Inspector and Head Constable
and the other by the petitioner. The
reasons given while rejecting the
representation of the petitioner are thus:-

ln( i i- n -i ri r i l
il-i i ii - ( l n --i
ii -- r l i i i liri
a, li ii l i (i i-i li
n ln( ; n - i ; ri r|

ln( i l,ni n -i ri r i l i l i l i l
il-i i i il-i i i il-i i i il-i i ii (i -- r l i (i -- r l i (i -- r l i (i -- r l
l n i ;irii i - i ni ii| l n i ;irii i - i ni ii| l n i ;irii i - i ni ii| l n i ;irii i - i ni ii|
n ln( ; n - i ; ri r| n ln( ; n - i ; ri r| n ln( ; n - i ; ri r| n ln( ; n - i ; ri r|

ln( i nni n -i ri r i l
i i i (i i n
-ilin ii ni n ln( ; n - i ;
ri r|

ln( i n i n -i ri r i l
lin i - il-i i i ni r i
i(i i r n ln( ; n -
- i ; ri r|

ln( i i (i n -i ri r i l
il-i i ( l(iin ,ii l n li
ii i ili i (i ii n r
i ii -ilin ii ni r l i l-iln - i l-iln - i l-iln - i l-iln -
l n --i ii - lini ln( i l n --i ii - lini ln( i l n --i ii - lini ln( i l n --i ii - lini ln( i
i ; ii in ri rini r i l - in i i ; ii in ri rini r i l - in i i ; ii in ri rini r i l - in i i ; ii in ri rini r i l - in i
ii i iin i -i ii i iin i -i ii i iin i -i ii i iin i -i ii lini ii lini ii lini ii lini
-(iiil( r| n ln( ; n - i ; -(iiil( r| n ln( ; n - i ; -(iiil( r| n ln( ; n - i ; -(iiil( r| n ln( ; n - i ;
ri r| ri r| ri r| ri r|

ln( -i( - li
-r-( i l i i i -i i ilin ri
li r i ; -n - ,ii l(iii ri i
l iln i i (i rini ri |

i n (lin ll-ilni - ln(
-i( - i ; ri r i -(in l
i i r|

ln( -i( i n ,ii -(in
li ini r|

raa
(a ia l-)
l -rilii (
;irii|

16. A perusal of the rejection of the
representation of the petitioner also shows
that nobody has been named as to who
has returned the money. Merely because
some persons have been found by the
Checking Staff to be unauthorizedly
travelling in the coach who claimed that
they have been given berth allotted to
GRP Escort on payment of money would
not give any benefit to the department as
it is apparent from record that no berth
will be reserved/allotted to GRP Staff on
escort duty. The benefit in the
circumstances, ought to have been given
to the members of the GRP Escort who
were neither named nor there was any
evidence that they were paid money or
they had permitted any unauthorized
person to travel in the coach. In fact it is
the duty of the Checking staff to check the
tickets and not the GRP Escort, therefore,
variance in the statement was to the
benefit of the petitioner and other
members of the Escort.

17. In view of the fact that two
persons namely, Sri Shyamdev and Sri
Chandrika Prasad, Sub-Inspector and Head
Constable have been exonerated from the
charge and their integrity has been directed
to be certified by the Deputy Inspector
General of Police, Railways, Allahabad
and that no differentiating circumstances
had brought on record by the respondents
for giving a different treatment in
punishment on basis of an illegal and
arbitrary preliminary enquiry conducted in
unfair manner against the principles of
natural justice to the petitioner, we quash
the impugned order dated 7.3.2002 passed
by respondent no.2 and the orders dated
27.4.1995 and 18.5.1994 passed by the
respondents.

18. For the reasons stated above, the
writ petition is allowed. We accordingly,
direct the authorities concerned to make
payment of bonus with interest as well as
to certify the integrity of the petitioner
which has been withheld. No order as to
costs.
---------

CIVIL SIDE

BEFORE
THE HON'BLE KRISHNA MURARI, J. )

Civil Misc. Writ Petition No. 22407 1995

Deena Nath Shukla ...Petitioner
Versus
Inspector General PAC, Western Zone,
Moradabad and others ...Respondents

Sri Anil Kumar Srivastava
Sri Swarn Kumar Srivastava
Sri Adaarsh Bhushan
Sri P.C. Srivastava
Sri Ashok Khare
Sri Siddharth Khare

C.S.C.

U.P. Temporary Govt. Servant
(Termination of Service) Rules 1975 read
with U.P. Provincial Armed Constabulary
Act 1948-Section 5-U.P. Police Act meant
applicable-Termination of Service of
Police Constable during probation
period-exercising power under Rule
1975-held without jurisdiction-apart
from that procedure given under
regulation 541-not followed-termination
order-not sustainable quashed.


In view of the law settled by the decision
of the Apex Court and the Full Bench of
this Court, the impugned order
terminating the services of the petitioner
in purported exercise of powers
conferred by 1975 Rules is illegal and
without jurisdiction as the provisions of
the said Act are not applicable in the
case of the petitioner.

There is no averment in the counter
affidavit filed by the respondents to
3 All] Deena Nath Shukla V. I.G. PAC, Western Zone, Moradabad and others 1457
demonstrate that the procedure
prescribed by Regulation 541 (2) was
followed and any notice was issued
setting out the grounds on which it was
proposed to discharge him or any
opportunity was afforded to the
petitioner to show cause before passing
the impugned order of termination
though the counter affidavit refers to
some enquiry in which the statement
made by the petitioner that he was
mentally disturbed on account of death
of his mother was found to be false as
his mother was alive but there is nothing
on record to show that he was ever given
notice or show cause in the manner
contemplated in para 541 (2) of the
Regulations. Thus, it is clear that the
procedure prescribed by Regulation 541
(2) of the Regulations was not followed
and the impugned order has been passed
in utter violation of the said provision.
Case law discussed:
2000 AWC (3) 2367; AIR 1961 SC 751; 2004
(4) ESC (All); AIR 2002 SC 2322

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

1. Heard Sri Adarsh Bhushan,
learned counsel for the petitioner and the
learned Standing Counsel for the
respondents.

2. The facts in brief are that the
petitioner was selected for the post of
Constable in the year 1993 and was sent
for training at Training Centre, Sitapur.
While undergoing training, an order dated
26.12.1993 was passed by the
Commandant 8th Battalion, PAC,
Bareilly, the respondent no. 3 herein,
terminating his services in exercise of
powers conferred by U. P. Temporary
Government Servants (Termination of
Services) Rules, 1975 (herein after
referred to as the ''1975 Rules').

3. Learned counsel for the petitioner
has assailed the impugned order on
following two grounds:

1. The impugned order having been
passed in purported exercise of power
under 1975 Rules is illegal and without
jurisidction since the said Rules are not
applicable to a police constable as the
services are governed by the provisions of
U. P. P. A. C. Act, 1948 read with the
Police Act, 1861 and the Rules and
Regulations framed thereunder.

2. The impugned order has been
passed in utter violation of para 541 of U.
P. Police Regulations which provides the
procedure for discharge of a probationer
constable and the said procedure has not
been followed.

4. In reply, it has been submitted by
the learned Standing Counsel that the
petitioner is habitual of misconduct and
he was only a probationer hence his
services have been terminated as no
longer required by giving pay in lieu of
one month's notice. Referring to the
averments made in the counter affidavit, it
has been submitted that while undergoing
training, the petitioner absconded from
the training centre on 22.10.1993 without
any permission or leave and he was called
back from his residence on 26.10.1993
through special messenger and in this
manner he unauthorizedly abstained from
the training for three days and for this
lapse he was awarded punishment of of
14 days P. D. Parade Drill and the period
of absence was sanctioned as leave
without pay. However, he submitted his
resignation on 06.11.1993 which was
forwarded to the Commandant 8th
Battalion P. A. C. Bareilly for acceptance
but the same was withdrawn by the
petitioner on 14.11.1993 on the ground
that he was medically disturbed due to
death of his mother. He further submitted
that the petitioner again absented himself
unauthorizedly since 26.11.1993 and on
enquiry his mother was found to be alive.
In view of the aforesaid repeated acts of
indiscipline, the Commandant 2nd
Battalion recommended for suitable
action against the petitioner whereupon
his services were terminated vide order
dated 21.12.1992 exercising powers under
1975 Rules.

5. Appeal and revision filed by the
petitioner against the order of termination
have also been rejected.

6. The first ground urged by the
learned counsel for the petitioner that his
services could not have been terminated
in exercise of power under 1975 Rules is
no longer res integra. A Division Bench
of this Court in the case of Subhash
Chandra Sharma Vs. State of U. P., 2000
AWC (3) 2367 has held as under :

"Thus, there can be no doubt that if
the appropriate Legislature has enacted a
law regulating the recruitment and
conditions of service, the power of the
Governor is totally displaced and he
cannot make any Rule under proviso to
Article 309 of the Constitution. In State of
U. P. Vs. Babu Ram Upadhyaya, AIR
1961 SC 751, a decision rendered by a
Constitution Bench, the Police Act and
the U. P. Police Regulations came up for
consideration and it was held as follows
in paragraph 12 of the Reports :

"the result is that the Police Act and
the Police Regulations made in exercise
of power conferred on the Government
under that Act, which were preserved
under Section 243 of the Government of
India Act, 1935, continue to be in force
after the Constitution so fas as they are
consistent with the provisions of the
Constitution."

7. A Full Bench of this Court in the
case of Vijay Singh and others Vs. State
of U. P. and others, 2004 (4) ESC (All)
has held that Rules framed under proviso
to Article 309 of the Constitution do not
apply to Police personnel as their services
are governed by the Police Act, 1861 and
the U. P. Police Regulations. In view
thereof, the U. P. Temporary Government
Servants (Termination of Service) Rules
1975, may not be applicable. In paragraph
64 of the judgment, the Full Bench has
observed as under :

"As herein the field is already
occupied by the provisions of Act, 1861
which is in operation by virtue of the
provisions of Article 313 of the
Constitution, thus, Rules 1972 could not
be attracted at all. The Government
Orders issued for fixing the maximum age
for recruitment on subordinate police
posts operate in an entirely different field
and are not in conflict with the Rules
1972. The case stands squarely covered
by the Apex Court judgment in Chandra
Prakash Tewari (supra) and, thus, it is not
possible for us to take any other view.
The submissions made by Mr. Chaudhary
that pre-constitutional law stands
abrogated altogether by commencement
of the Rules 1972, is devoid of any merit.
Therefore, our answer to question no. 1 is
that the field stood occupied on account
of the provisions of Section 2 of the Act
1861."

8. This view also stands fortified by
large number of judgments of the Hon'ble
3 All] Deena Nath Shukla V. I.G. PAC, Western Zone, Moradabad and others 1459
Apex Court referred to and relied upon in
the case of Vijay Singh (supra) and also in
Chandra Prakash Shahi Vs. State of U. P.
and others, AIR 2000 SC 1706.

9. Reference may also be made to
the decision of the Hon'ble Apex Court in
the case of Chandra Prakash Tiwari Vs.
Shakuntala Shukla, AIR 2002 SC 2322
wherein the Hon'ble Apex Court while
considering the provisions of U. P.
Government Servants (Criterion for
Recruitment by Promotion) Rules, 1994
framed under proviso to Article 309 of the
Constitution and the Government Order
dated 5.11.1965 issued under Section 2 of
the Police Act, 1861 held that Rules
framed under proviso to Article 309
would not apply since the field is covered
by statutory order under Section 2 of the
Police Act, 1861.

10. In view of the law settled by the
decision of the Apex Court and the Full
Bench of this Court, the impugned order
terminating the services of the petitioner
in purported exercise of powers conferred
by 1975 Rules is illegal and without
jurisdiction as the provisions of the said
Act are not applicable in the case of the
petitioner.

11. In so far as the second argument
advanced by the learned counsel for the
petitioner is concerned the Constables
recruited in P. A. C. are governed by the
U. P. Provincial Armed Constabulary Act,
1948. Section 5 of the said Act makes the
U. P. Police Act 1861 and the Rules and
Regulations framed thereunder in the
matters not provided in the Act and thus,
the Police Regulations are fully applicable
in the case of the petitioner. In such view
of the matter Regulation 541 providing
procedure for termination of probationer
constable becomes applicable in the case
of the petitioner. Para 541 (2) of the
Regulations read as under :

"In any case in which either during
or at the end of the period of probation,
the Superintendent of Police is of opinion
that a recruit is unlikely to make a good
police officer he may dispense with his
service. Before, however this is done the
recruit must be supplied with specific
complaints and grounds on which it is
proposed to discharge him and then he
should be called upon to show cause as to
why he should not be discharged. The
recruit must furnish his representation in
writing and it will be duly considered by
the Superintendent of Police before
passing the orders of discharge."

12. There is no averment in the
counter affidavit filed by the respondents
to demonstrate that the procedure
prescribed by Regulation 541 (2) was
followed and any notice was issued
setting out the grounds on which it was
proposed to discharge him or any
opportunity was afforded to the petitioner
to show cause before passing the
impugned order of termination though the
counter affidavit refers to some enquiry in
which the statement made by the
petitioner that he was mentally disturbed
on account of death of his mother was
found to be false as his mother was alive
but there is nothing on record to show that
he was ever given notice or show cause in
the manner contemplated in para 541 (2)
of the Regulations. Thus, it is clear that
the procedure prescribed by Regulation
541 (2) of the Regulations was not
followed and the impugned order has
been passed in utter violation of the said
provision.

13. In view of the above facts and
discussions, the writ petition succeeds and
is allowed. The termination order dated
26.12.1993 passed by the respondent no.
3, Commandant 8th Battalion, P. A. C.,
Bareilly as well as the appellate and
revision orders dated 23.9.1994 and
30.1.1995 passed by the respondents no. 2
and 1 respectively are hereby quashed.
The petitioner shall be entitled for
reinstatement with all consequential
benefits as admissible to him under law.

14. However, in the facts and
circumstances, there shall be no order as
to costs.
---------
CIVIL SIDE

BEFORE
THE HON'BLE SUNIL HALI,J.

Civil Misc. Writ Petition No. 25314 of 2007

Vinod Kumar Singh ...Petitioner
Versus
State of U.P. and others ...Respondents

Sri G.K. Singh
Sri V.K. Singh
Sri K.R. Singh
Sri U.C. Tripathi

C.S.C.

U.P. Recruitment of Dependants of Govt.
Servants(Dying in Harness) Rules, 1974-
Rule-2 (2)-Compassionate appointment-
father of petitioner working as part time
Tube-well operator-died in harness-
appointment refused on ground of
regularization of his father was rejected
being appointed after cut off date-not
entitled-for appointment-definitions
given under rule 2(2)-no where provides
the appointment should be
permanent/regular basis-held-entitled
for appointment.

Held: Para 6

Rules no where provides that the benefit
is to be accorded to the persons who are
permanently appointed. The rules
provide that even persons who are
appointed on temporary basis and are
continuously working are also entitled to
the benefit. The intended purpose of the
Rules is to provide succor to the family
of the deceased who died in harness. It
is the continuous relationship of master
and servant which gives benefit to the
employee seeking such benefit. There
must be an element of continuity then
the benefit is to be conferred to the
person who has been appointed even
temporarily. The continuity of a person
for a longer period of time clearly gives a
message that his services is required by
the State. The status of the employee in
that behalf could not be relevant.
Case law discussed:
(Vijay Kumar Yadav versus State of U.P. and
others).

(Delivered by Hon'ble Sunil Hali,J. )

1. Petitioner's father was appointed
as Part-time Tube Well Operator on
26.3.1987 and was paid salary @ Rs.
299/- per month. The salary of the
petitioner' father was fixed in the pay
scale of rs. 950-1500/- with effect from
18.5.1994 and thereafter w.e.f. 1.1.1996
his salary was fixed in the pay scale of Rs.
3050-4590. He continuously worked on
the said post without any break.

2. It is contended by the learned
counsel for the petitioner that the
petitioner's father was working in clear
vacancy even though on temporary basis
3 All] Vinod Kumar Singh V. State of U.P. and others 1461
for more than 19 years. Petitioner's father
is stated to have died on 19.9.2006. After
death of his father, petitioner moved an
application before the Executive
Engineer, Nalkoop Khand, Jaunpur
seeking employment under the U.P.
Recruitment of Dependants of
Government Servants Dying in Harness
Rules, 1974 (hereinafter referred to as the
Rules). The application of the petitioner
was rejected on the ground that the
deceased was not a regular employee of
the department and as such, the benefit of
the aforesaid rules can not be given to
him.

3. I have heard learned counsel for
the parties.

4. Rule 2(2) of the U.P. Recruitment
of Dependants of Government Servants
Dying in Harness Rules, 1974 is quoted
below :-

2. Definitions :- In these rules, unless
the context otherwise requires :

(a) "Government servant means a
Government servant employed in
connection with the affairs of Uttar
Pradesh, who -

(i) was permanent in such
employment; or

(ii) though temporary had been
regularly appointed in such employment;
or

(ii) though not regularly appointed,
had put in three years continuous service
in regular vacancy in such employment."

Sub-rule (ii) of the aforesaid Rules
contemplates that a person would be
Government servant if he is regularly
appointed even temporary. The case of
the petitioner is that his father has
continuously worked on the aforesaid post
right from the year 1987, even though his
services had not been regularized in terms
of the rules of 1996. His case for
regularisation of services was rejected on
account of the fact that he was appointed
after the cut-off date provided.

5. The stand of the respondent is that
only the regular person appointed
substantively whose legal heirs are
entitled for the benefit of the aforesaid
Rules.

6. Rules no where provides that the
benefit is to be accorded to the persons
who are permanently appointed. The rules
provide that even persons who are
appointed on temporary basis and are
continuously working are also entitled to
the benefit. The intended purpose of the
Rules is to provide succor to the family of
the deceased who died in harness. It is the
continuous relationship of master and
servant which gives benefit to the
employee seeking such benefit. There
must be an element of continuity then the
benefit is to be conferred to the person
who has been appointed even temporarily.
The continuity of a person for a longer
period of time clearly gives a message
that his services is required by the State.
The status of the employee in that behalf
could not be relevant.

has placed reliance on a decision of this
Court in Civil Misc. Writ Petition No.
51469 of 2005 (Vijay Kumar Yadav
versus State of U.P. and others).

discussion, I allow the writ petition and
set aside the impugned orders dated
7.2.2007 and 23.2.2007 passed by
respondent nos. 2 and 3 respectively and
respondents are directed to consider the
claim of the petitioner and appoint him on
compassionate ground under the aforesaid
Rules of 1974 provided he is eligible
under the Rules to hold the post. Let this
process be completed within a period of
three months from the date a certified
copy of this order is produced before the
respondents.
---------
CIVIL SIDE

BEFORE
THE HON'BLE SANJAY MISRA,J.


Totaram and others ...Petitioners
Versus
Asst. Comm. Saharanpur Division &

Sri Rajiv Gupta
Sri V.C. Misra
Sri H.B. Singh
Sri Vivek Misra

C.S.C

cancellation of supply-fair price dealer-
challenged prior cancellation of supply
no opportunity given-mere lodging F.I.R.
Can not be ground for cancellation-
license of petitioner neither suspended
nor canceled-petitioner by producing
forged receipt succeeded to get supply-
even if ready to deposit said amount-
supply can not be restored-fraud vitiate
every thing-principle of Natural Justice
can not be evoked who guilty of playing
fraud-moreover can approach before
S.D.O.-who consider the defence and
take appropriate decision-petition
disposed of.

Held: Para 25

Therefore, while upholding the
imputation in the impugned order to that
extent it is held that stopping the supply
of essential commodities to the
petitioner was not an act which was
required to be done only under a power
conferred but because there was fraud
committed by the petitioner hence the
doctrine or principle 'fraud vitiates the
most solemn act' came into play and the
action of the respondents in passing the
impugned order cannot be held to be
against law or guidelines as contained in
the government order.
Case law discussed:
2011 (3) AWC 3180; 2009 All.C.J. 335; 2007
(1) AWC 54; 2001 (1) ALJ 332; 2004 All.C.J.
208

(Delivered by Hon'ble Sanjay Misra,J. )

1. Heard V.C. Misra, learned senior
counsel alongwith Sri Haribansh Singh,
learned counsel for the petitioner and
learned Standing Counsel for the State-
respondents.

2. Counter and rejoinder affidavits
have been exchanged between the parties.

assailing the order dated 08.08.2000
(Annexure No.4 to the writ petition)
passed by the District Supply Officer,
Muzaffar Nagar as also the order dated
12.04.2005 (Annexure No.6 to the writ
petition) passed by the Assistant
Commissioner (Food) on the
appeal/representation No.66 of 2005
made by the petitioner.
3 All] Totaram and others V. Assistant Commissioner Saharanpur Division & others 1463
has submitted that under the impugned
order the Respondent No.2 has on the
basis of lodging of an F.I.R. suspended
the supply of essential commodities to the
fair price shop of the petitioner and has
attached the supply with the persons
mentioned in the impugned order dated
08.08.2000. Learned counsel has assailed
the impugned order on the ground that it
has been passed without any show cause
notice and without opportunity of hearing
to the petitioner and secondly on the
ground that mere lodging of an F.I.R.
against the petitioner could not be a
ground to suspend the supply of the
petitioner. His other ground is that in
absence of suspension of the fair price
shop license or cancellation of the fair
price shop license the respondent could
not suspend the supply and keep the
matter pending indefinitely.

5. He has assailed the appellate
order by saying that the appellate
authority has wrongly rejected his appeal
by holding that it has no jurisdiction to
entertain such appeal.

has placed reliance on a Division Bench
decision of this court passed in the case of
"Smt. Raj Kumari Singh Vs. State of
U.P. & others", reported in 2011(3)
AWC 3180 to state that the fair price shop
license cannot be cancelled merely on
filing of an F.I.R. and therefore the
impugned order being without application
of mind requires to be set aside.

7. He has also placed reliance upon
a Division Bench judgment in the case of
"Gulab Chandra Ram Vs. State of U.P.
& others", reported in 2009 All.C.J. 335,
to state that when an order passed
canceling the fair price shop license, is in
violation of principle of natural justice
and the procedure prescribed in the
Government Order dated 29.07.2004 the
same cannot be upheld and is liable to be
set aside.

8. He has further placed reliance on
a Division Bench judgment of this court
in the case of "Shiv Raj Singh Vs. State
of U.P. & others" reported in 2007(1)
AWC 54 to state that when no notice was
given before passing of the suspension
order and the inquiry is not being
completed within one month as required
under the Government Order the
suspension order automatically ceased
and is deemed to have been revoked.

9. He has also placed reliance on a
Division Bench judgment of this Court
passed in the case of "Naumi Ram Vs.
Deputy Collector, Azamgarh and
others", reported in 2001(1) ALJ 332 to
state that supply of food grains cannot be
stopped by the authority only on the basis
of mere allegation or complaint,
particularly, when no opportunity of
hearing was provided to the petitioner.

10. He has lastly placed reliance on
a decision of the Supreme Court in the
case of "State of Bihar Vs. Lal Krishna
Advani & others", reported in 2004 All.
C.J. 208 to state that the right to
reputation is right to live and failure to
comply with the principal of natural
justice render the action nonest.

11. Learned Standing Counsel has
justified the impugned order by saying
that neither the license of the petitioner
has been suspended nor cancelled and
only the supply has been stopped for the
allegations made therein. He places
reliance on his counter affidavit to state
that during pendency of the investigation
under the F.I.R. the supply has been
suspended and as soon as the Case No.87
of 2002 pending in the Court of Chief
Judicial Magistrate, Ist, Muzaffar Nagar,
is decided, the authority will take a
decision in accordance with law on the
said allegations.

12. Insofar the submission of
learned counsel for the petitioner that the
principle of natural justice has been
violated when no notice has been given to
the petitioner is concerned, the fact of the
case establishes that no notice was given
prior to stopping the supply of the
petitioner. The fact that supply has been
stopped only because of lodging of an
F.I.R. and that his license has not been
suspended nor it has been cancelled is
also borne out from the record. The
respondent has also admitted such fact
and in the counter affidavit it has been
stated that the matter in pursuance of the
F.I.R. is pending before the Chief Judicial
Magistrate, Ist, Muzaffar Nagar and,
therefore, upon conclusion of the said
proceedings necessary orders, if any, will
be passed by the authority.

13. Insofar as the impugned order
dated 08.08.2000 is concerned, the
allegation made therein is that without
depositing the amount in the bank, the
petitioner produced a forged deposit slip
of the bank and picked up the essential
commodities from the godown which is a
forgery and is sufficient to suspend the
supply of the petitioner. To this the
petitioner has referred to Annexure No.5
of the supplementary affidavit which is an
opinion of the DGC (Civil) and has
submitted that the petitioner is ready to
deposit the amount for the supply lifted
by him and he has already deposited Rs.6
lakhs with respect to a part of supply
lifted by him and is ready to deposit the
balance of Rs.36 lakhs.

14. The recitation in the impugned
order indicates that the petitioner has
submitted forged deposit slip of the bank
to lift the supply. The petitioner
admittedly lifted the supply on the basis
of forged deposit slip produced by him,
therefore, insofar as his agreeing to
deposit the amount for the lifted essential
commodities is concerned, that is a stand
taken after forgery has been committed
hence he cannot deny that he did commit
forgery by depositing a forged deposit slip
of the bank. Once forgery has been
committed any amount of justification
given for it or trying to say that he will
deposit the amount cannot absolve the
petitioner from the forgery committed by
him.

15. The fair price shop license has
not been cancelled nor it has been
suspended. One of the argument is that
there is no power with the authority to
suspend the supply under the Government
Order or the rules/guidelines applicable
for running a fair price shop. The
submission is that there is power of
suspension or cancellation. Insofar as the
above submission is concerned, there is
no doubt that there is power of suspension
and cancellation of the fair price shop
license which has not been exercised in
the present case but what the authority has
done is that it has suspended the supply of
essential commodities for the reason of
forgery and that an F.I.R. has been lodged
and the matter is pending before the Chief
Judicial Magistrate, Ist, Muzaffar Nagar,
in Case No.87 of 2000. In the counter
affidavit it has been stated that the
3 All] Totaram and others V. Assistant Commissioner Saharanpur Division & others 1465
supplies have been stopped and the
authority will consider the resumption of
supply or proceedings for cancellation or
suspension of the shop in question after
the case before the Chief Judicial
Magistrate, Ist, Muzaffar Nagar has
concluded.

16. The decision in the case of Smt.
Raj Kumari Singh (Supra) related to
cancellation of the fair price shop
dealership merely on filing of an F.I.R. In
the present case the fair price shop of the
petitioner has not been cancelled hence no
benefit can be given to the petitioner.

17. In the case of Gulab Chand Ram
(Supra) the cancellation of license was in
complete violation of the principles of
natural justice. In the case of the
petitioner his license has not been
cancelled hence the question is quite
different.

18. In Shiv Raj Singh (Supra) the
license was suspended without giving any
notice and the time schedule for
completing the enquiry was not adhered
to. In the petitioner's case there is no order
of suspension of license nor any enquiry
is being held by the Respondent No.2 as
yet.

19. In Naumi Ram (Supra) a
complaint was made with certain
allegations and supply of essential
commodities was stopped. The court held
that mere complaint with allegations is
not sufficient to stop supply particularly
when there is no power to stop supply of
essential commodities.

20. The Supreme Court in the case
of Lal Krishna Advani (Supra) held that
failure to comply with the principles of
natural justice would render the action
non-est. It was dealing with a case under
the Commission of Inquiry Act, 1952.

21. When all these above facts and
law are taken into account then while
exercising jurisdiction under Article 226
of the Constitution of India, the court
cannot ignore where there is allegation of
forgery. Applying the principle of natural
justice in a case of forgery where an
F.I.R. has been lodged would be an
unnatural expansion of the principle of
natural justice for giving benefit to a
person.

22. The Supreme Court in the case
of Jharu Ram Roy Vs. Kainjit Roy and
others, reported in 2010(2) AWC 2003
while dealing with a case under Section
43 of the Transfer of Property Act held
that fraud vitiates all solemn acts. In the
cases of State of Punjab Vs. Jagdish Singh
AIR 1964 SC 521, Champak Lal Vs.
Union of India AIR 1964 SC 1854, State
of Bombay Vs. Sanbhghad AIR 1957 SC
892 and in R. Vishwanath Pillai Vs. State
of Kerala 2004(1) UPLBEC 507 it was
held that if benefit is obtained by
committing fraud then the authorities are
not obliged to comply the principles of
natural justice before cancelling the
advantage obtained by such fraud. In the
cases of U.P. Junior Doctors Action
Committee Vs. Dr. B. Sheetal Nandwari
AIR 1991 SC 909 and in Krishna Yadav
Vs. State of Haryana AIR 1994 SC 2166,
it was held that fraud vitiates everything.

23. Therefore when the petitioner
has played fraud by producing forged
deposit receipt of the bank and taken
supply of essential commodities from the
godown to the extent of nearly Rs.Forty
Two lakhs then all his solemn acts now
being canvassed are vitiated due to the
fraud committed by him. He cannot be
permitted to be spared of the fraud
committed by him even if now he
deposits the amount. Once his fraud was
detected the authorities were not obliged
to comply with the principles of natural
justice otherwise it would amount to the
expansion of the principle not to ensure
justice but to protect an action of fraud.
That cannot be a call envisaged in the
concept of the principles of natural
justice.

circumstances, where on the one hand the
petitioner cannot be deprived of
conducting his business without any
suspension or cancellation of his fair price
shop but he also cannot be permitted to go
scot free after having committed a fraud.

25. Therefore, while upholding the
imputation in the impugned order to that
extent it is held that stopping the supply
of essential commodities to the petitioner
was not an act which was required to be
done only under a power conferred but
because there was fraud committed by the
petitioner hence the doctrine or principle
'fraud vitiates the most solemn act' came
into play and the action of the respondents
in passing the impugned order cannot be
held to be against law or guidelines as
contained in the government order.

26. This writ petition is disposed of
finally by requiring the Sub Divisional
Officer, Muzaffar Nagar (Respondent
No.2) to consider the defence of the
petitioner after giving him an opportunity
and while doing so the Respondent No.2
must also take a decision as to whether
the license of the petitioner requires to be
suspended or cancelled for the aforesaid
reason.

27. The writ petition is finally
disposed of.

28. No order is passed as to costs.
---------
CRIMINAL SIDE

BEFORE
THE HON'BLE SHRI KANT TRIPATHI,J.

Criminal Misc. Application No. 38177 of
2011

Manish Shukla and others ...Petitioner
Versus

Sri Shashi Kant Shukla

Govt. Advocate

Protection of Domestic Violence-Act-
Section 27-territorial Jurisdiction-
incident took place at Gonda-aggrieved
lady residing at Basti-held-choicer of
aggrieved shall prevail-no interference
called for.

Held: Para 5

The court where the respondent resides,
carries on business or is employed has
also jurisdiction. The court within whose
local jurisdiction, the cause of action
wholly or partly arises, has also
jurisdiction. It is open to the aggrieved
person to choose any of the said courts
for filing the complaint and she can not
be compelled to file the complaint
according to the choice of the
respondents.

3 All] Manish Shukla and others V. State of U.P.and others 1467
(Delivered by Hon'ble Shri Kant Tripathi,J. )

1. Heard Mr. Shashi Kant Shukla for
the petitioners and the learned AGA for
the State and perused the record.

2. This is a petition under section
482 of the Code of Criminal Procedure
(hereinafter referred to as 'the Code') for
quashing the order dated 16.11.2011
passed by the Sessions Judge, Basti in
criminal appeal no. 53/2011, Manish
Shukla & others vs. Smt. Pratima and
others, and also the order dated
15.10.2011 passed by the Chief Judicial
Magistrate, Basti in case no. 1785/2011,
Smt. Pratima Shukla vs. Manish Shukla &
others,

3. Mr. Shashi Kant Shukla appearing
for the petitioners submitted that
according to the allegations made in the
complaint the domestic violence against
the respondent no.2 took place in district
Gonda and the respondent no.2 moved
application to the Protection Officer,
Gonda regarding the domestic violence on
which basis, the Protection Officer
submitted domestic violence report to the
court of C.J.M. Basti. It was next
submitted that when the domestic
violence report was of the district Gonda,
filing of the complaint in district Basti
was not proper, therefore, Basti court had
no jurisdiction to pass any order.

4. It appears that the respondent no.
2 has filed a petition under section 12 of
the Protection of Women from Domestic
Violence Act (hereinafter referred to as
'the Act') against the petitioners in the
court of CJM Basti and the petitioners, on
appearance before the court concerned,
raised the question of territorial
jurisdiction and contended that the CJM
Basti had no jurisdiction. The CJM
rejected the contentions of the petitioners
and held that he had jurisdiction to
entertain the complaint. The Sessions
Judge was also of the same view.

5. In my opinion, the question of
jurisdiction of the Magistrate does not
depend upon the domestic violence report
of the Protection Officer. The said
question is to be decided according to the
provisions of section 27 of the Act,
according to which, the court of
Magistrate, within the local limits of
whose jurisdiction, the aggrieved person
permanently or temporarily resides or
carries on business or is employed, has
jurisdiction in the matter. The court where
the respondent resides, carries on business
or is employed has also jurisdiction. The
court within whose local jurisdiction, the
cause of action wholly or partly arises,
has also jurisdiction. It is open to the
aggrieved person to choose any of the
said courts for filing the complaint and
she can not be compelled to file the
complaint according to the choice of the
respondents. In the present matter, the
respondent no.2, who lives in district
Basti, chose to file complaint in the court
of CJM Basti, therefore, her complaint
can not be said to be not maintainable in
the said court only on the ground that the
domestic violence report was obtained
from the Protection Officer of the district
Gonda. The question of jurisdiction was
not to be decided on the basis of the office
of Protection Officer or his report, rather
it was to be decided only in the terms of
the provisions of section 27 of the Act.
The learned CJM as well as the Sessions
Judge have considered the question of
jurisdiction according to the parameters
provided in section 27 of the Act after
looking into the allegations made in the
complaint and have passed proper orders,
therefore, the matter requires no
interference.

6. Mr. Shashi Kant Shukla lastly
submitted that the domestic violence
report has been transferred on the request
of the respondent no.2 from the Protection
Officer, Gonda to the court of CJM Basti.
This could not be done and the Protection
Officer has no jurisdiction to act on the
request of the respondent no.2. In my
opinion, when the judicial matter under
section 12 of the Act was pending in the
court of CJM, who was competent to
decide the question of domestic violence,
the submission of the report even on the
request of the respondent no.2 to the court
of CJM, Basti can not be said to be
contrary to law.

7. The petition has no merit and is
dismissed.
---------
CIVIL SIDE

BEFORE
THE HON'BLE RAN VIJAI SINGH,J.


Haseeb Ahmed @ Rassu ...Petitioner
Versus
The Commissioner, Kanpur Mandal
Kanpur and others ...Respondents

Sri Shailendra Singh
Sri Ankur Goyal

Counsel for the Respondnets:
C.S.C.

Arms Act-Section 17-Cancellation of fire
arm license-license given considering
incident of murder of his family member
involvement in crime against world
without specific allegations and role can
not be ground for cancellation.

Held: Para 20

After going through the reply of the
petitioner to the show cause notice, it
transpires that on account of two
murders in petitioner's family, for his
personal safety, the petitioner has
applied for firearm licence and he was
granted the same in the year 2000.
There is no allegation, except the
present one, that the petitioner has ever
misused his firearm licence or have ever
committed any crime. Merely by saying
that a person has entered into world of
crime, cannot be said to be sufficient for
cancelling the firearm licence of a
person, which was granted after due
deliberations and due inquiry and after
verifying the credentials of the
petitioner. The apprehension cannot be
made basis for cancellation of the
firearm licence. The relevant section for
cancellation of firearm licence is very
unambiguous and clear in this regard.
Case la discussed:
2009 (4) ADJ 33 (LB)

(Delivered by Hon'ble Ran Vijai Singh,J. )

with the following prayers:

"A. Issue a writ, order or direction in
the nature of certiorari calling for the
records of the case and quashing the
imkpugned order dated 29.2.2008 passed
by respondent no. 1 and order dated
25.10.2007 passed by respondent no. 2
(Annexure 5 and 2 to this writ petition)

B. Issue a writ, order or direction in
the nature of writ of mandamus
commanding the respondents to release
the weapon of the petitioner during the
3 All] Haseeb Ahmed @ Rassu V. The Commissioner, Kanpur Mandal Kanpur & others 1469
pendency of the writ petition before this
Hon'ble Court.

C. Issue any other writ, order or
direction, as this Hon'ble Court may deem
fit and proper in the circumstances of the
case.

D. An award of the petition in favour
of the petitioner."

2. Vide order dated 25.10.2007 the
petitioner's firearm license no. 53
D.B.B.L.,gun no. 29450 was cancelled by
the District Magistrate, Kanpur Dehat.
Whereas vide order dated 29.02.2008
petitioner's appeal against the said order
has been dismissed by the Commissioner,
Kanpur Division, Kanpur.

3. On an application of the petitioner
for firearm licence, a license no. 53 of
2000 was issued to the petitioner for
having DBBL gun. The license of the
petitioner was renewed from time to time
and it was lastly renewed on 31.12.2008.
It appears that a first information report
was lodged against the unnamed persons
bearing case Crime No.50 of 2007 under
Section 324/308 I.P.C., taking note of that
the Superintendent of Police Kanpur
Nagar has sent a report on 02.07.2007 to
the District Magistrate, Kanpur Dehat on
the basis of the report of Station House
Officer dated 13.06.2007 stating therein,
that the licencee no. 53 of 2000 has now
entered in the crime, therefore, having
license with him will be detrimental to the
pubic peace and safety. Taking note of
that, a show cause notice was issued to
the petitioner by the District Magistrate
requiring the petitioner to show cause as
to why his license of D.B.B.L., gun be not
cancelled.

4. The petitioner, herein, has filed a
detailed reply on 9.8.2007, denying the
allegation of the show cause notice. It has
been stated in the notice that the father
and dada of the petitioner were Gram
Pradhans of the village about 30 years.
However, dada of the petitioner, late
Sultan Ahmed, was murdered by one
Bikar Ahmed, Saqil and Atik on
11.1.1994. The Pairvi of that case was
being done by the father of the petitioner.
Because of that, he was also murdered, in
which the petitioner's brother, Mujib
Ahmed, is an eye witness. Taking all
those into consideration, the firearm
licence was issued to the petitioner for
personal security and safety of the
petitioner. It is also stated that the brother
of the petitioner has complained against
the Station House Officer, Sri B.D.
Awasthi, and in inquiry, he was found
guilty and later on he was transferred. The
petitioner, being brother of Mujib Ahmed
@ Guddu, has been made victim and
proceeding for cancellation of the firearm
licence of the petitioner has been initiated.
It has also been stated that the petitioner
was neither present on the spot when the
incident took place nor he ever had used
firearm. It is also contended that except
the present case, on account of which,
notice has been issued to the petitioner, no
other F.I.R. has been lodged against the
petitioner. Petitioner is a peace loving
citizen and his entire family is
respectable, but due to election enmity,
and hostility of police against petitioner's
brother, this proceeding has been initiated
against the petitioner. It is also stated that
the petitioner has never breached any
condition of the licence.

5. The District Magistrate, after
considering the contents of show cause
notice, police report and the petitioner's
reply, has come to the conclusion that
continuance of the firearm licence of the
petitioner will not be in public interest
and safety and cancelled the same by the
impugned order dated 25.10.2007.
The appeal filed by the petitioner too was
dismissed by the Divisional
Commissioner on 29.2.2008.

6. While assailing these impugned
orders, learned counsel for the petitioner
submitted that merely on the basis of the
apprehension of breach of peace and
public safety, the firearm licence of the
petitioner could not have been cancelled.
There is also no material on record to
suggest that the petitioner is a man of
criminal nature, which has been made
basis for cancellation of the firearm
licence of the petitioner. It is also
contended that for the cases lodged
against the petitioner's brother, the
petitioner cannot be blamed as he is living
independently of his brother. Therefore,
also this could not have been made basis
for cancellation of firearm licence.

7. In the submissions of the learned
counsel for the petitioner, merely on
account of the apprehension, lodging of
an F.I.R., the firearm licence cannot be
cancelled. It is also submitted that before
cancelling the licence, the District
Magistrate ought to have recorded his
own satisfaction with respect to the
breach of peace and public safety on the
basis of the material available on record,
but the District Magistrate, without
recording his satisfaction, after
considering the material available on
record, has merely endorsed the report of
the police authorities and passed the
impugned order. The appellate court too
has committed the same error and
dismissed the appeal. In the submissions
of learned counsel for the petitioner, the
impugned orders are unsustainable and
deserve to be quashed.

8. Refuting the submissions of the
learned counsel for the petitioner, learned
Standing Counsel submits that the
petitioner and the petitioner's brother are
living together and since the petitioner's
brother is a notorious criminal and large
number of cases are pending against him,
therefore, continuance of firearm licence
in favour of the petitioner will not be in
public interest, public peace and safety. In
the submissions of the learned Standing
Counsel, the orders passed by the
authorities cannot be said to be arbitrary
as the same have been passed only after
considering the material available on
record. Therefore, the writ petition
deserves to be dismissed.

9. I have heard Sri Shailendra Singh,
holding brief of Sri Ankur Goyal, learned
counsel for the petitioner, learned
Standing Counsel for the respondents and
perused the records.

10. In substance, the proceeding of
cancellation of firearm licence of the
petitioner has been initiated on account of
case crime no. 50 of 2007 under sections
324 and 308, I.P.C. Taking note of the
aforesaid F.I.R., a show cause notice was
issued to the petitioner, indicating therein
that the petitioner has entered into crime
world and continuance of firearm licence
in his favour would not be in the public
interest, public peace and safety. The
copy of the F.I.R. has been brought on
record as Annexure 6 to this writ petition,
in which balled allegations have been
made against the Muslim community.

11. The power of
variation/suspension and revocation of
licence is vested with the licensing
authority but licensing authority can do so
in accordance with the provisions
contained under Section 17 of the Arms
Act, 1959. For apprehension, the relevant
portion of Section 17 is reproduced
below:

"17. Variation, suspension and
revocation of licenses :- (1) The licensing
authority may vary the conditions subject
to which a licence has been granted
except such of them as have been
prescribed and may for that purpose
require the licence-holder by notice in
writing to deliver-up the licence to it
within such time as may be specified in
the notice.

(2) The licensing authority may, on
the application of the holder of a licence,
also vary the conditions of the licence
except such of them as have been
prescribed.

(3) The licensing authority may by
order in writing suspend a licence for
such period as it thinks fit or revoke a
licence-

(a) If the licensing authority is
satisfied that the holder of the licence is
prohibited by this Act or by any other law
for the time being in force, from

acquiring, having in his possession
or carrying any arms or ammunition, or is
of unsound mind, or is for any reason
unfit for a licence under this Act; or

(b) If the licensing authority deems it
necessary for the security of the public
peace or for public safety to suspend or
revoke the licence; or

c) If the licence was obtained by the
suppression of material information or on
the basis of wrong information provided
by the holder of the licence or any other
person on his behalf at the time of
applying for it; or

(d) If any of the conditions of the
licence has been contravened; or

(e) If the holder of the licence has
failed to comply with a notice under sub-
section (1) requiring him to deliver-up the
licence.

(4) The licensing authority may also
revoke a licence on the application of the
holder thereof.

(5) Where the licensing authority
makes an order varying a licence under
sub-section (1) or an order suspending or
revoking a licence under subsection (3), it
shall record in writing the reasons
therefor and furnish to the holder of the
licence on demand a brief statement of the
same unless in any case the licensing
authority is of the opinion that it will not
be in the public interest to furnish such
statement.

(6) The authority to whom the
licensing authority is subordinate may by
order in writing suspend or revoke a
licence on any ground on which it may be
suspended or revoked by the licensing
authority; and the foregoing provisions of
this section shall, as far as may be, apply
in relation to the suspension or revocation
of a licence by such authority.

(7) A court convicting the holder of a
licence of any offence under this Act or
the rules made thereunder may also
suspend or revoke the licence :

Provided that if the conviction is set
aside on appeal or otherwise the
suspension or revocation shall become
void.

(8) An order of suspension or
revocation under sub-section (7) may also
be made by an appellate court or by the
High Court when exercising its powers of
revision.

(9) The Central Government may, by
order in the Official Gazette, suspend or
revoke or direct any licensing authority to
suspend or revoke all or any

licenses granted under this Act
throughout India or any part thereof.

(10) On the suspension or revocation
of a licence under this section the holder
thereof shall without delay surrender the
licence to the authority by

whom it has been suspended or
revoked or to such other authority as may
be specified in this behalf in the order of
suspension or revocation."

12. Sub section (3) (a to d) of
section 17 deals with conditions for which
licensing authority may pass an order for
suspending, revoking / varying the
licence. Sub section (4) empowers the
licensing authority to revoke a licence on
the application of holder thereof. Sub
section (5) provides that if the licensing
authority makes an order varying the
lincence under sub section (1) of section
17 or an order suspending or revoking a
licence under sub section (3), it shall
record, in writing, the reasons thereof and
furnish to the holder of licence with the
demand of brief statement of the same,
unless in any case the licensing authority
is of the opinion that it will not be in
public interest to furnish such statement.

13. From the cogent reading of sub
section (1) to sub section (5), it will
transpire that for various reasons, as
enumerated in sub section (3) (a to d), the
licensing authority may suspend the
licence and for those reasons, after a show
cause, cancel the licence also, but before
cancelling the same, a show cause notice
is necessary to the licensee and after
having the reply, in view of the language
used in sub section 3(a) of section 17, the
licensing authority must get him satisfy
and record a definite satisfaction to the
effect that the continuance of the licence,
would not be in the interest of public
peace or public safety.

14. Here in this case, it appears, the
action has been taken, taking note of the
provisions contained in sub section (b) of
sub section (3), the licensing authority has
issued a notice that continuance of the
firearm licnece would not be in the
security of the public peace and public
safety. The basis for such notice is the
unnamed F.I.R.

15. I have gone through the
impugned order passed by the District
Magistrate (the licensing authority). The
licensing authority has not recorded his
own satisfaction after considering the
material available on record and only
observed as under while cancelling the
licence :

i n l(( i iii i- nii
ri r- i nii r- l(ii
ni- ( iii - -i i ii ,ii i n; i l-
li ac.a/.zaa/ i l- i ini r nii i
iaiaiaa n a zsra i; a r:
i i iiln ( i ii ii rn
n-i ii( l-n li ini r| iiii
- -i i l lin li ini r l l nii
i i n i- ii n -i li ni ri
ni n-i -i i | i i i ln l
iii i rin i ii ( i(
i(iri rn lin i i| i- ll i i
i i lln i i( i(iri
r i(i ili n ri |

16. From the reading of the
aforesaid lines of the order of the District
Magistrate, it transpires that the District
Magistrate has only confirmed the police
report and contents of the show cause
notice. The confirmation of the police
report and the contents of show cause
notice cannot be put at par with the word
''satisfaction.' Satisfaction of the District
Magistrate is required for cancellation of
firearm licence in view of sub section (3)
(a) of section 17. The satisfaction ought to
have been recorded taking note of the
petitioner's reply and the police report.

17. Here the word, ''satisfy' has been
mentioned and the word,
''satisfy/satisfaction' cannot be synonyms
of word ''apprehension.' The initiation of
the proceeding on the basis of
apprehension cannot be ruled out, but
apprehension has to be proved with
supporting materials, in which the police
has utterly failed and the District
Magistrate has erred in cancelling the
firearm licence without recording the
satisfaction. It is well settled that the right
to life and liberty have been guaranteed
under Article 21 of the Constitution of
India and the firearm licences are granted
for personal safety and security. As has
been noticed here in this case, after the
consecutive murders in the petitioner's
family, the firearm licence to the
petitioner was granted and that could not
be cancelled in a way in which it has been
cancelled.

18. A Division Bench of this Court
in the case of Satish Singh Vs. District
Magistrate, Sultanpur, 2009 (4) ADJ 33
(LB), has observed as under:-

"Needless to say that right to life and
liberty are guaranteed under Article 21 of
the Constitution of India and the arms
licenses are granted for personal safety
and security after due inquiry by the
authorities in accordance with the
provisions contained in Arms Act, 1959.
The provisions of section 17 of the Arms
Act with regard to suspension or
cancellation of arms licence cannot be
invoked lightly in an arbitrary manner.
The provisions contained under section
17 of the Arms Act should be construed
strictly and not liberally. The conditions
provided therein, should be satisfied by
the authorities before proceeding ahead
to cancel or suspend an arms licence.

We may take notice of the fact that
for any reason whatsoever, the crime rate
is raising day by day. The Government is
not in a position to provide security to
each and every person individually. Right
to possess arms is statutory right but right
to life and liberty is fundamental
guaranteed by Article 21 of the
Constitution of India. Corollary to it, it is
citizen's right to possess firearms for their
personal safety to save their family from
miscreants. It is often said that ordinarily
in a civilized society, only civilized
persons require arms licence for their
safety and security and not the criminals.
Of course, in case the Government feels
that arms licence are abused for oblique
motive or criminal activities, then
appropriate measures may be adopted to
check such mal-practice. But arms licence
should not be suspended in a routine
manner mechanically, without application
of mind and keeping in view the letter and
spirit of section 17 of the Arms Act."

19. The police has utterly failed to
bring any material on record to indicate
that except the unnamed F.I.R., on
account of which proceeding has been
initiated, there was anything against the
petitioner. Not even a single incident has
been cited in the show cause notice or in
the order of the District Magistrate. The
lodging of the F.I.R. or pendency of the
cases against the petitioner's brother, in
my considered opinion, should not have
been made basis for cancelling the firearm
licence of the petitioner.

20. After going through the reply of
the petitioner to the show cause notice, it
transpires that on account of two murders
in petitioner's family, for his personal
safety, the petitioner has applied for
firearm licence and he was granted the
same in the year 2000. There is no
allegation, except the present one, that the
petitioner has ever misused his firearm
licence or have ever committed any
crime. Merely by saying that a person has
entered into world of crime, cannot be
said to be sufficient for cancelling the
firearm licence of a person, which was
granted after due deliberations and due
inquiry and after verifying the credentials
of the petitioner. The apprehension cannot
be made basis for cancellation of the
firearm licence. The relevant section for
cancellation of firearm licence is very
unambiguous and clear in this regard.

21. In view of the foregoing
discussions and taking note of the dictum
of Division Bench of this Court, I am of
the considered opinion that the orders
impugned dated 29.2.2008 and
25.10.2007 are unsustainable in the eye of
law and the same are being quashed. The
writ petition succeeds and is allowed. The
District Magistrate is directed to take
follow up action in accordance with law
by restoring the petitioner's firearm
licence.
---------
CRIMINAL SIDE

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE SURENDRA KUMAR, J.


Akhilesh Pathak ...Petitioner
Versus
State Of U.P. & others ...Respondents

Sri Shyam Sunder Tripathi

C.S.C.

Principle of Natural Justice-auction sale
of Bolero Jeep-after having valuation
report from Transport Authority-
valuation fixed as Rs. 75000/-petitioner
being highest bidder for Rs. 85000/-
deposited 15000/- amount
immediately-balance amount of Rs.
70000/-deposited within time-accepted-
subsequent on political pressure-
cancellation of auction proceeding and
direction for re-auction on ground of low
amount -behind the back of petitioners-
held--illegal-perverse, unjust, arbitrary
3 All] Akhilesh Pathak V. State of U.P.and others 1475
and mala fide-direction to release vehicle
to petitioner issued.

Held Para 31

Thus, after getting the whole amount of
the bid received by the auctioning
authority till 21.7.2010, the auctioning
authority in a shocking and surprising
way recommended to the
S.D.M./respondent no. 2 for re-auction
of the vehicle in question with some
ulterior motive just on the ground of
inadequacy of the price. If any
inadequacy of price had been within the
knowledge of the auctioning authority at
the time of completion of the auction,
there would not have been any reason
for him to submit a report
recommending for re-auction
subsequently with delay. On the basis of
the said report of the auctioning
authority dated 22.7.2010, the
S.D.M./respondent no. 2 passed the
impugned order in one sentence to the
effect that "agreed, the auction
cancelled, the re-auction be made as per
the rules." This by can no stretch of
imagination be called a speaking or legal
order which was passed behind the back
of the petitioner. If for a moment the
point of some commotion during the
progress of auction was there, the same
did not find place in the relevant report
dated 22.7.2010 submitted to the S.D.M.
by which he recommended for re-
auction. The impugned order passed by
the respondents appears to be illegal,
perverse, unjust, arbitrary and malafide.
Case law discussed:
(1970) 3 SCR 1: (1969) 3 SCC 537; 1989 RD
page 51; 1970 (2) SCC page 405

(Deliverd by Hon'ble R.K. Agrawal, J.)

parties.

2. This writ petition has been
preferred by the petitioner to issue a writ,
order or direction in the nature of
certiorari quashing the impugned order
dated 22.7.2010 passed by the respondent
no.2/ Sub Divisional Magistrate,
Nizamabad, Azamgarh, (Annexure No.1
to the writ petition) and also for a
direction in the nature of mandamus
directing the respondent nos.2 and 3
namely Sub Divisional Magistrate and
Tehsildar/Auction Incharge, Nizamabad,
Azamgarh, to issue a release order for the
auctioned Bolero Jeep 2003 Model
(Chassis No.MA-1XA2 ACB) in favour
of the petitioner ensuring release of the
vehicle in question from Police Station
Gambhirpur, Azamgarh.

3. The respondent no.2 vide the
impugned order dated 22.7.2010 had
cancelled the auction dated 19.7.2010 and
ordered for re-auction of the vehicle in
question on the ground that the re-auction
will bring more revenue to the State.

4. The facts giving rise to the
present writ petition are that the certain
vehicles including vehicle in question
unclaimed by their owners were seized by
Station House Officer, Police Station
Gambhirpur, Tehsil Nizamabad, District
Azamgarh. As the seized vehicles
remained unclaimed by their owners for a
considerable long time, the vehicles were
likely to go defunct for non-use and
maintenance and their value got
diminished, the Administration thought it
proper to put them to public auction.
Before the auction, the Regional
Transport Officer, Azamgarh, was
requested vide letter dated 22.5.2010 by
Police Station Gambhirpur for assessing
value of each vehicle. The Regional
Transport Officer, Azamgarh, after
making physical scrutiny and assessment
of the vehicle piecewise submitted a
report showing approximated reasonable
value of the said vehicles. The value of
the vehicle in question was assessed at
Rs.75,000/- (Rupees seventy five
thousand) only. Subsequently, the
respondent no.2 authorized the respondent
no.3/Tehsildar Nizamabad to conduct the
public auction after due publication in the
local daily newspapers having wide
circulation in the area. The publication
relating to the auction in local newspapers
was made and common public interested
in the vehicle in question invited to
appear and bid for it in the public auction
to be held on 19.7.2010. In response to
the said advertisement, seven bidders
including the petitioner attended the
auction and made the bids. Before the bid
began, a notice dated 19.7.2010
mentioning the terms and conditions of
the bid was put on the board which
stipulated inter-alia that each bidder shall
make the security deposit of Rs.5,000/-
before the bidding. The other terms and
conditions were that 1/4th of the amount
of final bid for the vehicle in question
shall be deposited immediately and
remaining 3/4th of the amount shall be
deposited within fifteen days from the
date of the aforesaid auction. It was also
stipulated that the release order was to be
issued only after the auction was accepted
by the respondent no.3. Accordingly, all
the seven persons made the security
deposit of Rs.5,000/- (Rupees five
thousand) each.

5. The auction bid continued for four
rounds and ultimate bid of the petitioner
to the tune of Rs.85,000/- (Rupees eighty
five thousand) was found final after
calling the bidders three times to go above
it which the bidders did not do. Thus, the
highest bid could not be crossed by
further bid of higher value. A copy of the
progress of the bid upto the highest
bidding of Rs.85,000/- (Rupees eighty
five thousand) made by the petitioner, has
been annexed as Annexure No.4 to the
writ petition.

6. As per the terms and conditions of
the auction sale, the petitioner deposited a
sum of Rs.25,000/- (Rupees twenty five
thousand) with the treasury vide receipt
dated 19.7.2010 on the day of the auction
itself. The petitioner made the deposit of
balance amount of auction bid i.e.
Rs.60,000/- (Rupees sixty thousand) vide
treasury receipt, accepted and issued by
the respondent no.3 on 21.7.2010. The
auction proceeding to the level of its
finality on the highest bid of the amount
of Rs.85,000/- (Rupees eighty five
thousand) made by the petitioner was
further explicit by the respondent no.3 in
accepting the total amount of Rs.85,000/-
(Rupees eighty five thousand) deposited
by the petitioner within time and accepted
through the receipts issued by the
respondent no.3 on 19.7.2010 and
21.7.2010.

7. The respondent no. 3 namely
Tehsildar/Auction Incharge, Nizamabad,
Azamgarh submitted a report about the
details of the auction to the respondent no.
2 Up Zila Adhikari, Nizamabad on
22.7.2010 proposing re-auction of the
vehicle in question keeping in view the
condition of the vehicle in question that
the auction of the vehicle could bring
more revenue to the State after wide
publication through newspapers. The
respondent no. 2 by the impugned non-
speaking order dated 22.7.2010 agreed
with the said report and cancelled the
auction directing re-auction according to
the rules without affording any
opportunity of hearing to the petitioner.

8. After complying with the terms
and conditions of the auction and
depositing the entire amount of the
auction, the petitioner approached the
respondent no. 3 on 26.7.2010 for
issuance of the release order of the
vehicle in question so sold out to the
petitioner through above auction in order
to approach the police station incharge for
release of the aforesaid vehicle in
question. It was at that stage, respondent
no. 2 disclosed this fact to the petitioner
that the vehicle in question could not be
released as there was some political
pressure against it. The petitioner was
orally asked to surrender his claim for the
vehicle in question in the auction for
some other vehicle.

9. When the petitioner came to know
about the order dated 22.7.2010 passed by
respondent no. 2, he raised grievance
through the letter to the District
Magistrate, Azamgarh on 26.7.2010, who
called for a report from the respondent
nos. 2 and 3 within three days. The
respondent no. 3 submitted a report to the
respondent no. 2 on 28.7.2010 wherein
the facts of auction proceedings, entire
deposit made by the petitioner as the
highest bidder and its acceptance by
respondent no. 3, was admitted. It was,
however, disclosed in the said report that
after acceptance of the entire bid amount
of auction, it was thought proper to re-put
the vehicle in question for fresh auction in
expectation of the higher amount as the
revenue likely to come. The report of
respondent no. 3 dated 28.7.2010
submitted to the respondent no. 2 has
been annexed as Annexure No. 8 to the
writ petition.

10. The respondent no. 2,
accordingly, informed to the Additional
District Magistrate (F & R), Azamgarh
that since the report/recommendation for
re-auction had been made, the release
order could not be issued. In the
information dated 29.7.2010 made by the
respondent no. 2, finality of auction at the
highest bid of Rs. 85,000/- (Rupees eighty
five thousand), receipt of the total amount
of auction deposited by the petitioner was
also accepted.

11. The petitioner sought an
information under the Right to
Information Act by sending a letter dated
28.7.2010 in this matter. The petitioner
was furnished the relevant information to
the effect that the highest bid of the
auction of the said vehicle was to the tune
of Rs. 85,000/- (Rupees eighty five
thousand) and the highest bidder was the
present petitioner Akhilesh Pathak. The
auction was cancelled as it did not fetch
the sufficient revenue and the amount of
bidding was insufficient.

12. It has been averred in the writ
petition that no auction after public
advertisement having culminated in the
highest bid accepted by the auctioning
authority coupled with the deposit of
entire auction amount accepted by the
authority could be cancelled without their
being any breach of the terms of the
auction or element of fraud in the auction
so conducted. Since after auction of the
vehicle in question having reached the
stage of deposit so accepted and receipt
issued by the auction authority/
respondent no. 3, the auction could not be
cancelled. The only stage thereafter was
to issue an order for release of the vehicle
in question. No auction so culminated
without breach or fraud could be
cancelled and that too without opportunity
of hearing to the petitioner, who had
completed his part as bidder and
deposited the entire amount which was
accepted by the respondents.

13. According to the petitioner, the
impugned order by which the auction of
the vehicle in question was cancelled, is
arbitrary as passed behind back of the
petitioner for unwarranted political
pressure and with ulterior motive to
oblige the agency behind the picture. The
impugned order is violative of the
principle of audi-alteram partem and also
violative of the right of the petitioner
under Article 300A of the Constitution of
India.

14. Sri Chhedi Lal Singh, Tehsildar
Nizamabad, Azamgarh filed his counter
affidavit on behalf of the respondents
deposing that the impugned order dated
22.7.2010 was passed by the competent
authority i.e. Sub Divisional Magistrate,
who after considering the facts that the
auction bidder has tried to get the vehicle
on a very low price which would have
resulted in loss of revenue to the State,
had rightly cancelled the auction directing
afresh auction. The vehicle in question
was in a good condition and could bring a
better revenue for the State. After
considering the condition of the vehicle
and bid amount, the re-auction of the said
vehicle was recommended and the
competent authority agreeing with the
recommendation cancelled the auction
held on 19.7.2010 and directed for re-
auction of the vehicle by the impugned
order.

15. It has been averred through the
counter affidavit that the Regional
Transport Officer, Azamgarh assessed the
value of the vehicle in question
tentatively. According to the respondents,
the date of auction could not be properly
published, only seven persons participated
in the bid and only upto fourth round, the
bidders signed the bid papers but in the
sixth final round of auction, no one signed
on the papers due to commotion. It is
obligatory that all the papers must be
signed by all the bidders relating to the
bid. The respondent no. 3/Tehsildar was
only supposed to submit a report of the
auction and it was only respondent no.
2/S.D.M. who had power to accept the
auction bid.

16. It has been further alleged that
mere deposit of the money does not mean
acceptance of the bid and there was no
stipulation for the said auction that the
deposit of money meant for acceptance of
the bid, the auctioned property can only
be released in favour of the highest bidder
when the auction is accepted by the
competent authority. The repeated
grounds of the respondents for cancelling
the said auction are that since the
petitioner intended to get the vehicle in
question at a very low price by all means
and it brought a very low revenue for the
State as the vehicle in question was in
good condition and could fetch better
revenue for the State, the said auction was
cancelled and re-auction was directed
keeping in view the interest of the State.
The petitioner was advised to take his
money back and the delay in taking the
auction deposited money back would be
at his own cost. In the counter affidavit,
malafides and arbitrariness in passing the
impugned order has been denied.

17. The petitioner by way of filing
rejoinder affidavit repeated the averments
made in the writ petition calling the
auction in dispute as practical and logical
on the ground that the vehicle in question
deemed to be defunct due to non use since
long. Since report of the Regional
Transport Officer was found reliable as
the basis for the proposed auction, the
process of auction was resorted to. It has
been further submitted that failure to
obtain signature on the last page of the
bidding of the above Bolero Jeep if any
can be said to be failure of the auctioning
authority, the auction could not be
affected. It was mere irregularity once the
auction in-charge confirming and
approving the last and final bid by the
petitioner closed the auction as complete
and immediately accepting the deposit of
1/4th and more of the highest bid of the
auction. Since th of the balance amount
of bidding was deposited by the petitioner
well within time and the same was
accepted by the auctioning
authority/respondent no. 3 without any
objection, the auction could not be legally
cancelled just on the frivolous ground that
the said auction fetched less revenue to
the State. It has also been submitted that
the respondent no. 3 had occasion before
the auction dated 19.7.2010 to postpone,
adjourn or cancel the auction proceedings
if there was no proper circulation or
publication in the area.

petitioner has further submitted that the
respondents may postpone, adjourn or
cancel the auction proceedings on the
following stages;

(a) When the R.T.O. had submitted
his valuation report on 28.6.2010;

(b) When the bidders were present on
19.7.2010, they were found to be
insufficient in number;

(c) When the last bid of Rs. 85,000/-
was made by the petitioner and before the
auction could be closed as completed or at
the most on 22.7.2010 when the last
deposit of 3/4th amount was made by the
petitioner and the same was accepted
through receipt by the respondent no. 3.
There was no occasion in law for the
respondents to cancel the said auction.
The auction was cancelled to deny the
petitioner of his accrued right to the
legitimate claim for release of the vehicle
in question. The purpose was to oblige
non bidder because of political influence
and thereby denied the petitioner of his
legitimate right to claim for release of the
vehicle.

19. In this writ petition, following
points are involved;

(i) Whether after the hammer had
been knocked down at the highest bid in a
public auction and of the bid amount
deposited by the highest bidder
immediately after the bid and duly
accepted, could an auction be cancelled ?

(ii) Whether any order cancelling
such an auction behind the back of the
highest bidder depositing the entire or
1/4th amount of the highest bid could be
passed ?

(iii) Whether such an order could be
treated to be fair, impartial or legal and
without charge of arbitrariness and mala
fides ?

(iv) Whether a sale by public auction
could be considered on a footing better
than ordinary sale in the market ?

20. We have gone through the
decision relied upon by the learned
counsel for the petitioner in the case of
M/s Kayjay Industries (P) Ltd. Vs. M/s
Asnew Drums (P) Ltd and others (1974) 2
SCC page 213, wherein Hon'ble Apex
Court observed that a Court sale is a
forced sale and notwithstanding the
competitive element of a public auction,
the best price is not often forthcoming.
The Judge must make a certain margin for
this factor. A valuer's report, good as a
basis, is not as good as an actual offer and
variation within limits between such an
estimate, however careful, and real bids
by seasoned businessman before the
auctioneer are quite on the cards. The
businessman makes uncanny calculations
before striking a bargain and that
circumstances must enter the judicial
verdict before deciding whether a better
price could be had by a postponement of
the sale. If Court sales are too frequently
adjourned with a view to obtaining a still
higher price, it may prove a self-defeating
exercise, for industrialists will lose faith
in the actual sale taking place and may not
care to travel up to the place of auction
being uncertain that the sale would at all
go through. The judgment debtor's plea
for postponement in the expectation of a
higher price in the future may strain the
credibility of the Court sale itself and may
yield diminishing returns.

21. Hon'ble Apex Court has further
observed in the case of M/s Kayjay
Industries (P) Ltd. (supra) while dealing
with material irregularity and substantial
injury under Order XXI, Rule 90 of the
Civil Procedure Code that it is the duty of
the Court to satisfy itself that having
regard to the market value of the property,
the price offered is reasonable. The
substantial injury without material
irregularity is not enough even as material
irregularity not linked direct to
inadequacy of the price is insufficient. If
the Court should go on adjourning the
sale till a good price is got, it being a
notorious fact that the Court sale and
market price are distant neighbour.
Otherwise the decree holders can never
get the property of the debtor sold. Nor is
it right to judge the unfairness of the price
by hindsight wisdom. What is expected of
the Judge is not to be a prophet but a
pragmatist and merely to make a realistic
appraisal of the factors and if satisfied
that, in the given circumstances, the bid is
acceptable, conclude the sale.

22. The Court may consider fair
value of the property, the general
economic trends, the large sum required
to be produced by the bidder, the
formation of a syndicate, the futility of
postponements and possibility of the
litigation and several other factors
dependent on the facts of the each case.
Once that is done, the mater ends there.
No speaking order is called for and no
meticulous post mortem is proper. If the
Court has fairly, even if silently, applied
its mind to the relevant considerations
before it while accepting the final bid, no
probe in retrospect is permissible.
Otherwise, a new threat to certainty of the
Court sale will be introduced. Mere
inadequacy of price cannot demolish
every court sale. The same principle had
been laid down by Hon'ble Apex Court in
the case of Neyalkha and sons Vs.
Ramanya Das, (1970) 3 SCR 1 : (1969) 3
SCC 537.

petitioner has relied upon a Division
Bench decision of this Court in the case of
Zila Parishad, Muzaffar Nagar and others
Vs. Udai Veer Singh, 1989 RD page 51
wherein the Division Bench observed that
where the highest bid is accepted and
highest bidder deposits 25% bid amount
within time allowed, the auction cannot
be cancelled thereafter. In the case of Zila
Parishad (supra), the auction was held on
17.3.1988. The the subject matter of the
auction was the right to ferry or load or
unload animals at the cattle fair for a
monetary consideration under the Uttar
Pradesh Zila Parishad and Kshetra Samiti
Adhiniyam, 1959. The auction was closed
upon the highest bid having been
received. The Zila Parishad attempted to
auction the subject matter of the auction
to yet another candidate outside the
auction subsequently. This led to the
highest bidder who had offered the
highest bid upon which the auction was
closed to seek an injunction to protect the
right to carry on his trade by filing civil
suit in the civil court. The highest bidder
was granted injunction. The
Administrator, (Atrikt Mukhya Adhikari)
recommended re-auction to be held on
23.3.1988 on the ground that one person
(non bidder) had sent higher offer. Thus
re-auction was ordered after publication
in the newspapers informing the previous
highest bidder to take back his deposited
amount, the highest bidder had not been
intimated that his bid was hence not being
acted upon. The cause was a secret
unilateral offer, after the auction. The
highest bidder was not given any
opportunity of hearing before passing the
order of fresh auction.

24. This Court further held that the
highest bidder was entitled to an
opportunity of being apprised of the
circumstances for recalling or cancelling
the auction. An opportunity was to be
afforded before recalling the result of the
auction. It was further held that the
auction is a sale by a public competition
to the highest bidder. Auction sales are of
two kinds, with reservation and without
reservation. The auction sale is with
reservation when the upset price is fixed
below which the auctioneer refused to
sell. It is not necessary that this particular
phraseology be used, it would be enough
indication that the seller makes it plain
and reserves the right. An auction is
without reservation when the goods are
sold to the highest bidder, whether the
sum paid is equivalent to real value or
not. The principle of sale by auction is
that the announcement about the auction
is a mere information to offer, the actual
bids made are all offers, each higher bid
superseding the previous bid, and that
when the hammer falls on the last bid
there is an acceptance and the contract
becomes complete.

25. After discussing the provisions
of Section 46 of the Contract Act, 1872
relating to reasonable time for
performance of promise and Sections 63
and 64 of the Indian Sale of Goods Act,
1930 relating to sale by auction, this
Court observed that the highest bidder
was made to deposit substantial money
within fixed time, another auction was
announced without affording an
opportunity to the highest bidder to have
his say before such an announcement and
non rejection of the highest bid within
reasonable time, this virtually amounted
to rejecting the highest bid without
indicating it to the highest bidder and in
absence of an opportunity of hearing to
him. The attempt to re-auction was
surreptitious and entertained unilaterally
and secretly and as an after thought.
Giving an objective test to the facts and
circumstances of the auction and the
obligation which the highest bidder had
performed and was made to perform, the
contract was complete.

26. It was further held by this Court
that public bodies conducting public
auction will loose their credibility and the
conduct or public auction might lead to
endless litigations when they will be upset
without cause held profitably, regularly
and without defect. An auction which has
been regularly conducted strictly as
desired by a public body or government
with no illegality having been pointed out
and is at a monetary advantage over the
previous year, must be finalised. This
Court cannot permit an auction in which
no illegality has been pointed out to be
abandoned merely because of officials do
not act when they should have acted, or
chose to act when it was too late to act.

petitioner has placed reliance on a
decision of Hon'ble Apex Court in the
case of Shri Radhey Shyam Vs. Shyam
Behari Singh, 1970 (2) SCC page 405,
contending that any auction can be set
aside only when there is proof of material
irregularity or fraud and not otherwise.

petitioner drawing our attention to the
paragraph 23 of the counter affidavit filed
by Sri Chhedi Lal Singh, Tehsildar on
behalf of the respondents, has submitted
that the respondents conceded that there
had been no breach of terms and
conditions relating to the public auction in
the present case. No case of material
irregularity or fraud was either taken up
by the respondents or the same was
proved. No notice of the cancellation of
auction sale in favour of the petitioner
depositing the entire bid amount was
given before the aforesaid cancellation of
auction and order for re-auction. We may
mention here the relevant part of
paragraph 23 of the counter affidavit
wherein it has been averred that
"However, in reply, it may be stated that
there is no breach of terms and conditions
of the auction." Paragraph 21 of the said
counter affidavit makes it evident that the
petitioner was informed about the
impugned order dated 22.7.2010 four
days later i.e. on 26.7.2010 and the
petitioner was not afforded any
opportunity of hearing before passing the
impugned order by which the said auction
was cancelled and re-auction was ordered.
Thus, the impugned order was passed
behind the back of the petitioner in a
clandestine manner for the reasons best
known to the respondents.

29. In the case of Shri Radhey
Shyam (supra) it was observed by the
Hon'ble Apex Court, what has to be
established is that there was not only
inadequacy of the price but that
inadequacy was caused by reason of the
material irregularity or fraud. A
connection has thus to be established
between the inadequacy of the price and
the material irregularity.

30. The material available on record
clearly goes to establish that there was no
material irregularity or fraud in the
impugned auction till finality of the
auction, the petitioner was asked to
deposit 1/4th of the highest bid amount,
there was no question of inadequacy of
the price of vehicle in question. Had it
been there, the auctioning authority could
have cancelled or postponed the auction
on the ground of inadequacy of price and
submitted report to the competent
authority immediately. Not only this, the
petitioner who was the highest bidder,
3 All] Kamal Kishore Pal V. State of U.P.and others 1483
was allowed to deposit 1/4th of the bid
amount and he immediately thereafter
deposited Rs. 25,000/-. The amount was
accepted immediately thereafter issuing
receipts by the auctioning authority on
19.7.2010. Even thereafter, if the fact
regarding inadequacy of the price or
material irregularity or fraud was within
the knowledge of the auctioning authority,
the petitioner was allowed to deposit 3/4th
of the balance amount of bid i.e. Rs.
60,000/- on 21.7.2010 and the petitioner
was issued a receipt of the deposit of
3/4th balance amount of the bid by the
auctioning authority on the same day.

31. Thus, after getting the whole
amount of the bid received by the
auctioning authority till 21.7.2010, the
auctioning authority in a shocking and
surprising way recommended to the
S.D.M./respondent no. 2 for re-auction of
the vehicle in question with some ulterior
motive just on the ground of inadequacy
of the price. If any inadequacy of price
had been within the knowledge of the
auctioning authority at the time of
completion of the auction, there would
not have been any reason for him to
submit a report recommending for re-
auction subsequently with delay. On the
basis of the said report of the auctioning
authority dated 22.7.2010, the
S.D.M./respondent no. 2 passed the
impugned order in one sentence to the
effect that "agreed, the auction cancelled,
the re-auction be made as per the rules."
This by can no stretch of imagination be
called a speaking or legal order which
was passed behind the back of the
petitioner. If for a moment the point of
some commotion during the progress of
auction was there, the same did not find
place in the relevant report dated
22.7.2010 submitted to the S.D.M. by
which he recommended for re-auction.
The impugned order passed by the
respondents appears to be illegal,
perverse, unjust, arbitrary and malafide.

32. The impugned order dated
22.7.2010 passed by the respondent no.2/
Sub Divisional Magistrate, Nizamabad,
Azamgarh, (Annexure No.1), is set aside.
The respondent nos. 2 and 3 are directed
to release the auctioned Bolero Jeep 2003
Model (Chassis No.MA-1XA2 ACB) in
favour of the petitioner from Police
Station Gambhirpur, Azamgarh.

33. With the aforesaid
observations/directions, the writ petition
stands allowed.
---------
CIVIL SIDE

BEFORE
THE HON'BLE DILIP GUPTA, J.


Kamal Kishore Pal ...Petitioner
Versus

Sri Bhola Nath Yadav
Sri Rama Nand Yadav

Counsel for the Respondents
Sri R.A. Akhtar
C.S.C.

Diploma in L.T. Grade-seeking direction
regarding eligibility to participate in
T.E.T. Examination-treating equivalent to
B.Ed.-held in view of Section 23 (1) of
Right of children to free and compulsory
Education Act, 2009-not eligible to
appear U.P.T.E.T.-petition dismissed.
(Delivered by Hon'ble Dilip Gupta, J. )

1. The petitioner, who has obtained
the Diploma in L.T. from the
Departmental Examination U.P. in the
year 1996, has filed this petition for a
direction upon the respondents to
consider it as a valid qualification for
appearing at the U.P. Teachers
Eligibility Test (hereinafter referred to
as the 'U.P.-TET') scheduled to
commence from 13th November, 2011.

2. It is stated that in exercise of the
powers conferred by Section 23(1) of
the Right of Children to Free and
Compulsory Education Act, 2009
(hereinafter referred to as the 'Act') and
in pursuance of the notification dated
31st March, 2010 issued by the
Government of India, the National
Council for Teachers Education
(hereinafter referred to as the 'NCTE')
issued the notification dated 23rd
August, 2010 laying down the minimum
qualifications for a person to be eligible
for appointment as a teacher in Classes I
to VIII in a School referred to in Section
2(n) of the Act, which amongst others,
provides that the person should pass the
TET to be conducted by the appropriate
Government in accordance with the
Guidelines framed by the NCTE for the
purpose. The Board of High School and
Intermediate Education (hereinafter
referred to as the 'Intermediate
Education Board'), which has been
authorised by the State Government to
hold such a test, issued the
advertisement dated 22nd September,
2011 inviting applications from the
eligible candidates for appearing in the
UP-TET but persons who have obtained
Diploma in L.T. have not been
permitted to appear in the test. It is,
therefore, asserted that the petitioner,
who has obtained Diploma in L.T.
stands excluded from appointment as a
teacher in Classes I to VIII since a
person who has cleared the TET is only
considered eligible for appointment.

3. It is contended by learned
counsel for the petitioner that
notification dated 23rd August, 2010
issued by the NCTE under Section 23(1)
of the Act regarding minimum
qualification for a person to be eligible
to VIII so far as it restricts candidates
obtaining B.Ed. Degree in one year/Two
years Diploma in Elementary
Education/Diploma in Education
(Special Education)/Four Years
Bachelor of Elementary Education,
should be modified to include
candidates who have obtained Diploma
in L.T. as such candidates are at parity
with the candidates obtaining B.Ed.
Degree in one year. He, therefore,
submits that the petitioner, who has
obtained the Diploma in L.T. should
also be considered eligible under the
advertisement dated 22nd September,
2011 issued by the Intermediate
Education Board.

4. Sri K.S. Kushwaha, learned
Standing Counsel and Sri R.A. Akhtar,
learned counsel appearing for the NCTE
have pointed out that Diploma in L.T. Is
not the qualification prescribed under
the notification dated 23rd August, 2010
for appointment as a teacher in the
School and, therefore, the petitioner
cannot be permitted to appear at the
U.P-TET.

5. I have considered the
submissions advanced by the learned
counsel for the parties.

6. The petitioner, who claims to be
possessing Diploma in L.T. Is desirous
of appearing at the UP-TET conducted
by the Intermediate Education Board so
that he can possess the minimum
qualification for a person to be
considered eligible for appointment as a
teacher in Classes I to VIII in a school
referred to in Section 2(n) of the Act.

7. In order to appreciate the
controversy involved in this petition, it
will be necessary to refer to various
provisions of the Act and the relevant
Regulations and Notifications.

8. Section 23(1) of the Act deals
with the qualification for appointment
and terms and conditions of service of
teachers and is as follows:-

"23. Qualification for
appointment and terms and
conditions of service of teachers.--(1)
Any person possessing such minimum
qualifications, as laid down by an
academic authority, authorised by the
Central Government, by notification,
shall be eligible for appointment as a
teacher."

9. Elementary Education has been
defined under Section 2(f) of the Act
while a School has been defined under
Section 2(n) of the Act and the
definitions are as follows:-

"2(f). "elementary education"
means the education from first class to
eight class;"
................
(n) "school" means any recognised
school imparting elementary education
and includes--

(i) a school established owned or
controlled by the appropriate
Government or a local authority;

(ii) an aided school receiving aid or
grants to meet whole or part of its
expenses from the appropriate
Government or the local authority;

(iii) a school belonging to specified
category; and

(iv) an unaided school not
receiving any kind of aid or grants to
meet its expenses from the appropriate
Government or the local authority;"

10. The Central Government, by
means of the notification dated 31st
March, 2010 published in the Official
Gazette dated 5th April, 2010, has
authorised the NCTE as the ''academic
authority' to prescribe the minimum
qualifications which notification is as
follows:-

"NOTIFICATION
New Delhi, the 31st March, 2010

S.O. 750(E).--In exercise of the
powers conferred by sub-section (1) of
Section 23 of the Right of Children to
Free and Compulsory Education Act,
2009, the Central Government hereby
authorises the National Council for
Teacher Education as the academic
authority to lay down the minimum
qualifications for a person to be eligible
for appointment as a teacher."

11. The NCTE, accordingly, issued
the notification dated 23rd August, 2010
which was published in the Gazette of
India dated 25th August, 2010. The said
notification lays down the minimum
qualification for a person to be eligible
to VIII in a school referred to in Section
2(n) of the Act with effect from the date
of the notification. However, another
notification dated 29th July, 2011 was
published in the Gazette of India dated
2nd August, 2011. This notification
made certain amendments to the
notification dated 23rd August, 2010
published in the Gazette of India dated
25th August, 2010. The minimum
qualifications prescribed in the
notification after the amendment for a
person to be eligible for appointment of
a teacher are as follows:-

1. Minimum Qualifications.-

(i) Classes I-V

(a) Senior Secondary (or its equivalent)
with at least 50% marks and 2-year
Diploma in Elementary Education (by
whatever name known).
OR
Senior Secondary (or its equivalent)
whatever name known), in accordance
with the NCTE (Recognition Norms and
Procedure), Regulations 2002.
OR
Bachelor of Elementary Education
(B.El. Ed.).
OR
Diploma in Education (Special
Education).
OR
Graduation and two year Diploma in
Elementary Education (by whatever
name known)
AND
(b) Pass in the Teacher Eligibility Test
(TET), to be conducted by the
appropriate Government in accordance
with the Guidelines framed by the
NCTE for the purpose.
(ii) Classes VI-VIII

(a) Graduation and 2-year Diploma
in Elementary Education (by whatever
name known)
OR
Graduation with at least 50% marks and
1-year Bachelor in Education (B.Ed.)
OR
1-year Bachelor in Education (B.Ed.), in
accordance with the NCTE (Recognition
Norms and Procedure) Regulations
issued from time to time in this regard.
OR
Bachelor in Elementary Education
(B.EI.Ed)
OR
BA/B.Sc. Ed. or B.A. Ed./B.Sc. Ed.
OR
1-year B.Ed. (Special Education)
AND
(b) Pass in the Teacher Eligibility Test
with the Guidelines framed by the
NCTE for the purpose.

2. Diploma/Degree Course in
Teacher Education.- For the purprose of
this Notification, a diploma/degree course
in teacher education recognised by the
National Council for Teacher Education
(NCTE) only shall be considered.
However, in case of Diploma in Education
(Special Education) and B.Ed. (Special
Education), a course recognised by the
Rehabilitation Council of India (RCI) only
shall be considered.

3. Training to be undergone.- A
person -

(a) with Graduation with at least 50%
marks and B.Ed. qualification or with at
least 45% marks and 1-year Bachelor in
Education (B.Ed.), in accordance with the
NCTE (Recognition Norms and
Procedure) Regulations issued from time
to time in this regard shall also be eligible
for appointment for Class I to V upto 1st
January, 2012, provided he/she undergoes,
after appointment, an NCTE recognised 6-
month Special Programme in Elementary
Education.

(b) with D.Ed. (Special Education) or
B.Ed. (Special Education) qualification
shall undergo, after appointment, an NCTE
recognised 6-month Special Programme in
Elementary Education.

4. Teacher appointed before the
date of this Notification.- The following
categories of teachers appointed for classes
I to VIII prior to date of this Notification
need not acquire the minimum
qualifications specified in Para (1) above,

(a) A teacher appointed on or after the
3rd September, 2001, i.e. the date on
which the NCTE (Determination of
Minimum Qualifications for Recruitment
of Teachers in School) Regulation, 2001
(as amended from time to time) came into
force, in accordance with that Regulation.

Provided that a teacher of class I to V
possessing B.Ed. qualification, or a teacher
possessing B.Ed. (Special Education) or
D.Ed. (Special Education) qualification
shall undergo an NCTE recognised 6-
month special programme on elementary
education.

(b) A teacher of class I to V with
B.Ed. qualification who has completed a 6-
month Special Basic Teacher Course
(Special BTC) approved by the NCTE;

(c) A teacher appointed before the 3rd
September, 2001, in accordance with the
prevalent Recruitment Rules.

5.(a) Teacher appointed after the
date of this notification in certain cases:
Where an appropriate Government or local
authority or a school has issued an
advertisement to initiate the process of
appointment of teachers prior to the date of
this Notification such appointments may
be made in accordance with the NCTE
(Determination of Minimum Qualifications
for Recruitment of Teachers in Schools)
Regulations, 2001 (as amended from time
to time).

(b) The minimum qualification
norms referred to in this notification apply
to teachers of Languages, Social Studies,
Mathematics, Science, etc. In respect of
teachers for Physical Education, the
minimum qualification norms for Physical
Education teachers referred to in NCTE
Regulation dated 3rd November, 2001 (as
amended from time to time) shall be
applicable. For teachers of Art Education,
Craft Education, Home Science, Work
Education, etc. the existing eligibility
norms prescribed by the State
Governments and other school
managements shall be applicable till such
time the NCTE lays down the minimum
qualifications in respect of such teachers.

12. It is stated by learned counsel for
the NCTE that 3rd November, 2001 in
paragraph 5(b) of the said notification had
been wrongly mentioned and the date
should be 3rd September, 2001.

13. It is, therefore, clear that it is
only those candidates who have obtained
the B.Ed. Degree in one year/Two years
Diploma in Elementary
Education/Diploma in Education (Special
Education)/Four Years Bachelor of
Elementary Education, who can be
considered eligible under the notification
and, therefore, can appear at the U.P.-
TET.

14. It is pointed out by learned
counsel for the respondents that persons
who obtain the Diploma in L.T. are not
eligible for appointment as Assistant
Teacher in the School and, therefore, it is
not necessary for them to appear at the
U.P.-TET. The contention of the
petitioner that Diploma in L.T. should be
treated at par with the B.Ed. Degree of
one year cannot be accepted.

15. Such being the position, the
petitioner is not eligible to appear at the
U.P.-TET examination scheduled to
commence from 13th November, 2011.

16. The petition is, accordingly,
dismissed.
---------

CIVIL SIDE

BEFORE
THE HON'BLE SYED RAFAT ALAM, C. J.
THE HON'BLE RAN VIJAI SINGH, J.

Civil misc. Writ Petition No. 70199 of 2011

Rama Shankar ...Petitioner
Versus
State Of U.P. Through its Secretary &

Sri R.K. Ojha
Sri Bijendra Kumar Mishra

C.S.C.

Constitution of India, Article 226-Public
Interest Litigation-removal of
encroachment upon Gaon Sabha land-
complete machinery provided in
statutory Act itself-under section 122-B
L.M.C. Responsible to take appropriate
action-and the Lekhpal of concern village
under Rule 115-Responsible to report
after Rabi and Kharif crops of every year-
apart from that word otherwise
indicate any complaint by any person
received by S.D.O. Is duty bound to hold
enquiry-petitioner to make
comprehensive Representation to Asst.
Collector for taking appropriate action-
petition disposed of.

Held: Para 14

In view of above legal position, we are of the
view that the appropriate remedy for the
petitioner herein is to file a comprehensive
application/representation giving all details
before the Assistant Collector concerned
with regard to such encroachment as alleged
herein and on receipt of such complaint, the
3 All] Rama Shankar V. State Of U.P. Through its Secretary & others 1489
Assistant Collector is directed to proceed in
accordance with the provisions of the Act
of 1950 and the Rules framed
thereunder, and after making necessary
enquiry and affording opportunity of
hearing to all concerned, take
appropriate decision expeditiously.

(Delivered by Hon'ble S.R. Alam, C.J.)

1. In the instant petition, filed as
public interest litigation, the petitioner has
invoked the writ jurisdiction of this Court
on the allegation that respondent nos. 4
and 5 have encroached upon the Gaon
Sabha property and in spite of several
efforts made by the petitioner before the
administrative authorities including the
District Magistrate and the Commissioner
of the concerned Division, no steps have
been taken to remove the encroachment
from the land in dispute. The petitioner,
therefore, has made prayer for issuance of
a writ of mandamus directing respondent
nos. 1 to 4 for removal of the
encroachment made over the Gaon Sabha
property.

vehemently contended that the respondent
authorities, despite various complaints
made by the petitioner along with the
villagers of the village in question, failed
to take any steps for removal of the
encroachment made over the public
property. He pointed out from the petition
that detailed representations/complaints
were filed by the petitioner along with
villagers before the District Magistrate,
Mau and the Commissioner, Azamgarh
Division, Azamgarh, copies whereof are
enclosed as Annexures - 5 and 6 to the
writ petition, yet it yielded no result and,
thus, he has filed the present PIL. It is
submitted that Plot Nos. 177 and 178
belong to Gaon Sabha of village Nagpur,
Pargana and Tehsil Mohammadabad,
District Mau and are recorded as 'Bheeta'
in the revenue records.

3. On the other hand, learned
Standing Counsel appearing for the State-
respondents has submitted that it is the
duty of the Land Management Committee
constituted under the U.P. Panchayat Raj
Act to maintain the Gaon Sabha property
and in case there is some encroachment, a
complete mechanism under Section 122-B
of the U.P. Zamindari Abolition & Land
Reforms Act and the Rules framed
thereunder has been provided to remove
such encroachment over the Gaon Sabha
property which also includes imposition
of damages etc. In his submissions, the
grievance can be raised before the Land
Management Committee itself of which
Lekhpal of the circle happens to be the
Secretary, who is legally responsible for
informing such encroachments over the
Gaon Sabha property to the Assistant
Collector and the petitioner may raise his
grievance before the aforesaid
Committee/Local Authority itself, instead
of rushing to this Court in its extra-
ordinary jurisdiction under Article 226 of
the Constitution of India.

4. We have considered the
submissions made on both sides.

5. The U.P. Zamindari Abolition &
Land Reforms Act, 1950 (hereinafter
referred to as 'Act of 1950') is a self-
contained Act and it contains a complete
mechanism for removal of encroachment
over the Gaon Sabha property. It would
be useful to reproduce the relevant
provisions of the Act of 1950 and the
Rules framed thereunder, which prescribe
the duties and powers of the Land
Management Committee as well as the
revenue authorities. Under the provisions
contained in Section 122-A of the Act of
1950, the Land Management Committee
of the Gaon Sabha is vested with the
power of superintendence, management
and control of all land recorded as public
utility land. It reads as under:-

"122-A Superintendence,
management and control of land etc. by
the Land Management Committee.-

(1)Subject to the provisions of this
Act, the Land Management Committee
shall be charged, for and on behalf of the
Gaon Sabha with the general
superintendence, management,
preservation and control of all the land,
forests within village boundaries, trees
(other than trees in a holding, grove or
abadi), fisheries, tanks, ponds, water
channels, pathways, abadi sites and hats,
bazars and melas vested in the Gaon
Sabha under Section 117.

(2)Without prejudice to the
generality of the foregoing provisions, the
functions and duties of the Land
Management Committee shall include-

(a) the setting and management of
land;

(b) the conduct and prosecution of
suits and proceedings by or against the
Gaon Sabha;

(c) the development and
improvement of agriculture;

(d) the preservation, maintenance
and development of forests and trees;

(e) the maintenance and development
of abadi sites and village
communications;

(f) the management of hats, bazars
and melas;

(g) the development of co-operative
farming;

(h) the development of animal
husbandry which includes pisciculture
and poultry farming;

(i) the consolidation of holdings;

(j) the development of cottage
industries;

(k) the maintenance and development
of fisheries and tanks; and

(l) such other matters as may be
prescribed.

(3) Subject to such conditions as may
be prescribed, the Chairman or any other
office-bearer or member of the Land
Management Committee shall, for and on
behalf of the Land Management
Committee, be entitled to sign any
document and to do all other things for
the conduct and prosecution of suits and
other proceedings.

122-B Powers of the Land
Management Committee and the
Collector.-

(1)Where any property vested under
the provisions of this Act in a Gaon Sabha
or a local authority is damaged or
misappropriated or where any Gaon
Sabha or local authority is entitled to take
or retain possession of any land under the
provisions of this Act and such land is
occupied otherwise than in accordance
with the provisions of this Act, the Land
Management Committee or Local
Authority, as the case may be, shall
inform the Assistant Collector concerned
in the manner prescribed.

(2) Where from the information
received under sub-section (1) or
otherwise, the Assistant Collector is
satisfied that any property referred to in
sub-section (1) has been damaged or
misappropriated or any person is in
occupation of any land, referred to in that
sub-section, in contravention of the
provisions of this Act, he shall issue
notice to the person concerned to show
cause why compensation for damage,
misappropriation or wrongful occupation
as mentioned in such notice be not
recovered from him or, as the case may
be, why he should not be evicted from
such land.

(3) If the person to whom a notice
has been issued under sub-section (2)
fails to show cause within the time
specified in the notice or within such
extended time not exceeding three months
from the date of service of such notice on
such person, as the Assistant Collector
may allow in this behalf, or if the cause
shown is found to be insufficient, the
Assistant Collector may direct that such
person may be evicted from the land and
may for that purpose, use, or cause to be
used such force as may be necessary and
may direct that the amount of
compensation for damage,
be recovered from such person as arrears
of land revenue.

(4) If the Assistant Collector is of
opinion that the person showing cause is
not guilty of causing the damage or
referred to in the notice under sub-section
(2) he shall discharge the notice.

(4-A) Any person aggrieved by the
order of the Assistant Collector under
sub-section (3) or sub-section (4) may,
within thirty days from the date of such
order prefer, a revision before the
Collector on the grounds mentioned in
clauses (a) to (e) of Section 333.

(4-B) The procedure to be followed
in any action taken under this section
shall be such as may be prescribed.

(4-C) Notwithstanding anything
contained in Section 333 or Section 333-
A, but subject to the provisions of this
section-

(i) every order of the Assistant
Collector under this section shall, subject
to the provisions of sub-sections (4-A) and
(4-D), be final.

(ii) every order of the Collector
under this section shall, subject to the
provisions of sub-section (4-D), be final.

(4-D) any person aggrieved by the
order of the Assistant Collector or
Collector in respect of any property under
this section may file a suit in a court of
competent jurisdiction to establish the
right claimed by him in such property.

(4-E) No such suit as is referred to in
sub-section (4-D) shall lie against an
order of the Assistant Collector if a
revision is preferred to the Collector
under sub-section (4-A).
Explanation.- for the purposes of this
section, the expression 'Collector' means
the officer appointed as Collector under
the provision of the U.P. Land Revenue
Act, 1901 and includes an Additional
Collector.

(4-F) Notwithstanding anything in
the foregoing sub-sections, where any
agricultural labourer belonging to a
Scheduled Caste or Scheduled Tribe is in
occupation of any land vested in a Gaon
Sabha under Section 117 (not being land
mentioned in Section 132) having
occupied it from before June 30, 1985 and
the land so occupied together with land, if
any, held by him from before the said date
as bhumidhar, sirdar or asami, does not
exceed 1.26 hectares (3.125 acres), then
no action under this section shall be taken
by the Land Management Committee or
the Collector against such labourer, and
it shall be deemed that he has been
admitted as bhumidhar with non-
transferable rights of that land under
Section 195.

(5) Rules 115-C to 115- H of the U.P.
Zamindari Abolition and Land Reforms
Rules, 1952, shall be and be always
deemed to have been made under the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 as amended by the Uttar
Pradesh Land Laws (Second Amendment)
Act, 1961, as if this section has been in
force on all material dates and shall
accordingly continue in force until altered
or repealed or amended in accordance
with the provisions of this Act.

6. U.P. Zamindari Abolition and
Land Reforms Rules, 1952 (hereinafter
referred to as the 'Rules of 1952') framed
under the Act of 1950 also prescribe
complete procedure regarding
maintenance and management of the land
meant for public utility by the Land
Management Committee of the Gaon
Sabha. In order to appreciate the
provision, the relevant Rules are
reproduced hereinafter:-

"115-C (1) It shall be the duty of the
Land Management Committee to preserve
or protect from damage,
misappropriation and wrongful
occupation, all properties vested in it
under Section 117, including vacant land
and land over which it is entitled to take
possession under the Act and to manage
and maintain all such property and land
in its possession.

(2) The Chairman or any Member or
the Secretary of the Land Management
Committee shall report all cases of
damage to; or misappropriation or
wrongful occupation of, the property
referred to in sub-rule (1) to the Collector
praying for recovery of compensation for
damage to or misappropriation of the
property or possession of the land
together with damages for wrongful
occupation thereof.

(3) it shall be the duty of the Lekhpal
to report to the Collector through the
Tahsildar all cases of wrongful
occupation of damage to and
misappropriation of property vested in the
Gaon Sabha as soon as they come to his
notice and in any case after the
conclusion of Kharif and Rabi Partal
every year.

(4) The Tahsildar shall satisfy
himself in the month of May every year
that each Lekhpal has submitted all such
reports.

(5) The provisions of sub-rules (1) to
(3) shall mutatis mutandis apply to a local
authority in respect of the properties
vested in it, including vacant land and
land over which it is entitled to take
possession, under the Act:

Provided that the duty in respect of
sub-rule (3) above, shall be discharged by
such official of the local authority as may
be decided upon by the local authority
concerned.

115-D (1) Where the Land
Management Committee or the local
authority, as the case may be, fails to take
action in accordance with Section 122-B,
the Collector shall-

(a) on an application of the
Chairman; Member or Secretary of the
Committee; or

(b) on a report made by the Lekhpal
under sub-rule (3) of Rule 115-C; or

(c) on the report of the local
authority concerned or its official
referred to in the proviso to sub-rule (5)
of Rule 115-C;

(d) on facts otherwise coming to his
notice;

call upon the person concerned
through notice in Z.A. Form 49-A to
refrain for causing damage or
misappropriation, to repair the damage
or make good the loss or remove wrongful
occupation and to pay damages or to do
or refrain from doing any other thing as
the exigencies of the situation may
demand or to show cause against it in
such time not exceeding fifteen days as
may be specified in the notice.
(2) Before issuing a notice under
sub-rule (1), the Collector may make such
inquiry as he deems proper and may
obtain information on the following
points-

(a) full description of damage or
misappropriation caused or the wrongful
occupation made, with details of village,
mohalla or ward, plot number, area,
boundary, property damaged or
misappropriated and market value
thereof;

(b) full address along with father's
name of the person responsible for the
damage, misappropriation or wrongful
occupation;

(c) period of wrongful occupation,
damage or misappropriation, class of soil
of the plot numbers involved and
hereditary rates applicable to them; and

(d) value of the property damaged or
misappropriation calculated at the
prevailing market rate in the locality.

115-E (1) Where any direction for
eviction or recovery of any amount of
compensation has been issued by the
Collector under sub section (4) of Section
122-B an order in Z.A. Form 49-C shall
be sent to the Tahsildar concerned for
execution who shall as far as possible
follow the procedure laid down in
paragraphs 137 and 138 of Revenue
Court Manual.

(2) The order under Z.A. Form 49-C
shall also specify the amount which shall
be recovered from the person concerned
as expenses of execution which shall
include the pay and allowances of the
staff deputed to be calculated according
to the rates mentioned in paragraphs 405
of the Revenue Court Manual.

115-F (1) All damages ordered to be
recovered and expenses incurred in the
execution of the orders of the Collector
shall be realised as arrears of land
revenue and credited to the Consolidated
Gaon Fund or the Fund of a local
authority other than a Gaon Sabha, as the
case may be except that the cost on
account of pay and travelling allowance
of staff deputed shall be deposited in the
Tahsil Sub-treasury under the head "029-
Land Revenue- E- other receipts (5)
Collection of payment for services
rendered".

(2) If the damage or loss caused
through misappropriation is of such a
nature as is not capable of being repaired
or made good, (as in the case of cutting of
trees, or grazing of plants or grass) the
Collector shall assess the amount of
damage or loss in terms of money at the
prevailing market rate in the locality. In
case of wrongful occupation of land, the
damage caused to the Gaon Sabha or the
local authority, as the case may be, shall
be assessed for each year of such
wrongful occupation or any part thereof,
at 100 times the amount of rent computed
at the sanctioned hereditary rates
applicable to the plots concerned. In case
the occupant of land continued to remain
in such wrongful occupation, he shall be
further liable to pay one-eighth of the
damages so assessed for every month of
the continued occupation after the date of
the order.

115-G (1) if the persons wrongfully
occupying the land has done cultivation
therein, he may be allowed to retain
possession thereof until he has harvested
the crop subject to the payment by him of
100 times the amount of rent computed at
the sanctioned hereditary rates applicable
which shall be credited to the
Consolidated Gaon Fund or the Fund of
the local authority other than the Gaon
Sabha as the case may be. If the person
concerned does not make the payment of
the aforesaid amount within the period
specified in the notice in Z.A. Form 49-A,
possession of the land shall be delivered
to the Land Management Committee or
the local authority, as the case may be
together with the crop:

Provided that where such person
wrongfully occupies the same land or any
other land within the jurisdiction of the
Gaon Sabha or the local authority, as the
case may be, a subsequent time, he shall
be ejected therefrom without being
permitted to gather his produce and
possession of the land together with the
crop thereon shall be delivered to the
Land Management Committee or the local
authority, as the case may be.

(2) Nothing in sub-rule (1) shall
debar the Land Management Committee
or the local authority, as the case may be,
from prosecuting the person who
encroaches upon the same land a second
time in spite of having been ejected under
the Act or rules under Section 447 of the
Indian Penal Code."

7. From a plain reading of the
provisions contained in Section 122-A of
the Act of 1950, it is apparent that the
Land Management Committee has been
vested, on behalf of the Gaon Sabha, with
the power to keep general
superintendence, management,
preservation and control of all the lands,
forests within the village boundaries,
trees, fisheries, tanks, ponds, water
channels, pathways, abadi sites and hats,
bazars and melas vested in the Gaon
Sabha under Section 117. Sub-section (2)
(a) of Section 122-A of the Act of 1950
deals with the setting and management of
the land.

8. Sub-section 1 of Section 122-B of
the Act of 1950 imposes duty upon the
Land Management Committee to inform
the Assistant Collector of the concerned
area with regard to the encroachment or
misappropriation over the Gaon Sabha
land. The manner for providing the
information has been provided under
Rule-115(C). Sub-rule (3) of Rule 115-C
imposes duty on the Lekhpal to report to
the Collector through the Tahsildar all
cases of wrongful occupation of damage
to and misappropriation of property
vested in the Gaon Sabha as soon as they
come to his notice and in any case after
the conclusion of 'Kharif' and 'Rabi Partal'
every year. Sub-rule (4) of Rule 115-C
provides that the Tahsildar shall satisfy
himself in the month of May every year
that each Lekhpal has submitted all such
reports. Rule 115-D provides that where
the Land Management Committee or the
local authority, as the case may be, fails to
take action according to Section 122-B
(1), the Collector shall, on an application
of the Chairman; Member or Secretary of
the Committee; or on a report made by the
Lekhpal under sub-rule (3) of sub-rule
115-C or 'otherwise' take action. The
Collector, after being satisfied, shall call
upon the person concerned through notice
in Z.A. Form 49-A to refrain from
causing damage or misappropriation, to
repair the damage or make good the loss
or remove wrongful occupation and to
pay damages or to do or refrain from
doing any other thing as the exigencies of
the situation may demand or to show
cause against it in such time not
exceeding fifteen days as may be
specified in the notice. Before issuing
such a notice, sub-rule (2) of Rule 115-D
casts a duty upon the Collector to make an
enquiry in the manner prescribed under
sub-rule-(2) (a), (b), (c), and (d), as
referred above. Rule 115-E of the Rules
of 1952 provides procedure for eviction
and Rule 115-F prescribes the manner of
assessment of damage over Gaon
Sabha/Local Authority property and mode
of its realization as arrears of Land
Revenue. Further, Rule 115-F provides
that if somebody has cultivated the land
of Gaon Sabha or Local Authority, he
may be allowed to retain the possession
till he harvests the same on payment of
hundred times land revenue of the
occupied land. The proviso to Rule 115-G
also provides for action under the Indian
Penal Code if the property has been
occupied for the second occasion.

9. From going through the
provisions as contained in Section 122-B
of the Act of 1950 and the Rules framed
thereunder, it is apparent that it is the duty
of the Land Management Committee and
the Lekhpal to inform such encroachment
over the Gaon Sabha property. Lekhpal is
under legal obligation to make enquiry in
each 'Kharif' and 'Rabi' and the Tahsildar
is also under an obligation to ensure in the
month of May every year that such
reports are submitted by the Lekhpals as
required under sub rule-(3) of Rule 115-
C.

10. The Act of 1950 and the Rules
framed thereunder have not only rested on
this but also made further provisions
under sub-section (2) of Section 122-B
read with Rule 115-D(1)(d), that on such
information under sub-section (1) of
Section 122-B, which is referable to the
Land Management Committee and
Lekhpal or 'otherwise', the Assistant
Collector if satisfied that any property
referred to in sub-section (1) of Section
122-B has been damaged or
misappropriated, then he shall issue notice
to such person who has caused damage or
misappropriated the property. The word
'otherwise' used in this sub-section has
wide import. To our mind, on failure of
information of such encroachment as
provided under Section 122- B (1) read
with Rule 115-D (1) (a)(b) and (c) either
by the Land Management Committee of
Gaon Sabha/Local Authority or by
Lekhpal, the Assistant Collector can take
action under this Section after the
information received from 'other sources',
may be any other officer of the State
Government or general public. This is the
enabling provision which empowers the
Collector to take action against the person
who has illegally occupied the Gaon
Sabha land, on an information other than
sources referred to in Section 122- B (1)
read with Rule 115- D (1) (a) (b) and (c ).

11. The view taken by us finds
support from a Division Bench judgment
of this Court in Motilal Vs. District
Magistrate, Lalitpur & Ors., 2003 (5)
AWC 3849, wherein the Division Bench
considered Rule (4) (1) of the U.P.
Panchyat Raj (Removal of Pradhan, Up
Pradhan, Members) Enquiry Rules 1997,
where the procedure for conducting
preliminary enquiry against the Pradhan
has been provided. Sub-rule (3) of the
Rules of 1997 provides the procedure for
filing complaint on an affidavit for
holding an enquiry against the Pradhan,
Up Pradhan or Members. Under Rule (4)
(1), apart from the complaint, the word
'otherwise' has been used which reads as
under:-

"4. Preliminary Enquiry.- (1) The
State Government may, on the receipt of a
complaint or report referred to in Rule 3,
or 'otherwise' order the Enquiry Officer to
conduct a preliminary enquiry with a view
to finding out if there is a prima facie
case for a formal enquiry in the matter."

12. In the aforesaid case, the
contention of the petitioner was that the
complaint was not filed in accordance
with Rule (3) of 1997 Rules, as the same
was not on an affidavit, therefore, the
District Magistrate was not empowered to
pass an order for holding a fact finding
preliminary enquiry. While interpreting
the word 'otherwise', the Division Bench
has observed that the word 'otherwise'
used under sub-rule (1) of Rule (4) has
wide import and if complaint is not filed
as envisaged under Rule (3), the State
Government does not lack of power to
direct holding of preliminary enquiry. It
has further observed that the District
Magistrate may, after personally coming
to know some serious lapse on the part of
the Pradhan, may hold preliminary
enquiry without there being any
complaint or report as required under sub-
rule (3).

13. In the case in hand, the
grievance of the petitioner is that in spite
of various representations/complaints
made to the District Magistrate and the
Commissioner of the concerned Division,
no action has been taken and, therefore,
he has been compelled to file this writ
petition. As would appear from the
foregoing discussions that where the Land
Management Committee/Lekhpal fails to
inform such encroachment for taking
3 All] Sarita Shukla and others V. State of U.P. and others 1497
action, the Assistant Collector may take
action, after receipt of such complaints
even made by the general public. We are,
therefore, of the view that the Assistant
Collector cannot wash out his hands from
discharging his duties given under the Act
for removal of such encroachments which
are alleged to have been made over the
Gaon Sabha property. For that purpose,
we would like to observe that even if the
complaint is made before the Collector
and not Assistant Collector, as required
under the Act, the Collector is also under
an obligation to send the complaints to the
Assistant Collector of the concerned area
from where the complaint has been
received and on such receipt of complaint,
either transmitted through the office of the
District Collector or directly by the
general public, the Assistant Collector is
under legal obligation under the
provisions of the Act and the Rules
framed thereunder, to make an enquiry in
this regard, and after being satisfied, issue
notice to the encroacher along with full
details as required under the Rules and
proceed in accordance with the provisions
contained under Section 122-B of the Act
of 1950 and the Rules framed thereunder.

14. In view of above legal position,
we are of the view that the appropriate
remedy for the petitioner herein is to file a
comprehensive application/representation
giving all details before the Assistant
Collector concerned with regard to such
encroachment as alleged herein and on
receipt of such complaint, the Assistant
Collector is directed to proceed in
accordance with the provisions of the Act
of 1950 and the Rules framed thereunder,
and after making necessary enquiry and
affording opportunity of hearing to all
concerned, take appropriate decision
expeditiously.
15. Subject to above observations,
this writ petition is disposed of finally.
There shall be no order as to costs.
---------
CIVIL SIDE

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.


Sarita Shukla and others ...Petitioner
Versus

Sri Agnihotri Kumar Tripathi

C.S.C.
Sri K.S.Kushwaha
Sri Chandra Narayan Tripathi

U.P. Basic Education (Teachers) Service
Rules, 1981-Rule 14 (1)-Selection of
training teachers for primary school-by
clause 7 of advertisement-restriction to
apply only 5 districts-held-arbitrary
irrational, violative of Article 14-can not
sustain.

Held: Para 38

It is also not discernible as to whether
any rational object the respondents
intent to achieve by making this
restriction. The said condition also fails
ex facie to show any nexus with the
undisclosed objectives sought to be
achieved. It is well settled that any
policy decision, which is ex facie
arbitrary, irrational or illogical is
violative of Article 14 and cannot
sustain.
Case law discussed:
(2006) 9 SCC 1; 2010 (5) ESC 630; AIR 1992
SC 1858

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

1. Heard Sri Agnihotri Kumar
Tripathi for the petitioner and Sri
K.S.Kushwaha, learned Standing
Counsel for all the respondents.

2. Since a pure legal submission
was advanced, learned Standing Counsel
stated that he does not propose to file
counter affidavit and matter may be
heard on merit. I proceed to decide the
matter accordingly.

3. The learned counsel for
petitioner submitted that advertisement
in question to the extent it provides that a
candidate should restrict his application
for only five districts in U.P. in his/her
choice is illegal and ultra vires of the
statute.

4. The facts in brief are quite
simple. An advertisement has been
issued on 29/30.11.2011 with the
heading "Selection of Training-Teachers
for Primary Schools of U.P. Basic
Education Board". While inviting
application from eligible and qualified
candidates, it provides that one candidate
may submit his application for any of the
five districts and not more than that. The
advertisement contains other details of
educational and training qualification,
age, nationality and residence,
reservation, marital status, character,
procedure for submission of the
application form, application fee,
procedure for selection, six months
special training and then clause 10 of the
advertisement talks of substantive
appointment.

petitioners contended that aforesaid
advertisement in so far as restricts a
candidate to submit application only in
five districts is per se irrational, illegal
and arbitrary, hence violative of Articles
14 and 19 of the Constitution. He
contended that there is no logic or reason
for confining a candidate to submit
application only in five districts and the
aforesaid restriction is wholly irrational,
has no nexus with the object sought to
the achieved and, therefore, is violative
of Article 14. He further submitted that it
also does not conform with the procedure
prescribed in Rule 14(1) of U.P. Basic
Education (Teachers) Service Rules,
1981 (hereinafter referred to as "Rules
1981") which talks of district-wise
selection and therefore Clause 7 of
advertisement as also opening para that
one applicant can apply for only five
districts is ultra vires of the aforesaid
provision of the statute. He lastly
submitted that for the purpose of
providing six months special training, it
is always open to the respondents to
adopt any valid procedure but if for the
purpose of appointment the said
advertisement is to be acted upon, it
would be illegal and ultra vires being
contrary to the relevant statutory
provisions namely 'Rules, 1981.

6. Sri Kushwaha on the contrary
submitted that the advertisement has
been issued in the light of and
consequence to Regulations framed by
"National Council for Teachers
Education Regulations" notified in
Government of India Gazette dated
29.7.2011. It is said that no further
advertisement is to be made for making
appointment on the post of Assistant
Teacher in the Primary Schools
maintained by Board and in fact the
persons selected pursuant to the
impugned advertisement shall be given
six months training and on completion
thereof shall be issued letters of
appointment straightway without any
further process of recruitment.

7. In the above backdrop, this Court
proceed to examine correctness of
advertisement to the extent, impugned in
this petition.

8. Before proceeding further it is
necessary to clarify some aspect of the
matter. One is regarding minimum
qualification of teachers and quality of
teacher's training constituting essential
eligibility for a person before claiming
appointment on the post of Assistant
Teacher in Primary School; and second,
relates to actual process of recruitment
and appointment under relevant statutory
rules relating to the service concerned.

9. There are three statutes relevant
in this matter. One is "Uttar Pradesh
Basic Education Act, 1972" (hereinafter
referred to as "Act 1972"), Second is
"National Council For Teacher
Education Act, 1993" (hereinafter
referred to "Act 1993") and third is
"Right of Children to Free and
Compulsory Education Act, 2009"
(hereinafter referred to as "Act 2009").

10. Prior to the enactment of Act
1972, primary education in the State was
in quite disorganized manner. There
were two types of Primary Schools
running in the entire State. One owned
and managed by local bodies and rests
were private institutions. In the rural
areas, primary schools of first category
were being managed by Zila Parishads
and in urban areas they were being run
by Municipal Boards and Mahapalikas
etc. The funds to these schools were the
responsibility of concerned local bodies.
Privately managed Primary Schools were
also having two types of categories, one
which were solely managed by private
bodies from their own resources and rest
were those which were getting some kind
of financial grant/assistance from State
Government through Education
Department or some other Departments
like Harijan and Social Welfare etc.

11. Article 41 in Part IV (Directive
Principles of State Policy) provides that
the State shall, within the limits of its
economic capacity and development,
make effective provision for securing
right to work, to education etc. but as a
matter of fact effective steps in this
regard were wanting. Similarly Article
45 provides that State shall endeavour to
provide, within a period of ten years
from the commencement of Constitution,
free and compulsory education for all
children until they complete the age of
fourteen years but as a matter of fact here
also much remain to be done on the part
of the State. In early seventies, to bring
uniformity in Primary schools run by
Local Bodies, considering day to day
deteriorating conditions of such schools,
a public demand through their
representatives was raised requiring State
to take immediate steps for improving
primary education in the State and hence
with an objective of reorganisation,
reformation and expanding elementary
education, State Government came
forward to take over control of such
schools, as were being run by Local
Bodies into its own hands. It enacted
U.P. Basic Education Ordinance 1972
giving effect to its provisions w.e.f.
Educational Session 1972-73. The said
ordinance was substituted by Act 1972. It
provided for establishment of U.P. Board
of Basic Education (in short the 'Board')
and by virtue of Section 9, all the
employees of Primary Schools
maintained by local bodies stood
transferred and became employee of the
Board. Section 19 confers power upon
the State Government to frame rules for
the purpose of carrying out Act 1972 in
general and in particular the recruitment
and conditions of service of the persons
appointed to the post of officers, teachers
and employees under Section 6 and 9 and
also in respect to such staff teaching and
non teaching of other basic schools
recognized by the Board. The provisions
of Act 1972 was given overriding effect
over otherwise provisions in U.P.
Panchayat Raj Act, 1947, U.P.
Municipalities Act, 1916 and U.P.
Municipal Corporation Act, 1952 by
inserting Section 13A w.e.f. 21st June,
1979.

12. All the basic schools virtually
in the State of U.P., now, if recognized
by the Board, have to conform to the
provisions of Act 1972 and the rules
framed thereunder.

13. In respect to teachers of
Primary Schools maintained by the
Board, Rules 1981 have been framed,
published in U.P. Gazette (Extra
Ordinary) on 03.01.1981. The
application of these rules is provided in
Rule 3, as under:

"Extent of application.- These rules
shall apply to :

(i) All teachers of local bodies
transferred to the Board under Section 9
of the Act; and

(ii) all teachers employed for the
Basic and Nursery Schools established
by the Board."

14. At this stage, I defer further
discussion of the aforesaid Rules and
find it appropriate to come to the
provisions of Act 1993. This is a Central
Act enacted by Parliament and after
receiving assent of the President on
29.12.1993 was published in the Gazette
of India, (Extra.) Part II, Section 1, dated
30.12.1993. Section 1(3) provides that
Act 1993 shall come into force on such
date as the Central Government may
appoint by notification in initial gazette.
Pursuant thereto the Central Government
by notification dated 1.07.1995
appointed the same day i.e. 01.7.1995 for
enforcement of Act 1993.

15. The Act 1993 was enacted with
an objective of achieving planned and
coordinated development for teacher
education system throughout the country,
the regulation and properly maintenance
of norms and standards in teacher
education system and for matters
connected therewith.

16. In State of Maharashtra Vs.
Sant Dnyaneshwar Shikshan Shastra
Mahavidyalaya and others (2006) 9
SCC 1, Apex Court observed that
considering the objective and preamble
of the Act and various provisions, it is
clear that the aforesaid Act of Parliament
is referable to Entry 66 of List I of
Schedule VII of the Constitution and to
the extent the field is occupied by Act
1993 the State Legislature cannot
encroach upon the said field.

17. The Act 1993 contemplates
establishment of a council called as
"National Council For Teacher
Education" (hereinafter referred as
"NCTE") and its functions are
enumerated in detail in Section 12 of Act
1993. It clearly talks of planned and co-
ordinated development of teacher
education, and determination and
maintenance of standards for teacher
education. It is in this regard various
subjects and functions of NCTE have
been enumerated in Section 12 from
Clauses (a) to (n) which reads as under:

"(a) undertake surveys and studies
relating to various aspects of teacher
education and publish the result thereof;

(b) make recommendations to the
Central and State Governments,
Universities, University Grants
Commission and recognised Institutions
in the matter of preparation of suitable
plans and programmes in the field of
teacher education:

(c) co-ordinate and monitor teacher
education and its development in the
country;

(d) lay down guidelines in respect of
minimum qualifications for a person to
be employed as a teacher in schools or in
recognised institutions.;

(e) lay down norms for any specified
category of courses or training in
teacher education, including the
minimum eligibility criteria for
admission thereof, and the method of
selection of candidates, duration of the
course, course contents and mode of
curriculum;

(f) lay down guidelines for
compliance by recognised institution for
starting new courses or training, and for
providing physical and instructional
facilities, staffing pattern and staff
qualifications;

(g) lay down standards in respect of
examinations leading to teacher
education qualifications, criteria for
admission to such examinations and
schemes of courses or training;

(h) lay down guidelines regarding
tuition fee and other fee chargeable by
recognised institutions;

(i) promote and conduct innovation
and research in various areas of teacher
education and disseminate the results
thereof;

(j) examine and review periodically
the implementation of the norms,
guidelines and standards laid down by
the Council, and to suitably advise the
recognised institutions;

(k) evolve suitable performance
appraisal systems, norms and
mechanisms for enforcing accountability
on recognised institutions;

(l) formulated schemes for various
levels of teacher education and identify
recognised institutions and set up new
institutions for teacher development
programmes;

(m) take all necessary steps to
prevent commercialisation of teacher
education; and

(n) perform such other functions as
may be entrusted to it by the Central
Government."

18. The Act 1993 contemplates
recognition and permission of NCTE for
running courses or training in teacher
education. Section 17 provides, if course
or training in teacher education has been
imparted or obtained in violation of the
provisions of the Act, such course or
training shall not be treated a valid
qualification for the purpose of
employment under Central Act, State
Government, University, any
School/College or other educational
body aided by Central or the State
Government. The restriction imposed by
Section 17(4) is only to the extent that a
training or course in teacher education
which does not conform to the various
provisions of Act 1993 shall not be a
valid qualification for employment as
stated above, and nothing more and
nothing less. The entire Act 1993 does
not talk of the manner in which
appointments of teachers shall be made,
the eligibility to be laid down for
appointment of teachers in Primary
Schools etc. except qualification. It is
confined to the standard and quality of
teachers education. In this regard NCTE
obviously can lay down minimum
qualification which may be prescribed
for appointment of a teacher but it does
not control thereafter the mode, manner
and other relevant provisions regarding
recruitment and appointment of such
teachers.

19. In State of U.P. and Others
Vs. Bhupendra Nath Tripathi and Ors.
2010 (5) ESC 630, the Apex Court has
clearly observed in para 24 that NCTE
can lay down minimum qualification for
appointment of teacher by competent
appointing authority or the authority
competent to frame rules and regulations
may lay down any qualification over and
above the minimum qualification
prescribed by NCTE. Para 24 of the
judgment in Bhupendra Nath Tripathi
(supra) reads as under:

"The is no quarrel with the
proposition that the State in its discretion
is entitled to prescribe such qualifictions
as it may consider appropriate for
candidates seeking admission into BTC
course so long as the qualifications so
prescribed are not lower than those
prescribed by or under the NCTE Act.
The State can always prescribe higher
qualification, ...."

20. Meaning thereby requirement
for appointment of a teacher, as
contemplated by Act 1993, is that the
teacher education must be such as is in
conformity with Act 1993 and that the
teacher must possess minimum
qualification before he is considered for
appointment and then on, Act 1993, in
my view, stops from that stage and
onwards.

21. If I take up the case in hand, the
matter would thereafter be governed by
Act 1972 and the Rules 1981. The
qualification required to be possessed by
a teacher for appointment in a Primary
School is provided in Rule 8 of Rules
1981. This rule has undergone
amendments from time to time broadly.
Initially it provides for a qualification up
to High School and training qualification
like Basic Teachers Certificate, Junior
Teacher Certificate, Certificate of
Teaching etc. Later on amendments were
made which basically increase
educational qualification of High School
to Intermediate and then to Graduation
but so far as training qualification is
concerned, the same continue to be as
such. For the first time, an amendment
was made in 2004 by adding "Special
Basic Teachers Certificate Course" as
one of the training qualification under
Rule 8(1). Subsequently another
amendment came to be made by
notification dated 25.11.2006 in Rule
8(1). To this extent there is no dispute
among the parties.

22. The large scale employment in
Primary Schools maintained by Board
constitute a major chunk of litigation
before this Court in the last 20 years and
more. The reason being the large number
of schools and quantum of employment
generated thereby.

23. The Basic Education
authorities, time and against have also
contributed a lot, either by their mindless
activities or deliberate and otherwise
illegal acts. In fact after the judgement of
Apex Court in Mohini Jain Vs. State of
Karnataka, AIR 1992 SC 1858 and
Unni Krishnan J.P. Vs. State of A.P.,
AIR 1993 SC 2178 and the cases
followed thereafter observing Primary
Education to children from age of 6 to 14
years as a constitutional right, efforts
were made by Governments, Central and
State both, to expand primary education
by establishing primary schools at
Village Panchayat level in a major way
and this really give a boomerang to
number of schools as also corresponding
increase in number of teachers requiring
to man these institution.

24. The Court has been informed at
the Bar that at present the number of
primary schools in the State of U.P. are
more than one lac and twenty five
thousands which obviously mean that
number of posts of teachers would also
exceed the said figure.

25. It would be appropriate at this
stage to remind that Parliament also
recognized above right by inserting
Article 21A in the Constitution i.e. 'Right
to Education', by Constitution (86th
Amendment) Act, 2002, and,
simultaneously inserting Clause (k) in
Article 51A vide Section 4 of
Constitution (86th Amendment) Act,
2002. The Parliament also in furtherance
of the above constitutional provisions,
come forward by enacting Act 2009
published in Gazette of Indian on
27.8.2009. By virtue of Section 1(3) of
Act 2009, it has been given effect from
01.4.2010.

26. One of the major change it has
brought, besides other, is that no Primary
School other than a school established,
owned or controlled by the appropriate
Government or local body after
commencement of 2009 Act shall be
established or function without obtaining
a certificate of recognition from such
authority, as may be prescribed. For the
purpose of seeking recognition, the
school has to conform the norms and
standard specified in Section 19 of Act
2009 read with the schedule appended
thereto. The Act 2009, vide Section
23(1), also provides that any person
possessing such minimum qualification,
as laid down by an academic authority
authorised by the Central Government,
by notification, shall be eligible for
appointment as a teacher. Section 23 (1)
therefore also talks of only eligibility for
appointment as teacher but does not
confer any corresponding right upon a
person to claim appointment as teacher
merely if he fulfills the qualification
prescribed under Section (1) of Section
23. Simultaneously there is no
corresponding obligation for offering
appointment to such person as teacher.
The power of State Legislature vide
Entry 25 List 3 Schedule VII of the
Constitution therefore to the extent it
make provisions for governing primary
schools and providing provisions
governing recruitment and conditions of
service of teachers in such school is not
curtailed in any manner.

27. Now, I come to the basic
provision made by NCTE which has
been referred to by Sri Kushwaha,
learned counsel appearing for
respondents. The Department of School
Education and Literacy, Ministry of
Human Resource Development,
Government of India by notification
No.S.O. 750 (E) dated 31.3.2010
authorised NCTE as academic authority
to prescribe minimum qualification for
appointment of a teacher. Consequently,
with reference to Section 23(1) NCTE
issued notification dated 23.8.2010
laying down minimum qualifications for
a person to be eligible for appointment as
a teacher in Class 1 to 8 in a school
referred to in Clause (n) of Section 2 of
2009 Act.

28. Section 2(n) of 2009 Act
defines "School" for the purpose of 2009
Act and reads as under:

"school" means any recognised
school imparting elementary education
and includes-

(i) a school established, owned or
controlled by the appropriate
Government or local authority;

(ii) an aided school receiving aid or
grants to meet whole or part of its
Government or the local authority;

(iii) a school belonging to specified
category; and

(iv) an unaided school not receiving
any kind of aid or grants to meet its
Government or the local authority;"

29. The minimum qualification
prescribed in notification dated
23.8.2010 are in two parts, one for Junior
Primary School namely Classes I to V
and another is for Senior Primary School
i.e. Class VI to VIII. Besides educational
qualifications, for the first time, it also
introduced eligibility qualification of
teacher i.e. Eligibility Test i.e. passing of
Teachers Eligibility Test (in short
'T.E.T.') conducted by concerned
Government in accordance with the
guidelines laid down by NCTE. Para 3 of
notification dated 23.8.2010 provides for
compulsory training qualification and it
reads as under:

"Training to be undergone.- A
person-

(a) with BA/B.Sc. with at least 50%
marks and B.Ed qualification shall also
be eligible for appointment for class I to
V upto 1st January, 2012, provided he
undergoes, after appointment, and NCTE
recognized 6-month special programme
in Elementary Education.

(b) with B.Ed (Special Education) or
B. Ed (Special Education) qualification
shall undergo, after appointment, an
NCTE recognized 6-month special
programme in Elementary Education."

30. NCTE issued a notification on
29.7.2011 in purported exercise of
powers under Section 23 of 2009 Act.
The aforesaid notification has amended
notification dated 23.8.2010. Sub-para (i)
and (ii) of Para 1; para 3 and para 5 have
been substituted in entirety. For ready
reference, the amended relevant
provisions i.e. para 1(i) and (ii) and para
3 reads as under:

"1. Minimum Qualification :-

(i) Classes I-V

(a) Senior Secondary (or its
equivalent) with at least 50% marks and
2-year Diploma in Elementary Education
(by whatever name known)
OR
whatever name known), in accordance
with the NCTE (Recognition Norms and
Procedure), Regulations, 2002.
OR
Bachelor of Elementary Education
(B.El.Ed)
OR
Diploma in Education (Special
Education)
OR
Graduation and two year Diploma
name known)
AND
(b) Pass in the Teacher Eligibility
Test (TET), to be conducted by the
with the Guidelines framed by the NCTE
for the purpose.

(ii) Class VI-VIII

(a) Graduation and 2-year Diploma
name known)
OR
Graduation with at least 50% marks
and 1-year Bachelor in Education
(B.Ed.)
OR
and 1-year Bachelor in Education
(B.Ed.), in accordance with the NCTE
(Recognition Norms and Procedure)
Regulations issued from time to time in
this regard.
OR
Bachelor in Elementary Education
(B.El.Ed.)
OR
B.A./B.Sc.Ed. or B.A.Ed./B.Sc.Ed.
OR
and 1-year B.Ed. (Special Education)
AND
(b) Pass in Teacher Eligibility Test
with the Guidelines framed by the NCTE
for the purpose."

31. Para 5 of notification dated
29.7.2011 is a kind of saving clause and
provides that if an advertisement
initiating process of appointment of
teachers has already been issued before
29.7.2011, such appointments may be
made in accordance with NCTE
(Determination of Minimum
Qualifications for Recruitment of
Teachers in Schools) Regulations, 2001
(as amended from time to time).

32. Sub para (b) of para 5 provides
that minimum qualification prescribed by
notification dated 29.7.2011 shall apply
to all teachers except the teacher for
Physical Education, for which NCTE
Regulation dated 03.11.2001, as
amended from time to time, shall
continue to apply. Further regarding
teachers of Art Education, Craft
Education, Home Science, Work
Education, etc. the existing eligibility
norms prescribed by the State
Government and other school
managements shall be applicable till such
time the NCTE lays down the minimum
qualification in respect of such teachers.

33. The above discussion makes it
beyond doubt that the above notifications
issued by NCTE lays down minimum
qualification, which would make a
person eligible for appointment as a
teacher in Primary Schools but the
manner in which recruitments for
appointment on the post of teacher in
Primary School shall be made, and, their
terms and conditions of service, for the
same, aforesaid notification does not
provide anything at all and hence in this
regard Rules 1981 shall hold the field
and would continue to apply.

34. Sri Kushwaha, learned Standing
Counsel vehemently contended that
advertisement dated 29/30.11.2011
contemplates requisite six months
training contemplated in para 3 of
Notification dated 29.7.2011 and for that
purpose respondents authorities cannot
be compelled to go to observe procedure
prescribed in Rule 14(1) of Rules 1981
hence scrutiny of advertisement in
question cannot be made with reference
to Rules 1981. To the extent the
argument is limited for making selection
of persons for providing six months
training contemplated in para 3 of the
notification dated 29.7.2011, this court
Court finds no hesitation in upholding
the contention of Sri Kushwaha. The
respondents need not go to follow the
procedure prescribed in Rule 14(1) of
Rules 1981 for the purpose of selecting
persons for six months Special training
and there is no difficulty.

35. If that would have been the
matter, it could have rest thereat. But
then the clause assailed by the petitioners
has to be examined in the light of the
provisions of the Constitution namely
Article 14. NCTE does not lay down the
manner in which any person would be
selected for undergoing training in six
months contemplated in para 3 of the
notification dated 29.7.2011 except of
providing certain relaxation for reserved
category candidates which is not the
matter of dispute in the present case. It is
the Secretary of the Board under whose
authority the advertisement in question
has been published containing a
condition restricting a candidate from
submitting his application in more than
five districts.

36. Admittedly, selection is not
being made for any individual Primary
School or Primary Schools constituted in
a particular area namely local area or the
district. If this Court treat the
advertisement in question that it confine
only for the purpose of selecting
candidates to undergo training
contemplated in para 3 of NCTE
notification dated 29.7.2011, the Court
finds no rationality or logic by confining
a candidate to apply only for five
districts and not more than that. Paras 7
and 8 of the advertisement shows that
every candidate has to apply separately
in different districts. Meaning therefore
the selection is confined to a particular
district. The District constitute a unit of
selection. The candidate may be resident
of any district in the State of U.P. but he
may choose the district for submitting his
application on his own and submit
application for selection for special
training pursuant to the said
advertisement. However, out of the
existing 75 district in the State of U.P. a
candidate has been restricted for
submitting applications in only five
districts. What is the criteria or principle
behind the condition of restricting a
candidate from applying for more than
five districts is not discernible from the
entire advertisement. When the selection
is to be made on District Level basis, if it
is possible for a candidate, why he
cannot apply in as much as district as he
can is beyond comprehension.

37. One of the possible ground
suggested is if the candidate are
permitted to apply in all the districts
irrespective of any restriction with regard
to number of districts, quantity of
applications may become unmanageable
and therefore for practical convenience,
restriction has been made that a
candidate should not apply for more than
five districts. But the restriction to five
districts and not more or less thereto is
not understandable. It is not
commensurating to the
Commissionerates/Divisions or
otherwise but appears that just a figure of
five districts taken from Hat has been
mentioned in the advertisement,
impugned in this case. With regard to
selecting number of districts as five in
the above advertisement no rationality or
logic could be provided by the
respondents. One can understand if the
selection would have been made on
Provincial level then there cannot be any
restriction on number of districts unless
so provided by some Statute. The
selection could have been made at State
level and thereafter candidates could
have been allocated to different district
to undergo training in the concerned
institutions but the respondents have
adopted a totally different procedure by
restricting number of applications to only
five districts which is wholly irrational,
arbitrary and hence violative of Article
14 of the Constitution.

38. It is well settled that in the
matter of selection and appointment etc.
the policy decisions can be taken by the
State and the same are not lightly to be
interfered by the Court in judicial review
but if such policy decision is ex facie
irrational, illogical and arbitrary, it can be
axed by the Courts while going for
judicial review. The respondents in the
absence of the counter affidavit had the
opportunity to show deliberation available
on record, if any, made while formulating
the above policy to show justification or
rationality for restricting a candidate in
applying in only five districts but that
option has not been availed by the
respondents though they have opportunity
to do so. No such request was made. It
appears that on this aspect there is not
even deliberation on the part of the
respondents. In a sheer momentary flash
this condition has been made part of the
process of selection without applying
mind to its logic and rationality. It is also
not discernible as to whether any rational
object the respondents intent to achieve
by making this restriction. The said
condition also fails ex facie to show any
nexus with the undisclosed objectives
sought to be achieved. It is well settled
that any policy decision, which is ex facie
arbitrary, irrational or illogical is violative
of Article 14 and cannot sustain.

39. I need not burden this judment
with catena of authorities on this aspect
since the law is now well settled. The
aforesaid condition, therefore, is difficult
to sustain and has to be struck down
accordingly.

40. Sri Kushwaha, learned counsel
for the respondents drew my attention to
para 10 of the advertisement which
provides that those candidates who shall
successfully complete training of six
months, be appointed on substantive basis
on the post of teacher following the
procedure prescribed in Rules 1981, as
amended by 12th amendment of 2011. To
my mind, para 12 of the advertisement
nowhere contemplate or empower
respondents in issuing straightway,
appointment letter as soon as a candidate
complete special training of six months
but makes it very clear that Rules 1981
thereafter shall be followed for making
substantive appointment which include
within itself the procedure prescribed in
Rule 14(1) of Rules 1981. On a query
made, Sri Kushwaha stated as per his
instructions no further advertisement as
contemplated in Rule 14(1) of Rules 1981
is contemplated and appointments shall be
made straightway by issuing letter of
appointment by competent appointing
authority i.e. District Basic Education
Officer. I do not find any reason to go by
the above statement made on behalf of the
respondents and instead find it sufficient
to make it clear and beyond doubt that
respondents before issuing letters of
appointment, appointing any person as
teacher in a Primary School, shall without
fail, observe and follow strictly procedure
prescribed in Rules 1981 including that of
Rule 14(1) so long it continue to operate,
and only thereafter appointment shall be
made and not otherwise. It is worthy to
notice at this stage that repeatedly this
Court has observed that an appointment to
the post of teacher in a Primary School
cannot be made without observing the
procedure laid down in Rules 1981.

41. The writ petition, in view of the
above discussion, succeed and is allowed.
The impugned advertisement dated
30.11.2011 in so far it restricts a
candidate in submitting application only
for five districts is hereby quashed.

42. Since as a result of quashing of
the aforesaid condition, the candidates
have necessarily to be given opportunity
to make/submit applications for various
districts, the respondents shall issue a
fresh advertisement consistent with the
directions as above. It is also and further
directed that after completion of special
training of six months, no appointment on
the post of teacher in Primary Schools
governed by Rules 1981 shall be made
without following the procedure
prescribed therein including rule 14(1) as
amended from time to time so long it is
operating.

43. The Court finds that due to
unmindful acts of the respondents, the
candidates like petitioners aspiring for
3 All] C/M Saltnat Bahadur Post Graduate College and another V. State of U.P. and others 1509
appointment in primary schools in large
number are running from pillar to post
and hence harassed. Hence, the petitioners
are also entitled to cost which is
quantified to Rs.10,000/-.
---------
CIVIL SIDE

BEFORE
THE HON'BLE RAJES KUMAR, J.


C/M Saltnat Bahadur Post Graduate
College and another ...Petitioner
Versus
State of U.P. Thru Secy. and others
...Respondents

Sri V.D. Shukla
Sri Ashok Khare

C.S.C.
Sri A.K. Singh

Amendment in Scheme of administration-
whether can be made retrospectively or
prospectively? Held-considering two
conflicting view of Division Bench-matter
referred to Larger Bench.

Held: Para 11

In view of the two conflicting views of the
Division Benches of this Court, I am of the
opinion that the matter should be referred
to the Larger Bench for decision on the
following two questions:-

(1) Whether the amendment will
become effective from the date of the
amendment?
And
(2) Whether the amendment,
extending the term of the committee of
management, will apply to the existing
committee of management, which has
made the amendment or it applies to the
committee of management which will be
formed after the election being held after
the amendment?
Case law discussed:
Special Appeal No. 1709 of 2007, in the case of
Committee of Management, Arya Kanya Inter
College, Bulandshahr and others vs. State of U.P.
and others; 1994 (24) ALR 410; (2000) 2
UPLBEC 1107

(Delivered by Hon'ble Rajes Kumar, J. )

1. Heard Sri Ashok Khare, learned
Senior Advocate, appearing on behalf of the
petitioners. Sri G.K. Singh appears on
behalf of respondent no.4 and Sri A.K.
Singh on behalf of respondent no.2.
Learned Standing Counsel appears on
behalf of respondent no.1.

2. The brief facts, giving rise to the
present petition, are that there is a Society,
registered under the Societies Registration
Act, 1860, in the name of Saltanat Bahadur
Degree College Association, Badlapur,
Jaunpur. It has its own bye-laws. The said
Society has established a Post Graduate
Degree College in the name of Saltanat
Bahadur Post Graduate College at Badlapur,
Jaunpur. The said College is affiliated with
Veer Bahadur Singh Purvanchal University,
Jaunpur and is governed by the provisions
of the U.P. State Universities Act, 1973.
Under the bye-laws of the Society and the
College, the term of the committee of
management was three years. The last
election of the committee of management
was held on 3.3.2008. In the said election,
Sri Rakesh Kumar Singh was elected as the
President and Sri Vinod Kumar Singh as the
Manager. The said election has been duly
approved by the Vice Chancellor of the
University by the order dated 6.5.2008. The
approval was accorded to the committee of
management for the period of three years
from the date of holding of the election.
There is no dispute in this regard.

3. By an agenda notice dated
30.6.2010, a meeting of the general body of
the Society was scheduled to be convened
on 25.7.2010. The meeting was held on
25.7.2010. In the meeting, it was decided
that an amendment in the bye-laws of the
Society by specifying the term of the
committee of management to five years in
place of three years be made. In pursuance
thereof, the amendment has been
incorporated in the bye-laws and the
amended bye-laws has been submitted
before the Assistant Registrar. The
intimation of the amendment for approval
was given to the Vice Chancellor of the
University. The Vice Chancellor by his
order dated 16.11.2010 directed that the
committee of management elected on
2.3.2008 stood recognised for the period of
five years, that is, till 1.3.2013.

4. Subsequently, a complaint was filed
by one Sri Prakash Singh and Shiv Shanker
Singh Om before the Vice Chancellor of the
University, disputing the extension of the
term of the committee of management from
three years to five years. The Registrar of
the University issued a notice dated
7.6.2011 to the petitioners. The said notice
was followed by a reminder dated 3.8.2011.
The petitioners filed the reply dated
8.8.2011.

5. It appears that Shiv Shanker Singh
Om and others filed Writ Petition No.
49556 of 2011 before this Court. Said writ
petition was disposed of on 30.8.2011 with
the direction to the Vice Chancellor to take
a final decision in pursuance of the notice.
As a consequence thereof, the University
issued a notice on 18.10.2011 fixing
31.10.2011 as the date for hearing before
the Vice Chancellor. The petitioners filed
the objection dated 24.10.2011. After
hearing the parties, the Vice Chancellor
passed the impugned order dated
16.11.2011/25.11.2011.

6. The Vice Chancellor relying upon
the decision of a Division Bench of this
Court, passed in the Special Appeal No.
1709 of 2007, in the case of Committee of
Management, Arya Kanya Inter College,
Bulandshahr and others vs. State of U.P.
and others, has held that the benefit of
amendment in Clause 8 of the scheme of
administration will not be available to the
existing committee of management, which
has amended the bye-laws and the amended
Clause 8 will be applicable to the newly
formed committee of management after the
election and observed that the letter dated
16.11.2010 stands amended to this effect.
The order of the Vice Chancellor, dated
16.11.2011, is impugned in the present
petition.

7. Learned counsel for the petitioners
submitted that once the Vice Chancellor has
accepted the term of the existing committee
of management from three years upto
1.3.2013, he has no power to review its own
order. He submitted that the decision of the
Division Bench of this Court in the case of
Committee of Management, Arya Kanya
Inter College, Bulandshahr and others vs.
State of U.P. and others (supra) was on
different facts. It was with regard to a
dispute under the U.P. Intermediate
Education Act, 1971 and in the said
decision, the order of the approval of the
amendment with the condition that the same
would apply to the committee of
management, which would be constituted
after the election being held after the
amendment in the bye-laws, has been held
3 All] C/M Saltnat Bahadur Post Graduate College and another V. State of U.P. and others 1511
justified. The decision of the learned Single
Judge of this Court in other cases is also of
the same effect. He submitted that once the
amendment has been made in the bye-laws,
it became effective from the date of the
amendment and is, therefore, applicable to
the existing committee of management also.
Reliance is placed on the decision of a
Division Bench of this Court in the case of
Committee of Management, MMI Inter
College, Bijnore vs. Deputy Director of
Education and others, reported in 1994
(24) ALR 410 wherein it has been held that
the amendment introduced in the existing
scheme of administration takes effect
immediately. Although it is not
retrospective in operation, but the term of
the committee has to be calculated in
accordance with it. He submitted that till
date said decision has not been over-ruled.
He also placed reliance on the decision of
the learned Single Judge in the case of
Committee of Management, Baheri
Education Society, Baheri, Bareilly and
others vs. Director of Education and
others, reported in (2000) 2 UPLBEC
1107.

8. Sri G.K. Singh, learned counsel for
the respondent no.4, submitted that the
decision of the Division Bench of this
Court, in the case of Committee of
and others (supra), has categorically laid
down the law in Paragraph 30 of the
judgment that the committee of
management, which is elected in
accordance with the provisions of the
scheme of administration must be permitted
to continue only for the term, which was
applicable at the time of the election. The
extension of the term, so provided by
seeking permission of its own term and by
suggesting amendments in the scheme of
administration cannot be approved of by
this Court. Therefore, the order of the Vice
Chancellor is legally correct. He submitted
that in the case of Committee of
Management, MMI Inter College, Bijnore
vs. Deputy Director of Education and
others (supra), the term of the committee of
management has been curtailed, which was
against their own interest and on this
background, the Division Bench has held
that the term of the existing committee of
management has to be calculated in
accordance to the amendment.

9. I have considered the rival
submissions and various decisions referred
by both the sides.

10. In my view, there is a conflict of
opinion between the two Division Benches.
Whether by the amendment, the term is
curtailed or enhanced is not relevant. The
relevant question is from which date, the
amendment becomes effective and whether
it applies to the existing committee of
management or to the committee of
management, which will be formed after the
next election. The Division Bench of this
Management, MMI Inter College, Bijnore
vs. Deputy Director of Education and
others (supra), has categorically held that
the amendment introduced in the existing
scheme takes effect immediately. Although
it is not retrospective in operation, but the
term of the committee of management has
to be calculated in accordance with it. To
the contrary, the Division Bench of this
and others (supra), has held as follows:-

"Even otherwise, we feel that it is
appropriate and it is fitness of things that the
Committee of Management, which is
elected in accordance with the provisions of
the scheme of administration must be
permitted to continue only for the term,
which was applicable at the time of the
elections. The extension of the term so
provided by seeking permission of its own
term and by suggesting amendments in the
scheme of administration cannot be
approved of by this Court..."

11. In view of the two conflicting
views of the Division Benches of this Court,
I am of the opinion that the matter should be
referred to the Larger Bench for decision on
the following two questions:-

(1) Whether the amendment will
become effective from the date of the
amendment?

And

(2) Whether the amendment, extending
the term of the committee of management,
will apply to the existing committee of
management, which has made the
amendment or it applies to the committee of
management which will be formed after the
election being held after the amendment?

12. Let the papers be placed before
Hon'ble The Chief Justice for formation of
the Larger Bench.
---------

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3 All] C.B.Pandey 7770(M/B) 2011 V. Sri Narain Singh, Minister Of Horticulture Deptt. Lko.

and others 1389

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