Mar 2009

1 All] Chandra Kant Singh V.
The Secretary, Madhyamic Shiksha Parishad and others 161
ORIGINAL JURISDICTION moral and legal duty in the

CIVIL SIDE circumstances to have corrected the
DATED: ALLAHABAD 13.01.2009 mistake committed by its staff and
officials and should not shelve the
BEFORE matter on the ground of limitation to hid
THE HON’BLE RAKESH TIWARI, J. its mistake/inefficiency.
Civil Misc. Writ Petition No. 67121 of 2008 (Delivered by Hon’ble Rakesh Tiwari, J.)
Chandra Kant Singh …Petitioner 1. Heard learned counsel for the

Versus parties and perused the record.
The Secretary, Madhyamic Shiksha
Parishad and others …Respondents
2. The parties agree that the writ
petition may be disposed of at this stage
Counsel for the Appellant:
as there is no factual controversy involved
Sri Shailendra Kumar Singh
in this writ petition.
Counsel for the Respondents:
S.C.
3. The petitioner has filed this writ
petition for quashing the impugned order
Constitution of India Art. 226-Date of dated 15.9.2008 passed by respondent no.
Birth-petitioner at the time of appearing 1, the Secretary, Madhyamik Shiksha
High School Exam. Given his date of birth Parishad, U.P. Allahabad. He has also
in registration form as 18.07.89–two prayed for a writ of mandamus directing
different date of birth mentioned by respondent no. 1 to correct his date of
Board in certificate as well as in mark
sheet-inspite of direction of writ court-
birth in High School Mark-sheet and
rejected the representation on ground of Certificate as 18.7.1989.
delay-held-Board can not be allowed to
take benefit of its own negligence for 4. The facts of the case are that the
jeopardizing the future of student- petitioner appeared in the High School
direction for necessary correction within Examination conducted by the
week issued.
Madhyamik Shiksha Parishad, U.P.
Held: Para 9 Allahabad in the year 2004 and in his
Registration form he had given his date of
After hearing learned counsel for the birth as 18.7.89. After obtaining
parties I am of the opinion that the Marksheet of the High School and
Board could not have given two different Certificate he came to know that incorrect
dates of births in the Marksheet as well
date of birth has been recorded in
as in the Certificate of High School for
the reason that the petitioner had Marksheet as 18.7.1988 and in the
disclosed his date of birth in his Certificate as 10.10.1987 whereas in both
Registration form as 18.7.1989. Both the the Marksheet and Certificate of High
dates of births given in the Marksheet School his date of birth should have been
and Certificate are, therefore, incorrect written as 18.7.89.
and the Board is duty bound to correct
the same. In such cases limitation ought
not to be raised by the Board for its own 5. The contention of learned counsel
mistake jeopardizing the future of the for the petitioner is that the date of birth
students. The Board was under bounded of the petitioner is 18.7.89 and the
162 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
marksheet and certificate of High School reason that the petitioner had disclosed his
of the petitioner show that two different date of birth in his Registration form as
dates of birth other than 18.7.89 written 18.7.1989. Both the dates of births given
by the petitioner in his examination form. in the Marksheet and Certificate are,
therefore, incorrect and the Board is duty
6. The petitioner moved several bound to correct the same. In such cases
applications before the Regional limitation ought not to be raised by the
Secretary, Madhyamik Shiksha Parishad, Board for its own mistake jeopardizing
U.P. Varanasi for correction of his date of the future of the students. The Board was
birth. When no action was taken he filed under bounded moral and legal duty in the
Civil Misc. Writ Petition no. 35821 of circumstances to have corrected the
2008 before the High Court for a direction mistake committed by its staff and
to the Board to correct his date of birth in officials and should not shelve the matter
the Marksheet and Certificate of High on the ground of limitation to hid its
School, which was disposed of vide order mistake/inefficiency.
dated 23.7.2008 with a direction to
respondent no. 1 to decide the grievance 10. Considering the facts and
of the petitioner by a reasoned and circumstances of the case, the Secretary
speaking order. Pursuant to thereof, the of the Board is directed to issue necessary
matter was taken up by the Secretary of orders/direction for correction of the date
the Board which was rejected by the of birth of the petitioner in the Marksheet
Board vide order dated 15.9.2008 on the and Certificate of High School forthwith
ground of delay in moving the within a period of one week as 18.7.89
application. and thereafter instruct the college for
issuing the same to the petitioner within
7. According to the Standing two weeks.
counsel 2 years limitation are provided
under Chapter III Rule 7 of the Calendar The writ petition is disposed of
of the Board for any correction in the date accordingly.
of birth. ---------
ORIGINAL JURISDICTION
CIVIL SIDE
8. Learned counsel for the petitioner
DATED: ALLAHABAD 30.01.2009
submits that due to own fault of the Board
incorrect date of birth has been endorsed BEFORE
and the petitioner has only approach this THE HON’BLE ASHOK BHUSHAN, J.
Court for correction of his date of birth THE HON’BLE ARUN TANDON, J.
and in his Examination Form he had
given correct date of birth, therefore, Civil Misc. Writ Petition No. 4752 of 2009
question of limitation will not apply.
Sayeed Alam and others …Petitioners
9. After hearing learned counsel for Versus
the parties I am of the opinion that the State of U.P. and others …Respondents
Board could not have given two different
dates of births in the Marksheet as well as Counsel for the Appellant:
in the Certificate of High School for the Sri J.P.S. Chauhan
1 All] Sayeed Alam and others V. State of U.P. and others 163
Counsel for the Respondents: is further stated that other tenure holders
S.C. whose land was also acquired under the
same Notification, made a reference qua
Land Acquisition Act-Section 28-A- rate of payment of compensation. The
Application for enhancement of matter was adjudicated under an award
compensation moved prior to filling
appeal by State-after dismissal of
dated 16th August 1999 passed in L.A.R.
appeal-consideration of application can No. 42 of 1993 the rate of compensation
not be denied on ground of delay-but the for the land so acquired has been
claimant-petitioner status regarding enhanced.
illiterate and other condition requires
fresh consideration- direction issued for 2. On the aforesaid award being
consideration of those conditions with
specific period.
made, the petitioner made an application
under Section 28 A of the Act before the
Held: Para 18 Land Acquisition Act for payment of
compensation at the enhanced rates with
from the facts of the present case, we reference to award dated 16.08.1999. The
find that the application in fact was application so made by the writ petitioner
made by the petitioner even before the
date the appeal filed by the State before
was rejected vide order dated 17.01.2007
this Court was finally decided. Further, (Annexure No. 3 to the writ petition) on
we find that requisite averments qua the ground that against the award dated
petitioner being illiterate and other 16.08.1999, the State of U.P. has
conditions referred to above be satisfied preferred First Appeal No. (550) of 2005
need examination. before the Hon'ble High Court.
Case law discussed:
1996(2) A.W.C.1237, (1986) 4SCC 151, 1991
SC 730, 1995(2)SCC689, (1995) 2 SCC 733, 3. Since there was delay in filling of
(1995)2 SCC 735, 1995 SC 2259, (1995)2SCC the said appeal by the State, an
766, (2004) 7 SCC 753, (2003)7 SCC 280, application under Section 5 of the
(1997)6 SCC 280, 2006 SC 1716. Limitation Act was also filed. Section 5
application made by the State
(Delivered by Hon’ble Ashok Bhushan, J.) Government in the aforesaid first appeal
was rejected by the Hon'ble High Court
1. The petitioners before this Court vide order dated 17.01.2007. As a result
claim to be the recorded tenure holders of whereof, the appeal stood dismissed being
plot bearing Khata Nos. 156 and 38. It is barred by limitation.
stated that the land covered by the
aforesaid khata number, was subject 4. The petitioner has therefore come
matter of acquisition proceeding under the up before this Court by means of this writ
Land Acquisition Act (hereinafter referred petition for a writ of mandamus
to as 'the Act') as per the Notification commanding the respondent to consider
dated 28.05.1989 issued under Section 6 and decide the application made by the
(1) of the Act. It is stated that the petitioner under Section 28 A of the Land
petitioner accepted the compensation Acquisition Act dated 16th August 1999 in
determined by the Land Acquisition the light of the order passed in L.A.R. No.
Officer and did not make any reference in 42 of 1993 under Section 18 of the Land
that regard under Section 18 of the Act. It Acquisition Act.
5. We have heard learned counsel If all the aforesaid conditions are

for the parties and have gone through the fulfilled in the cases of the petitioners,
record of the present writ petition. the Special Land Acquisition Officer,
respondent no. 5 is directed to decide
6. A Division Bench of this Court in the applications under Section28A of
the case of Nanak and others Versus the Act and dispose them of finally
State of U.P. and others, 1996(2) A.W.C. within a period of six months from the
1237, has laid down the conditions date of receipt of a certified copy of
pointwise which are required to be this judgment strictly in accordance
satisfied before an application under with law as explained above.”
Section 28A of the Land Acquisition Act
can be entertained. Reference para 17 7. The legal position qua
which is quoted herein below: maintainability of under Section28A
application has further been explained
“17. Thus, is view of the above, we both by the Hon'ble Supreme Court as
are constrained to direct the respondent well as by the Division Benches of this
No.5, to issue notices to respondent No.6, Court as follows:
Ghaziabad Development Authority, the
other contesting parfty and after hearing 8. The scope of provisions of
all the parties concerned, to determine Section 28A was considered by the
whether: Supreme Court in Mewa Ram vs. State
(i) The applications were filed by the of Haryana, (1986) 4 SCC 151 and the
petitioners within limitation. Court placed particular emphasis on
(ii) Petitioners belong to the indigent para 2 (ix) of the object and reasons
class of the society for whose benefit, which provided for a special provision
provisions of Section 28 A were for inarticulate and poor people to
enacted particularly in the light of the apply for re-determination of the
law laid down by the Hon'ble Supreme compensation amount on the basis of
Court in the cases of Mewa Ram, the court award in a land acquisition
Scheduled Caste Co-operative Society reference filed by comparatively
and Babua Ram(supra). affluent land owner. The Apex Court
(iii) The Court's award in L.A.R. No. observed as under:
304/77, Hemchand (supra) has become
final or whether any appeal arising out “Section 28 A in terms does not
of the same or any other award in apply to the case of the
respect of any land covered by the petitioners.........They do not belong to
same Section 4 notification dated that class of society for whose benefit the
16.7.60 is pending before this Court or provision is intended and meant, i.e.
Supreme Court. inarticulate and poor people who by
(iv) The nature, location and quality of reason of their poverty and ignorance
the land of the petitioners are identical have failed to take advantage on the
to the land which had been subject- right of reference to the civil court
matter of the Court's award in under Section 18 of the Land Acquisition
Hemchand(supra). Act, 1894. On the contrary, the petitioners
belong to an affluent class...”
1 All] Sayeed Alam and others V. State of U.P. and others 165
9. The Apex Court approved the law 12. Thus, it is apparent that the
laid down in Mewa Ram (Supra) again in legislature has carved out an exception in
Scheduled Caste Cooperative Owning the form of Section 28-A and has made a
Society Ltd. Batinda Vs. Union of India special provision to grant some relief to a
and others, AIR 1991 SC 730. particular class of society, namely poor,
illiterate, ignorant and inarticulate people.
10. In Babua Ram vs. State of U.P. The provision has been made only for
1995(2) SCC 689, the Apex Court again little Indians. The provisions of Section
approved and reiterated the law laid down 28-A refers to the “person interested”
in Mewa Ram (Supra) and observed as which means the original owner and that
under: original owner interested must further be
a person aggrieved by the award of the
“Legislature made a discriminatory Collector.
policy between the poor and
inarticulate as one class of persons to 13. In G. Krishna Murthy & Ors.
whom the benefit of Section 28-A Vs. State of Orissa, (1995)2 SCC 733; D
was to be extended and comparatively Krishna Vani & Anr. Vs. State of
affluent who had taken advantage of the Orissa, (1995) 2 SCC 735; Union of
reference under Section 18 and the latter India & Anr. Vs. Pradeep Kumari &
as a class to which the benefit of Section Ors., AIR 1995 SC 2259; and U.P. State
28-A not extended. Otherwise, the Industrial Development Corporation
phraseology of the language of the non- Ltd. Vs. State of U.P.& Ors., (1995) 2
obstante clause would have been SCC 766, it has been held by Hon'ble
differently worded......It is true that the Supreme Court that a person who prefers
legislature intended to relieve hardship to a Section 18 reference cannot maintain an
the poor, indigent and inarticulate application under Section 28-A of the
interested persons who generally failed to Act.
avail the reference under Section 18
which is an existing bar and to remedy it, 14. In Des Raj & Ors. Vs. Union of
Section 28-A was enacted giving a right India & Anr., (2004) 7 SCC 753 it was
and remedy for redetermination....The held by the Hon'ble Supreme Court that if
legislature appears to have presumed that a person has applied under Section 18 of
the same state of affairs continue to the Act and persued the matter further, he
subsist among the poor and inarticulate is not entitled to maintain the application
persons and they generally fail to avail the under Section 28-A for redetermination of
right under sub-section (1) of Section 18 compensation. The Court further held that
due to poverty or ignorance or avoidance it is mandatory to file the application
of expropriation.” within prescribed limitation, which runs
from the date of the Award under Section
11. A similar view has been taken 18 of the Act. While deciding the said
by a Division Bench of this Court in case the Court placed reliance upon its
Nanak & Ors. Vs. State of U.P. & earlier judgments, including Scheduled
Ors.,1996 AWC 1237 placing reliance of Caste Co-operative Land Owning Society
large number of judgments of the Hon'ble Ltd., Bhatinda Vs. Union of India & Ors.,
Supreme Court. (1991) 1 SCC 174.
15. In State of Andhra Pradesh & compensation on those owners who did
Anr. Vs. Marri Venkaiah & Ors., not seek Reference under Section 18.
(2003)7 SCC 280, the Hon'ble Supreme
Court had dealt with the issue of 18. From the facts of the present
limitation and held as under:- case, we find that the application in fact
was made by the petitioner even before
“Plain language of the aforesaid the date the appeal filed by the State
section would only mean that the period before this Court was finally decided.
of limitation is three months from the date Further, we find that requisite averments
of the award of the court. It is also qua petitioner being illiterate and other
provided that in computing the period of conditions referred to above be satisfied
three months, the day on which the award need examination.
was pronounced and the time requisite for
obtaining the copy of the award is to be 19. We are, therefore of the opinion
excluded. Therefore, the aforesaid that interest of substantial justice would
provision crystallizes that application be served if the petitioners' application is
under Section 28-A is to be filed within reconsidered in the light of the conditions
three months from the date of the award specified by the Division Bench of this
by the court by only excluding the time Court in the case of Nanak (supra) and
requisite for obtaining the copy. Hence, it the law as noticed above within 12 weeks
is difficult to infer further exclusion of from the date a certified copy of this order
time on the ground of acquisition of is filed before Additional District Judge
knowledge by the applicant.” who shall examine the correctness of the
averments made and satisfying himself
16. While deciding the said case with the requirement of law as explained
Court placed reliance on its earlier above. Fresh final order may be passed on
judgment in Tota Ram Vs. State of U.P. the application accordingly without being
& Ors., (1997)6 SCC 280. The Court influenced with the order dated
further rejected the contention that 17.01.2007.
limitation would run from the date of
knowledge distinguishing the earlier 20. With the aforesaid observation,
judgments on fact and law in Raja the writ petition is disposed of.
Harish Chandra Raj Singh Vs. Deputy ---------
Land Acquisition Officer, AIR 1961 SC REVISIONAL JURISDICTION
CRIMINAL SIDE
1500; and State of Punjab Vs. Qaisar
Jehan Begum, AIR 1963 SC 1604.
BEFORE
17. In Union of India Vs. Munshi THE HON’BLE VIJAY KUMAR VERMA, J.
Ram & Ors., AIR 2006 SC 1716, the
Apex Court has laid down the law that Criminal Revision No. 63 of 2002
such an application is maintainable
provided a person has not filed an Ram Dhani …Revisionist
application under Section 18 of the Act. Versus
The Court held that Section28A seeks to State of U.P. & another …Opposite parties
confer the benefit of enhanced
1 All] Ram Dhani V. State of U.P. and another 167
Counsel for the Revisionist: 3. By means of this Revision, order

Sri Ashok Kumar Srivastava dated 09.01.2002 passed by the Chief
Judicial Magistrate, Sonbhadra in
Counsel for the Opposite Parties: criminal misc. application no. 17 of 2002
Sri B.N. Singh (Smt. Maya Devi Vs. Ram Dhani and
Sri H.N. Singh others) under section 462, 466, 468, 471,
A.G.A. 419, 420 IPC has been challenged by the
prospective accused.
Criminal Revision-order passed under
Section 156 (3) for registration and
investigation-revision preferred by 4. By the impugned order, the
prospective accused-held-not learned Chief Judicial Magistrate has
maintainable as he has no right to stop allowed the application of Smt. Maya
registration and investigation of case- Devi under section 156(3) Cr.P.C. and
not effected person. S.O. P.S. Robertsganj has been directed to
investigate the case after registration of
Held: Para 13
the FIR.
In view of the law laid down in the
aforesaid cases, I am of the considered 5. At the outset, it is contended by
opinion that the prospective accused has learned counsel for the opposite party no.
no right to stop the registration of the 2 and learned AGA that revision against
FIR by challenging the order passed by
the impugned order is not legally
the Magistrate under section 156(3)
Cr.P.C. allowing the application and maintainable as the prospective accused
directing investigation. Therefore, in has no right to challenge the order passed
present case also, the Revision preferred by the Magistrate allowing the application
by the revisionist against the impugned under section 156(3) Cr.P.C. directing
order is not legally maintainable and is investigation after restoration of the FIR.
liable to be dismissed on this ground
The contention of the learned counsel for
alone.
Case law discussed: the opposite party no. 2 is that on the FIR
others 2008(60) ACC 476, 1997 (34) ACC 163, being lodged in pursuance of the
2008 (61) ACC 922, 2000(41) ACC 435, 2006 impugned order, the accused persons
(56) ACC 910, 2007(57) ACC 508, 2001 (42) could seek remedy under Article 226 of
ACC 451, Constitution of India for quashing the FIR
and they have no right to challenge the
(Delivered by Hon'ble Vijay Kumar Verma, J.) impugned order either in Revision or in
the proceedings under section 482 Cr.P.C.
The case has been taken up in the
revised list. None is present for the 6. Having given my thoughtful
revisionist. consideration to the submissions made by
the learned counsel for the opposite party
2. Heard arguments of Sri H. N. no. 2 and learned AGA, I agree that
Singh, learned counsel for the opposite prospective accused can not challenge the
party no. 2 and AGA for the State and order passed by the Magistrate under
perused the material on record. section 156(3) Cr.P.C. allowing the
application and directing investigation by
the police.
7. I had an occasion to consider this right asking the Court of law for issuing
matter in the case of Prof. Ram Naresh a direction that an FIR should not be
Chaudhary and another Vs. State of registered against him. Where a person
U.P. and others 2008(60) ACC 476. The has no right of hearing at the stage of
following observations made in para 9 of making an order under section 156(3) or
the said judgement are worth during the stage of investigation until
mentioning:- Courts takes cognizance and issues
process, he can not be clothed also with
"At this stage accused does not come a right to challenge the order of the
into picture at all, nor can he be heard. Magistrate by preferring a revision
He has no locus to participate in the under the Code. He can not be termed as
proceedings. He can at the most stand an "aggrieved person" for purpose of
and watch the proceedings. It must be section 397 of the Code."
remembered that it is pre-cognizance
stage. The nature of the order passed by 9. This matter was considered again
the Magistrate under Section 156(3) by me in the case of Gulam Mustafa @
Cr.P.C. directing registration and Jabbar Vs. State of U.P. and others
investigation of case is only a peremptory 2008 (61) ACC 922. The following
reminder or intimation to the police to observations made in para 8 of the report
exercise its power of investigation under at page 924 are relevant:-
Section 156(1) Cr.P.C, as has been held
by Hon'ble Apex Court in the case of "Thus at the stage of Section 156(3)
Devarappalli Lak-Shaminarayana Reddy Cr.P.C. any order made by the
and others Vs. V. Narayana Reddy and Magistrate does not adversely affect the
others (1976 ACC 230). How such a right of any person, since he has got
reminder is subject to revisional power of ample remedy to seek relief at the
the Court is something which goes beyond appropriate stage by raising his
comprehension. From the nature of the objections. It is incomprehensible that
order itself, it is clear that it is an accused can not challenge the
interlocutory order, not amenable to registration of F.I.R. by the police
revisional power of the Court. Section directly, but can challenge the order
397(2) Cr.P.C. specifically bars revision made by the Magistrate for the
filed against interlocutory orders." registration of the same with the same
consequences. The accused does not
8. This Court in the case of Karan have any right to be heard before he is
Singh Vs. State (1997 (34) ACC 163), summoned by the Court under the Code
has observed as follows:- of Criminal Procedure and that he has
got no right to raise any objection till the
"Where an order is made under stage of summoning and resultantly he
section 156 (3) Cr.P.C. directing the can not be conferred with a right to
police to register FIR and investigate the challenge the order passed prior to his
same, the Code no where provides that summoning. Further, if the accused does
the Magistrate shall hear the accused not have a right to install the
before issuing such a direction, nor any investigation, but for the limited grounds
person can be supposed to be having a available to him under the law, it
1 All] Ram Dhani V. State of U.P. and another 169
surpasses all suppositions to comprehend Court in the case of Rakesh Puri Vs.
that he possesses a right to resist State (supra) as follow:-
registration of F.I.R."
"It is preposterous even to cogitate
10. Distinguishing Division Bench that a person has a right to appear
ruling in the case of Ajay Malviya Vs. before the Magistrate to oppose an
State of U.P., 2000(41) ACC 435, this application seeking a direction from him
Court in the case of Rakesh Puri and for registration and investigation of the
another Vs. State of U.P. and another offence when he has no right to
2006 (56) ACC 910 has held as under:- participate in the said ex-pare
proceeding. If permitted this will amount
"To sum up the discussions made to killing of foetus of investigation in the
above, it is clear that the alleged accused womb when it was not there at all. Such
has no right to challenge an order power has not been conferred under the
passed under section 156(3) Cr.P.C. at law on the prospective accused.
pre-cognizance stage by a Magistrate When the accused does not have
and no revision lay against such an any right to participate in a proceeding,
order at the instance of the alleged how can he be permitted to challenge an
accused under section 397(1) Cr.P.C. interlocutory order passed in such a
being barred by section 397(2) Cr.P.C. proceeding. If an accused cannot stop
nor at his instance an application under registration of a complaint under section
Section 482 Cr.P.C. is maintainable for 190(1)(a) Cr.P.C. howsoever fanciful,
the simple reason that if cognizable mala fide or absurd the allegations may
offence is disclosed in an application be, he certainly does not possess the
filed by the aggrieved person, then his power to stall registration of FIR of
such an application must be investigated cognizable offence against him."
to bring culprits to books and not to
thwart his attempt to get the FIR 13. In view of the law laid down in
registered by rejecting such an the aforesaid cases, I am of the considered
application which will not amount to opinion that the prospective accused has
securing the ends of justice but will no right to stop the registration of the FIR
amount to travesty of it.” by challenging the order passed by the
Magistrate under section 156(3) Cr.P.C.
11. This matter was considered in allowing the application and directing
detail by this Court in the case of investigation. Therefore, in present case
Chandan Vs. State of U.P. and another also, the Revision preferred by the
2007(57) ACC 508 also in which, it was revisionist against the impugned order is
held that accused does not have any right not legally maintainable and is liable to be
to challenge an order passed under dismissed on this ground alone.
Section 156(3) Cr.P.C.
14. Consequently, the Revision is
12. Relying upon the decision of the hereby dismissed. Interim order dated
Apex Court in the case of Central Bureau 17.01.2002 stands vacated.
of Investigation Vs. State of Rajasthan ---------
(2001 (42) ACC 451), it was held by this
APPELLATE JURISDICTION cross-objection, the bank has allowed

CIVIL SIDE that part of the decree of the trial court
DATED: ALLAHABAD 24.02.2009 to achieve a finality which cannot be
allowed to be raised or questioned in a
BEFORE second appeal. Consequently, this Court
THE HON’BLE TARUN AGARWALA, J. is of the opinion that the second appeal
filed by the defendant-appellant bank is
not maintainable and is dismissed.
Second Appeal No. 126 of 2009
Central Bank of India & others …Appellants (Delivered by Hon'ble Tarun Agarwala, J.)
Versus
Dinesh Kumar Agarwal and others 1. Heard Sri Himanshu Tiwari, the
…Respondents learned counsel for the appellant and Sri
M.K.Gupta, the learned counsel assisted
Counsel for the Appellants: by Sri Nitin Kumar Agarwal, for the
Sri Himanshu Tewari caveators-respondent Nos.2 and 3.
Counsel for the Respondents: 2. The plaintiff-respondent No.1
Sri M.K. Gupta filed a suit for permanent prohibitory
Sri Nitin Kumar Agarwal injunction restraining the defendants from
encashing the bank-drafts and from
Code of Civil Procedure-Section 100-
Maintainability of Second Appeal-suit for
paying the amount as detailed in
permanent injunction restraining the Schedule-A to the plaint. It was alleged
respondent to in cash the bank draft that the plaintiff had purchased six
subsequently Bank Draft converted into demand drafts from the
FDR-after dismissal of suit-Second defendant/appellant bank, which was
Appeal by Bank without filing First payable to the present respondent Nos.2
Appeal or cross Appeal-held not
maintainable.
and 3/defendants, but the said drafts
amounting to Rs.25,000/- each, were lost
Held: Para 7 and therefore, the suit for prohibitory
injunction.
Having considered the submission of the
learned counsel for the parties, this 3. An application for temporary
Court is of the opinion that the objection
raised by the caveators has some force.
injunction was also filed. The trial court,
Nothing prevented the appellant bank initially granted an injunction, restraining
from filing its own appeal or taking the bank from getting the bank drafts
cross-objection against that part of the encashed. Subsequently, on a stay
decree of the trial court by which it vacating application filed by respondent
directed the bank to prepare F.D.R. in Nos.2 and 3, the injunction order was
the name of the Court. The dismissal of
the appeal of the plaintiff has not
vacated and the injunction application of
resulted in any modification or the plaintiff was rejected with a direction
interference in the decree of the trial that the bank drafts will be converted by
court. The appellate court has only the bank in a F.D.R. in the name of the
affirmed the decree of the trial court. In Court. This interim order continue till the
my opinion, on account of the failure of pendency of the suit. Eventually, the suit
the bank to file a first appeal against the
decree of the trial court or to take a
of the plaintiff was dismissed and the trial
1 All] Central Bank of India and others V. Dinesh Kumar Agarwal and others 171
court while dismissing the suit directed raised by the caveators has some force.
the bank to release the F.D.R. along with Nothing prevented the appellant bank
the accruing interest in favour of from filing its own appeal or taking cross-
respondent Nos.2 and 3. objection against that part of the decree of
the trial court by which it directed the
4. Aggrieved, by the dismissal of the bank to prepare F.D.R. in the name of the
suit, the plaintiff filed a First Appeal Court. The dismissal of the appeal of the
before the High Court which was plaintiff has not resulted in any
subsequently transferred to the lower modification or interference in the decree
appellate court. The appeal was of the trial court. The appellate court has
eventually dismissed by judgment dated only affirmed the decree of the trial court.
15.11.2008 and the decree of the trial In my opinion, on account of the failure
court was affirmed. of the bank to file a first appeal against
the decree of the trial court or to take a
5. The defendant bank has now filed cross-objection, the bank has allowed that
the present second appeal contending that part of the decree of the trial court to
the direction of the trial court to pay the achieve a finality which cannot be
interest on the disputed draft amount was allowed to be raised or questioned in a
perverse and was liable to be set aside. second appeal. Consequently, this Court
The defendants submitted that the Court is of the opinion that the second appeal
without ascertaining itself and without filed by the defendant-appellant bank is
satisfying itself that the disputed draft was not maintainable and is dismissed.
not presented for encashment by the ---------
defendants for its conversion into F.D.R., APPELLATE JURISDICTION
CIVIL SIDE
no F.D.R. came into existence and
therefore, consequently the direction for
payment of interest could not arise. BEFORE
THE HON’BLE PANKAJ MITHAL, J.
6. A preliminary objection has been
raised by the caveators with regard to the Second Appeal No. 1421 of 2007
maintainability of the appeal. The
caveators submitted that the defendants- Ramapati Tiwari …Appellant
appellant bank had neither filed a First Versus
Appeal against the decree of the trial The District Registrar, Allahabad and
court nor had filed any cross-objection others …Plaintiff-Respondents
with regard to that part of the finding of
the trial court directing the bank to get the Counsel for the Appellant:
Sri V.K.S. Chaudhary
F.D.Rs. prepared in the name of the Court
Sri Deo Prakash Singh
which decision had become final and
Sri Vishnu Gupta
therefore, no second appeal could be filed
under Section 100 of the C.P.C. Counsel for the Respondents:
Sri M.D. Singh “Shekhar”
7. Having considered the submission Sri P.K. Kesari
of the learned counsel for the parties, this Sri Radhey Shyam
Court is of the opinion that the objection
Registration Act 1908-Section-77- unregistered 'wills' of Smt. Ram Lalli.

Registration of will-on refusal by sub- One dated 20.2.1979 by Rama Pati and
Registrar-whether civil suit
the other dated 11.3.1979 by Girja Prasad,
maintainable-held-‘No’-aggrieved party
may take recourse of writ under Art. both sons of Param Sukh one of the elder
226/227. brothers of late Tribhuwan Sukh Tiwari.
Girja Prasad presented the 'will' dated
Held: Para 14 11.3.1979 of Smt. Ram Lalli which is said
to be in his favour for registration before
The lower appellate court has passed the
the Registering Authority on 25.4.1979.
decree in complete ignorance of the law
laid down by the aforesaid full bench
The registration of the said 'will' was
decision of the Andhra Pradesh High refused to him by an order dated
Court and as such where such a decree 10.11.1980 against which he preferred an
has been passed in ignorance of settled appeal under Section 72 of the
law/precedent there is no reason to Registration Act, 1908. It was dismissed
deny its correction in appeal or second on 27.3.1982. Therefore, he instituted
appeal. Accordingly, I answer the first
substantial question of law in favour of
Original suit no. 289 of 1982 on
the appellant and hold that a suit under 21.4.1982 under Section 77 of the
Section 77 of the Act for a decree Registration Act, 1908 for a decree
directing to register a 'will' is not directing the Registering Authority to
maintainable. register the 'will'. In the suit the other
Case law discussed: nephew Rama Pati was impleaded as one
AIR 1959 AP 626, 1997 (1) AWC 346
of the defendants as he had set up a
different 'will' dated 20.7.1979. The suit
(Delivered by Hon’ble Pankaj Mithal, J.)
after due contest was dismissed vide
judgment and order dated 24.9.1994
1. I have heard Sri V.K.S.
passed by the Court of first instance.
Chaudhary, Senior Advocate assisted by
However, in appeal the judgment, order
Sri Deo Prakash Singh learned counsel
and decree of the court of first instance
appearing for the appellant and Sri M. D.
has been set aside and the suit has been
Singh 'Shekhar', Senior Advocate assisted
decreed vide judgment and order dated
by Sri P.K. Kesari learned counsel for the
17.10.2007 with the direction to the
respondent no. 3, the main contesting
Registering Authority to register the 'will'.
party. The other respondents are only
The present second appeal as such has
formal in nature.
been preferred by one of the defendants
i.e. Rama Pati assailing the judgment,
2. The suit/appeal owes its origin to
order and decree passed by the lower
a dispute relating to ownership of a plot of
appellate court.
land 22-B Church Lane, Allahabad on
which a huge house was constructed by
3. Whether a suit under Section 77
one Tribhuwan Sukh Tiwari who was an
of the Registration Act, 1908 for
Assistant Commissioner of Excise, U.P.
posthumous registration of a 'will' is
On his death the said property had
maintainable is the core question of
devolved upon his wife Smt. Ram Lalli
substance which has been raised in the
who died on 21.3.1979. They had no
present appeal.
issue. The two nephews of late Tribhuwan
Sukh Tiwari set up two contradictory
1 All] Ramapati Tiwari V. The District Registrar, Allahabad and others 173
4. However, apart from the above, which registration is optional. The list of
on the preliminary objection raised, such documents is given in Section 18 of
another important substantial question of the Act. Registration of ''wills'' is not
law arises in this appeal ie., whether the compulsory and it is only optional in
appellant has any legal right to oppose the nature in view of Section 18 (e) of the
registration of the 'will' and in turn to Act. The Act does not prescribe any penal
maintain the appeal? consequences for non registration of
documents mentioned in Section 18 of the
5. Both the above legal questions are Act including ''wills''.
substantial in nature as they are debatable
and have not been settled previously by 8. The general procedure required to
any decision of the Supreme Court (at be followed by the registering authority
least none has been brought to my notice). for registering a document is provided in
They may also ultimately affect the rights Section 71 to 76 of part XII of the Act.
of the parties in the immovable properties The registering authority is not obliged to
covered by the 'will'. Besides, the above register every document and it has power
questions are pure questions of law which to order for refusal of registration by
can be decided effectively on the admitted recording reasons in a book kept for the
facts alone without the aid of any purpose. Section 72 of the Act provides
evidence. Learned counsel for the parties for an appeal to the Registrar against the
on being made known of these two order of refusal so passed by the
questions, have eloquently addressed the registering authority provided the refusal
Court on merit and therefore, I have is not on the ground of denial of
ventured to proceed and decide the appeal execution. Simultaneously, in certain
on the above aspects finally at the circumstances where the registering
admission stage. authority refuses to register a document a
provision for an application to the
6. The maintainability of the suit is a Registrar has been made in Section 73 of
pure question of law which goes to the the Act. By virtue of Section 76 (2) the
root of the jurisdiction rendering the order passed by the Registrar is final as no
decree so passed in such a suit to be a further appeal has been provided against
nullity. Therefore, even if such an the order of the Registrar so passed either
objection/ground was not raised in the on appeal or on the application. However,
Courts below in so many words it can a suit within 30 days of such refusal by
certainly be raised and considered in the Registrar for a decree directing the
second appeal before the High Court. document to be registered has been
provided under Section 77 of the Act.
7. The Registration Act, 1908
(hereinafter in short as an 'Act') 9. The aforesaid provisions
contemplates two types of documents for contained in part XII from Sections 71 to
the purposes of registration. First, the 77 are of general nature. They are
documents of which registration is applicable to all documents presented for
mandatory under law. These documents registration. However, in so far as
have been enumerated under Section 17 registration of ''wills'' is concerned, the
of the Act. The other are documents of Act contains separate special provisions
under part VIII ie. Sections 40 and 41 of where such a 'will' is produced for
the Act. claiming rights and is disputed. In such a
probate proceedings or a suit a definite
10. Section 40 read with Section 41 'lis' is required to be adjudicated which is
of the Act provides that the testator or generally done after notices to the
after his death any person claiming as authorities and the public including the
executor or otherwise may present a 'will' parties concerned. The due execution of
for registration before the Registrar or the 'will' so presented or its genuineness is
Sub-Registrar and it shall be registered if thereupon decided in accordance with the
the registering officer is satisfied that the provisions of the Succession Act. All this
'will' was executed by the testator; the is not done in a suit under Section 77 of
testator is dead; and the person presenting the Act wherein no 'lis' with regard to the
the 'will' is entitle to present the same. 'will' is decided but the matter is confined
Therefore, for the registration of 'will' on only to the registration or non-registration
the death of the testator following three of the 'will'. Therefore, it appears that the
conditions are required to be satisfied; intention of the legislature by providing
special provisions regarding registration
(i) Execution of the 'will' by the testator; of ''wills'' under Section 40/41 of the Act
(ii) Death of the testator; and is to keep the ''wills'' out of the purview of
(iii) The person presenting the 'will' for Section 77 of the Act for the purposes of
registration is entitle to present the same. registration. There appears to be no need
to subject ''wills'' to proceedings before
11. It is only on the satisfaction of Civil Court twice; first for registration and
the Registering Authority that all the then with regard to its genuineness and
above three conditions have been satisfied due execution when the registration has
that a 'will' can be registered after the no impact whatsoever on the document
death of the testator, otherwise the itself.
Registering Authority can refuse its
registration. 13. Since the registration of ''wills''
is optional in nature and there is no
12. A combined reading of the obligation upon the registering authority
provisions of part VIII and part XII of the to register ''wills'', it does not appeal to
Act indicates that the legislature has reason to compel the registering authority
intentionally placed the ''wills'' into a to register the same when the act does not
separate docket distinguishing ''wills'' provides for its mandatory registration.
from other documents of which The person presenting a 'will' for
registration is either mandatory or registration as such has no legally
optional. The purpose of keeping ''wills'' enforceable right to get a 'will' registered.
aloof from other documents is simple. Therefore, logically the provisions of
The genuineness and the due execution of Section 77 of the Act enabling a party
the ''wills'' is normally required to be presenting a document for registration to
established by a probate case by a petition maintain a suit in the event its registration
for probate under Section 276 of the is refused by the registering authority and
Indian Succession Act, 1925 or in a the District Registrar, would not be
regular civil suit before a civil Court applicable where the document presented
1 All] Ramapati Tiwari V. The District Registrar, Allahabad and others 175
for registration is a 'will'. Therefore, by a probate petition or in a civil suit when

necessary implication Section 77 of the occasion arise.
Act providing for a suit for a decree
directing for the registration of documents 16. In support of the second question
is confined only to documents which are learned counsel for the respondent has
set out for compulsory registration under placed reliance upon a decision of the
Section 17 of the Act and not to any other Division Bench of this Court reported in
document covered by Section 18 of the 1997 (1) AWC 346 Kumari Sushila
Act. Saxena Vs. Sub-Registrar,
Sahajahanpur and others wherein while
14. This view of mine finds considering the provisions of Section
complete support from a Full Bench 40/41 of the Act the Court held that
decision of the Andhra Pradesh High registration of a document is merely a
Court reported in AIR 1959 AP 626 notification of the fact that such a
Padala Satya Narayana Murti Vs. document has been executed. It has
Padala Gangamma and others. In the nothing to do with the legality of the
aforesaid decision it has been transaction covered by the document
categorically and in unequivocal terms which may be open to challenge by the
laid down that Section 77 applies only to affected person in appropriate forum.
instruments falling within ambit of Therefore, the matter of registration of a
Section 17 and can have no application to 'will' is basically a one between the
the ''wills''. I have no reason to deviate presenter and the registering authority and
from the above Full Bench decision and no other person is legally entitle to object
to take a different stand. The lower to its registration.
appellate court has passed the decree in
complete ignorance of the law laid down 17. The authority of Kumari Sushila
by the aforesaid full bench decision of the Saxena (Supra) relied upon by the
Andhra Pradesh High Court and as such learned counsel for the plaintiff
where such a decree has been passed in respondent operates in a totally different
ignorance of settled law/precedent there is facts and set of circumstances. It is in the
no reason to deny its correction in appeal proceedings under Section 40/41 of the
or second appeal. Accordingly, I answer Act which are of administrative or a quasi
the first substantial question of law in judicial nature that it has been held that
favour of the appellant and hold that a suit the matter of registration of a 'will' is
under Section 77 of the Act for a decree between a party presenting it for
directing to register a 'will' is not registration and the registering authority.
maintainable. It would have no application to judicial
proceedings of a suit of a civil nature
15. It is another thing that a party issuing a decree. Accordingly, the above
aggrieved may take recourse to authority is of no assistance to the
proceedings under Article 226/227 of the plaintiff respondent.
Constitution of India to challenge the
orders of the registering authority or the 18. In a civil suit of any nature there
Registrar or to establish his rights on the has to be a contesting party. In the event it
basis of such a 'will' either though a is held that the appellant has no right to
oppose a registration of a 'will' in a suit been answered and it is held that the suit
under Section 77, if at all it is itself was not maintainable.
maintainable, it would mean that the suit
would go uncontested as naturally the 22. In the totality of the facts and
authorities enjoined upon to register a circumstances of the case the two
document have no interest in the subject substantial questions of law formulated
matter and would not therefore, likely to above are answered by me as under :
put up any resistance thus, allowing the
suit to be decreed virtually ex-parte. In 1. Whether a suit under Section 77 of
other words, it would mean that any suit the Registration Act, 1908 for
filed under Section 77 of the Act for a posthumous registration of a 'will' is
decree for getting a 'will' registered would maintainable ?
in all probabilities would be decreed in
the absence of any opposition. This The answer to this question as
cannot be the intention of the legislature discussed above is that the suit is not
therefore, the dictum of law as laid down maintainable as the provisions of Section
by the division bench in Km. Sushila 77 of the Act are applicable only in
Saxena (Supra) has to be confined to respect of the documents of which
proceedings under Section 40/41 of the registration is mandatory under Section
Act and not where the matter has been 17 of the Act.
agitated in a suit.
2. Whether the appellant has any legal
19. Moreover, in the instant suit the right to oppose the registration of the 'will'
appellant was impleaded as one of the and in turn to maintain the appeal ?
respondents and was allowed to contest
the proceedings. He was a party to the 23. In view of the answer to
suit. The order of allowing his implement question no. 1 this question losses its
became final and conclusive as it was significance. Nonetheless, it is held that
neither challenged earlier nor is being though a person like appellant has no
assailed by any cross objection or an right to oppose the registration of a 'will'
appeal. Therefore, a person who is a party in proceedings under Section 40/41 of the
to the suit naturally has a right to prefer Act but he certainly has a right to defend
an appeal against the decree passed in the suit.
such a suit/appeal.
24. Thus, the Court is of the opinion
20. Accordingly, the contention of that his second appeal deserves to be
the respondents that the appellant had no allowed and is accordingly allowed. The
right to oppose the registration of the 'will' decree passed by the lower appellate
in the suit and to prefer this second Court dated 17.10.2007 in Civil Appeal
appeal, has no merit and is rejected. No. 298 of 1994 decreeing the original
suit No. 289 of 1982 Girja Prasad Tiwari
21. Above all, the second question Vs. Zila Nibandhak and others is set a
of law as formulated looses all side.
significance once the first question has
1 All] Kameshwar Prasad V. U.P. Public Service Commission, Allahabad and others 177
25. The parties are directed to bear (Delivered by Hon'ble S. Rafat Alam, J.)
their own costs. Appeal allowed.
--------- 1. Heard Sri Shiv Kant Pandey,
ORIGINAL JURISDICTION learned counsel for the petitioner, Sri
CIVIL SIDE
Puspendra Singh, for respondent no. 1, Sri
Amit Sthalekar, for respondent no. 2 and
BEFORE
learned Standing Counsel for respondent
THE HON’BLE S.RAFAT ALAM, J. no. 3.
THE HON’BLE SUDHIR AGARWAL, J.
2. Petitioner through this writ
Civil Misc. Writ Petition No. 2536 of 2009 petition under Article 226 of the
Constitution of India is seeking a writ of
Kameshwar Prasad …Petitioner certiorari for quashing the revised
Versus requisition sent by High Court i.e.
U.P. Public Service Commission and respondent no. 2 to the State Government
others …Respondents
on 23.04.2008 reducing the vacancies of
Civil Judge (Junior Division), 2006 from
Counsel for the Petitioner:
355 to 339. He has further sought a writ
Sri Kameshwar Prasad (In Person)
Sri Shiv Kant Pandey
of mandamus commanding the
respondent-Commission to appoint the
Counsel for the Respondents: petitioner on the post of Civil Judge
Sri Amit Sthalekar (Junior Division) against 15 seats so
Sri Pushpendra Singh reduced by the respondents illegally in
S.C. contravention of the mandate of Hon'ble
Apex Court in Sanjay Singh and
U.P. Judicial Service Rules 2001-Rule 15- another Vs. U.P. Public Service
Reduction of number of vacancies-355 of Commission, Allahabad and another,
Civil Judge (J.D.) post advertised- 2007(2) SC 534 as well as this Court in
selection list finalized by commission-by
Writ Petition No. 51491 of 2007 (Sanjay
notification dated 23.4.2008 15 posts
reduced to give way to the candidates of
Kumar Singh and others Vs. State of
Sanjay Singh case decided by Supreme U.P. and others) decided on 17.01.2008.
Court-held-valid reason for revision of
vacancies-No question of violation of 3. Sri Pandey contended that for
fundamental rights. recruitment to the post of Civil Judge
(Junior Division) the government in
Held: Para 10
consultation with the High Court
In this case it is not disputed that the determined 355 vacancies under Rule 15
number of vacancies have been reduced of U.P. Judicial Service Rules, 2001
on account of appointments made (hereinafter referred to as the "2001
pursuant to the directions of the Apex Rules") which were requisitioned to the
Court in the case of Sanjay Singh (supra) Commission for holding examination in
which is admittedly a valid reason for
revising the number of vacancies
accordance with the provisions of 2001
determined under Rule 15 of 2001 Rules. Rules but subsequently in order to give
Case law discussed: appointment to some other candidates
2007(2) SC 534, 1991(3) SCC 47 pursuant to the Hon'ble Supreme Court
Sanjay Singh (supra) as well as this 4. Having considered the aforesaid

Court in Sanjay Singh (supra) it has submissions at length we, however do not
decided to reduce the number of find any force in the submission for the
vacancies from 355 to 339 though in the reasons given hereto.
meantime the entire recruitment process
has already been completed by the 5. From the very perusal of Rule 15
Commission and, therefore, it is not upon it appears that for commencing the
to the respondents to reduce the number procedure for recruitment to the service
of vacancies at this later stage. He also the first requirement is to determine the
argued that once the Commission actually number of vacancies and for the said
advertised 355 vacancies under Rule 15 of purpose the Governor in consultation with
2001 Rules it is not open to the the High Court is required to give the
respondents to reduce the same number of vacancies which are to be
subsequently after the recruitment process filled in during the year of recruitment.
is complete since the respondents are The term "year of recruitment" has also
bound to fill in all the vacancies unless been defined under Rule 4(m) which
they are reduced by issuing a notification reads as under:
as provided under Rule 21(2) of 2001
Rules. He submitted that the number of "(m) "Year of recruitment" means a
vacancies advertised have to be filled in period of twelve months commencing
from the select list under Rule 20(3) from the first day of July of the calendar
unless the vacancies are varied after due year in which the process of recruitment
notification. In the present case it is is initiated by the appointing authority;"
submitted that no such notification has
been issued by the respondents till date 6. It nowhere requires that after the
and, therefore, it is not open to the vacancies to be filled in during the year of
Commission to publish the final select list notification issued by the government in
of only 339 candidates i.e. as per the consultation with the High Court or even
reduced vacancies instead of 355 which when the vacancies are intimated to the
were advertised earlier. He further Commission for that purpose also any
contended that the persons who have been notification is required to be issued. The
given appointment pursuant to the procedure prescribed under Rule 15 is
directions of this Court and Apex Court only to tentatively decide the number of
are not actually entitled for such post. He vacancies which have to be filled in
thus contended that the decision to reduce during the year of recruitment but it
vacancy from 355 to 339 is wholly nowhere restricts the government or this
arbitrary and contrary to law. He lastly Court from revising the vacancies as
contended that under Article 16(1) of the determined under Rule 15 which are to be
Constitution the petitioner has a filled in during the year of recruitment.
fundamental right for consideration as Thus the submission of learned counsel
well as appointment against the number of for the petitioner cannot be accepted. It is
vacancies advertised by the authorities well established that when there is no
concerned since it amounts to denial of ambiguity in the language of the statute
right of equal opportunity. the same has to be read as it is.
1 All] Rafi Abbas V. State of U.P. and others 179
7. Further Rule 21(2) also shows Shangla v. State of Haryana and Others,
that it only lays down life of the select list [1986] 4 SCC 268 and Jitendra Kumar
which provides that after filling the and Others v. State of Punjab and Others,
vacancies by due notification as [1985] 1 SCR 899."
advertised or varied the select list would
lapse. 9. The aforesaid judgement clearly
shows that even a selected candidate has
8. Now coming to the second no indefeasible right to get appointment.
submission we find that the reduction of
vacancies if is decided not in any arbitrary 10. In this case it is not disputed that
manner but for cogent and valid reasons the number of vacancies have been
the same is not illegal. In the case of reduced on account of appointments made
Shankarsan Dash Vs. Union of India, pursuant to the directions of the Apex
1991(3) SCC 47 the Hon'ble Apex Court Court in the case of Sanjay Singh (supra)
said: which is admittedly a valid reason for
revising the number of vacancies
"7. It is not correct to say that if a determined under Rule 15 of 2001 Rules.
number of vacancies are notified for
appointment and adequate number of 11. Now coming to the last
candidates are found fit, the successful submission that Rule 16(1) only confers
candidates acquire an indefeasible right right of consideration which has already
to be appointed which cannot be given to the petitioner since it is not his
legitimately denied. Ordinarily the case that in the recruitment process he has
notification merely amounts to an not been considered or participated.
invitation to qualified candidates to apply
for recruitment and on their selection they 12. For the reasons given above, we
do not acquire any right to the post. do not find any merit in this writ petition
Unless the relevant recruitment rules so and it is accordingly dismissed.
indicate, the State is under no legal duty ---------
to fill up all or any of the vacancies. ORIGINAL JURISDICTION
CIVIL SIDE
However, it does not mean that the State
has the licence of acting in an arbitrary
manner. The decision not to fill up the BEFORE
vacancies has to be taken bona fide for THE HON'BLE SHASHI KANT GUPTA, J.
appropriate reasons. And if the vacancies
or any of them are filled up, the State is Civil Misc. Writ Petition No.17529 of 2004
bound to respect the comparative merit of
the candidates, as reflected at the Rafi Abbas …Petitioner
recruitment test, and no discrimination Versus
can be permitted. This correct position State of U.P. and others …Respondents
has been consistently followed by this
Court, and we do not find any discordant Counsel for the Petitioner:
note in the decisions in State of Haryana Sri. V.M. Zaidi
v. Subhash C7hander Marwaha and Sri. Vivek Prakash Mishra
Others, [1974] 1 SCR 165; Miss Neelima
Counsel for the Respondents: 3. The petitioner was engaged as

Sri C.B. Yadav waterman on daily wages in the Sub
Sri. S.K. Garg Registrar Office, Dhampur, District
Bijnor on 1.1.1983 and since then he was
Constitution of India, Article 226- discharging his duties as waterman in the
Regularisation of Daily wages-working
for few hours in a day for filling water in
said office. The petitioner from time to
pots w.e.f. 1983 to 1990-engaged time had also worked against the leave
without following procedure of vacancy of Class, IV employee occurred
recruitment Rules-no substantive right in the department. The respondent no.1
to claim regularisation merely on long issued a Circular dated 12.08.1998
period of working whereby all concerned authorities were
Held: Para 14
directed not to engage any outsider as
waterman or for any other purpose,
There is nothing on record to show that however, if any such person was already
the appointment/engagement of the working he should be immediately.
petitioner was on a vacant sanctioned discontinued. In pursuant to the said
post or was in terms of relevant rules. If order, respondent no. 4 discontinued the
it were an engagement or appointment
on daily wages or casual basis the same
engagement of the petitioner as waterman
would come to an end when it was in Sub Registrar Office, Dhampur, hence
discontinued. Merely because a the petitioner filed a Writ Petition
temporary employee or a casual wage No.35179 of 1998 and this Hon'ble Court
worker is continued for a long time, he passed the following order:-
would not be entitled to be absorbed in
regular service or made permanent
merely on the strength of such
“Heard the parties counsel and I
continuance, if the original appointment have gone through the record.
was not made by following a due process
of selection as envisaged by the relevant It has been admitted by the learned
rules. counsel for the petitioners that the
Case law discussed: petitioner no. 1 has been working as
JT 2006(4) 420; 2008(10) SCC 1
Water-man in the establishment of the
respondents fr4om January 1983 while
(Delivered by Hon'ble Shashi Kant Gupta, J.)
the petitioner no.2 had been working from
September, 1990. It is not disputed that
1. This writ petition has been filed
the petitioners are not Government
by the petitioner for the following relief:
servants and they are not on regular
establishment of Sub Registrar. They are
“to issue a writ of mandamus
casual workers appointed on fixed wages.
directing the respondents to accommodate
Their services have been terminated on
the petitioner on the post of Class IV
the ground that no such appointment be
employee existing in the department in
made in future from outside and those
pursance of the order passed by this
who are already working may be ceased
Hon'ble Court. "
to work. It has been submitted by the the
learned counsel for the petitioner that the
2. The brief facts emerging from the
post of Water man still exists in the
writ petition are as follows:-
department and it is, therefore, directed
that in case such post exists in the and never made adopting the selection
Department, the petitioner shall be procedure in any of the provisions of the
accommodated in the view of the fact that existing service rules.
they have served for a long time in the 4- The petitioner's prayer made in
department. the writ petition are not admitted as
separate provisions have been provided
With these observation, petition is for appointment on the Class IV posts of
disposed of finally” the department and the petitioner can
apply in case of vacancy if eligible and he
4. It is further pleaded in the writ fulfills the criteria."
petition that despite the order passed by
this Court the authority concerned did not 6. In reply to para 3 & 4 of the
accommodate the petitioner. Hence this supplementary counter affidavit,
writ petition. petitioner filed supplementary rejoinder
affidavit and in para 4 & 5 it was stated as
5. In para 5 of the counter affidavit it follows:-
has been stated that the petitioner was
only engaged on casual basis as a “4- That in reply to averments made
waterman on fixed wages and it was in para-3 of the affidavit it is submitted
further pleaded that petitioner did not that the petitioner had worked
work continuously but was engaged on continuously as an Class IV employee in
casual basis from time to time as and the department since 1983 till 1998. It is
when necessity arose. It was further further submitted that the respondents are
pleaded that petitioner never worked or still adopting the pick and choose policy
treated as daily wager on the post of Class for regularizing the services of the
IV employee and in the year 1998 when workers who were engaged in the same
the necessity of engaging him ceased, he capacity as of the petitioner. Therefore,
was discontinued. It was further pleaded the averments made to the contrary in the
in para 4 of the counter affidavit that there para under reply are not correct and they
is no post of waterman existing as such are denied.
the order dated 10.4.2002 can not be 5-That in reply to the averments
implemented. The supplementary counter made in para-4 of the affidavit, it is
affidavit was also filed by the respondents submitted that the petitioner as stated
and in para 3 & 4 it was stated as above, has continuously worked for last
follows:- 15 years. Therefore, in view of the said
fact he is eligible for being appointed and
“3- The petitioner has made a prayer to get regularized his services as class IV
for directing the respondents to employee in the department."
accommodate the petitioner on class IV
posts of the department. It is submitted 7. It was submitted by the counsel
that the petitioner was actually a part for the petitioner that despite the order
time casual worker and engaged for few dated 10.4.2002 passed by this Court in
hours in a day for filling water pot. This Writ Petition No.35179 of 1998,
engagement was never made against any respondents deliberately and knowingly
substantive vacancy of the department on account of some extraneous
consideration have failed to accommodate pleaded that this engagement was neither
the petitioner. It was further submitted made against any substantive vacancy of
that respondent no.2 has accommodated the department nor made by following a
other persons who were working as due process of selection as envisaged by
waterman in the department on the basis relevant Rules. In para 4 of the
of the direction given by this court, supplementary counter affidavit it was
therefore, the action of the respondents in further stated that separate provisions
not accommodating the petitioner as Class have been provided for appointment on
IV employee in the department is wholly the Class IV posts of the department and
illegal and void. It was further submitted the petitioner can apply in the case of
that the petitioner is fully eligible for vacancy if he fulfills the criteria. In para 3
being appointed as Class IV employee in of the counter affidavit it has been further
any of the department of the respondents. stated that there exist no post of waterman
in the department as such the order that
8. On the other hand learned 10.04.2002 passed by this Court in the
Standing counsel has submitted that previous Writ Petition No. 35179 of 1998
petitioner has got no right to hold the cannot be implemented.
post, he was neither appointed as a regular
employee nor was appointed on daily 11. The Apex Court in “Secretary,
wages. It was further submitted that he State of Karnataka and others Vs.
was simply engaged on casual basis as Umadevi and others JT 2006(4) 420” has
waterman as when the need arose. It was observed as follows:-
further submitted that the petitioner did
not work continuously from 1983 to 1998 “...........Therefore, consistent with
and has got no legal enforceable right to the scheme for public employment, this
claim the appointment. It was further Court while laying down the law, has
categorically stated that there does not necessarily to hold that unless the
exist any post of waterman as such the appointment is in terms of the relevant
order dated 10.4.2002 passed by this rules and after a proper competition
Court in Writ Petition No.35179 of 1998 among qualified persons, the same would
cannot be implemented. It was further not confer any right on the appointee. If it
submitted that certain orders annexed is a contractual appointment, the
alongwith the writ petition has got no appointment comes to an end of the
bearing on the case in hand. contract, if it were an engagement or
appointment on daily basis, the same
9. Heard the learned counsel for the would come to an end when it is
petitioner and learned Standing counsel discontinued. Similarly, a temporary
appearing on behalf of the respondents employee could not be made permanent
and perused the record of the case. on the expiry of his term of appointment.
It has to be clarified that merely because
10. In para 3 of the supplementary a temporary employee or a casual wage
counter affidavit it was stated that the worker is continued for a time beyond the
petitioner was actually a part time casual term of his appointment, he would not be
worker and engaged for a few hours in a entitled to be absorbed in regular service
day for filling a water pot. It was further or made permanent merely on the
strength of such continuance, if the got employed should be directed to be

original appointment was not made by continued permanently. By doing so, it
following a due process of selection as will creating another mode of public
envisaged by the relevant rules. It is not appointment which is not permissible. If
open to the Court to prevent regular the court were to void a contractual
recruitment at the instance of temporary employment of this nature on the ground
employees whose period of employment that the parties were not having equal
has come to an end or of ad hoc bargaining power, that too would not
employees who by very nature of their enable the court to grant any relief to that
appointment, do not acquire any right. employee.
High Courts acting under Article 226 of ….............. Normally, what is sought for
the Constitution of India, Should not by such temporary employees when they
ordinarily issue directions for absorption, approach the court, is the issue of a writ
regularisation or permanent continuance of mandamus directing the employer, the
unless the recruitment itself was made State or its instrumentalities, to absorb
regularly and in terms of the them in permanent service or to allow
constitutional scheme. them to continue. In this context, the
…............. The Courts must be careful in question arises whether a mandamus
ensuring that they do not interfere unduly could be issued in favour of such persons.
with the economic arrangement of its At this juncture, it will be proper to refer
affairs by the State or its instrumentalities to the decision of the Constitution Bench
or lend themselves the instrument to of this Court in Dr. Rai Shiverndra
facilitate the by passing of the Bahadur V. The Governing Body of
constitutional and statutory mandates.” Nalanda College [(1962) Supp.2 SCR
144]. That case arose out of a refusal to
…............. While directing that promote the writ petitioner therin as the
appointments, temporary or casual, be Principal of a college. This Court held
regularised or made permanent, Courts that in order that mandamus may issue to
are swayed by the facts that the compel the authorities to do something, it
concerned person has worked for some must be shown that the statute imposes a
time and in some cases for considerable legal duty on the authority and the
length of time. It is not as if the person aggrieved party had a legal right under
who accepts an engagement either the statute or rule to enforce it. This
temporary or casual in nature, is not classical position continues and a
aware of the nature of his employment. mandamus could not be issued in favour
He accepts the employment with eyes of the employees directing the government
open. It may be true he is not in a position to make them permanent since the
to bargain -not at arms length- since he employees cannot show that they have an
might have been searching for some enforceable legal right to be permanently
employment so as to eke out his livelihood absorbed or that the State has a legal duty
and accepts whatever he gets. But on that to make them permanent.”
ground alone, it would not be appropriate
to jettison the constitution scheme of the 12. The Apex Court further in
appointment and to take the view that a Official Liquidator Vs. Dayanand and
person who has temporarily or casually
others 2008(10) SCC 1 has observed as creation, continuance and abolition of

follows: posts are all decided by the Government
in the interest of administration and
“ The creation and abolition of general public; the court would be the
posts, formation and structuring/ least competent in the face of scanty of
restructuring of cadres, prescribing the material to decide whether the
source and mode of recruitment and Government acted honestly creating a
qualifications and criteria of selection, post or refusing to create a post or its
etc. are matters which fall within the decision suffers from mala fides, legal or
exclusive domain of the employer. factual; as long as the decision to abolish
Although the decision of the employer to the post is taken in good faith in the
create or abolish posts or cadres or to absence of material, interference by the
prescribe the source or mode of court is not warranted”
recruitment and laying down
qualification, etc is not immune from 14. There is nothing on record to
judicial review, the Court will always be show that the appointment/engagement of
extremely cautious and circumspect the petitioner was on a vacant sanctioned
tinkering with the exercise of discretion post or was in terms of relevant rules. If it
by the employer. were an engagement or appointment on
..........the Court cannot sit in appeal daily wages or casual basis the same
over the judgement of the employer and would come to an end when it was
ordain that a particular post or number of discontinued. Merely because a temporary
posts be created or filled by a particular employee or a casual wage worker is
mode of recruitment. The power of continued for a long time, he would not
judicial review can be exercised in such be entitled to be absorbed in regular
matters only if it is shown that the action service or made permanent merely on the
of the employer is contrary to any strength of such continuance, if the
constitutional or statutory provisions or is original appointment was not made by
patently arbitrary or vitiated by mala following a due process of selection as
fides.” envisaged by the relevant rules.
13. The Apex Court further in case 15. There is nothing on record to
of State of Harayana and others Vs. establish that the petitioner worked
Navneet Verma has inter alia in para 17 of continuously from 1983 upto 1998 as
the judgment has held waterman in establishment. The
engagement of the petitioner appears to be
“ that the power to create or abolish through back door entry without
a post rest with the Government; whether following any process of law. Therefore,
a particular post is necessary is a matter his disengagement in the year 1998 was
depending upon the exigencies of the fully justified. Moreover the
situation and administrative necessity; respondents in para 3 of the counter
creation and abolition of the post is a affidavit have categorically stated that
Government policy and every sovereign there exists no post of waterman in the
Government has this power in the interest department as such the order dated
and necessity of internal administration; 10.4.2002 passed in the previous Writ
1 All] B.H.U., Varanasi & another V. Presiding Officer, Labour Court and another 185
Petition No.35179 of 1998 cannot be Sri Dinesh Kacker

implemented. Sri V.B. Singh
16. In view of the above, the Counsel for the Respondents:

respondents cannot be compelled to create Sri Manish Goyal
any supernumerory post. However, if, Sri Rajarshi Gupta
according to the petitioner, the earlier Sri J.K. Chakraborty
order passed by this Court on 10.4.2002 Sri J.P. Pandey
was not implemented deliberately without
Constitution of India-Art. 226-Industrial
any cogent reasons, then he could have Dispute-reference made by State
taken the contempt proceedings against Government-workman the employees of
the authorities concerned in accordance B.H.U.-fully controlled owned and
with law but instead of doing so, he financed by central Govt.-without least
preferred to execute the earlier order concern of State Government-held-State
dated 10.4.2002 passed by this Court, Government not empowered to refer the
dispute.
through the present writ petition.
Held: Para 27
17. The petitioner has also annexed
a few orders passed by this Court in The finding of the Labour Court
different writ petitions without pleading completely overlook the admitted facts
the facts and circumstances of those cases that the entire grant is received by the
University from the Central Government
in the present writ petition as such, said and that the Executive Council which
orders in the absence of any pleadings control with the finances and
cannot be taken into consideration. administrative under the supervision of
the Visitor of the University and the Vice
18. In view of the discussion made Chancellor is the full time salaried officer
hereinabove, this writ petition is of the University and executive head
appointed by the Visitor. The Banaras
accordingly dismissed.
Hindu University has not only a central
---------
character but is a University which is
ORIGINAL JURISDICTION
controlled and managed by the Central
CIVIL SIDE
Government. The State Government as
DATED: ALLAHABAD 23.01.2009 such did not have the authority to make
a reference nor any such authority was
BEFORE delegated to it by the Central
THE HON’BLE SUNIL AMBWANI, J. Government under Section 39 of the U.P.
Industrial Disputes Act. The reference
Civil Misc. Writ Petition No. 30802 of 1999 under Section 4k by the State
Government as such was not competent
Banaras Hindu University, Varanasi and and thus the proceedings in pursuance of
another …Petitioners the reference are liable to be set aside.
Versus Case law discussed:
Presiding Officer Labour Court, U.P., (2007) 2 SCC 428, (2006) 6 SCC 516, 2008(7)
Varanasi and another …Respondents ADJ 122, (2006) 13 SCC 727, (1969) 1 SCC
769, (1975) 4 SCC 679, (1997) 9 SCC 377,
2002 (93) FLR 606, 1989 UPLBEC 149,
Counsel for the Petitioners:
1995(70) FLR 20
Sri V.K.Upadhya
Sri Pankaj Naqvi
(Delivered by Hon’ble Sunil Ambwani, J.) detailed judgement even citing case laws
and then distinguishing those cases.
1. The Banaras Hindu University Before us both parties admit that the
has filed this writ petition against an list had been revised and therefore the
Award of the Labour Court, Varanasi advocate could not remain present.
dated 10.7.1988 in Adjudication Case No. Under the circumstances, we set the
31 of 1995, Banaras Hindu University vs. impugned judgement and remit the Writ
B.N. Bhattachrya, reinstating Shri Brij Petition back to the High Court for
Nath Bhattacharya respondent no.2, with decision on merits. The High Court shall
continuity in service and back wages from dispose of the Writ Petition as
the date of reference. The Labour Court expeditiously as possible and in any event
further directed that in case the post of within three months from today.
Fuse-Man is still vacant, the respondent Interim order, if any, passed by the
no, 2 shall be appointed against the said High Court during the pendency of the
post, and if there is no vacancy, he may Writ Petition will continue to operate till
be adjusted on an equivalent post. the disposal of the Writ Petition.
The Appeal stands disposed of
2. By an interim order dated accordingly. There will be no order as to
28.7.1999, the operation of the award was costs.
stayed, provided the petitioner goes on Sd/-(S.N. Variava)
paying respondent no. 2 month by month Sd/-(A.R.Lakshman)
an amount equivalent to the wages last Sd/-(S.H. Kapadia)”
drawn by him. The writ Petition was
heard in the absence of parties, and was 4. The matter was thereafter
dismissed on 17.7.2002 and the interim adjourned on several dates. The Banaras
order was vacated. The petitioner were Hindu University engaged Shri V.B.
directed to reinstate respondent no, 2 Singh and thereafter Shri Dinesh Kakker
forthwith, within one month and to pay to argue the matter. The Court adjourned
his arrears of salary and other benefits to the case on 14.08.2007 and then again on
which he would have been made entitled 23.08.2007 for a possible settlement. It
in terms of the award. was thereafter nominated to some other
bench. Finally it was heard on
3. The Banaras Hindu University 08.12.2008.
challenged the order in Civil Appeal No,
10274 of 2003. The Civil Appeal was 5. Heard Shri Dinesh Kakker
allowed by the Supreme Court on appearing for the Banaras Hindu
27.10.2005:- University (in short the 'University') and
Shri Manish Goyal for the respondent no.
“Heard parties. 2 workman.
In the impugned Judgement
itself, it has been set out that the list was 6. Briefly stated the facts, giving rise
revised and that neither party appeared to this writ petition, are that respondent-
before the Court. Instead of adjourning workman was working as Fuse-Man
the matter or dismissing for default, the under the Chief Engineer, Electricity and
High Court proceeded to deliver a Water Supply w.e.f. 1.4.1982. His
services were terminated without (Administration-II) were also examined.

assigning any reason on 6.7.1991. The The Labour Court found that it was not
respondent-workman alleged that he had clear whether the post of Fuse-Man was
requested for the regular pay scale and advertised. The respondent workman had
other service benefits, on which the applied for appointment. An appointment
employee were annoyed with him. He letter was issued on 22.7.1981, which
was appointed by the Selection shows that the workman was appointed
Committee after interviews on permanent for a period of three months from
basis. He sent letters for reconsideration 1.4.1982 to 30.6.1982 on a vacancy
of the decision to terminate his services. caused temporarily on the promotion of
The employee however did not give any Shri S.N. Srivastava. The workman was
response. qualified in the electrician trade and holds
a certificate from Industrial Training
7. The University stated in its Institute. His service were extended upto
written statement that the Banaras Hindu 31.12.1985. permanently, he should be
University is a Central University and is adjusted on the post. A notice was sent on
run and managed from the funds received 11.6.1991 to the workman on his office
from the Central Government. It is known address for explaining his absence from
as a Central University. The reference 1.2 .1991 to 9.3.1991; 23.3.1991 to
therefore could be made only by the 1.4.1991 and 3.4.1991 to 11.6.1991.
Central Government and not by the State
Government. The respondent-workman 9. The documentary evidence for the
was appointed as a Fuse-Man only for last extension of service for a period
three months i.e. 1.4.1982 to 30.06.1982. between 1.5.1990 to 31.10.1990 bearing
His appointment was extended for six the signatures of the workman was filed
months on each occasion and that his last by the employer.
extension was given on 1.11.1990 to
30.04.1991. The respondent-workman 10. The workman examined himself
thereafter did not attend to work, nor his to depose and prove the facts stated in his
service were extended. He absented written statement. Shri Ram Singh, Senior
thereafter without any explanation. A Workshop Assistant appearing on behalf
letter was sent to him on 11.6.1991 for of the employer stated that the workman
explaining his unauthorized absence from had worked upto 22.3.1991 and then
1.2.1991 to 9.3.1991; 22 .3.1991 to absented from duties. His name continued
1.4.1991 and 3.4.1991 to 11.6.1991, but in the register upto July 1991 and was
he did not reply. scored out in August, 1991. He stated that
he has no knowledge whether there is any
8. The parties filed their documents post of Fuse-man and did not produce the
in evidence. The workman examined attendance register. Shri K.S. Gupta,
himself. Shri Ram Singh, Senior Assistant Supervisor stated that there was
Workshop Assistant was examined on no suspension after 30.4.1991 and that the
behalf of the employer. Shri K.S. Gupta, workman had worked regularly from
Assistant Supervisor, Electricity and 1.4.1982. Shri Lal Chand, Deputy
Water Supply examined himself and Shri Registrar (Administration) stated that the
Lal Chandra, Deputy Registrar
Registrar has powers of appointment only President of India is the Visitor of the
for a period of six month. University under Section 5(i) of the Act
with Executive council as the highest
11. The Labour Court found that the executive body. The Chancellor elected
respondent-workman was asked to give by the Court is the Head of the University
explanation for failing to attend duties on under Section 7-A. The Vice Chancellor
30.4.199, which makes it clear that the is a whole time salaried officer under
respondent workman was given the Section 7B of the Act. The condition of
extension of service even beyond that service of officers and teachers is
period but that the suspension letter was provided under a written contract under
not produced by the employer. Even if a Section 16B. The Act provides for
person was engaged by the employer for Statutes under Section 17, and Ordinances
5-6 years, it was not just and proper to under Section 18 and the powers to make
remove him in the absence of any further regulation under Section 19. The Statutes,
extension for his continuance. The Ordinances and Regulations do not
provisions of Section 25-F of Industrial provide for service conditions of the
Dispute Act were attracted. And that the employees of the University. They are
removal of the workman's name from the appointed on contract and that their
attendance register amounted to his services come to an end on the expiry or
retrenchment. The University is an termination of the contract.
autonomous body, which receives its
entire grants from the Central 13. Shri Kakker submits that the
Government and thus it will be treated to University receives its entire funds from
be a Central Government Establishment. the Central Government and thus the
A number of cases have been decided by appropriate government for making a
the Labour Court in respect of the reference for any industrial dispute under
employees and the workmen. The Labour Section 2-A of the Industrial Dispute Act
Court found that the respondent workman is the Central Government, and not the
is entitled to reinstatement with continuity State Government and thus the reference
in service. Since the workman did not dated 27.3.1995 made by the State of
give his representation for wages, he will Uttar Pradesh was bad in law. He would
be entitled to the wages from the date of further submit that without prejudice his
reference i.e. 29.3.1995 and the first submission, the employment on
appointment. If the post of the Fuse-man contract under proviso to section 2
has been filled up, the employer shall (oo)(bb) of Industrial dispute Act, 1947,
adjust him on any other equivalent post. the termination of service of the workman
as a result of non-renewal of the such
12. Shri Dinesh Kakker, learned contract being terminated under a
counsel appearing for the University stipulation in that behalf, is not included
would submit that the University was within the meaning of the term
established under the Banaras Hindu 'retrenchment'. The contract of the
University Act 1915 to establish and respondent workman was not renewed
incorporate a teaching and residential and thus the termination of his service
Hindu University of Banaras. The will not be treated as a retrenchment.
University is an autonomous body. The
14. Shri Kakker submits that the 15. Shri Dinesh Kakker would
question, as to whether the reference in submit, relying upon the supplementary
respect of Central Government rejoinder affidavit of Shri C.M.
establishment can be made by the Central Chakraborty, Senior Assistant, Legal
Government or the State Government in Cell, Banaras Hindu University, that the
whose jurisdiction the cause of action has University is run under the control of the
arisen, was considered and decided by a Central Government. The framing of the
Constitution Bench of the Supreme Court Statutes and Ordinances are required to
in Steel Authority of India vs. National have the approval of the Central
Union Water Front Workers and Government. The decisions are subject to
others, 2001, 7 SCC 1. The judgement the final orders of the Visitor. The
has been followed by the Supreme Court selection process also involves nominee
in Hindustan Aeronautic Ltd. vs. of the Government. The autonomous
Hindustan Aero Canteen Sangh, Civil character of the University does not imply
Appeal No, 3559 of 2002 decided on that it has any independence of control or
8.7.2002, holding that the Hindustan that it does not function under the
Aeronautic Limited is an undertaking of authority of the Central Government. The
the Central Government and it is the funds of the University Grant
Central Government which exercise full Commission are paid to it by the Central
control over the same. The issuance of Government and that the
licence by the State Government is no recommendations/directions of the
criteria to come to a conclusion that the University Grants Commission are based
State Government would be the upon the policy and directions of the
appropriate government. In National Central Government. He would submit
Textile Corporation, U.P. Limited vs. that there is no delegation of powers
State of U.P., Writ Petition No, 45538 under Section 39 of the U.P. Industrial
of 2003, decided on 14.9.2004, this court Disputes Act, 1947, and that since the
held that the Central Government does University is a Central Government with
not have any financial and administrative ultimate control of the financial and
control over the NTC (UP) Ltd. administration with the Central
Following the Steel Authority of India Government, the reference could only be
(supra) this Court held that under Section made by the Central Government.
39 of the U.P. Industrial Disputes Act, the
State Government can exercise delegated 16. Shri Kakker has then relied upon
powers of the Central Government while the judgements in Punjab State
making a reference. In that case the State Electricity Board vs. Sudesh Kumar
Government, did not make reference Puri, (2007) 2 SCC 428 to support his
under Section 39 of the Industrial Dispute submission that the conditional
Act, 1947, rather it exercised its engagement for specific period as a
jurisdiction under 4-K of the U.P. regular Meter Reader under a contract and
Industrial Disputes Act, 1947. Since the the non-renewal of the contract would not
appropriate government in that case was amount to termination of his services to
the Central Government, the reference be treated as retrenchment under Section
itself was incompetent. 2(oo)(bb) of the Act. He has also relied
upon Municipal Council, Samarala vs.
Sukhwinder Kaur, (2006) 6 SCC 516 Engg. Mazdoor Union v. State of Bihar
for the same proposition. (1969) 1 SCC 769 and Hindustan
Aeronautic Ltd. v. Workmen (1975) 4
17. For reinstatement with back SCC 679 and that the contrary view in
wages, Shri Kakker has relied upon Air India Statutory Corporation v. United
judgements in Indian Institute of Labour Union, (1997) 9 SCC 377 was
Technology, Kanpur vs. Presiding overruled. The Supreme Court held in
Officer, Labour Court Ii, Kanpur Steel Authority of India (supra):
Nagar, 2008(7) ADJ 122 in which this
court held that by virtue of the operation “....the criteria to determine whether
of Selection 13(3) of the Institute of the Central Government is the
Technology Act, 1961, the employee, appropriate government within the
whose probation was never extended, meaning of the CLRA Act, is that the
would be deemed to have continued in industry must be carried on by or under
temporary employment, terminable on the authority of the Central Government
one month's notice and that the re- and not that the company/undertaking is
engagement with full back wages should an instrumentality or an agency of the
not have been allowed. Central Government for purposes of Art.
12 of the Constitution; such an authority
18. Shri Kakker submits, that the may be conferred either by a statute or by
Labour Court could not have directed virtue of relationship of principal and
regulation on the post or any equivalent agent or delegation of power and this fact
post. He submits that in Regional has to be ascertained on the facts and in
Manager, State Bank of India vs. the circumstances of each case. In view of
Mahatma Mishra, (2006) 13 SCC 727, this conclusion, with due respect, we are
the Supreme Court held that the Labour unable to agree with the view expressed
court could only award reinstatement with by the learned judges on interpretation of
back wages. It could not have directed the expression 'appropriate government'
regularisation giving permanent status to in Air India's case. Point no. 1 is
a casual workers and that orders cannot answered accordingly.”
be passed on sympathetic consideration.
20. Shri Goyal would submit that
19. Shri Manish Goyal, on the other there is no administrative, financial and
hand, submits that the 'appropriate functional control exercised by the
government' under Section 2(a) of the Central Government under the Banaras
Industrial Dispute Act, 1947 in relation to Hindu University Act, 1915. It is not run
any industrial disputed under Section under the authority of the Central
2(a)(i) concerning any industry carried on Government and is autonomous in its
by or under the authority of the Central operations. The University is not required
Government is the Central Government to seek approval of the Central
and in relation to any other industrial dis Government for discharging its functions.
pute under (ii) is the State Government.
The legal position on this regard has been 21. Shri Goyal would further submit
settled in Steel Authority of India that the U.P. Legislature has deliberately
(supra) which has affirmed the Heavy excluded, clause(bb) in the definition
clause of the U.P. Industrial Dispute Act, 23. The question, that calls for
1947 to define the term 'retrenchment' as consideration of the court, is whether the
it is contained in the Central Act and reference in this case by the State
therefore the provisions of Section Government was competent. The Banaras
2(oo)(bb) of Central Act is not applicable Hindu University is a University
to the present case. He has relied upon the established and incorporated by a Statute.
judgement in U.P. State Sugar The Central Act dissolved the Hindu
Corporation Ltd. Vs. Om Prakash University Society registered under the
Upadhyay 2002(93)FLR 606 to submit Societies Regularisation Act, 1860 and
that the decision in Jai Kushum vs. Uttar vested all the rights, which were vested in
Pradesh Co-operative Bank Ltd., 1989 the said society in the University. A
UPLBEC 149 is to be preferred as survey of the provisions of the Act would
against the decision of the same High show that President of India is the Visitor
Court in Smt. Pushpa Agrawal vs. of the University under Section 5 with
Regional Inspector of Girls School powers to cause an inspection to be made
Meerut, 1995(70)FLR 20, and that since by such person as he may direct. He may
the Industrial Dispute Act, 1947 the Act is address the Vice Chancellor under sub
not to override any State law, the section (4) and that the Executive Council
definition of retrenchment under Section is authorized to communicate with the
2(oo)(bb) of the Industrial Dispute Act Visitor through the Vice Chancellor under
1947 will not be applicable in the matters sub section (5). The Chancellor is
covered by the U.P. Industrial Dispute appointed by the Court to hold office for
Act, 1947. three years under Section-7 and is the
Head of the University under Section 7A.
22. On merits Shri Goyal submits The Vice Chancellor is appointed by the
that E.W.I. Admitted that the respondent Visitor on the recommendations of the
workman had worked continuously from Selection Committee, constituted by the
1.4.1982 until he was given extension. Visitor under Section 7B to be a whole
There was no break in his work. Shri Ram time salaried officer of the University
Singh stated that he had no knowledge under sub section (2). He is the principal
about the extension and that Shri Lal executive and academic officer of the
Chandra admitted that the Banaras Hindu University under Section 7C and ex-
University has not filed any paper after officio Chairman of the Executive
paper No. 62, which is incomplete. He Council; the Academic Council and the
would submit that the respondent Finance Committee. The Court the
workman was given extension from time executive Council; the Academic Council;
to time and that the fact, that he was given the finance Committee; the faculties and
a show cause notice as to why he is not such other authorities as may be declared
attending to work, would clearly show by the Statutes to be the authorities of the
and was correctly interpreted by the University are the authorities of the
Labour Court to mean that the workman University under Section 8A. The Court is
was given further extension but that his an advisory body under Section9. The
service were illegally and arbitrarily Executive revenue and property of the
terminated before the last extension came University under Section 10. The
to an end. University is required to maintain
permanent reserves to cover recurring Ordinances are to be prescribed by the

charges under Section 14 and the corpus Regulations.
of Rs.45 lacs permanent endowment to
meet the recurring charges of the 24. It is submitted that the entire
University other than charges in respect of grant is received by the University from
scholarships, prizes and rewards provided the Central Government on the allocation
that, (1) any Government securities, as by the University Grants Commission.
defined by the Indian Securities Act 1920 The Executive Council is to consist of the
which may be held by the University shall Vice Chancellor, Ex-Officio and 8
be reckoned at their face value; and (2) persons nominated by the Visitor under
the sum of Forty-five lakhs shall be Statute 14(1) and that the Executive
reduced by such sum at the Council has a right to manage and
commencement of the Banaras Hindu regulate the finances, accounts,
University(Amendment) Act 1966. The investments, property business and other
Central Government shall, declare to be administrative affairs of the University.
the total capitalised value, for the The University is for all practical
purposes of grants of money which have purposes an instrumentality of the State
been made to the University any Ruler of for which the entire finances are provided
an Indian State, and the total income by the Central Government. The President
accruing from immovable property which of India as the Visitor appoints the Vice
has been transferred to the University. Chancellor on the recommendation of the
The university has to constitute Pension selection committee to be the whole time
or Provident fund or insurance scheme salaried officer and that the Executive
under Section 16A for the benefit of its Council is headed by Vice Chancellor and
officers, teachers and other employees. 8 persons to be nominated by the Visitor
The conditions of service of officers and to perform the entire financial and
teachers shall be under a written contract administrative function of the University.
to be lodged with the University to t Every new statute or its amendment or
Tribunal of Arbitration consisting of one repeal under Section 17(iv) requires
member appointed by the Executive previous approval of the Visitor and that
Council, one member nominated by the every Ordinance has to be submitted
officer or the teachers concern and an under Section 18(6) to the Visitor who
umpire appointed by the Visitor. The may disallow any such Ordinance or remit
decision of the Tribunal or Arbitration it to the Executive Council for further
shall be final and shall not be questioned consideration. The President of India as
in any court of law under sub section (3) an executive of the Union acting under
of Section 16B. The University functions the aid and advice of the Cabinet
through the Statute and Ordinance made exercises full and complete control on the
under Section 17 and 18 of the Act to be University. The University as such is a
made by the Executive Council and extended hand of the Central
approved by the Visitor and regulation Government. It has always been treated
with regard to the procedure to be so, and is also called as a Central
observed in the meetings of all other University.
matters which by the Act, the Statutes or
25. In Hindustan Aeronautics Ltd Labour Court and no such issue has been
(supra) the Supreme Court following the raised. The State Government was thus
Steal Authority of India's case (supra) competent to refer the matter.
held:-
“The question that arises for 27. The finding of the Labour Court
consideration in this case is, whether the completely overlook the admitted facts
High Court is justification holding that that the entire grant is received by the
the State Government is the “Appropriate University from the Central Government
Government” under the provisions of the and that the Executive Council which
relevant Act. The Constitution Bench control with the finances and
recently has considered the relevant administrative under the supervision of
provisions of the Contract Labour the Visitor of the University and the Vice
regulation act in the case of Steel Chancellor is the full time salaried officer
Authority of India and others vs. National of the University and executive head
Union Waterfront Workers & appointed by the Visitor. The Banaras
Ors.(2001)7 SCC 1 and has come to the Hindu University has not only a central
conclusion that the Appropriate character but is a University which is
Government” will be the Government controlled and managed by the Central
which exercises control and authority Government. The State Government as
over the concerned organization. It is such did not have the authority to make a
undisputed that the Hindustan reference nor any such authority was
Aeronautics Ltd. Is an undertaking of the delegated to it by the Central Government
Central Government and it is the Central under Section 39 of the U.P. Industrial
Government which exercises full control Disputes Act. The reference under
over the same. Issuance of license by the Section 4k by the State Government as
State Government is no criteria to come such was not competent and thus the
to a conclusion that the State Government proceedings in pursuance of the reference
would be the “Appropriate Government”. are liable to be set aside.
The impugned judgement of the High
Court therefore is on the fact of it 28. The Contract, on which the
erroneous in view of the Constitution respondent workman was appointed has
Bench decision of this Court referred to not been brought on record and thus the
earlier. We, therefore, set aside the argument that the matter could only be
impugned judgement of the High Court refereed to Arbitrator cannot be
and hold that the Central Government is appreciated and accepted by the Court.
the “Appropriate Government”.
29. In view of the findings on the
26. The Labour Court held that the first question, that the reference under
Banaras Hindu University is an Section 4 K by the State Government was
autonomous body and it is getting not competent, it is not necessary for the
financial grants from the Central Court to decide the other issues.
Government. It shall not be treated as part
of the Central Government and that a 30. The writ petition is allowed. The
number of cases of Banaras Hindu award dated 10.7.1998 passed by the
University have been decided by the Labour Court, Varanasi in Adjudication
Case No. 31 of 1995 Banaras Hindu Miyan and others, under Sections 467,
University and others vs. Brij Nath 468, 471 IPC, P.S. Kotwali, District
Bareilly, pending in the court of Ld. JM
Bhattacharya published on 15.3.1999 is
Ist Bareilly.
set aside. There shall be no order as to Case law discussed:
costs. (2008) 2 SCC (Crl) 464
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
(Delivered by Hon’ble Vinod Prasad, J.)
1. Kalim Ahmad @ Anwar Miyan,
BEFORE Shahid Ahmad @ Shahid Miyan, Jaheer
THE HON’BLE VINOD PRASAD, J. Ahmad @ Jaheer Miyan and Sajid Ahmad
@ Guddu, four sibling brothers all sons of
Criminal Misc. Application No. 19905 of Late Nawab Ali, resident of 153,
2008 Shahbad, P.S. Prem Nagar, District
Bareilly have invoked the inherent
Kalim Ahmad @ Anwar Miyan and others
jurisdiction of this Court by filling of the
…Applicants
Versus instant Criminal Miscellaneous
State of U.P. & another …Opposite Parties Application with the prayer to quash the
proceeding of Complaint Case No. 2257
Counsel for the Applicants: of 2004 for offences under Sections 467,
Sri Sushil Shukla 468, 471 IPC, P.S. Kotwali, District
Bareilly, pending in the court of Ld. JM
Counsel for the Opposite Parties: Ist Bareilly.
Sri Azhar Hussain
A.G.A. 2. I have heard Sri Sushil Shukla,
learned counsel for the applicants in
Code of Criminal Procedure Section 482-
support of this application as well as Sri
Quashing of Criminal proceeding Trail for
offence under Section 467, 468, 474 IPC- Azhar Hussain, learned counsel for the
parties entered into compromise do not respondent and learned AGA in
want to litigate the case-held- opposition and perused the record of this
technicality will not come in their way- application.
No useful purpose served-in continuing
and passing the futile order.
3. In a bird eye view, the allegations
Held: Para 7 against the applicants, as is contained in
Annexure No.1 are that Sri Kishan Lal
After hearing both the sides, I am of the Suri son of Sri Bhagwan Das Suri,
view that since the matter has been resident of 23-A Model Town, P.S.
compromised and both the litigating Baradari, district Bareilly had purchased a
sides do not want to litigate any further
house from Smt. Shanti Devi wife of Kunj
therefore technicality of law should not
come in their way to compromise the Lal, who was holding power of attorney
matter and therefore, while exercising of his wife namely Smt. Shanti Devi,
my power under Section 482 Cr.P.C. I which house was allotted a new
quash the proceedings of the aforesaid Municipal Number being House
Complaint Case No.2257 of 2004, No.218/154. The said house was given
Krishna Lal Vs. Kalim Ahmad @ Anwar
under the tenancy of Nawab Ali, father of
1 All] Kalim Ahmad @ Anwar Miyan & others V. State of U.P. and another 195
the applicants. After the demise of Nawab 5. Learned counsel for the applicants
Ali, the four applicants, as heirs of the contended that the matter has been
deceased came in possession over the said compromised and the informant now does
house, as tenants. Further allegations are not want to prosecute the applicants. He
that the aforesaid applicants by further contended that the ordeal of the
impersonating Smt. Shanti Devi through trial procedure will be a futile effort and
an imposter lady got executed a fictitious wastage of time of the Court. Learned
sale deed through a sham transaction in counsel for the applicants relied upon a
their favour and got it registered in the judgment of apex court rendered in (2008)
office of Deputy Registrar Registration 2 SCC (Crl) 464 Madan Mohan Abbot
and started claiming the ownership of the Vs. State of Punjab. He contended that
aforesaid house. Since the property was since the parties do not want to litigate,
purchased through a sham transaction, the case should be closed. Learned
FIR Annexure No. 1 was got lodged by counsel for the applicants further
Kishan Lal Suri on 29.5.1999 at 5.00 p.m. submitted that the dispute was primarily
at P.S. Kotwali, district Bareilly showing civil in nature and therefore, no useful
the date of the incident as 29.5.1992, purpose will be served to go on with the
which FIR was registered as Crime No. trial procedure.
2350 of 1999 for offences under Sections
420,467,468,471 IPC. 6. Learned counsel for the
respondent also agreed to the fact that the
4. The police of police station dispute has been compromised and the
Kotwali, district Bareilly engineered the parties do not want to litigate any further.
investigation and after concluding the
same submitted a final report on 9.2.2000 7. After hearing both the sides, I am
(Annexure No.2). Thereafter what of the view that since the matter has been
transpires is that a protest petition was compromised and both the litigating sides
filed by the informant, which was treated do not want to litigate any further
to be a complaint by the concerned therefore technicality of law should not
Magistrate who recorded the statement of come in their way to compromise the
the informant under Section 200 Cr.P.C. matter and therefore, while exercising my
and that of his witnesses P.W. 1 Manohar power under Section 482 Cr.P.C. I quash
Lal and P.W. 2 Om Prakash Goyel under the proceedings of the aforesaid
Section 202 Cr.P.C. Basing his opinion on Complaint Case No.2257 of 2004,
the aforesaid recorded statements vide Krishna Lal Vs. Kalim Ahmad @ Anwar
order dated 22.4.2004 Ld J.M. Ist, Miyan and others, under Sections 467,
Bareilly in the aforesaid case summoned 468, 471 IPC, P.S. Kotwali, District
the applicants to stand the trial for Bareilly, pending in the court of Ld. JM
offences under Sections 467, 468, 471 and Ist Bareilly.
420 IPC fixing 21.5.2004 for their
appearance before him. It is this 8. This application is allowed.
proceeding, which is sought to be quashed Copy of this order is directed to be
by filing of the present Criminal sent to the trial Magistrate for his
Miscellaneous Application. intimation.
---------
APPELLATE JURISDICTION 2. This application has been filed

CRIMINAL SIDE with a prayer to quash the charge sheet
dated 31.05.2007 under Sections 466,
467, 468, 471, 409, 120B I.P.C. and
BEFORE
THE HON'BLE RAVINDRA SINGH, J.
Section 13(2) read with Section 13 (1)
C.D. of Prevention of Corruption Act,
Criminal Misc. Application No. 24729 of 1988 in Case Crime No. 115 of 1998, P.S.
2008 Kotwali Nagar, District Gonda pending in
the court of learned Special Judge,
Rajendra Prasad Misra …Applicant Corruption Act, Gorakhpur vide S.T. No.
Versus. 04 of 2008.
State of U.P. …Opposite Party
3. The facts in brief of this case are
Counsel for the Applicant: that the F.I.R. of this case has been lodged
Sri Rahul Mishra by Sri Rama Shanker Singh Yadav,
Inspector U.P. Vigilance Establishment,
Counsel for the Opposite Party: Faizabad Sector, Faizabad against the
A.G.A. applicant and other co-accused persons on
06.02.1998 alleging there in that one
Code of Criminal Procedure-Chargesheet
quashing-offence under Section 466,
Awadhesh Singh son of Jagpal Singh
477, 468, 471, 409 , 120 read with moved an application in respect of the
Prevention of Corruption Act, 1988 corruption of different. departments of
Section 13(1) and Section 13(2) -no District Gonda, the same was forwarded
irregularities in investigation disclosed- by Kunwar Ajay Pratap Singh @ Lalla
nor the Magistrate committed any Bhaiya, M.L.A, on that application, the
illegality in taking cognizance-cannot be
interfered under inherent power-
Government has initiated an enquiry, in
considering old age-Magistrate to enquiry report dated 30.9.1996 it was
consider the bail application on same day found that in the construction of the
the discharge application in accordance building of Vikas Bhawan, Gonda certain
with law. irregularities were found, the work of the
construction was done by Gramin
Held: Para 6
Adhiniyantran Sewa Vibhag, Gonda. It
On the ground of delay of submission of was found that the use of cement and saria
charge sheet after the retirement of the was shown in excessive whereas such
applicant is not a proper ground for material was not used, for the same
quashing the charge sheet. There is no purpose the forged documents were
illegality in submission of the charge prepared in connivance of the applicant
sheet, therefore, the prayer for quashing
and other co-accused persons and some of
the same is refused.
the records was missing at the instance of
the applicant and another co-accused
(Delivered by Hon'ble Ravindra Singh, J.)
persons so that the criminal liability may
not be fixed against the applicant and
1. Heard Sri Rahul Mishra, learned
other co-accused persons. It was found
counsel for the applicant and learned
that the building of the Vikas Bhawan
AG.A for the State of U.P. and perused
was not constructed up to the mark. After
the record.
1 All] Rajendra Prasad Misra V. State of U.P. 197
preliminary enquiry the F.I.R. of this case misuse of the process of law whereas no
has been lodged. After investigation the offence is made out against the applicant
charge sheet date 31.05.2007 has been and in a routine manner without perusing
filed by the 1.O. in the court of learned the material collected by the I.O. the
Special Judge, Anti Corruption on which learned Special Judge has taken the
the learned Special Judge concerned has cognizance and summoned the applicant
taken the cognizance on 2.2.2008. to face the trial, therefore, the charge
sheet of the present case may be quashed.
4. It is contended by learned counsel
for the applicant that applicant was posted 5. In reply of the above contention it
as executive engineer in Gonda in Rural is submitted by learned AG.A that in the
Engineering Services U.P. The contract of present case the preliminary enquiry has
the construction of the building of the been done on the basis of the complaint
Vikas Bhawan was not in the hands of the received by the Government. In
applicant. The applicant has not preliminary enquiry it was found that
committed any forgery, cheating or applicant and other co-accused persons
corruption. The allegations are in respect have committed the alleged offence
of use of the material in the construction thereafter the F.I.R. has been lodged. The
of the building of the Vikas Bhawan matter was properly investigation, during
According to the terms and work done by investigation the cogent evidence has
the Contractor the payment of the bills been collected by the I.O. disclosing the
has been made. There is no evidence to commission of the offence. Thereafter the
shows that applicant had made any charge sheet dated 31.5.2007 has been
conspiracy in commission of the alleged submitted in the court of learned Special
offence. The preliminary enquiry was not Judge Anti Corruption, Gorakhpur who
properly done and without doing the take the cognizance on 2.2.2008. During
proper enquiry the F.I.R. of this case has investigation the proper sanction has also
been lodged only on the basis of the been obtained. There is no illegality in the
presumption that sufficient material has sanction also, only delay in submitting the
not been used in the construction of the charge sheet is not a proper ground for
building of the Vikas Bhawan. The proper quashing the charge sheet. The
sanction has not been accorded for the application filed by the applicant is
prosecution of the applicant by authority devoid of merits and the same may be
concerned. In the present case the proper dismissed.
investigation has not been done by the
I.O. and without collecting the cogent 6. Considering the submission made
evidence disclosing the commission of the by learned counsel for the applicant,
offence the charge sheet has been learned AG.A and from the perusal of
submitted. The charge sheet has been record it appears that in the present case
submitted in view of the technical report on the basis of the complaint made by Sri
submitted by the Chief Engineer. The Awadhesh Singh, the same was forwarded
applicant has retired in the year 1992, the by Kunwar Ajay Pratap Singh @ Lalla
charge sheet has been submitted after 15 Bhaiya, M.L.A. open enquiry has been
years of his retirement. The charge sheet conducted by the Government, in enquiry
has been submitted by the I.O. is simply it was found that proper material of
cement and iron rods not been used in the 8. With the above directions, this
construction of building of Vikas Bhawan application is finally disposed of.
It is alleged that the payment of the high ---------
quantity of cement and iron has been ORIGINAL JURISDICTION
CIVIL SIDE
made whereas such quantity was not used
in construction of the building for which
the forged records has also been prepared BEFORE
even some of the record has been THE HON’BLE TARUN AGARWALA, J.
misplaced. The I.O. has recorded the
statement of the witnesses and collected Civil Misc. Writ Petition No. 28040 of 2004
the material which prima facie discloses
the commission of the offence and for the Chhote Lal …Petitioner
purpose of the prosecution the sanction Versus
has also been obtained from the Regional Manager, Bank of Baroda, Bareilly
authorities concerned. The I.O. has not Region, Bareilly & others …Respondents
committed any error in submitting the
charge sheet dated 31.5.2008 which Counsel for the Petitioner:
Sri Kuldeep Jauhri
discloses the commission of the offence.
Sri Dharmendra Singh
The learned Special Judge Anti
Corruption has also not committed any
Counsel for the Opposite Parties:
error in taking the cognizance vide order Sri Vipin Sinha
dated 2.2.2008. The charge sheet has been Sri Ashish Srivastava
submitted on 31.05.2007 in respect of the Sri K.C. Sinha
incident which had occurred in the year
1998. On the ground of delay of Industrial Dispute Act, 1947-Section 25-
submission of charge sheet after the F-Retrenchment compensation-denied
retirement of the applicant is not a proper by Tribunal-workman worked only 222
ground for quashing the charge sheet. days-240 days to be calculated from the
date of termination after joining
There is no illegality in submission of the
backwards to 12 months-falure of such
charge sheet, therefore, the prayer for consideration-held- illegal-matter
quashing the same is refused. remitted to back for fresh
reconsideration.
7. However, considering the old age
of the applicant, it is directed that Held: Para 9
applicant shall appear before the court
In the light of the aforesaid judgment,
concerned within 30 days from today, in the Industrial Tribunal is required to
case he applies for bail, the same shall be calculate 240 days starting from the date
heard and disposed of expeditiously, if of the termination and going backwards
possible on the same day by the court 12 months which has not been done.
concerned thereafter in case the applicant This calculation is required to be based
on the basis of the payment vouchers
moves discharge application before the
issued by the bank and such other
court concerned, the same may be heard evidence which the parties may placed
and disposed expeditiously of in before the Tribunal.
accordance with the provisions of law. Case law discussed:
AIR 1981 SC 1253
1 All] Chhote Lal V. Regional Manager, Bank of Baroda and others 199
(Delivered by Hon'ble Tarun Agarwala, J.) claim of the petitioner holding that the
workman had not worked for 240 days in
1. Heard Sri Dharmendra Singh, a calender year and therefore, the
holding the brief of Sri Kuldeep Jauhari, provision of Section 25-F of the Industrial
the learned counsel for the petitioner and Disputes Act was not attracted and that
Sri Ashish Srivastava, holding the brief of the petitioner was not entitled for the
Sri Vipin Sinha, the learned counsel for payment of retrenchment compensation,
the respondent bank. etc. The petitioner, being aggrieved, has
filed the present writ petition.
2. The petitioner has challenged the
validity and legality of the award whereby 5. Heard the learned counsel for the
his claim with regard to the validity of his parties.
order of termination was rejected by the
Industrial Tribunal, New Delhi. The facts 6. A perusal of the written statement
leading to the filing of the writ petition is, and the rejoinder statement filed by the
that the petitioner was appointed as a petitioner indicates the number of days
peon allegedly w.e.f. 10.6.1991 and which the petitioner had worked from
worked for a limited period of time and 1991 till the date of his alleged
thereafter his services was dispensed with. termination, i.e., 14.11.1994. Further, the
It is alleged that the petitioner was re- rejoinder affidavit indicates not only the
engaged and eventually worked till number of days which he had worked but
14.11.1994 when his services was also indicates the payment which he had
terminated without any prior notice. The received from the employer for the
petitioner contended that he had worked number of days the petitioner had worked.
for more than 240 days in a calendar year A perusal of paragraph 13 of the rejoinder
and, therefore, his services could not be of the workman filed before the Tribunal
terminated without complying with the indicates that he had worked for 295 days
mandatory provisions of issuing notice from 8.12.1993 to 14.11.1994. The
and payment of retrenchment workman has alleged in the said
compensation which had not been done. paragraph that not only he had worked for
those days but was also paid and that the
3. The petitioner being aggrieved by statement is based on the basis of the
his alleged termination of services, raised payment vouchers.
a dispute which was referred by the
Ministry of Labour to the Industrial 7. In spite of this specific averment
Tribunal, in the year 1997. Before the being made by the petitioner, the Tribunal
Tribunal the employers, namely, the bank, has given a finding that the petitioner has
denied the claim of the petitioner and worked for 202 days between November,
submitted that he had never worked as a 1993 to October 1994 which apparently
permanent peon nor had he completed appears to be based on surmises and
240 days in a calender year. conjectures. The conclusion drawn by the
Tribunal does not appear to be borne out
4. The Industrial Tribunal after from the records. It appears that the
considering the evidence on record passed finding of having worked for less than
an award dated 23.2.2004 rejecting the 240 days is made on the basis that 12
calender months has to be calculated from have been in the service of the employer
1st January to 31st December. In my for one whole year."
opinion, this basis is patently erroneous.
In a concurring judgment Pathak J.
8. In Mohan Lal vs. The agreed with this interpretation of Section
Management of M/s Bharat Electronics 25B (2). Therefore, both on principle and
Ltd., AIR 1981 SC 1253, the Supreme on precedent it must be held that Section
Court held that 240 days in a calender 25B (2) comprehends a situation where a
year has to be counted starting from the workman is not in employment for period
date of termination and then counting 12 of 12 calendar months but has rendered
months backwards and if the workman service for a period of 240 days within the
had worked for 240 days in those 12 period of 12 calendar months
months in that event, by a deeming commencing and counting backwards
eviction, the workman would be deemed from the relevant date, i. e. the date of
to be in continuous service of one year. retrenchment. If he has. he would be
The Supreme Court held- deemed to be in continuous service for a
period of one year for the purpose of
"14. We have already extracted Section 25B and Chapter VA."
Section 25B since its amendment and the
change in language is the legislative 9. In the light of the aforesaid
exposition of which note must be taken. In judgment, the Industrial Tribunal is
fact, we need not further dilate upon this required to calculate 240 days starting
aspect because in Surendra Kumar Verma from the date of the termination and going
v. Central Government Industrial-cum- backwards 12 months which has not been
Labour Court, New Delhi, (1980) 4 SCC done. This calculation is required to be
443 : (AIR 1981 SC 422) Chinnappa based on the basis of the payment
Reddy, J., after noticing the amendment vouchers issued by the bank and such
and referring to the decision in Sur other evidence which the parties may
Enamel and Stamping Works (P) Ltd. placed before the Tribunal.
case (AIR 1963 SC 1914) held as under
(at p. 426 of AIR) : 10. In view of the aforesaid, the
award of the Tribunal is manifestly
"These changes brought about by Act erroneous in law and cannot be sustained
36 of 1964 appear to be clearly designed and is quashed. The writ petition is
to provide that a workman who has allowed. The matter is remitted again to
actually worked under the employer for the Industrial Tribunal with a direction to
not less than 240 days during a period of re-decide the matter within a period of six
twelve months shall be deemed to have months from the date of the production of
been in continuous service for a period of a certified copy of this order.
one year whether or not he has in fact ---------
been in such continuous service for a
period of one year. It is enough that he
has worked for 240 days in a period of 12
months, it is not necessary that he should
1 All] D.A.V. Public School, Meerut V. P.A. (Minimum Wages Act) 1948 and others 201
ORIGINAL JURISDICTION (Delivered by Hon'ble S.U. Khan, J.)

CIVIL SIDE
1. Heard learned counsel for the
parties.
BEFORE
THE HON’BLE S.U. KHAN, J.
2. Respondent No.2, Arun Kumar
Civil Misc. Writ Petition No. 29644 of 2006 was an employee of petitioner school. His
services were terminated on 31.03.2001.
D.A.V. Public School (U.P.) Meerut Thereafter, on 23.06.2004, he filed an
…Petitioner application before Prescribed Authority
Versus under Payment of Wages Act, 1936,
Prescribed Authority (Minimum Wages Act) which was registered as P.W.A. Case
1948/ Assistant Labour Commissioner- No.60 of 2004. In the said application, he
Bijnor and others …Respondents
claimed that from 13.04.1991, he was
appointed as O.S.D. in the petitioner
Sri Vijay Bahadur Singh
school and he was paid less wages than
Sri Ashok Kumar Lal the wages required to be paid in
Sri Shakti Swarup Nigam accordance with the recommendations of
V Pay Commission w.e.f. 01.04.1996. It
Counsel for the Respondents: was stated that the difference came to
Sri Arun Kumar Singh Rs.6,75,918/- (about Rs.6,80,000/-). Ten
S.C. times compensation was also claimed.
Industrial Dispute Act, 1947-Section 22- 3. It has been held in U.P. Basic
C (2)-claim for arrear of wages-workman Parishad, Allahabad Vs. Prescribed
already drawing more than 1600/- per Authority under Payment of Wages
month-direction for payment of arrears
of salary Vth pay commission and
Act, 2006 (109) FLR 1101 and R.D.S.O.
imposition by fine as per beyond Basic School Vs. Prescribed Authority,
jurisdiction. 1992 (2) U.P.L.B.E.C. 1472 that Payment
of Wages Act, 1936 is not applicable to
Held: Para 8 educational institutions.
Moreover by virtue of Section 1(6) of
4. Through order dated 20.12.2004,
Payment of Wages Act an employee
drawing more than Rs.1600/- per month Prescribed Authority under Payment of
cannot make any claim under the said Wages Act condoned the delay. The only
Act. Not only the claimed per month ground mentioned in the said order for
wages but even the per month wages condoning the delay was that since
actually paid to respondent No.2 were September, 2001 till March, 2004,
more than Rs.1600/-
respondent No.2 gave several applications
Case law discussed:
2006 (109) FLR 1101, 1992 (2) U.P.L.B.E.C. to the management. This is absolutely no
1472, 2008 AIR SCW 7233, AIR 2006 SC 1581, ground for condoning the delay. In any
2007 (113) FLR 50 : 2007 (2) ADJ 25 (SC), case for delay since 1996 till 2001 when
2006 (10) SCC 211. services of respondent No.2 were
terminated, there was absolutely no
explanation. Against order dated
20.12.2004, appeal was filed, which was C(2) of Industrial Disputes Act applies to
dismissed by District Judge Bijnore on Payment of Wages Act. It has repeatedly
15.02.2005. I find that both the orders are been held by the Supreme Court that there
utterly illegal as neither any ground for cannot be any adjudication under Section
delay was taken nor any finding was 33-C(2) of I.D. Act. In this regard,
recorded. The Supreme Court in the reference may be made to the authority
following authorities has held that filing reported in Ghaziabad Zila Sahakari
repeated representations is no ground to Bank Ltd. Vs. Additional Labour
condone the delay and it cannot keep a Court, Commissioner, 2007 (113) FLR
course of action alive. 50 : 2007 (2) ADJ 25 (SC). In
U.P.S.R.T.C. Vs. Virendra Bhandari,
1. C. Jocob Vs. Director of Geology 2006 (10) SCC 211, it has been held that
& Mining, 2008 AIR SCW 7233 salary in terms of recommendations of
2. AIR 2006 SC 1581 "Karnataka Pay Commission cannot be recovered
Power Corporation Ltd. v. through proceedings under Section 33-
K.Thangappan" C(2).
5. Ultimately, Prescribed Authority 8. Moreover by virtue of Section

under Payment of Wages Act, 1936 1(6) of Payment of Wages Act an
allowed the claim of respondent No.2 employee drawing more than Rs.1600/-
through order dated 25.03.2006 holding per month cannot make any claim under
that from 01.04.1996 to 31.03.2001 the said Act. Not only the claimed per
respondent No.2 is entitled to salary in month wages but even the per month
accordance with the V Pay Commission wages actually paid to respondent No.2
amounting to about Rs.2,70,000/- (for this were more than Rs.1600/-
period about Rs.2,40,000/- were paid).
Seven times of the said amount, i.e. 9. Accordingly, writ petition is
Rs.18,85,429/- was imposed as damages. allowed. Impugned orders are set aside.
Total amount directed to be paid came to ---------
Rs.21,54,776/-. This writ petition is APPELLATE JURISDICTION
CRIMINAL SIDE
directed against orders dated 20.12.2004
and 25.03.2006.
BEFORE
6. Recommendations of V Pay THE HON’BLE VINOD PRASAD, J.
Commission when accepted by the
Government are applicable upon Criminal Misc. Application No.35450 of
government employees. They are not 2008
applicable on privately managed
educational institutions. Krishna Pal …Applicant
Versus
7. Disputed question of entitlement State of U.P. & another …Opposite Parties
to a particular pay or pay scale cannot be
decided in proceedings under Payment of Counsel for the Applicant:
Wages Act. The same principle which Sri R.P.S. Chauhan
applies to applications under Section 33-
1 All] Krishna Pal V. State of U.P. and another 203
Counsel for the Opposite Parties: exhortation has been assigned to the
A.G.A. present applicant in the deposition of the
injured recorded in the aforesaid sessions
Code of Criminal Procedure-Section 319- trial, thirdly, the applicant has no criminal
Summoning-on the basis of materials history and has got no conviction to his
available during course of Trial-
satisfaction of Trial Court is material-
credit and lastly, he relied upon a
High Court can not substitute the power judgment of Apex Court, reported in 2007
of Trial Court-held-summoning order can (58) ACC 254, Mohd. Shafi Vs. Mohd.
not be termed illegal or Rafique and another to support his
capricious/made-observation for argument that the summoning of the
consideration on same day of bail applicant exercising power under section
application made.
319 Cr.P.C. is bad in law and the
Held: Para 8 impugned order be quashed.
The trial judge was satisfied that the 4. Learned AGA vehemently refuted
present applicant can be tried along with all the contentions raised by the learned
already trying accused persons and the counsel for the applicant.
evidence led before it is sufficient to
summon him by exercising power under
section 319 Cr.P.C. The said opinion of 5. Dealing with the contentions
the trial judge cannot be said to be raised by the learned counsel for the
capricious, illegal or not sustainable in applicant first of all material collected
law. during investigation is wholly irrelevant
Case law discussed: and is beyond the scope of Section 319
2007 (58) ACC 254
Cr.P.C. What is to be looked into, for
summoning a person under section 319
(Delivered by Hon’ble Vinod Prasad, J.)
Cr.P.C. is the recorded evidence during
trial and not materials collected during
1. The order dated 11.02.2008
investigation. All the allegations made
passed by Addl. District and Sessions
during the investigation are alien for
Judge in S.T. No.1122 of 06, State Vs.
exercise of power under section 319
Ram Charan and another under Section
Cr.P.C. therefore, first contention raised
307 and 504 IPC has been questioned in
by the learned counsel for the applicant is
this application under section 482 Cr.P.C.
hereby repelled.
invoking inherent jurisdiction of this
Court.
6. Coming to the second contention
that the only role of exhortation has been
2. I have heard learned counsel for
assigned to the applicant, the applicant
the applicant at a great length and perused
can very well be convicted with aid of
the record including annexure-3 and the
Section 34 or 149 of I.P.C.
impugned order.
7. Coming to the third contention
3. Sri Chauhan, learned counsel for
that applicant does not have any criminal
the applicant raised many contentions first
history and therefore, should not be
being that during the investigation the
prosecuted, to say the least, the said
complicity of the applicant was found to
be false, secondly, only the role of
argument is wholly irrelevant and has cannot be said to be capricious, illegal or

been advanced without any basis. not sustainable in law.
8. Coming to the judgement relied 9. In view of the above discussions,

upon by the applicant, the said decision I find no reason to set aside the impugned
does not apply at all on the fact of the order dated 11.2.08 passed by Additional
present case. What happened in the case Sessions Judge in S.T. No. 1122 of 06
of Mohd. Shafi was that the trial judge, on State Vs. Ram Charan and others. This
the basis of examination-in-chief only did application is therefore devoid of merit
not thought it fit to summon the accused and is hereby dismissed.
by exercise of power under Section 319
Cr.P.C. Informant being aggrieved from 10. After this order was passed,
the aforesaid inaction on the part of the learned counsel for the applicant
trial judge approached the concerned requested for a direction for disposal of
High Court challenging the non bail prayer of the applicant in the
summoning of the accused. The High aforesaid trial.
Court while allowing the prayer of the
informant set aside the order passed by 11. On the peculiar facts of the case,
the trial judge and directed the trial judge I direct the trial judge to consider and
to summon the accused persons. The dispose of the bail prayer of the applicant
accused was aggrieved by the order in the aforesaid trial on the same day on
passed by the High Court against him and which it is moved after hearing the public
therefore, he had approached the Supreme prosecutor as complete materials against
Court. The Apex Court set aside the order the applicant is already available with the
of the High Court for the reasons that trial judge.
under section 319 Cr.P.C. it is the
satisfaction of the Trial Judge to summon 12. This application stands
any person as an accused. The High Court dismissed with aforesaid direction.
cannot not substitute its satisfaction with ---------
that of the trial judge. The Apex Court has ORIGINAL JURISDICTION
CIVIL SIDE
held that if the trial judge was not
satisfied only on the basis of examination-
in-chief to summon the accused, no fault BEFORE
can be find with the order of the trial THE HON’BLE ASHOK BHUSHAN, J.
judge and therefore, the Apex Court set THE HON’BLE VINEET SARAN, J.
aside the order of High Court. This fact is
clear from paragraph no. 12 and 13 of the Civil Misc. Writ Petition No.37954 of 1996
aforesaid judgment of Mohd. Shafi
(supra). That is not the situation here. The M/s Hindustan Aeronautics Ltd.
trial judge was satisfied that the present …Petitioner
applicant can be tried along with already Versus
State of U.P. and another …Respondents
trying accused persons and the evidence
led before it is sufficient to summon him
by exercising power under section 319
Sri S.D. Singh
Cr.P.C. The said opinion of the trial judge
1 All] M/s Hindustan Aeronautics Ltd. V. State of U.P. and another 205
Counsel for the Respondents: petition) by which order, the 5th

Sri Harish Chand Kohli (In Person) Additional District Judge, Kanpur Nagar
Sri S.C. Tripathi has rejected the application of the
S.C. petitioner for restoring the FAFO which
was dismissed on July, 1996. The FAFO
Code of Civil Procedure-Order 9 R. 13- was filed by the petitioner against the
Restoration of appeal-application
order dated 14.4.1983 by which order the
remained pending for 13 years-delaying
tactice by appellant-No satisfactory arbitration award awarding a sum of
explanation for non appearance-first Rs.79000 to the respondent was made
appellate court recorded so many Rule of the Court. When the FAFO was
reasons for not allowing first called on several occasion, neither the
application-can not be interfered either petitioner nor the petitioner's counsel
under Article 226 or 227 of constitution.
appeared hence the Court dismissed the
Held: Para 14 appeal. An application was filed for
restoration of the appeal along with the
The Appellate Court has given cogent affidavit of Sri A.P. Trivedi, Supervisor.
reasons for rejecting the application as The objection was filed to the said
noted above. The appeal was pending for restoration application. The Court heard
hearing for last 13 years and was
the parties and has dismissed the
adjourned at the instance of the
appellant for 4th July, 1996. The application. The Court did not believe the
Appellate Court has found that no cause shown by the petitioner for non-
satisfactory explanation was given for appearance on 4th July t 1996. It was
non-appearance of the counsel on 4th noticed by the Court that 4th July, 1996
July, 1996. was the date fixed on the request made by
Case law discussed:
the petitioner and the appeal which was
(2000) 3 S.C.C. 54, AIR 1984 S.C. 1447, 2003
(6) SCC 675 pending for 13 years was to be heard
finally on 4th July 1996. Neither the
(Delivered by Hon’ble Ashok Bhushan, J.) petitioner appeared nor his counsel
appeared although respondent and his
1. Heard Sri S.D. Singh, learned counsel were present. The explanation
counsel for the petitioner and Sri Harish given by the petitioner was that there was
Chand Kohli, who has appeared in person workers' agitation in the establishment
on behalf of respondent No.2. Earlier the due to which, no one could come to the
case was adjourned on the request of the Court and the file of the case was with the
learned counsel for the petitioner to get Supervisor. The Court disbelieved the
the matter settled outside the Court. case set up by the petitioner and has
However, when the case was taken up observed that no Senior Officer has filed
today, the settlement between the parties any affidavit with regard to extent of the
is not seen. In view of the aforesaid, we workers' agitation and it has not even
have proceeded to decide the writ petition stated that there has been any violence
on merit. resorted by the workers in the
establishment. The Court also did not
2. This writ petition has been filed believe that there was no facility of
praying for quashing the order dated. telephone and the case file was not with
15.11.1996 (Annexure No.8 to the writ the counsel. The Court observed that in a
case where appeal was pending for last 13 petitioner to 4th July, 1996 for
years and adjourned for 4th July, 1996 on hearing.
the request of the petitioner, the file of the
case be not with the counsel, is not (2) The appeal is 13 years old appeal and
believable. Against the order dismissing serious efforts were required to be
the restoration application, this writ taken by the appellant for hearing of
petition was filed by the petitioner on 26th the appeal but on that date no one
November 1996 which remained pending appeared on behalf of the appellant.
in this Court for another 13 years. The HAL is a reputed and a big
establishment but with regard to
3. By an interim order passed on labour unrest, no affidavit of any
16.12.1996, the respondent was restrained Senior Executive Officer was filed
from taking the money which has been and affidavit of only a subordinate
deposited in the Court in pursuance of the employee has been filed who is not
award. expected to assess the nature and
seriousness of labour unrest.
4. Learned counsel for the petitioner
challenging the order contended that the (3) It is not acceptable that no employee
Court below has committed error in or officer could contact his counsel
rejecting the restoration application. The whereas there is no mention that
Court ought to have put some conditions workers resorted to rampage or
for restoration of the appeal. He submits violence.
that sufficient cause was shown. In
support of his contention, the learned (4) It is not acceptable that telephone
counsel for the petitioner has placed services had become zero.
reliance on the judgement of the Supreme
Court (2000) 3 S.C.C. 54, G.P. Srivastava (5) The fact that file of the counsel went
Versus R.K. Raizada and others. with Sri A.P. Trivedi along with
other documents cannot be believed.
5. We have considered the No satisfactory reasons have been
submissions and perused the record. given as to why the counsel for the
appellant in such important and old
6. The Appellate Court vide case could not appear on 4th July,
impugned judgement dated 15.11.1996 1996.
dismissed the application filed by the
petitioner refusing to recall the order (6) The party who is interested in
dated 4th July, 1996. The following are the delaying the disposal of a case absent
reasons which have been given in the itself to get the case dismissed in
impugned order for rejecting the default and subsequently efforts are
application: made to get it restored by which
process he gets opportunity to delay
(1) The appeal which earlier fixed for 2nd the matter and in the present case this
July, 1996 for hearing, was appears to be reason for non-
adjourned at the instance of the appearance.
7. From the reasons as indicated in for hearing of the appeal. On 4th July
the impugned order as noticed above, it is 1996, when the case was called, counsel
clear that Court has considered the did not appear and no satisfactory
explanation given by the petitioner- explanation has been given in the affidavit
appellant for non-appearance on 4th July, for non-appearance of the counsel. The
1996 and the objection taken to the appeal which was an old appeal, pending
application by the respondent. It is not for last 13 years and on the last occasion
disputed that appeal was filed against an was adjourned at the instance of the
order passed by the learned Civil Judge petitioner's counsel, it was expected that
by which order, award given by arbitrator the counsel would appear and argue the
was made Rule of the Court. The dispute matter. The learned Appellate Court has
between the parties arose out of an rightly observed that in facts of the
arbitration proceeding. The petitioner and present case, a serious endeavour was
respondents entered into a contract for required to made on behalf of the
carrying out certain constructions. The petitioner towards hearing of the appeal
dispute arose between the parties with which was not done. The explanation that
regard to which arbitrator gave an award file of the counsel was mixed up and was
on 24.3.1981. The award was submitted with Official of the factory was rightly
to the Court for making it Rule of the not believed. The Appellate Court who
Court on which Suit No. 140 of 1980 was to hear the appeal, was in best know
(M/s Kohli Construction Ltd. Vs. H.A.L.) of the proceedings before it. With an
was registered. The learned 1st Additional order having considered the explanation
Civil Judge vide his judgement and order submitted by the petitioner and not having
dated 14th April, 1983 made the award found it satisfactory enough to recall
granted by the arbitrator for Rs.79,000/- order dated 4th July, 1996, the scope of
plus interest the Rule of the Court against interference in writ jurisdiction is too
which order, the appeal was filed by the limited.
petitioner being FAFO No. 378 of 1983.
The appeal remained pending for long 13 8. The judgement of Apex Court in
years and was fixed for hearing on 2nd G.P. Srivastava's case (supra) relied by
July, 1996 but on the request made by the the counsel for the petitioner was a case
appellant's counsel, the appeal was where the Apex Court laid down that for
adjourned for 4th July, 1996 for hearing on setting aside the ex-parte decree under
which date when the case was called on Order 9 Rule 13 C.P.C. the words "was
several occasion, neither the petitioner nor prevented by any sufficient cause from
his counsel appeared. The explanation appearing" must be liberally construed to
given by the petitioner for nonappearance enable the Court to do complete justice
on 4th July 1996 was that due to workers' between the parties particularly when no
unrest in the factory, the representative of negligence or inaction is imputable to the
the Company could not contact the erring party. It is useful to quote
counsel on 4th July, 1996, hence no one paragraph No.7 of the judgement which is
appeared. It has been stated by the as follows:
petitioner himself in his application filed
for recall of the order that the counsel was "7. Under Order 9 Rule 13 CPC an
briefed on the evening of 3rd July, 1996 ex parte decree passed against a
defendant can be set aside upon accident and expired which prevented the
satisfaction of the Court that either the counsel to appear in the Court on that
summons were not duly served upon the date. The facts of that case as noted in
defendant or he was prevented by any para 5 of the judgement and reasons given
"sufficient cause" from appearing when by Court in para 8 are as follows:
the suit was called on for hearing. Unless
"sufficient cause" is shown for non- "5. On 10.3.1983 the case was called
appearance of the defendant in the case on for hearing by the Court in the early
on the date of hearing, the court has no hours but as no one appeared on behalf of
power to set aside an ex parte decree. The the appellant, the same was again taken
words" was prevented by any sufficient up at 2 p.m. As none appeared at that
cause from appearing" must be liberally time also, the suit was decreed ex parte
construed to enable the court to do on the basis of evidence produced in the
complete justice between the parties case. In his application under Order 9
particularly when no negligence or Rule 13 of the Code of Civil Procedure,
inaction is imputable to the erring party. praying for setting aside ex parte
Sufficient cause for the purpose of Order judgement and decree, the appellant
9 Rule 13 has to be construed as an submitted that he was posted as an
elastic expression for which no hard and Assistant Engineer in the Irrigation
fast guidelines can be prescribed. The Department and on account of the
courts have a wide discretion in deciding construction of the bridges over the
the sufficient cause keeping in view the casual drains he had to remain at the site
peculiar facts and circumstances of each in the interests of public. He became
case.” indisposed in the evening of 8.3.1982 at
the site which was about 85 kilometers
9. There can be no dispute to the away from Lucknow and could not move
above proposition as laid down by the or return back to Lucknow till 11.3.1983
Apex Court. The Apex Court in the above which prevented him from appearing in
paragraph has clearly laid down that the the trial court on 10.3.1983.
Court have a wide discretion in deciding Unfortunately, the young nephew of the
the sufficient cause keeping in view the counsel of the appellant met with an
peculiar facts and circumstances of each accident on 10.3.1983 and expired which
case. Thus, whether the sufficient cause is prevented him (the counsel) counsel also
made out in a particular case depends on to appear in the Court on that date.
the facts and circumstances of that case. 8. In the instant case, it is not is
Coming to the facts in the case before the disputed that the nephew of the counsel of
Apex Court in G.P Srivastava's case, the the appellant had died in a road accident
ex parte decree was passed on 10.3.1983. on the date of hearing and that the
On the date fixed, the tenant could not appellant himself was not at the station on
appear due to reason that he was account of his employment and illness.”
indisposed at a site which was 85 Kms.
away from Lucknow where the case was 10. From the facts of the above case,
fixed and on 10th March, 1983 which was it is clear that the explanation given for
the date fixed in the case, the young non-appearance of both the tenant and his
nephew of the counsel met with an counsel were held to be sufficient by the
Revisional Court and the ex parte decree or fail to exercise it or exercise it illegally
was set aside. The High Court interfered or improperly, i.e. where an order is
with the findings of fact recorded by the passed without hearing the party sought
Revisional Court which order was set to be affected by it or where the
aside by the Supreme Court. In the above procedure adopted is opposed to
case, the nonappearance of the counsel on principles of natural justice. A caution
10th March, 1983 was due to death of was indicated by saying that the
nephew of the counsel on the very same jurisdiction to issue a writ of certiorari is
day. The case of G.P. Srivastava is on its a supervisory one and in exercising it, the
own fact and does not help the appellant court is not entitled to act as a court of
in the present case. appeal. That necessarily means that the
findings of fact arrived at by the inferior
11. In the present case, this Court is court of tribunal are binding. An error of
to ex min the correctness of the impugned law apparent on the face of the record
judgement given by the 5th Additional could be corrected by a writ of certiorari
District Judge on the parameters which but not an error of fact, however grave it
have been laid down for exercise of may appear to be. The rule in Yakoob's
jurisdiction under Articles 226 and 227 of case (AIR 1964 SC 477) when applied to
the Constitution of India. The present is a the present facts would lead to the
writ petition challenging the order of the conclusion that the High Court exceeded
5th Additional District Judge, Kanpur its jurisdiction in interfering with the
Nagar. The order of Additional District order of the Additional District Judge"
Judge was well within the jurisdiction of
the Court and has been passed after "Para 3 to be quoted"
considering the affidavit filed by the
petitioner and other materials on the 13. The Apex Court has also laid
records. down the scope and parameters of
exercise of jurisdiction by this Court
12. The Apex Court in AIR 1984 under Article 227 in Surya Dev Rai Vs,
S.C. 1447, Jagdish Prasad Vs. Smt. Ram Chander Rai and Others, 2003 (6)
Angoori Devi, has considered the scope SCC 675. It has been laid down by the
of issuing a writ of certiorari by the High Apex Court in the said judgement that
Court in exercise of jurisdiction under jurisdiction under Article 227 is a
Article 226 of the Constitution. Following supervisory jurisdiction and not an
was laid down in paragraph 3: appellate jurisdiction. The High Court
while exercising its jurisdiction under
“3. In the case of Syed Yakoob v. Article 227 shall not interfere with the
K.S. Radha Krishnan (1964) 5 SCR 64: impugned judgement even though two
(AIR 1964 SC 477), a Constitution Bench views are possible out of which one has
of this Court indicated the the scope of been followed by the Subordinate Court.
interference in a certiorari proceeding by The High Court in exercise of jurisdiction
saying that a writ of certiorari is issued under Article 227 shall not re-appraise the
for correcting the errors of jurisdiction evidence and can interfere only when the
committed by the courts or tribunals in findings are based on no evidence or
cases where they exceed their jurisdiction perverse. The Supreme Court while
summing up the scope of exercise of with in exercise of jurisdiction by this

jurisdiction under Article 227 laid down Court under Article 226 or 227 of the
in para 38 (4,5 and 6) which are as Constitution of India. The Subordinate
follows: Court has neither assumed a jurisdiction
which it does not have nor has failed to
“38 (4). Supervisory jurisdiction exercise jurisdiction which it does have
under Article 227 of the Constitution is nor there is any manifest error apparent
exercised for keeping the subordinate on the face of record committed by the
courts within the bounds of their Court below. The Appellate Court has
jurisdiction. When a subordinate court given cogent reasons for rejecting the
has assumed a jurisdiction which it does application as noted above. The appeal
not have or has failed to exercise a was pending for hearing for last 13 years
jurisdiction which it does have or the and was adjourned at the instance of the
jurisdiction though available is being appellant for 4th July, 1996. The Appellate
exercised by the court in a manner not Court has found that no satisfactory
permitted by law and failure of justice or explanation was given for non-appearance
grave injustice has occasioned thereby, of the counsel on 4th July, 1996.
the High court may step in to exercise its
supervisory jurisdiction. 15. We are satisfied that in passing
(5). Be it a writ of certiorari or the the impugned judgement, the Appellate
exercise of supervisory jurisdiction, none Court has not committed such error which
is available to correct mere errors of fact may warrant interference by this Court in
or of law unless the following exercise of its jurisdiction under Articles
requirements are satisfied: (i) the error is 226/227 of the Constitution of India. The
manifest and apparent on the face of the writ petition is dismissed.
proceedings such as when it is based on ---------
clear ignorance or utter disregard of the ORIGINAL JURISDICTION
CIVIL SIDE
provisions of law, and (ii) a grave
injustice or gross failure of justice has
occasioned thereby. BEFORE
(6). A patent error is an error which THE HON’BLE PRAKASH KRISHNA, J.
is self-evident i.e. which can be perceived
or demonstrated without involving into Civil Misc. Writ Petition (PIL) No.47304 of
any lengthy or complicated argument or a 2005
long-drawn process of reasoning. Where Connected with
two inferences are reasonably possible Civil Misc. Writ Petition No. 10070 of 2006
and the subordinate court has chosen to Civil Misc. Writ Petition No. 57395 of 2008
take one view, the error cannot be called Civil Misc. Writ Petition No. 58410 of 2008
gross or patent."
Ramesh Chandra & others …Petitioners
14. Applying the parameters as laid Versus
State of U.P. and others …Respondents
down by the Apex Court in above two
cases, the impugned judgement of 5th
Counsel for the Petitioners:
Additional District Judge cannot be said
Sri B.B. Paul
to be a judgement which can be interfered
Sri A.P. Paul
1 All] Ramesh Chandra and others V. State of U.P. and others 211
Counsel for the Respondents: (Delivered by Hon’ble Prakash Krishna, J.)

Sri B.D. Mandhyan
Sri Satish Mandhyan 1. In all the above writ petitions, a
Sri Indradeo Mishra common question of law is involved. In
these writ petitions, quashing of
Constitution of India-Art. 226-Publice notification issued under section 6 of the
Interest Litigation-challenging
U.P.CH Act has been sought for. The writ
notification-cancellation of notification
bringing the village in question out of petition (PIL) No.47304 of 2005 is the
consolidation-none of petitioner leading case. The arguments were heard
disclosed their status as former and in the said writ petition.
inhabitant of concerned village-held-‘No
locus standi’-even otherwise it would be 2. The writ petition No.10070 of
interference with the functioning of
2006 is with respect to the notification
legislation by the judiciary who is best
judge to consider the actual grievance of issued under section 6 of the Act relating
citizen. to villages Bachgaon, Bhidarwa, Julendhi
& Sakha, Pargana, Tehsil & District
Held: Para 22 & 34 Mathura dated 21.7.2005.
The petitioners in my considered view
3. Writ petition No.57395 of 2008
have no interest or locus standi in the
matter. The writ petition is liable to be relates to the village Kuchesar, Pargana
dismissed on the ground of lack of and Tehsil Siyana, District Bulandshahar
material particulars relating to the which was notified for consolidation
interest of the petitioners in the present proceedings under section 4 of the Act.
dispute. It is not the case of the The Consolidation Commissioner by the
petitioners that the inhabitants and
order dated 25th July, 2008 impugned in
agriculturists of the village in question
are so poor that they cannot approach the present writ petition has dismissed the
the Court for redressal of their representation of the petitioners to keep
grievance, if any. Apparently, the present the village outside the purview of the
litigation is not a bonafide one. consolidation operation. The quashing of
the said order has been sought for.
Viewed as above, the preponderance of
judicial opinion is that in such matters
the writ as claimed by the petitioners for 4. The writ petition No. 58410 of
quashing the notification issued under 2008 is in respect of notification dated
section 6 of the Act, cannot be issued. It 25th October, 2007 issued by the
is not necessary for me to discuss the Consolidation Commissioner, U.P.
other cases referred by the learned Lucknow under section 6 of the U.P. CH
counsel for the parties being besides the Act cancelling the notification dated 10th
issue involved.
Case law discussed:
October, 1992 issued under section 4 of
1976 RD 35, AIR 1973 Alld. 382, 1959 ALJ the Act. Quashing of the notification
209, 1984 R.D. 110, 2000 R.D. 30, 2001 (3) issued under section 6 of the Act has been
A.W.C. 2149, 2004 RD 454, 2006 ACJ 2114, sought for in this petition.
2007 (1) ADJ 630, 1952 SC 252, AIR 1967 S.C.
1895, 1990 RD 117, 1999 RD 400, 1999 RD 5. In all these petitions common
468.
question of law as to whether a writ can
be issued quashing the notifications
issued under sections 4 or 6 of the Act, is consolidation operation was going on

involved. peacefully in the village Gharbara.
Certain influential persons (Bhoo Mafias)
6. The writ petition No. 47304 of pressurized the Consolidation Authorities
2005 is the leading case and it is to manipulate cancellation of
necessary to notice the facts from the said consolidation proceedings in the village.
writ petition. One writ petition No.35709 of 2003 was
filed by one Daya Ram for cancellation of
7. The petitioners who are eight in the consolidation proceedings, which was
numbers have preferred this writ petition decided by this Court on 16th of April,
titled as PIL for quashing the notification 2004. The Court disposed off the writ
issued under section 6 of the U.P. petition and while doing so it has been
Consolidation of, Holdings Act dated 24th found that no ground for quashing the
of March, 2005 issued by the respondent notification under section 4 (2) of the
no.2 and have sought a writ of Mandamus Consolidation of Holdings Act is made
commanding the respondents not to out. It, however, permitted the petitioners
enforce the impugned notification against therein to make a representation before
the petitioners and other the Consolidation Commissioner, U.P.,
inhabitants/agriculturists of village Lucknow in respect of the aforesaid
Gharbara, Pargana Tappal, Tehsil Khair, grievances. The Consolidation
District Aligarh on any ground and in any Commissioner as per the allegations made
manner whatsoever. in the present writ petition has issued the
impugned notification dated 24th of
8. The facts of the case may be March, 2005 under section 6 of the Act
noticed in brief. The petitioners claiming cancelling the earlier notification
that the present writ petition is for welfare arbitrarily and under the influence of the
of inhabitants and agriculturists of village private respondent Nos. 4 and 5. It has
Gharbara, Pargana Tappal, Tehsil Khair, been further stated that the impugned
District Aligarh, have challenged the notification has been issued in pursuance
validity of the notification issued under of the letter of Smt. Gyanwati who
section 6 of the Act whereby the earlier happens to be daughter of late Chaudhary
notification issued under section 4 of the Charan Singh and sister of Shri Ajit Singh
Act dated 21st of September, 1995 has (M.P.). The Tehsildar in his report dated
been withdrawn. 28th of August, 2004 somehow
manipulated issuance of impugned
9. In the writ petition, besides notification. Similarly, the Sub Divisional
impleading the State of U.P., the Magistrate and the Collector, Aligarh
Consolidation Commissioner and recommenced for- issuance of the
Collector, Aligarh, the petitioners have impugned notification and the
impleaded Dr. Smt. Gyanwati, President, Consolidation Commissioner,
Mahila Kalyan Nigam, Aligarh and Shri consequently, issued the impugned
Ajit Singh son of Late Chaudhari Charan notification which, according to the
Singh, Member Parliament and National petitioners, is manifestly erroneous in
President of Indian Lok Dal, New Delhi law, arbitrary, discriminatory, perverse
as respondents. It has been pleaded that and without jurisdiction. It has failed to
take into consideration the report of the 11. In paragraph 6 of the counter
consolidation authorities dated 4th of affidavit it has been stated that River
August, 2004, 5th of August, 2004, 24th of Yamuna is flowing through nearby
August, 2004 and 28th of August, 2004; villages and there is still boundary dispute
the ingredients of Section 6 of the Act in between the 'States of U.P. and
were not fulfilled before issuance of the Haryana and as such, it would not be in
impugned notification. The consolidation the interest of the villagers to carry out the
operation had started in pursuance of the consolidation operation in the village. The
notification dated 21st of September, 1995 impugned notification has been issued in
and the allegation with regard to the valid exercise of power conferred on the
alluvial and deluvial action in the villages authority concerned. In paragraph 22 of
as well as their location near bordering the counter affidavit it has been stated that
villages of Haryana, are wholly incorrect. although the Survey of India demarcated
Boundary dispute between the State of the boundary line in between the States of
U.P. and State of Haryana had already U.P. and Haryana in the map and also on
been settled by the department of Survey the spot but presently on the spot the
of India and the Dixit Award referred to pillars are not in existence. The total area
in the report of the Collector dated 11th of the village Gharbara is 2,374.96
February, 2005. hectares, out of which land is 1958.78
hectares.
10. A counter affidavit on behalf of
the respondent no.3 controverting the 12. Another counter affidavit has
allegations made in the writ petition has been filed by one Jag Veer Singh who is
been filed by the Consolidation Officer not impleaded as one of the respondents
wherein the allegation that the impugned in the writ petition but has applied for his
notification was issued on extraneous impleadment as respondent no.6. It has
consideration, has been denied. The been stated that the total area of the
receipt of letter of Smt. Gyanwati in the village Gharbara was 52, 000 bighas and
Consolidation Office is accepted, but no after the Dixit Award about 6, 000 bighas
action was taken in pursuance of the said were included in the State of Haryana.
letter, it has been stated. The impugned During the rainy season River Yamuna
notification has been sought to be justified overflows and entire village Gharbara is
on the basis of the reports of Assistant flooded with water. The most of land due
Consolidation Officer dated 4th of August, to flood has become barren and its
2004, of Upziladhikari dated 4th of valuation has been reduced from 90 paise
January, 2005 and that of the Collector to 10 paise. The tenure holders of village
dated 11th February, 2005. The Gharbara had moved an application
Consolidation Commissioner has issued before the Sub Divisional Magistrate,
the impugned notification in pursuance of Khair to stay the consolidation
the aforestated reports of the Officers proceedings and denotify the village. On
concerned. It has been further stated that the said application a report from the
Naib Tehsildari, Khair in his report dated Tehsildar was called for. It has been
28th December, 2004 submitted that there further stated that the present writ petition
is no need of consolidation operation in could not have been treated as PIL and no
the village. pressure was· exercised on the
Consolidation Commissioner to issue the been held that a writ petition challenging
impugned notification. The contention the validity of notification issued under
that the impugned notification has been section 6 of the Act is not maintainable as
issued on extraneous considerations, has the notification issued under the said
been denied and it has been submitted that section is legislative act and not an
the said notification has been issued on administrative act. On merit, he submits
correct facts. The reports of the Naib that on the facts of the present case, it
Tehsildari, Sub Divisional Magistrate and cannot be said that the impugned
Additional District Magistrate, Aligarh notification has been issued on extraneous
contain correct facts. The Consolidation considerations. The reports of the high
Commissioner issued the impugned officials, such as that of Collector, Sub
notification after taking into account the Divisional Magistrate etc. have been
majority opinion of the agriculturists and taken into consideration by the authority
inhabitants of village Gharbara. concerned before issuance of the
impugned notification. The allegation that
13. Rejoinder affidavits have been the applicant for impleadment or other
filed reiterating the stand taken in the writ persons are influential persons or land
petition. grabbers, is totally baseless, there being
no material on the record. On the other
14. Shri B.B. Paul, the learned, hand, the petitioners are land grabbers.
counsel for the petitioners, submits that The learned standing counsel also
the impugned notification is liable to be supports the impugned notification and
quashed on the ground that it has been submits that in view of the authoritative
issued by the Consolidation pronouncements by this Court In the
Commissioner at the dictate of private aforestated decision of Agricultural &
respondents no.4 and 5. Elaborating the Industrial Syndicate, Ltd. (supra), the
argument, it was submitted that the writ writ petition is liable to be dismissed.
petition filed earlier, was dismissed by
this Court and as such, it was not open to 15. Considered the respective
the Consolidation Commissioner to undo submissions of the learned counsel for the
the judgement of this Court by issuing the parties and perused the record.
denotification under Section 6 of the Act.
He submits that the impugned notification 16. The U.P. Consolidation of
has been issued at the instance of certain Holdings Act, 1953 has been passed in
influential persons who are none else but connection with the consolidation of
Bhoo Mafias i.e. the land grabbers. This agricultural holdings in Uttar Pradesh for
Court can judge the validity of the development of agriculture. After the
notification on the touch-stone of Section enforcement of the U.P. Zamindari
6 and Rule 17 as framed under the Act. Abolition and Land Reforms Act, 1950
Shri B.D. Mandhyan, learned senior there was a pressing demand for the
counsel, appearing on behalf of the consolidation of holdings in the State, as
proposed respondent no.6 submits that in mentioned in the statement of objects and
Division Bench judgement in reasons of the Act.
Agricultural & Industrial Syndicate,
Ltd. Vs. State of U.P. 1976 RD 35 it has
"Consolidation" means dispute between the State of Uttar Pradesh

rearrangement of holdings in a unit and Haryana which according to the
among several tenure holders in such a petitioners has been settled by Dixit
way to make their respective holdings Award. None of the parties has placed on
more compact vide section 3 (2) of the record the said Dixit Award or any other
Act. material about existence or settlement of
such dispute in the present writ petition, at
"Consolidation Scheme" means the least.
scheme of consolidation in a unit as
provided in (3-B) of Section 3 of the Act. 18. The main thrust of the
Section 4 of the Act provides the submission of Shri B.B. Paul, learned
declaration and notification regarding the counsel for the petitioners, is that
consolidation. This section lays down that notification/declaration issued under
the State Government on being of the section 6 cancelling the earlier
opinion that a district or part thereof may notification/declaration issued under
be brought under the consolidation section 4 of the Act is without application
operation, shall make a declaration to this of mind and malafide. The Consolidation
effect. The publication of this declaration Commissioner has issued the impugned
empowers the officer or authority of the notification ignoring the fact that the
consolidation scheme to enter upon and ingredients of Rule 17 are not fulfilled.
survey and take levels of the land. The
officer or authority will thereupon fix 19. It is desirable to consider the
pillars 10 connection with the allegations of malafide as pleaded in the
rectangulation or otherwise and will do writ petition against the respondents,
any other act for ascertaining the particularly the respondents no.4 and 5
suitability of the area for consolidation first. In para 6 of the writ petition it has
operations. The validity of section 4 to 9A been stated that Smt. Gyanwati, the
and 49 of the U.P. Consolidation of President of Mahila Kalyan Nigam, sister
Holdings Act has been upheld by this of Ajit Singh, M.P. and National
Court in Shyam Sunder and others Vs. President of Indian Lok Dal, New Delhi
Siya Ram and another, AIR 1973 Alld. wrote a letter to the Consolidation
382. The publication of the declaration Commissioner to cancel the notification.
has been held to be mandatory in The existence of the said letter has not
Tajammul Husain Vs. A.C.O. been disputed in the counter affidavit filed
Jalalabad 1959 ALJ 209. on behalf of the respondent No.3. It has
been stated that no action in pursuance of
17. Coming to the facts of the the said letter was taken. The impugned
present case, it may be noticed that the notification has been issued on the basis
declaration under section 4 of the Act was of the reports submitted by the high
published on September 21, 1995. It is officials, such as Collector, Aligarh,
also not in dispute that the villages in S.D.M. Khair etc .. No malafide intention
question are situate near Yamuna River can be imputed merely on the ground that
and are subject to flood during rainy the respondent no. 4 wrote a letter to the
season. According to the contesting Consolidation Commissioner. It is not the
respondents there is a state boundary case of the petitioners that the contents of
the said letter are irrelevant or in any Settlement Officer Consolidation dated
manner are incorrect. She being the 24.5.2004 (Annexure-6 to the writ
representative of the public and had been petition) are to the effect that the
M.L.A for fiver years, has done no wrong consolidation operation in the village
if she has brought to the notice of the should be continued. On the other hand,
Consolidation Commissioner the the reports of the Naib Tehsildar dated
grievances of the public in general. Being 28th December, 2004, of the Sub
representative of the public, she has acted Divisional Magistrate dated 4th January,
bonafidely, what is to say malafidely by 2004, of Additional District Magistrate
placing the grievances of public before (Admn.) dated 10th February, 2005 and of
the Consolidation Commissioner through the District Magistrate dated 11th
the letter. Except writing the letter, she February, 2005 are to the effect that in the
has done nothing and I do not see how the larger public interest, the village Gharbara
said conduct of the respondent no.4 is be denotified under section 6 (l) of the
blameworthy. Nothing .was done by her Act. The Consolidation Commissioner
for personal gains or for illegal gains to taking into consideration these reports has
her relatives, associates or to anybody. issued the impugned
That appears to be the reason why no notification/declaration under section 6 of
notice of the writ petition inviting the Act, cancelling the notification issued
comments from her was issued by this under section 4 of the Act. Taking one
Court while granting the interim relief on view of the matter by the Consolidation
6th of July, 2005. At no stage, notices Commissioner, cannot be termed as
were issued to either of the private arbitrary or malafide on the facts of the
respondents No.4 and 5. Except the present case. He was required to take a
allegations made in para 6 of the writ decision in this regard by this Court under
petition which has been sworn on record, the order dated 16th of April, 2004
there appears to be no other allegation delivered in the writ petition No.35709 of
against her. At least, none else was 2000.
pointed out by the learned counsel for the
petitioners during the course of the 20. Taking into consideration the
argument. Similarly, there appears to be entire facts and circumstances of the case,
no allegation against the respondent no.6 the plea of malafide pressed by the
in the entire writ petition. The allegations petitioners is devoid of substance and is
of malafide, thus, are vague and therefore, rejected.
unfounded and are liable to be ignored.
The other aspect of the case is that there 21. Now, before considering the
were two views of the authorities with other aspects of the writ petition, its
regard to the continuance/denotification maintainability at the instance of the
of the village for consolidation operation. petitioners may be considered. The
Report of the Assistant Consolidation present writ petition has been filed by
Officer to the Consolidation Officer, eight persons. They have been shown
Aligarh dated 5th of August, 2004 residents of Raipur, Mohalla Gharbara,
(Annexure -3 to the writ petition), report Pargana Tappal, Tehsil Khair, District
of the Consolidation Officer dated 13th Aligarh. In paragraph 1 of the writ
August, 2004 (Annexure -5), report of the petition which
is reproduced below, only this much, section 6 of the Act, the Consolidation
regarding their interest or locus in the Commissioner has ignored Rule 17 of the
matter has been stated:- U.P.CH. Rules, 1954. The said Rule reads
as follows:-
"That this is the first (P.I.L) writ
petition for welfare of inhabitants and "17. Section 6.- The notification
agriculturist of village Gharbara, (substituted for the word "declaration" by
Pargana Tappal, Tehsil Khair, District Notification No.437-CH/I-E-256-61-dated
Aligarh for quashing of notification under March 25, 1964) made under Section 4 of
section 6 of U.P.C.H. Act dated 24.3.2005 the Act, may among other reasons, be
in respect of village Gharbara, Pargaruz cancelled in respect of the whole or any
Tappal, Tehsil Khair, District Aligarh part of the area on one or more of the
(Annexure - ) and proceeding following following grounds, viz. that -
the same."
(a) the area is under a development
22. A bare perusal of the said scheme of such a nature as when
paragraph would show that the present completed would render the
writ petition has been styled as P.I.L. consolidation operations inequitable
(Public Interest Litigation) for welfare of to a section of the peasantry;
inhabitants and agriculturists of the (b) the holdings of the village are
village in question. None of the already consolidated for one reason
petitioners have averred anywhere in the or the other and the tenure-holders
writ petition that they are agriculturists or are generally satisfied with the
have any piece of the land in village in present position;
question. In other words, none of the (c) the village is so torn up by party
villagers who could have any grievance factions as to render proper
have come forward to challenge the consolidation proceedings in the
notification/declaration issued under villager very difficult;
section 6 of the Act. The petitioners in my (d) a co-operative society has been
considered view have no interest or locus formed for carrying out cultivation in
standi in the matter. The writ petition is the area after pooling all the land of
liable to be dismissed on the ground of the area for this purpose."
lack of material particulars relating to the
interest of the petitioners in the present 24. It provides grounds for
dispute. It is not the case of the petitioners cancelling the notification issued under
that the inhabitants and agriculturists of section 4 of the Act in respect of whole or
the village in question are so poor that part or any part of the area. A bare perusal
they cannot approach the Court for of the said Rule would show that the said
redressal of their grievance, if any. Rule does not provide an exhaustive list
Apparently, the present litigation is not a of the grounds for cancellation of the
bonafide one. notification issued under section 4 of the
Act in as much as it uses the words
23. Coming to the merit of the case, "among other reasons". Meaning thereby
the contention of the petitioners is that the grounds mentioned under the said
while issuing the notification under
Rule are only illustrative and not 1. Jiwan Singh Vs. State of U.P. 1984
exhaustive. R.D. 110.
2. Jagpal Singh Vs. D.D.C. 2000 R.D.
25. The Agricultural & Industrial 30.
Syndicate, Ltd. (supra) is a Division 3. Usman Gani Vs. State of U.P. 2001
Bench authority of this Court wherein it (3) A.W.C. 2149.
has been held that where the State 4. Smle Saroj Vs. State of U.P. 2004
Government issues a notification under RD 454.
section 6, it does not exercise any 5. Suraj Bhan Vs. D.C. 2006 ACJ
executive power. It has also been held that 2114.
when the Director of Consolidation issues 6. Tanseem Bano Vs. State of U.P.
a notification under section 4 or 6 of the 2007 (1) ADJ 630.
Act, he performs neither the quasi judicial
function nor exercises any administrative 26. Further reliance was placed on
power, but performs a legislative State of Bihar Vs. Kishan Singh, 1952
function. To judge the validity of the SC 252 and M/s. Devi Das Vs. State of
notification, the court must apply the Punjab AIR 1967 S.C. 1895 etc. for the
same tests as would apply to a piece of proposition that where there is violation
legislation. It has been held that it is not at of guidelines, abuse and misuse of
all required to accord reason or afford an executive delegated power, action can be
opportunity of hearing to the tenure challenged before court.
holders concerned by the Consolidation
Commissioner before issuing a 27. The decision given in the case of
notification under section 6 of the Act. Jeevan Singh Vs. State of U.P. (supra),
The exercise of powers under sections 4 is the star case of the petitioners and
and 6 of the Act by the State Government therefore, it is desirable to examine the
is a conditional legislative power and it facts of the said case with some detail. In
cannot be conceivably contended that the this case, the Hon'ble Single Judge has
High Court can issue a Mandamus to the distinguished the ratio of Division Bench
legislature to legislate on any subject or to decision in the case of Agricultural &
apply any law to any area. The High Industrial Syndicate, Ltd. (supra). The
Court cannot pass an order making it facts of that case would show that in that
obligatory on the State Government to case the proceedings under the Act were
enforce the scheme of consolidation in an taken, records were verified, valuation of
area where in its opinion such scheme each plot of tenure holder was fixed,
should not be enforced. It would amount objections under section 9 of the Act were
to compel the State Government to decided, the Chaks were carved out and
exercise its power of conditional finally allotted to different Chak holders
legislation. The aforesaid judgement of on 6th of October, 1967 and thereafter, the
the Division Bench when was pointed out possession was also delivered to Chak
to the petitioners' counsel, was sought to holders on 17th of May, 1968. The Court
be distinguished and in reply strong took the view that the records of the rights
reliance was placed on the following few were finalized under the provisions of the
judgments of the Hon'ble Single Judge:- Act and new rights have been accrued to
the respective tenure holders in
connection with their new Chaks. Nothing conferred on the tenure-holders under
remained to be decided under the Section 30 of the Act is not dependent on
provisions of the Act and the notification the notification under Section 52 of the
under section 52 of the Act was a mere Act and, therefore, Section 6 of the Act
formality. On this factual background of has to be interpreted in the way as not to
the case the Court after taking into take away the rights which have been
consideration the pronouncements of the conferred on the tenure-holders under
Apex Court, has held that the right Section 30 of the Act. It is significant to
conferred on tenure holder under section note that there is no specific mention of
30 of the Act is not dependent on the Section 52 of the Act in Section 6 of the
notification under section 52 of the Act Act leads to the conclusion that
and therefore, section 6 of the Act has to subsection (2) of Section 6 of the Act puts
be interpreted in the way as not to take a limit on issuance of notification under
away the rights which have been Section 6 (1) of the Act at any time.
conferred on the tenure holders under Section 6(2) of the Act definitely provides
section 30 of the Act. It took the view that that notification under sub-section (1) of
section 6 of the Act does not mention any Section 6 of the Act shall be subject to
thing about the new rights conferred on final orders relating to correction of land
the new Chak holders and is confined records meaning thereby that the
only up to the correction of the land notification could be issued before the
records. On this factual background and finalisation of the new records of land
the legal position, it was held therein that and new map and conferment of new
the ratio laid down in Agricultural & rights under Section 30 of the Act in
Industrial Syndicate, Ltd. (supra) has no favour of the tenure-holders in respect of
application to the facts of that case. The their Chaks. According to Section 30 of
relevant portion is reproduced below:- the Act tenure-holders' rights in their
original holdings disappeared and they
"The pronouncements of the Supreme got the same rights, title and interest in
Court as well as of this Court lead to the their Chaks allotted in the consolidation
conclusion that if the records of land of holdings operations. Therefore, Section
rights have been finalised under the 6 of the Act does not mention anything
provisions of the Act and new rights have about the new rights conferred on the new
been accrued to the respective tenure- Chak-holders and is confined only upto
holders in their new Chaks. Nothing the correction of land records. Therefore,
remains to be decided under the the decision relied upon by the learned
provisions of the Act and notification counsel for the respondents reported in
under section 52 of the Act remains a Agricultural & Industrial Syndicate, Ltd.
formal act. The postponement of issuance (supra) has no application to the facts of
of notification under Section 52 of the Act the present case as in that case
for any period howsoever long it may be, notification under Section 6 of the Act
has got no effect on the title acquired by was issued before the consolidation
the tenure-holders in their new Chaks records and not after the conferment of
under Section 30 of the Act. Tenure- the new rights on the tenure-holders
holders are free to deal with the land in under Section 30 of the Act."
any manner according to law. The rights
28. It has also noticed that the context and the factual background as
appeals and revisions filed by the tenure- they exist therein.
holders were all disposed off and Chaks
were carved out in the village and finally 29. In Ashwani Kumar Vs. U.P.
allotted. Such is not the position in the Public Services Commission AIR 2003
case on hand. It was submitted that the S.C. 2661 (14) the following words of
consolidation operation is being carried Lord Denning in the matter of applying
on in the village in question on account of precedents have come locus classicus:-
the stay order passed by this Court on 6th
of July, 2005 in the present writ petition. "Each Case depends on its own facts
The said fact was hotly disputed by the and a close similarity between one case
learned counsel for the respondents. They and another is not enough because even a
submitted that the consolidation operation single significant detail may alter the
is wholly at its primary stage and no entire aspect. In deciding such cases, one
adjudication till date has taken place. Be should avoid the temptation to decide
that as it may, there appears to be no cases (as said by Cordozo) by matching
material in support of the respective pleas. the colour of one case against the colour
However, it can be concluded that at any of another. To decide therefore, on which
rate the rights of the parties have not been side of the line a case falls, the broad
decided finally by the consolidation resemblance to another case is not all
authorities. Had it been so the petitioners decisive."
would have been in a position to place
relevant records before this Court. There 30. In Jagpal Singh Vs. D.D.C.
is no material on record to show even (supra) it has been held that notification
remotely that the rights of the tenure- issued under section 6 of the Act, can be
holders have been adjudicated upon or cancelled by the State Government only
appeals and revisions filed by the tenure- and the writ petition was held to be non
holders have been disposed off. In maintainable.
absence of any such material, the
inference can be drawn that the 31. The reliance placed by the
consolidation operation even if is in petitioners on Usman Gani Vs. State of
existence due to interim order passed by U.P. (supra) is misplaced one. It has been
this Court, is in its infancy stage. There is held therein that a writ of Mandamus can
no whisper in the writ petition nor was be issued only in those cases where the
argued by the learned counsel for the authorities are under legal obligation to
petitioners that the rights of the tenure- perform statutory duty, but on the
holders have been finally determined and representation they failed to perform the
issuance of a notification under section 52 same. Mere filing of representation is not
of the Act is only required to be done. sufficient to issue a writ of Mandamus
This being so, the ratio laid down in the unless it is further demonstrated that their
case of Jiwan Singh Vs. State of U.P. action is demeanor.
(supra) has no application to the facts of
the present case; the observations made 32. In the other decision delivered in
therein should be understood in the Smt. Saroj Vs. State of U.P. (supra)
attention of the Hon'ble Single Judge was
1 All] Anoop Kumar Rathore V. Chief Engineer, P.W.D., Jhansi Zone and others 221
not brought to the Division Bench In the result, all the writ petitions are
decision in Agricultural & Industrial hereby dismissed.
Syndicate, Ltd. (supra). Therefore, the ---------
said judgement of the Hon'ble Single ORIGINAL JURISDICTION
CIVIL SIDE
Judge should be read subject to already
existing law as laid down earlier by the
aforestated Division Bench. Moreover, BEFORE
the decision was rendered taking into THE HON’BLE RAJES KUMAR, J.
consideration the factual aspects of the
case rather the legal principle delineated Civil Misc. Writ Petition No. 51691 of 2006
under section 6 of the Act, which is
apparent from the paragraphs-6 and 7 of Anoop Kumar Rathore …Petitioner
the report. Versus
Chief Engineer, Jhansi Zone, P.W.D.,
33. The decision delivered in Suraj Jhansi and others …Respondents
Bhan Vs. D.C. (supra) although supports
the contention of the petitioners but in Counsel for the Petitioner:
Sri Indra Raj Singh
view of the Division Bench decision in
the case of Agricultural & Industrial
Syndicate, Ltd. (supra) holding
Sri B.P. Singh
otherwise, the decision of Division Bench Sri Ravi Ranjan
should be given preference and in my S.C.
considered view no such writ petition can
be issued. The said view is further Constitution of India Art. 226-Right of
fortified by the decisions given in Deo appointment-junior clerk posts-
Nath Kewat Vs. DDC 1990 RD 117; petitioner obtained much higher marks
Neelam Chaudhary Vs. State of U.P., in written examination-than other
1999 RD 400 and Sazid and others V s. selected candidates appointment denied
on lack of Hindi Typing experience-a
Commissioner of Consolidation 1999 preferential qualification-comes in
RD 468. picture only when the marks of other
candidates are equal-admittedly
34. Viewed as above, the petitioner obtained 39 marks where as
preponderance of judicial opinion is that other candidature got only 31, 32, 33
in such matters the writ as claimed by the etc.-denial of appointment-held-illegal-
consequential direction given.
petitioners for quashing the notification
issued under section 6 of the Act, cannot Held: Para 9
be issued. It is not necessary for me to
discuss the other cases referred by the Perusal of the paragraphs 12 and 13 of
learned counsel for the parties being the writ petition shows that the
besides the issue involved. petitioner has got 39 marks while other
selected candidates, namely, Sanjeev
Kumar, Umashankar Rakwar, Rajendra
35. In view of the above discussion, Sharan Rakwar, Shishupal, Vishnu
I find no merit in the writ petition, the Kumar and Santosh Kumar obtained only
writ petition is dismissed. 37.265, 36.40, 32.265, 32.355, 31.70 and
30.10 marks lower than the petitioner's
marks and, therefore, the denial of the candidates become equal. This Court vide
selection of the petitioner by the order dated 09.09.2005 has allowed the
respondents is wholly unjustified.
writ petition and directed the respondents
Case law discussed:
to permit the petitioner to appear in the
interview. The petitioner appeared in the
(Delivered by Hon’ble Rajes Kumar, J.) interview and got 6.600 marks. The total
marks obtained by the petitioner thus
1. Heard Sri Indra Raj Singh, comes to 39.00. However, petitioner has
learned counsel for the petitioner and been denied selection by the impugned
learned Standing Counsel. order on the ground that as per the
Government Order Hindi Typing was
2. By means of the present writ essential qualification and by mistake in
petition under Article 226 of the the advertisement it has been shown as
Constitution of India, the petitioner has preferential qualification and since the
prayed for quashing the impugned order marks of nine candidates are higher than
dated 26.08.2006 passed by the the petitioner's marks, therefore, petitioner
respondent no.1, by which the claim of is not eligible for selection. Being
the petitioner for the selection on the post aggrieved by the said order, petitioner
of Junior Clerk has been denied. filed the present writ petition.
3. Brief facts giving rise to the 4. Learned counsel for the petitioner
present writ petition are that in pursuance contended that this Court in the earlier
of the advertisement dated 10.08.1998, writ petition has already held that Hindi
petitioner applied for the selection of typing qualification was only preferential
Junior Clerk, Petitioner appeared in the qualification and not essential
written examination held on 13.12.1998. qualification and could be considered
By call letter dated 05.02.1999, the only in a situation when the two
petitioner was called to appear in the candidates could get equal marks. He
typing test on 13.02.1999 and the result of submitted that the order of this Court has
the written test was declared by the become final inasmuch as no appeal has
respondents. However, the petitioner has been filed against the said order. He
not been selected on the ground that on a however, referred paragraphs 12 and 13
consideration of the marks of the typing of the writ petition to show that on
test which was considered to be the exclusion of the typing marks, the marks
essential qualification, the petitioner did of the petitioner was higher than the other
not qualify. Being aggrieved by the said six candidates, namely, Sanjeev Kumar,
action, petitioner filed the writ petition no. Umashankar Rakwar, Rajendra Sharan
7660 of 1999 with the contention that the Rakwar, Shishupal, Vishnu Kumar and
qualification of the Hindi typing was Santosh Kumar who obtained only
preferential qualification and not essential 37.265, 36.40, 32.265, 32.355, 31.70 and
qualification and the same could not be 30.10 marks while the petitioner obtained
considered for the purposes of selection 39.00 marks excluding typing test and
and the question for consideration of the therefore, the petitioner was entitled for
preferential qualification may only come selection. He further submitted that the
for consideration when the marks of two averments made in paragraphs] 2 and 13
1 All] Anoop Kumar Rathore V. Chief Engineer, P.W.D., Jhansi Zone and others 223
of the writ petition has not been denied in did not possess the minimum
the counter affidavit which has been qualification since he did possess the
replied vide paragraphs 13 and 14 of the minimum typing speed therefore, he
counter affidavit. was not called for interview. It is also
their case that Hindi typing was an
5. Learned Standing Counsel is not essential qualification for the posts
able to dispute the averments made in advertised and also according to the
paragraphs 12 and 13. He however, Rules of 1998. Since the advertisement
submitted that in the advertisement dated as issued has not been denied and no
10.08.1998 inadvertently the Hindi typing corrigendum has been issued correcting
qualification has been shown as the qualifications required for such
preferential qualification while it was the posts this court is of the view that the
essential qualification and the selection procedure for selection is governed by
was to be made after taking into account the Rules of 1998 and that Hindi typing
the marks of Hindi typing also and if the was only a preferential qualification
marks of the typing could be considered, required for selection only if other
the position of the petitioner was lower to marks of different candidates were
the other candidates, who have been equal. Therefore, the respondents who
selected and, therefore, the petitioner has had declared the petitioner successful
rightly not been selected. in the written test had to prepare a
merit list thereof and invite the
6. Having heard the learned counsel successful candidates for interview. It
for the parties, I have perused the was only at that stage that preferential
impugned order and other documents qualification of Hindi typing would
annexed with the writ petition. play a part in the selection if marks of
different candidates were otherwise
7. This Court in Writ Petition No. equal.
7660 of 1999, Anoop Kumar Rathore For the aforesaid reasons this writ
Versus Superintending Engineer and petition deserves to be allowed. An
others decided on 09.09.2005 held as interim order dated 26.02.1999 was
follows: passed in this writ petition wherein it
was provided that the selection and
"In the present case, the appointment on the post of junior clerk
advertisement clearly provided for pursuant to the advertisement dated
essential qualification and preferential 10.08.1998 shall be subject to the result
qualification. Therefore, preference of this writ petition. The respondent
would come into play only if other no.1 is therefore, directed to permit the
quality marks of different candidates petitioner to appear in the interview to
are equal. It is the petitioner's case that be held as per the provisions of the
on the basis of written examination his 1998 Rules and the Selection
name was placed at serial no.6 of the Committee/Interview Board may
merit list of OBC category candidates consider the preferential qualification
therefore, he was required to be called inter se the successful candidates. Since
for interview. The respondents have the interview has already been held
however taken a case that the petitioner therefore, the respondent no.1 shall
make arrangement to interview the circumstances, the appointment shall be

petitioner and make available the given with prospective effect and the
records of the interview already held petitioner may not be entitled to claim any
before the Board for its due back wages.
consideration. ---------
This writ petition stands allowed ORIGINAL JURISDICTION
CIVIL SIDE
as above. No order is passed as to
costs".
BEFORE
8. The aforesaid order has become THE HON'BLE SHABIHUL HASNAIN, J.
inasmuch as it has not been shown that it
has been challenged. This Court has Civil Misc. Writ Petition No.55481 of 2006
already held that typing qualification was
only preferential qualification and not Raisul Hassan …Petitioner
essential qualification was only relevant Versus
when the two candidates get the equal State of U.P. and another …Respondents
marks. Therefore, it is not open to the
respondents to take the plea again that the Counsel for the Petitioner:
typing qualification was the essential Sri. Raj Kumar Khanna
qualification. In the counter affidavit,
paragraphs 12 and 13 of the writ petition Counsel for the Respondents:
has not been disputed. Sri. Prem Chandra
S.C.
9. Perusal of the paragraphs 12 and
13 of the writ petition shows that the Constitution of India-Article 226-
Pension-petitioner retired from the post
petitioner has got 39 marks while other of Store Keeper working in Nagar Nigam,
selected candidates, namely, Sanjeev Moradabad-more than four years elapsed
Kumar, Umashankar Rakwar, Rajendra even representation not decided-held-
Sharan Rakwar, Shishupal, Vishnu Kumar attitude of employer towards sick, poor
and Santosh Kumar obtained only 37.265, infirm employee should be alike
36.40, 32.265, 32.355, 31.70 and 30.10 guardian-against the Constitution
mandate-direction for payment of all
marks lower than the petitioner's marks dues within three months issued.
and, therefore, the denial of the selection
of the petitioner by the respondents is Held: Para 15
wholly unjustified.
There is neither any inquiry pending
10. In the result, writ petition is against the petitioner nor any other
disciplinary proceedings were ever
allowed. The impugned order dated initiated against him. There is no
26.08.2006 is set aside and the respondent allegation of any embezzlement nor any
no. 1 is directed to give the appointment recovery for any loss caused to the
to the petitioner on the post of Junior department. Charge has been handed
Clerk in pursuance of the advertisement over to one Dashrath Lal on 28.2.2005
dated 10.08.1998 forthwith preferably itself. Charge certificate is duly counter-
signed by Varishtha Nagar Swasthya
within a period of two weeks. However, Adhikari, Moradabad. No dues certificate
having regard to the facts and have also been submitted, yet not a
1 All] Raisul Hassan V. State of U.P. and another 225
single penny has been paid. The shows that various other officers/in
petitioner retired in February, 2005 and charges of different sections like library
now we are in January, 2009. Four years
department, go-down and store keeper
have passed while the poor petitioner is
running from pillar to post. This situation (Health) have also counter signed the
can not be allowed to be perpetuated by same, giving a complete no dues
the Court keeping in view the spirit of certificate in favour of the petitioner. The
the constitutional provisions and petitioner further submits that he
judgements of the Hon'ble Supreme approached the Nagar Ayukta many times
Court in a socialistic country like India.
for payment of his pension but nothing
Case law discussed:
(1983) 1 SCC 305
was done. He has annexed two such
representations which have been annexed
(Delivered by Hon'ble Shabihul Hasnain, J.) as Annexures 3 and 4 to the writ petition.
1. Heard Sri Raj Kumar Khanna, 4. Sri Prem Chandra, learned

learned counsel for the petitioner and Sri counsel for the opposite party No.2, the
Prem Chandra, learned counsel for the Nagar Nigam informed that the counter
opposite party No.2. affidavit has already been filed to the writ
petition and a rejoinder to the same has
2. The case of the petitioner is that also been filed. The counter and rejoinder
he was working as Store Keeper in the affidavits are on record.
Health Department of Nagar Nigam,
Moradabad from where he retired on 5. Learned counsel for the opposite
28.2.2005 after attaining the age of party Sri Prem Chandra has fairly
superannuation. Since that date he has not admitted that no pension has been paid to
even been paid the provisional pension the petitioner but he hastened to add that
and he has been suffering economically there are reasons for the same which have
and socially as well. The petitioner has been enumerated in the counter affidavit.
made several representations which did
not bring any fruitful result and finally 6. In para 6 of the counter affidavit
this writ petition has been filed before this the opposite parties have clearly admitted
Court. that a proper handing over of the charge
was done through a charge certificate duly
3. It is the case of the petitioner that counter signed by the Varishtha Nagar
on his retirement on 28.2.2005, he handed Swasthya Adhikari, Moradabad on
over the charge to one Sri Dashrath Lal 28.2.2005.
Ojha. The charge certificate was
countersigned by the Varishtha Nagar 7. In para 7 of the counter affidavit
Swasthya Adhikari, Nagar Nigam, the objection has been raised that the 'No
Moradabad. This document has been. Dues Certificate' submitted by the
annexed as Annexure No.1 to the writ petitioner (Annexure No.2) is not proper.
petition. A no dues certificate duly signed Although it has been issued by the
by the Varishtha Nagar Swastya Adhikari, Varishtha Nagar Swasthya Adhikari and
Nagar Nigam, Moradabad has been duly countersigned by other Sections
annexed as Annexure No.2 to the writ Officers but the dates on which these
petition. A perusal of the said document signatures have been made are not
28.2.2005 but a few days prior to this. 9. In para eight of the counter
This according to the counter affidavit is affidavit further reasons have been shown
improper hence bad for the purposes of for not releasing the pension. First ground
the no dues. The no dues according to the given is that during 2003-04 certain audit
counter affidavit could only be given objections were raised which have not
either on or later than 28.2.2005. been removed by the petitioner. Annexure
in the counter affidavit has been annexed
8. Learned counsel for the petitioner stating that on pages 53, 54, 55, 27, 28,
submits that this is a normal affair. The 109, 137, 138 and 145 of the audit report,
process of preparing the pension papers of the audit objections have been shown.
any employee starts at least six months Strangely enough on perusal of the
prior to his retirement. The various Govt. Annexure CA-1 it transpires that the
orders have been issued in this regard and objections relate to one Sri Raju, Store-
various judgements of the Hon'ble Keeper and not the petitioner. This
Supreme Court have held that delay statement by the opposite parties in para 8
should not be caused in preparation of of the counter affidavit on oath goes to
pension papers of an employees. establish that the opposite parties have
Moreover, it is not the case of the tried to mislead the Court by placing
opposite parties that any particular item is reliance on irrelevant document. Hence,
still in the possession of the petitioner. this objection deserves to be overlooked.
Neither any inquiry has been done in this Moreover, if there was any audit
regard nor any explanation has been objection relatable to 2003-04 then the
sought from the Varistha Nagar Swasthya opposite parties should have initiated
Adhikari, Nagar Nigam, Moradabad or some inquiry or disciplinary action
other officials who have given the said no against the petitioner. There is no case to
dues. No other format is prescribed on this effect in the counter affidavit.
which the no dues is supposed to be
given. The argument of the petitioner 10. Second ground given in the para
appears to carry some weight. Further the eight is that the petitioner had not handed
no dues have all been given in the month over certain files regarding purchase of
of February, 2005 hence it can not be said Fogging Machine, JBC Machine of Safai
that it was very very early to give a no Godown Gulabbari. The learned counsel
dues. It is, therefore, clearly established for the petitioner submits that the
that on 28.2.2005 there was not only a petitioner handed over all the files and
charge certificate but also the necessary documents available within him. The no
no dues certificate duly counter signed by dues certificate issued by the relevant
the Varishta Nagar Swasthya Adhikari, officers is on record and the person who
Moradabad. No case has been set out in has taken over charge has not written that
the counter affidavit that any action has he has not been given complete handing
been taken against any of the officers over charge. The petitioner is in no
issuing the no dues nor any explanation position to meet out the allegations of the
has been sought from the Varishtha Nagar opposite parties who are acting arbitrarily.
Swasthya Adhikari. Moreover, there is no case of any
embezzlement or causing any financial
loss to the department. There is no case of
1 All] Raisul Hassan V. State of U.P. and another 227
any misconduct also. Hence this cannot “The antequated notion of pension
be a good ground for withholding the being a bounty, a gratuitous payment
pension of the petitioner. depending upon the sweet will or grace of
the employer not claimable as a right and,
11. Third ground taken by the therefore, no right to pension can be
petitioner has some force. It has been enforced through Court has been swept
stated that the petitioner had not deposited under the carpet by the decision of the
the contribution on behalf of the employer Constitution Bench in Deokinandan
i.e. Nagar Nigam in the Provident Fund Prasad Vs. State of Bihar wherein this
Account with interest. This has to be done Court authoritatively ruled that pension is
by the petitioner under Regulation 3 of a right and the payment of it does not
the Moradabad Nagar Nigam Non depend upon the discretion of the
Centralised Service Retirement Benefit Government but is governed by the rules
Regulation, 1998. The counter affidavit and a government servant coming within
does not show that any notice/information those rules is entitled to claim pension. It
was given to the petitioner to complete was further held that the grant, of pension
this formality. There is no does not depend upon anyone's discretion.
letter/communication on record to show It is only for the purpose of quantifying
that any effort has been made by the the amount having regard to service and
employer to get the formalities completed other allied matters that it may be
for payment of pension. The necessary for the authority to pass an
representation of the petitioner has been order to that effect but the right to receive
pending with the opposite parties without pension flows to the officer not because of
any action or decision. The fact remains any such order but by virtue of the rules.
that no financial payment is being made This view was reaffirmed in State of
to the petitioner for one reason or the Punjab Vs. Iqbal Singh. "
other. The petitioner has stated on
affidavit that he is a heart patient and is Again summing up the discussion in para
being treated at Vivekanand Hospital 29 their Lordships declared as under:-
Moradabad. The life of the petitioner is
dependant on financial viability of the "Summing up it can be said with
treatment required by him. confidence that pension is not only
compensation for loyal service rendered
12. I have given my anxious in the past, but pension also has a
consideration to the rival contentions, the broader significance, in that it is a
claim of the petitioner, his penury measure of socio-economic justice which
position, his old age and failing health and inheres economic security in the fall of
the reasons shown in the counter affidavit life when physical and mental prowess is
by the opposite parties and their attitude, I ebbing corresponding to ageing process
am reminded of the words used by their and, therefore, one is required to fall back
Lordships in the case of D. S. Nakara on savings. One such saving in kind is
and others Vs. Union of India (1983) 1 when you give your best in the hey-day of
SCC 305 In para 20 their Lordships life to your employer, in days of
observed as under:- invalidity, economic security by way of
periodical payment is assured. The term
has been judicially defined as a stated 14. In the present case the opposite
allowance or stipend made in parties have not even decided the
consideration of past service or a representations submitted by the
surrender of rights or emoluments to one petitioner. No effort has been made to get
retired from service. Thus the pension the formalities completed by the
payable to a government employee is petitioner. In fact the exercise to get the
earned by rendering long and efficient formalities completed by the petitioner
service and therefore can be said to be a and the department should have started
deferred portion of the compensation or six months ago i.e. before the date of
for service rendered. In one sentence one retirement of the petitioner.
can say that the most practical raison
deter for pension is the inability to 15. There is neither any inquiry
provide for oneself due to old age. One pending against the petitioner nor any
may live and avoid unemployment but not other disciplinary proceedings were ever
senility and penury if there is nothing to initiated against him. There is no
fall back upon." allegation of any embezzlement nor any
recovery for any loss caused to the
13. In view of what has been department. Charge has been handed over
discussed above, I have come to the to one Dashrath Lal on 28.2.2005 itself.
conclusion that the approach and attitude Charge certificate is duly counter-signed
of the opposite parties towards the by Varishtha Nagar Swasthya Adhikari,
petitioner who has been their employee Moradabad. No dues certificate have also
for his life time can not be appreciated. been submitted, yet not a single penny has
The purpose of law in a welfare state can been paid. The petitioner retired in
not but be to help the people achieve or February, 2005 and now we are in
get what is due to them and not to use the January, 2009. Four years have passed
law to thwart what is coming to a person while the poor petitioner is running from
legally. Moreover, the attitude of he pillar to post. This situation can not be
employer towards the old, infirm and sick allowed to be perpetuated by the Court
employee should be that of a guardian, keeping in view the spirit of the
protector and provider and not that of constitutional provisions and judgements
indifferent and casual labour who works of the Hon'ble Supreme Court in a
in shifts and goes back home after socialistic country like India.
completing eight hours of work without a
thought about the factory in which he 16. The petition is, thus, allowed.
works. Employer has greater The opposite party No.2 is directed to
responsibility than the employee and enquire into the matter and get the
specially when the employer is formalities, if any, completed positively
Government in a democratic society and a within one month from the date a certified
country like our India, the responsibility copy of this order is placed before him
increases manifold. India has had great and make the payment of pension and
culture of respecting the retired and old. other post retiral dues payable to the
This is the reason after sixty years we call petitioner under the relevant laws for the
a person "senior citizen". purpose. This should be done within one
month thereafter.
1 All] Merind Ltd. and another V. P.A. (under Payment of Wages) Act, and another 229
17. No order as to costs. of Section 6(2) of the 1976 Act, which

--------- continues to apply to him and
ORIGINAL JURISDICTION irrespective of fact as to whether he is
CIVIL SIDE excluded from Industrial Dispute Act by
DATED: ALLAHABAD 12.01.2009 Section 6(7)(b) of 1976 Act or not,
therefore, he is not entitled to invoke the
BEFORE provisions of Section 15 (2) and Section
THE HON’BLE SABHAJEET YADAV, J.
15(3) of the 1936 Act. As such the claims
set up by him under Section 15 (2) and
Section 15 (3) of the 1936 Act in my
Civil Misc. Writ Petition No.55894 of 2005 considered opinion is not maintainable
before the prescribed authority under
Merind Limited and another …Petitioners the Act 1936. Therefore, the Assistant
Versus Labour Commissioner, Bijnor has no
Prescribed Authority (Under Payment jurisdiction to entertain and proceed
of Wages Act) Bijnor and Assistant with PWA Case No.18 of 2005 Ajit Singh
Labour Commissioner, Bijnor and Vs. Merind Limited and another pending
another …Respondents before him. The entire proceeding is
without jurisdiction and is liable to be
Counsel for the Petitioners: quashed. Accordingly, the same is hereby
Sri Yashwant Verma quashed. In the result, the writ petition
succeeds and is allowed.
Case law discussed:
(2007) 11 S.C.C. 25, AIR 1984 SC, 1022, AIR
Sri Arun Kumar Singh 1987 SC 579, (2007) 11 SCC, 25
S.C.
(Delivered by Hon'ble Sabhajeet Yadav, J.)
Workman Compensation Act 1936-
Section 1 (4)-readwith Sales Promotion
Employees Condition of Service Act, Heard Sri Yashwant Verma, learned
1976-Workman-working as Sales counsel for the petitioners and Sri Arun
promotion drawing more than Rs.1600/- Kumar Singh for respondent no.2.
salary-excluded for the provisions of Act-
order passed by Assistant Labour By this petition, the petitioners have
Commissioner without jurisdiction-also
on the ground respondent/workman
sought relief of writ of certiorari for
transferred from Bijnor to Assam-which quashing the proceeding of PWA Case
remained un challenged-respondent No.18 of 2005 Ajit Singh Vs. Merind Ltd.
employee remanded absent for long and another pending before the Prescribed
period-No question of salary. Authority (under Payment of Wages Act)/
Assistant Labour Commissioner, Bijnor,
Held: Para 35
Uttar Pradesh. Another relief for writ of
In view of the aforesaid categorical prohibition restraining the respondent
statement of law enunciated by Hon'ble no.1 from entertaining or adjudicating
Apex Court, there can be no scope for upon the proceedings in PWA Case No.18
doubt to hold that the respondent no.2 of 2005 has also been sought for. This
who was admittedly drawing Salary petition was allowed in open Court on
Rs.13,825/- per month is excluded from
the operation of provisions of the 1936
2.12.2008 with indication that reasons
Act by virtue of the provisions of Section will be given later on, therefore, the same
1(6) of the said Act, irrespective of fact are given hereinafter.
whether he is workman or not by virtue
2. The brief facts leading to the case 3. Feeling aggrieved against the
are that respondent no.2 made an aforesaid action the respondent no.2 made
application on 6.4.2004 under Section 15 aforesaid application dated 6.4.2004
of Payment of Wages Act, 1936 purporting to be under Section 15 of the
hereinafter referred to as ' the 1936 Act' 1936 Act and claimed the wages referred
before respondent no.1/Prescribed above. It is also stated that the respondent
Authority under 1936 Act, Bijnor and no.2 being a sales promotion employee is
claimed wages amounting to neither a workman nor he was employed
Rs.1,26,162.50/-. A further sum of in any industrial or other establishment as
Rs.12,61,625/- was claimed as defined under Section 2 (ii) of the said
compensation in terms of Section 15 (3) Act. The term and conditions of services
of the said Act. The petitioners filed their of respondent no.2 are governed
written statement on 14.7.2004. Apart exclusively by Sales Promotion
from reply on merits the attention of Employees Condition of Service Act 1976
respondent no.1 was also drawn to the (hereinafter referred to as '1976 Act') and
jurisdictional issue raised by the the provisions of the 1936 Act stand
petitioners with regard to the applicability expressly and impliedly excluded. It is
of provisions of the 1936 Act, and the also stated that the application upon
authority of respondent no.1 to adjudicate which the respondent no.1 has taken
upon the claim laid down by respondent cognizance is patently without jurisdiction
no.2. In the said written statement the as admittedly the respondent no.2 in his
petitioners have inter alia stated that the application has claimed to have been
respondent no.2 was employed as a sales employed on monthly salary of
representative by the petitioners and was Rs.13825/-, thus the respondent no.2
engaged in the work of carrying samples stood excluded from the operation of
of medicines and other products provisions of the 1936 Act by virtue of
manufactured by the petitioners to doctors provisions of Section 1 (6) of the 1936
etc. and was enjoined to educate and Act which places a maximum ceiling limit
apprise them of the attributes, functions on the salary of employee at Rs.1600/- per
and advantages of the products of the month for applicability of the said 1936
petitioners. A copy of appointment letter Act but despite request of the petitioners
issued to the respondent no.2 dated the respondent no.1 has not decided the
15.3.1997 is on record as Annexure-1 of question of jurisdiction first, instead
the writ petition. It is stated that the thereof has proceeded to fix the case for
respondent no.2 was transferred from evidence by fixing date 2.11.2004 for
Bijnor to Dimapur (Asam) in the year final hearing.
2003 where he was to join duties by
18.8.2003. But the respondent no.2 had 4. It is stated that aggrieved by the
failed to join duties at Dimapur and aforesaid action and apprehending that the
remained absent without leave respondent no.1 would not decide the
unauthorizedly thereafter and since the issue of jurisdiction, the petitioners
respondent no.2 failed to join the place of preferred Writ Petition No.44452 of 2004
posting, no salary was paid to him on the in which an order dated 27.10.2004 was
principle of no work no pay. passed by this Court directing the
respondent no.1 to first decide the issue of
jurisdiction. Aforesaid order dated 6. In the meantime the respondent

27.10.2004 passed by this court was no.2 has yet again laid a claim before
placed before respondent no.1 but instead respondent no.1 under Section 15 (2) and
of abiding by the direction of this court, (3) of the 1936 Act seeking wage for the
the respondent no.1 had fixed 2.11.2004 period 1.4.2004 to 28.2.2005 amounting
for evidence by imposing cost of Rs.2000 to Rs.1,65,900/- together with
upon the petitioners. Aggrieved by the compensation amounting to
aforesaid action, the petitioners filed writ Rs.18,24,900/-. The aforesaid application
petition no. 48217 of 2004 wherein this was registered before the respondent no.1
court vide order dated 10.11.2004 as PWA case No. 18 of 2005 and notices
directed the respondent no.1 to first on the same have been issued by
consider the application of petitioners respondent no.1 on 15.7.2005 fixing
about the question of jurisdiction 28.7.2005 as date for hearing. A copy of
thereafter proceed further in the matter. notice dated 15.7.2005 is on record as
Thereafter vide order dated 21.12.2004 Annexure-11 to this petition.
the objections raised by the petitioners
were rejected by the respondent no.1 and 7. The aforesaid proceedings are
he proceeded to hear the matter on merit. challenged by means of instant writ
petition inter-alia on the ground that
5. The aforesaid order was respondent no.2 was employed on wages
challenged by the petitioners by means of amounting to Rs.13,825/- per month,
writ petition no. 10794 of 2005 wherein therefore, the claim of respondent no.2 is
this court on 10.3.2005 was pleased to clearly excluded by virtue of provisions of
direct that the proceedings before the Section 1(6) of the 1936 Act. Section 1
respondent no.1 may go on and final order (6) of the said Act places ceiling limit on
may also be passed but no recovery in wage of employees drawing Rs.1600/- per
pursuance of final order would be made month and excluded from the operation of
without leave of the court. Subsequent to Act all those employees who may be
the aforesaid order being passed, the earning wages more than Rs.1600/- per
respondent no.1 by an order dated month. It is also submitted that
24.3.2005 was pleased to allow the claim respondent no.2 was not employed in any
of respondent no.2 directing payment of industrial or other establishment as
Rs.126162=50p. as wages together with defined under Section 2 (ii) of the 1936
compensation amounting to eight times Act, therefore, the claim laid down by
the above and holding the petitioners him seeking adjudication under Section
liable to pay a sum of Rs.11,35,462=50 p. 15 of the 1936 Act is without authority of
A copy of the order dated 24.3.2005 law. Admittedly the respondent no.2 was
passed by respondent no.1 is on record as a sales promotion employee whose terms
Annexure-9 to this petition. Thereafter the and conditions of the service were
petitioners moved a review application governed by the provisions of the 1976
which came to be dismissed on 24.6.2005. Act, which impliedly excluded the
The aforesaid two orders have been operation of the 1936 Act, hence
challenged by the petitioners in writ respondent no.1 on the admitted facts has
petition no. 10794 of 2005 by means of committed manifest illegality in assuming
amendment application. the jurisdiction and issuing the notice to
the petitioners in the claim set up by issued under Section 22 (F) of the
respondent no.2. In support of his Minimum Wages Act, 1948 (hereinafter
submissions learned counsel for the referred to as '1948 Act') the provisions of
petitioners has placed reliance upon a Sections 15 to 25 of the 1936 Act were
decision of Hon'ble Apex Court rendered made applicable to the employees of
in Life Insurance Corporation of India scheduled employment and respondent
Vs. Anwar Khan (since deceased) no.2 is engaged in scheduled employment
through Legal Representatives, (2007) under the provisions of 1948 Act,
11 S.C.C. 25. therefore, the provisions of Section 1 (6)
of the 1936 Act would not apply in the
8. It is submitted that the respondent case of respondent no.2 so as to create
no.1 is not appropriate authority as any bar in respect of the applicability of
contemplated under 1936 Act and to the the provisions of Section 15 of the 1936
best of the information of petitioners there Act. In para 18 of the counter affidavit
is no notification issued by the State although it was admitted that the
Government empowering the Assistant respondent no.2 was employee on wage
Labour Commissioner, Bijnor to act as of Rs.13,825/- per month but it was stated
Prescribed authority for the purpose of that since the respondent no.2 has made
hearing and deciding the claim laid under application under Section 15 (2) and
Section 15 of the 1936 Act. It is further Section 15(3) of the 1936 Act, therefore,
submitted that the claim of respondent the bar created by Section 1 (6) of the
no.2 is even otherwise not maintainable 1936 Act will not apply in the case of
inasmuch as he has not complied with the respondent no.2. In paras 19 and 20 of the
order of transfer and had not joined his counter affidavit it is further stated that
place of posting. He was thus not entitled since the respondent no.2 has been
to wages on principle of no work no pay. engaged in Pharmaceutical industry
The respondent no.2 had also not taken and/or notified industry under Section 3
any step under law to challenge the order of 1976 Act, therefore, he is workman
of transfer nor was the operation of same under Section 6 (2) of 1976 Act and the
stayed and suspended by any court or provisions of Sections 15 to 25 of the
tribunal or authority, therefore, on this 1936 Act are fully applicable in case of
count also the claim of respondent no.2 respondent no.2, thus the proceedings
for wages is wholly without jurisdiction under Section 15 (2) and Section 15(3) of
and not maintainable. the Act 1936, initiated by the respondent
no.2 before respondent no.1 is well within
9. A detail counter affidavit has been the ambit of authority under law and
filed in the writ petition on behalf of cannot be called in question before this
respondent no.2 whereby learned counsel Court in instant writ petition.
for the respondent no.2 has made serious
attempt to justify the proceedings 10. Having considered the rival
undertaken under Section 15 of the 1936 submissions of learned counsel for the
Act by the respondent no.2 before the parties, the questions which arise for
Prescribed Authority/respondent no.1. In consideration of this Court are as to
paras 4 and 5 of the counter affidavit it is whether in the wake of provisions of
stated that by notification dated 31.3.1978 Section-1 (6) of 1936 Act, the provisions
of the said Act shall apply to employees intention of so doing, by notification in

of scheduled employment by virtue of the Official Gazette, extend the
notification issued under Section 22 (F) of provisions of this Act or any of them to
the 1948 Act, who are drawing wage over the payment of wages to any class of
and above Rs.1600/- per month? and if persons employed in any establishment
not, as to whether the application moved or class of establishments specified by
by the respondent no.2 under the the Central Government or a State
provisions of Section 15 (2) and 15 (3) of Government under sub-clause (h) of
the 1936 Act is maintainable or not? clause (ii) of Section 2:
11. To appreciate the rival {Provided that in relation to any

contention of the parties and questions in such establishment owned by the Central
controversy it would be essential to have Government, no such notification shall be
a survey of relevant provisions of certain issued except with the concurrence of that
Acts having material bearing on the issue Government.}
hereinafter.
(6) Nothing in the Act shall apply to
12. Section 1 of the 1936 Act deals wages payable in respect of a wage-
with the short title, commencement and period which, over such wage-period,
extent of applicability of the Act as average {one thousand six hundred
under:- rupees} a month or more."
"1. Short title, extent, 13. Section 2 of the 1936 Act

commencement and application.--(1) defines various expressions used or
This act may be called the Payment of employed under the Act as under:-
Wages Act, 1936.
(2) It extends to the whole of India. "Section 2 Definitions- In this Act,
(3) It shall come into force on such date unless there is anything repugnant in the
as the Central Government may, by subject or context,-
notification in the Official Gazette, (ii) [ "industrial or other establishment"
appoint. means] any-
(4) It applies in the first instance to the [(a) tramway service, or motor
payment of wages to persons employed in transport service engaged in carrying
any (factory, to persons) employed passengers or goods or both by road for
(otherwise than in a factory) upon any hire or reward;
railway by a railway administration or, (aa) air transport service other than
either directly or through a sub- such service belonging to or exclusively
contractor, by a person fulfilling a employed in the military, naval or air
contract with a railway administration. forces of the Union or the Civil Aviation
(and to persons employed in an Department of the Government of India;]
industrial or other establishment (b) dock, wharf or jetty;
specified in sub-clauses (a) to (g) of (c) inland vessel, mechanically
clause (ii) of Section 2). propelled;]
(5) The State Government may, after (d) mine, quarry or oil-field;
giving three months' notice of its (e) plantation;
Notes.- When there is a manger who is class of establishment specified by

entrusted with the affairs of the company, Central Government or State Government
the directors of the Company cannot be under sub-clause (h) of clause (ii) of
said to be employers. Section 2 of the 1936 Act. However, sub-
(f) workshop or other establishment section (6) of Section 1 prescribes wage
in which articles are produced, adapted limit for applicability of the provisions of
or manufactured, with a view to their use, the 1936 Act to the employees drawing
transport or sale; wages to the extent of Rs.1600/- per
[(g) establishment in which any work month and class of employees referred
relating to the construction, development hereinbefore drawing wages exceeding
or maintenance of buildings, roads, sixteen hundred rupees per month are
bridges or canals, or relating to excluded from the operation of the
operations connected with navigation, provisions of the 1936 Act.
irrigation or to the supply or of water, or
relating to the generation, transmission 15. Now an incidental question
and distribution of electricity or any other arises for consideration that what would
form of power is being carried on;] be legal impact and implication of
[(h) any other establishment or class provisions of Section 22 (F) of 1948 Act
of establishment which the Central over the provisions of the 1936 Act? This
Government or a State Government may, question can be simplified in a manner as
having regard to the nature thereof, the to whether by a notification under Section
need for protection of persons employed 22(F) of the 1948 Act, the provisions of
therein and other relevant circumstances, the 1936 Act, can be made applicable to
specify, by notification in the Official the employees of scheduled employment,
Gazette.]" who are drawing the wages over and
above Rs.1600/- per month despite
14. From perusal of provisions of exclusion of such employees from
Section 1 of the 1936 Act it appears that operation of provisions of the 1936 Act
by virtue of sub-section 4 of the said by virtue of the provisions of Section 1(6)
Section the provisions of the 1936 Act of the 1936 Act? In this connection, it is
applies in the first instance to the payment necessary to point out that the provisions
of wages to persons employed, in any of Section 22 (F) of the 1948 Act
factory, to persons employed otherwise empower the appropriate Government to
than a factory, upon any railway by a apply all or any of the provisions of the
Railway Administration either directly or 1936 Act, by notification in Official
through a sub-contractor and to persons Gazette to the wages payable to
employed in an industrial or other employees of scheduled employments
establishment specified in sub-clause (a) under the 1948 Act despite anything
to (g) to clause (ii) of Section 2 of the said contained in the 1936 Act.
Act. Besides this, clause (5) of Section 1
of the 1936 Act further authorises the 16. For ready reference the
State Government to extend the provisions of Section 22 (F) of the
provisions of said Act or any of them to Minimum Wages Act, 1948 are extracted
the payment of wages to any class of as under:-
persons employed in any establishment or
"(F) Application of Payment of repugnancy or inconsistency between the

Wages Act, 1936, to scheduled two provisions in all such cases. Normally
employments.--(1) Notwithstanding non-obstante clause operates to remove
anything contained in the Payment of obstacles contained in relevant existing
Wages Act, 1936 (4 of 1936), the laws which come in the way of giving
appropriate Government may, by effect to the provisions contained in the
notification in the Official Gazette, direct enactment to which non-obstante clause is
that, subject to the provisions of sub- attached but non-obstante clause cannot
section (2), all or any of the provisions of be construed to widen the scope and
the said Act shall, with such effect of enactment to which the non-
modifications, if any, as may be specified obstante clause is attached nor can non-
in the notification, apply to wages obstante clause be interpreted to water
payable to employees in such scheduled down the natural scope and effect of the
employments as may be specified in the enactment to which it is attached. Non-
notification." obstante clause is usually employed to
give overriding effect to certain
17. From a plain reading of the provisions over some contrary provisions
provisions of Section 22(F) of the 1948 that may be found either in the same
Act, it is clear that notwithstanding enactment or some other enactment that is
anything contained in the 1936 Act, the to say to avoid the operation and effect to
appropriate Government may by all contrary provisions as held by Hon'ble
notification in the official Gazette direct Apex Court in Union of India Vs. G.M.
that all or any of the provisions of said Kokil AIR 1984 SC, 1022.
Act shall apply to the wages payable to
employees of scheduled employment. A 19. In view of aforestated legal
Scheduled employment is defined under position it is clear that despite anything
Section 2(g) of the 1948 Act to mean, an contained in the provisions of the 1936
employment specified in schedule or any Act all or any of the provisions of said
process or branch of work forming part of Act shall apply to the wages payable to
such employment. the employees of scheduled employments
under the 1948 Act, as may be specified
18. The opening word of Section in the notification issued by appropriate
22(F) of 1948 Act, starts with non- Government. It implies that despite the
obstante clause. A non-obstante clause is provisions of the 1936 Act may not cover
usually used in a provision to indicate that the employees of scheduled employment
provision should prevail despite anything under 1948 Act on its own strength and
to the contrary in provision mentioned in by authority of their extension to
such non-obstante clause. It implies that employee of any other establishment
in case there is any inconsistency or a under Section 1 (5) of the 1936 Act
departure between non-obstante clause nevertheless, appropriate Government
and another provision, one of the object of may extend all or any of the provisions of
such a clause is to indicate that it is non- the 1936 Act to wages payable to
obstante clause which would prevail over employees of scheduled employments
the other clause. It does not, however, under the 1948 Act. As indicated earlier
necessarily mean that there must be that the provisions of the 1936 Act are
applicable to only those employees who salary below the ceiling limit of Rs.1600/-
are covered by that Act and employees of per month may be entitled to get the
any establishment or class of benefit of provisions of Sections 15 to 25
establishments to whom the provisions of of the 1936 Act, if the notification so
the 1936 Act are extended by notification specifies.
issued by State Government under
Section 1(5) of the 1936 Act alone and 21. There is yet another reason to
not employees of other establishments. support the view taken hereinbefore. The
However, by virtue of provisions of provisions of the 1936 Act are intended to
Section 22 F of 1948 Act, it could be regulate the payment of wages payable to
extended to the employees of scheduled the employees covered by the said Act. It
employment under 1948 Act also. But in is intended to ensure the disbursement of
my considered opinion, it does not mean wages to such employees within the
that by virtue of a notification issued prescribed time limit and that no
under the provisions of Section 22 F of deduction other than those authorised by
the 1948 Act, the class of employees who law are made by the employers. While
are expressly excluded from the operation extending the benefits of the provisions of
of the provisions of the 1936 Act, may the said Act, a ceiling limit on the wages
also be included by such notification of such employees is fixed by the
under the provisions of 1948 Act, which legislature whereby the employees
is sub-ordinate legislation. drawing the wage to the extent of
Rs.1600/- per month are covered by the
20. It is for the simple reason that said Act, and those, who are drawing the
sub-ordinate legislation/delegated wages over and above Rs.1600/- per
legislation cannot transgress the limit of month are expressly excluded from the
such legislation to which it is sub- operations of the provisions of the said
ordinate. In this view of the matter even Act by the competent legislature by virtue
assuming as contended by learned counsel of Section 1(6) of the said Act, therefore,
for the respondent no.2 that the provisions in my considered opinion, if the
of Sections 15 to 25 of the 1936 Act are competent legislature itself has expressly
extended to employees of scheduled excluded the employees drawing the
employment under 1948 Act by virtue of wages over and above Rs.1600/- per
notification issued by appropriate month from the operation of the
Government under Section 22 (F) of the provisions of the 1936 Act, it is very
said Act, even then since the employees difficult to assume that employees of
drawing wages over and above Rs.1600/- scheduled employment under the 1948
per month are expressly excluded from Act who are drawing wages over and
the operation of provisions of the 1936 above Rs.1600/- per month can be
Act, therefore, the employees of included to get the benefit of the
scheduled employment under the 1948 provisions of the 1936 Act, by a
Act drawing the salary over and above notification issued under Section 22 F of
Rs.1600/- per month cannot be held to be the 1948 Act by appropriate Government,
included by such notification However, which is subordinate legislation.
employees of scheduled employment
under the 1948 Act, who are drawing
22. The aforesaid view further "2. Definitions.- In this Act, unless
fortified by a decision rendered by the context otherwise requires-
Hon'ble Apex Court in D.C. Wadhwa Vs. (a) "establishment" means an
State of Bihar AIR 1987 SC 579, wherein establishment engaged in pharmaceutical
it was held that a Constitutional authority industry or in any notified industry;
cannot do indirectly what it is not (b) "notified industry" means an industry
permitted to do directly. If there is declared as such under Section 3;
constitutional provision inhibiting the [(d) "sales promotion employee" means
constitutional authority from doing an act, any person by whatever name called
such provision cannot be allowed to be (including an apprentice) employed or
defeated by adoption of any subterfuge. engaged in any establishment for hire or
The legislature cannot violate the reward to do any work relating to
constitutional prohibitions by employing promotion of sales or business, or both,
an indirect method. That would be clearly but does not included any such persons-
a fraud on the constitutional provision. (i) who, being employed or engaged in a
supervisory capacity, draws wages
23. In view of the aforesaid exceeding sixteen hundred rupees per
discussion, there can be no scope for mensem; or
doubt to hold that since the provisions of (ii) who is employed or engaged mainly
Section 1(6) of the 1936 Act provides for in a managerial or administrative
ceiling limit as to wages of employees so capacity.
as to exclude from the purview of the said Explanation:- For the purpose of this
Act, therefore, persons whose wages clause, the wages per mensem of a person
exceed such ceiling limit, any provisions shall be deemed to be the amount equal to
of the 1936 Act shall not apply to them. thirty times his total wages (whether or
Thus, the sales promotion employees, not including, or comprising only of,
who are alleged to be the employees of commission)in respect of the continuous
scheduled employment under the 1948 period of his service falling within the
Act drawing wages over and above period of twelve months immediately
Rs.1600/- per month stand excluded by preceding the date with reference to
virtue of provisions of Section 1(6) of which the calculation is to be made,
1936 Act from the purview of the said Act divided by the number of days comprising
and the provisions of the said Act cannot that period of service;]
be held applicable to them. Any other (e) all words and expressions used but not
view contrary to it, would defeat the aims defined in this Act and defined in the
and objects of the 1936 Act, as it would Industrial Disputes Act, 1947, shall have
be doing a thing indirectly, what cannot the meaning respectively assigned to them
be done directly. in that Act."
24. Now the issue has to be 25. Section 6 of the 1976 Act has
examined in the light of provisions of the adopted various enactments by reference
1976 Act. Section 2 of the said Act and applied to the sales promotion
defines various words and expressions employees of pharmaceutical and notified
used under the Act as under:- industry as under:-
"6. Application of certain Acts to (b) where an Act referred to in any of the
sales promotion Employees:- (1) The said sub-section provides for a ceiling
provisions of the Workmen's limit as to wages so as to exclude from
Compensation Act, 1923, as in force for the purview of the application of such
the time being, shall apply to, or in Act persons whose wages exceed such
relation to, sales promotion employees as ceiling limit, such Act shall not apply to
they apply to, or in relation to, workmen any sales promotion employee whose
within the meaning of that Act. wages as computed in accordance with
(2) ********* the provisions of this Act exceed such
(3) The provisions of the Minimum ceiling limit."
Wages Act, 1948, as in force for the time
being, shall apply to, or in relation to, 26. From a plain reading of the
sales promotion employees as they apply aforesaid provisions of the 1976 Act it is
to, or in relation to, employees within the clear that Section 2 of the 1976 Act
meaning of that Act. defines 'establishment' which means an
(4) The provisions of the Maternity establishment engaged in "pharmaceutical
Benefit Act, 1961, as in force for the time industry" or "in any notified industry".
being, shall apply to, or in relation to, "Notified industry" defines to mean an
sales promotion employees, being women, industry declared as such under Section 3
as they apply to, or in relation to, women of the said Act. Section 2 (d) of 1976 Act
employed, whether directly or through defines 'sales promotion employee' means
any agency, for wages in any any person by whatever name called,
establishment within the meaning of that employed or engaged in any
Act. establishment for hire or reward to do any
(5) The provisions of the Payment of work relating to promotion of sales or
Bonus Act, 1965, as in force for the time business or both but does not include any
being, shall apply to, or in relation to, such person (i) who being employed or
sales promotion employees as they apply engaged in a supervisory capacity, draws
to or in relation to, employees within the wages exceeding 1600 rupees per
meaning of that Act. mensem; or (ii) who is employed or
(6) The provisions of Payment of Gratuity engaged mainly in a managerial or
Act, 1972, as in force for the time being, administrative capacity.
shall apply to, or in relation to, sales
promotion employees as they apply to, or 27. Section 6 of the 1976 Act has
in relation to, employees within the adopted and applied various labour laws
meaning of that Act. to the sales promotion employees by
(7) Notwithstanding anything contained in reference as they apply to or in relation to
the foregoing sub-sections. employees within the meaning of said
(a) in the application of any Act referred Acts. Thus, the provisions of Workmen
to in any of the said sub-sections to sales Compensation Act, 1923, Minimum
promotion employees, the wages of a Wages Act, 1948, Maternity Benefit Act,
sales promotion employee for the 1961, Payment of Bonus Act, 1965 and
purposes of such Act, shall be deemed to Payment of Gratuity Act, 1972 were made
be his wages as computed in accordance applicable to the sales promotion
with the provisions of this Act; employees engaged in pharmaceutical
industry or in any notified industries. promotion employees whose wages

However, Section 6 (7) of the 1976 Act exceed ceiling limit prescribed by such
provides that notwithstanding any thing labour laws. It implies that if particular
contained in the foregoing sub-sections enactment prescribed any ceiling limit of
where an Act referred to in any of the wages payable to the employees for
such sub-sections provides for a ceiling exclusion of applicability of the
limit as to the wages so as to exclude provisions of such labour laws, the class
from the purview of application of said of sales promotion employees drawing
Act, persons whose wages exceed such such wages shall be excluded from
ceiling limit, such Act shall not apply to applicability of such labour laws, and
any sales promotion employees whose only those sales promotion employees,
wages as computed in accordance with who are drawing wages below the ceiling
the provisions of this Act exceed such limit prescribed by such labour laws
ceiling limit. would be entitled to get the benefits of
such labour laws. Therefore, it is essential
28. It is necessary to point out that to examine as to whether Industrial
medical representative whose main and Disputes Act, 1947 has prescribed any
substantial work is to do canvassing for ceiling limit on the wages to the
promoting sales is not 'workman' within employees for exclusion of such
the meaning of Section 2 (s) of Industrial employees from operation of the
Disputes Act, 1947 but that class of provisions of the said Act.
persons has been extended the benefit of
Industrial Disputes Act by adopting the 30. In order to examine the aforesaid
provisions of the said Act by reference issue it is necessary to extract the
under Section 6 (2) of the 1976 Act. provisions of Section 2 (s) of the
Industrial Disputes Act, 1947 has been Industrial Disputes Act, 1947 which
amended by Amendment Act (46 of defines the expression 'workman' as
1982). By virtue of Section 24 of under:-
Amendment Act, Section 6 (2) of 1976
Act has been omitted but Central "2 (s) "workman" means any person
Government has not given effect to said (including and apprentice) employed in
clause as per notification No.S.O.606 (E) any industry to do any manual, unskilled,
dated 21st August, 1984. As logical skilled, technical, operational, clerical or
consequence, it will have to be held that supervisory work for hire or reward,
Section 6 (2) of 1976 Act has not been whether the terms of employment be
omitted and it continues to be in force as express or implied, and for the purposes
held in 1997 (1) Labour Law Journal, of any proceeding under this Act in
557. It means that in spite of omission of relation to an industrial dispute, includes
Section 6 (2) of 1976 Act, the provisions any such person who has been dismissed,
of Industrial Disputes Act continues to discharged or retrenched in connection
apply to the sales promotion employees. with, or as a consequence of, that dispute,
or whose dismissal, discharge or
29. But Section 6 (7)(b) of the 1976 retrenchment has led to that dispute, but
Act excludes application of aforesaid does not include any such person-
labour laws in relation to the sales
(i) who is subject to the Air Force definition of workman. It implies that for
Act, 1950 (45 of 1950), or the Army Act, such exclusion he must be working in
1950 (46 of 1950), or the Navy Act, 1957 supervisory capacity besides drawing
(62 of 1957); or salary exceeding Rs. 1600/- per month,
(ii) who is employed in the police therefore, a person, who is drawing salary
service or as an officer or other employee exceeding Rs.1600/- per month is treated
of a prison; or to be workman within the meaning of the
(iii) Who is employed mainly in a Industrial Disputes Act, if he is not
managerial or administrative capacity; or working in supervisory capacity but since
(iv) Who, being employed in a a person drawing wages exceeding Rs.
supervisory capacity, draws wages 1600/- per month is excluded from
exceeding one thousand six hundred operation of the provisions of the 1936
rupees per mensem or exercises, either by Act by virtue of provisions of Section 1
the nature of the duties attached to the (6) of the said Act, therefore, such person
office of by reason of the powers vested in cannot be held to get the benefit of
him, functions mainly of a managerial provisions of the 1936 Act irrespective of
nature." his job and as to whether he is workman
or not because of the reason that the
31. From perusal of Section 2(s) of provisions of Section 1(6) of the said Act
Industrial Disputes Act it is clear that a expressly excludes the operation of the
person who is employed in any industry 1936 Act in relation to persons who is
to do any manual unskilled, skilled, drawing wages over and above Rs.1600/-
technical, operational, clerical or per month. Thus, there can be no scope
supervisory work for hire or reward for doubt to hold that sales promotion
whether the term of employment be employees who are drawing wages over
expressed or implied, would be treated as and above Rs.1600 per month are not
workman, but a person, who is employed entitled to invoke the provisions of the
in supervisory capacity draws wages 1936 Act irrespective of fact that they are
exceeding 1600/- rupees per mensem or workman or not under Industrial Dispute
exercises either by nature of his duties Act, as they are expressly excluded from
attached to the office or by reason of the purview of the 1936 Act. However,
powers vested in him functions mainly of such sales promotion employees, who are
a managerial nature would not be treated drawing wages within the ceiling limit
to be workman. Aforesaid provision of would get benefits of the provisions of the
the Industrial Disputes Act, prescribed 1936 Act by virtue of the provisions of
conditions for exclusion of a person from Section 6(2) and Section 6 (7)(b) of the
the definition of workman, one of which 1976 Act.
is that the person must be employed in
supervisory capacity and drawing wages 32. The view taken hereinbefore
exceeding 1600/- rupees per month and also finds support from a decision of
another condition is that person must be Supreme Court rendered in Life
exercising power of managerial in nature, Insurance Corporation of India Vs.
but it cannot be held that a person merely Anwar Khan (2007) 11 SCC, 25,
drawing wages exceeding Rs.1600/- per wherein while dealing with the
month alone, would be excluded from the applicability of provisions of Section 1 (6)
of the 1936 Act the Hon'ble Apex Court was unable, though exercising reasonable
has held that if the Act is inapplicable to a diligence, to make prompt payment, or
person as per provisions of the 1936 Act, (c) the failure of the employed person
mere applicability of a State labour to apply for or accept payment."
legislation to such person would not bring 12. . . . . Once Section 1 (6) of the Act
the person within the purview of the 1936 applies, the nature of the job is irrelevant.
Act. Whether the Field Officers are workmen
or not is really of not relevance in view of
33. The pertinent observations made Section 1 (6) of the Act. Section 15 of the
by Hon'ble Apex Court in paras 8, 12 and Act is relatable only to claim under the
13 of the aforesaid decision are extracted Act. The entitlement for compensation is
as under:- only under the Act and there is no scope
for compensation under the Adhiniyam.
"8. Section 15 (3) of the Act with the The compensation has to be worked out in
proviso reads as follows: terms of Section 15 of the Act. There
"15. (3) When any application under cannot be a claim both under Section 15
sub-section (2) is entertained, the of the Act and Section 18 of the
authority shall hear the applicant and the Adhiniyam.
employer or other persons responsible for 13. Learned counsel for the
the payment of wages under Section 3, or respondent submitted that proviso to
give them an opportunity of being heard, Section 15 (3) cannot be pressed into
and, after such further inquiry (if any) as service because the dispute is relatable to
may be necessary, may, without prejudice amount payable. In this case LIC disputes
to any other penalty to which such the entitlement. We find the plea to be
employer or other person is liable under without any substance. The question of
this Act, direct the refund to the wages, payability of an amount arises only when
together with the payment of such somebody is entitled to an amount. The
compensation as the authority may think proviso makes it clear that when there is
fit, not exceeding ten times the amount bona fide dispute about the amount
deducted in the former case and not payable, compensation cannot be
exceeding twenty-five rupees in the latter, awarded."
and even if the amount deducted or the
delayed wages are paid before the 34. From perusal of the aforesaid
disposal of the application, direct the decision it is clear that the Hon'ble Apex
payment of such compensation, as the Court has held that once Section 1 (6) of
authority may think fit, not exceeding the 1936 Act applies to a person, the
twenty-five rupees: nature of his job is irrelevant. Whether the
(a) a bona fide error or bona fide field officers are workman or not is really
dispute as to the amount payable to the of no relevance in view of Section 1 (6) of
employed person, or the 1936 Act. Section 15 of the Act is
(b) the occurrence of an emergency, relatable only to claim under the Act. The
or the existence of exceptional entitlement for compensation is only
circumstances, such that the person under the Act and there is no scope for
responsible for the payment of the wages compensation if the Act does not apply, as
the compensation has to be worked out in ORIGINAL JURISDICTION

terms of Section 15 (3) of the 1936 Act. CIVIL SIDE
35. In view of the aforesaid

BEFORE
categorical statement of law enunciated THE HON’BLE R.K. RASTOGI, J.
by Hon'ble Apex Court, there can be no THE HON’BLE A.K. ROOPANWAL, J.
scope for doubt to hold that the
respondent no.2 who was admittedly Criminal Misc. Habeas Corpus Writ
drawing Salary Rs.13,825/- per month is Petition No. 56549 of 2008
excluded from the operation of provisions
of the 1936 Act by virtue of the Khusboo …Petitioner
provisions of Section 1(6) of the said Act, Versus
irrespective of fact whether he is State of U.P. and others …Respondents
workman or not by virtue of Section 6(2)
of the 1976 Act, which continues to apply Counsel for the Petitioner:
to him and irrespective of fact as to Sri Kamal Kishor Mishra
whether he is excluded from Industrial
Dispute Act by Section 6(7)(b) of 1976
Sri M.C. Joshi
Act or not, therefore, he is not entitled to
Sri Sudhir Mehrotra
invoke the provisions of Section 15 (2)
and Section 15(3) of the 1936 Act. As Constitution of India-Art. 226-Habeas
such the claims set up by him under Corpus Petition-alleging her age as 19
Section 15 (2) and Section 15 (3) of the years-according to her sweet will
1936 Act in my considered opinion is not residing with a man of his choice-
maintainable before the prescribed illegally detained in Rajkiya
authority under the Act 1936. Therefore, Pashchatwarti Dekh Rekh Sansthan-
medically examined by C.M.O.-given
the Assistant Labour Commissioner, expert opinion disclosing the age 19
Bijnor has no jurisdiction to entertain and years-in school leaving certificate two
proceed with PWA Case No.18 of 2005 different self contradictory dates
Ajit Singh Vs. Merind Limited and mentioned-held-C.M.O. certificate more
another pending before him. The entire reliable-apparently the petitioner
proceeding is without jurisdiction and is appears major. Free to go anywhere to
her choice.
liable to be quashed. Accordingly, the
same is hereby quashed. In the result, the Held: Para 6 & 8
writ petition succeeds and is allowed.
It is to be seen that according to the
36. There shall be no order as to medical certificate issued by the C.M.O.,
costs. Gorakhpur, the age of the petitioner-
---------
Khusboo was about 19 years on
23.7.2008. The medical report reveals
that all the epiphysis of elbow joints and
knee joints were fused. In case of wrist,
lower ends of ulna and radius were also
fused. It may also be mentioned that
Khusboo was produced by the police
before the C.M.O. for her medical
examination and there is no reason to
1 All] Khusboo V. State of U.P. and others 243
doubt its veracity regarding about 19 years. A photocopy of the

ascertainment of the age done by the medical certificate issued by the
C.M.O., Gorakhpur, on the basis of
C.M.O., Gorakhpur, has been annexed
fusions of the epiphysis.
as Annexure no. 3 to the petition. Even
We are of the view that when the then the S.D.M., Sadar, Gorakhpur, did
documentary evidence of date of birth of not permit her to go to her nuptial home
the petitioner Khusboo is self and passed order for keeping her at the
contradictory, the medical ascertainment Rajkiya Paschatyavarti Dekhrekh
of age done by the C.M.O., Gorakhpur, on
Sanrakshan, Varanasi, (respondent no.
the basis of x-ray report is more reliable,
and according to that ascertainment of
2). She alleged that since she is major,
age, the petitioner is apparently major she has the right to live with a man of
and so she cannot be kept in Rajkiya her choice and so she filed this petition
Paschatyavarti Dekhrekh Sanrakshan, challenging the above order. She has
Varanasi, against her wishes. also alleged that her parents are not
ready to keep her with them.
(Delivered by Hon'ble R. K. Rastogi, J.)
3. The State filed a counter
1. This Habeas Corpus Writ affidavit of Devendra Prasad Tiwari,
Petition has been filed by the petitioner, Sub Inspector of Police, Police Station
Khusboo, for quashing the order dated Khorabar, District Gorakhpur, in which
12.10.2008 passed by the S.D.M., he stated that on the basis of the
Sadar, Gorakhpur, in Misc. Case No. 3 information given by Rajendra Prasad,
of 2008 and for issuing a direction to respondent no. 3, Case Crime No. 1498
the respondents to produce her corpus of 2008, u/s 376, 506 I.P.C. was
before this Court and for other suitable registered at Police Station Khorabar,
directions. District Gorakhpur, on 19.7.2008, and
in this case Ram Dayal, so called
2. The petitioner's case is that she husband of the petitioner, is an accused.
is major and her date of birth is The case was investigated and after
5.2.1989. She has filed a photocopy of investigation the charge sheet has
the School Leaving Certificate issued by already been submitted against Ram
the Headmaster, Primary School, Dayal. It was also alleged that Khusboo
Khorabar, Gorakhpur. She has alleged is still minor. Her date of birth
that she performed marriage with Ram according to her School Leaving
Dayal out of her own choice but her Certificate (Annexure no. CA1) is
parents were not satisfied with this 5.2.1995. It was on the basis of the
marriage. She also moved an application above School Leaving Certificate in
before the S.D.M., Sadar, Gorakhpur, on which the date of birth of Khusboo was
12.2.2008 asserting that she wanted to mentioned as 5.2.1995, that the S.D.M.,
go with her husband. It was registered Sadar, Gorakhpur, held that she was still
as Misc. Case No. 3 of 2008. The a minor and so she should not be
petitioner Khushboo was produced permitted to reside according to her
before the C.M.O., Gorakhpur, by the wishes and he passed an order that she
police and the C.M.O. after obtaining x- should be kept at Rajkiya Paschatyavarti
ray report ascertained her age to be Dekhrekh Sanrakshan, Varanasi.
4. A rejoinder affidavit has been of age done by the C.M.O., Gorakhpur,

filed by Ram Dayal disputing the on the basis of x-ray report is more
allegation of minority of Khusboo reliable, and according to that
mentioned in the counter affidavit. ascertainment of age, the petitioner is
apparently major and so she cannot be
5. We have heard learned counsel kept in Rajkiya Paschatyavarti
for the petitioner as well as learned Dekhrekh Sanrakshan, Varanasi, against
AGA for the State and perused the her wishes.
record.
9. This Habeas Corpus Writ
6. It is to be seen that according to Petition is, therefore, allowed, the order
the medical certificate issued by the of the S.D.M., Sadar, Gorakhpur dated
C.M.O., Gorakhpur, the age of the 12.10.2008 (Annexure no. 4 to the
petitioner- Khusboo was about 19 years petition) is quashed and the petitioner
on 23.7.2008. The medical report Khusboo is ordered to be released from
reveals that all the epiphysis of elbow Rajkiya Paschatyavarti Dekhrekh
joints and knee joints were fused. In Sanrakshan, Varanasi.
case of wrist, lower ends of ulna and
radius were also fused. It may also be 10. Since the petitioner Khusboo
mentioned that Khusboo was produced has been produced in this court by CP
by the police before the C.M.O. for her 1386 Smt. Maya Devi and CP 261 Sri
medical examination and there is no Anil Kumar Mishra, Constables, Police
reason to doubt its veracity regarding Lines, Varanasi, she is permitted to be
ascertainment of the age done by the released in the court and she is at liberty
C.M.O., Gorakhpur, on the basis of to go anywhere she likes. Petition
fusions of the epiphysis. allowed.
---------
7. As regards the dates of births ORIGINAL JURISDICTION
CIVIL SIDE
mentioned in the School Leaving
Certificates, the petitioner has filed a
photocopy of the certificate issued by BEFORE
the Headmaster of the School in which THE HON’BLE RAKESH TIWARI, J.
she had studied and in which her date of
birth was mentioned as 5.2.1989, but in Civil Misc. Writ Petition No.66968 of 2008
another certificate issued by the same
school her date of birth has been Kumari Sonika …Petitioner
mentioned as 5.2.1995. Both the Versus
certificates are self contradictory and State of U.P. and another …Respondents
there is contradiction regarding her age
in the school record. Counsel for the Petitioner:
Sri Rajeev Sisodia
8. We are of the view that when Sri Atul Sisodia
the documentary evidence of date of
birth of the petitioner Khusboo is self
S.C.
contradictory, the medical ascertainment
1 All] Km. Sonika V. State of U.P. and another 245
Constitution of India Art. 226- 4. The Apex Court in AIR 1984

Education-evaluation of works-on the SC-1543, Maharashtra State Board of
ground of lessor marks awarded even
Secondary and Higher Secondary
after better performens-unless the
answer sheet of the candidates Education Vs. Paritosh Bhupesh
summoned the process of awarding Kurmarsheth, has held as follows:
marks and the allegation can not be “The process of evaluation of
verified-under writ jurisdiction court answer papers or of subsequent
can not interfere-petitioner may verification of marks does not attract
institute civil suit.
the principles of natural justice since no
Held: Para 5
decision making process which brings
about adverse evil consequences to the
This Court cannot permit revaluation of examinees is involved. The principle of
copies by the candidate. Even natural justice cannot be extended
otherwise the marks given to the beyond reasonable and rational limits
petitioner cannot be said to be and cannot be carried to such absurd
incorrectly given unless copies of all
other candidates appearing alongwith
lengths as to make it necessary that
the petitioner are seen for the purpose candidates who have taken a public
of evaluation of her copy viz a viz examination should be allowed to
others. This is not possible in writ participate in the process of evaluation
jurisdiction. The High Court can also of their performances or to verify the
not call for copies of thousands of correctness of the evaluation make by
candidates just to satisfy an examinee;
with any concrete basis made out on
the examiners by themselves conducting
the facts of the case. In the opinion of an inspection of the answer books and
the Court obtaining less mark in a determining whether there has been a
subject is not a ground for calling of proper and fair valuation of the answers
copy of that paper. by the examiners.”
Case law discussed:
AIR 1984 SC-1543
5. This Court cannot permit
revaluation of copies by the candidate.
(Delivered by Hon’ble Rakesh Tiwari, J.)
Even otherwise the marks given to the
petitioner cannot be said to be
1. Heard counsel for the petitioner
incorrectly given unless copies of all
and the standing counsel.
other candidates appearing alongwith
the petitioner are seen for the purpose of
2. By this petition, the petitioner evaluation of her copy viz a viz others.
seeks a writ in the nature of mandamus This is not possible in writ jurisdiction.
commanding the respondents to produce The High Court can also not call for
his answer sheets of Mathematics Ist copies of thousands of candidates just to
and Chemistry IInd papers of satisfy an examinee; with any concrete
Intermediate examination. basis made out on the facts of the case.
In the opinion of the Court obtaining
3. The purpose of the writ petition less mark in a subject is not a ground for
appears to be that the candidate wants to calling of copy of that paper.
satisfy herself that answers given by her
have been correctly evaluated or not.
6. In view of settled legal position,

this Court is not inclined to interfere in
its discretionary powers under Art. 226
of the Constitution.
7. The writ petition is accordingly

dismissed with this observation that
petitioner if aggrieved may file a suit
for redressal of his grievance. No order
as to costs.
---------

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1 All] Chandra Kant Singh V.

The Secretary, Madhyamic Shiksha Parishad and others 161

ORIGINAL JURISDICTION moral and legal duty in the

Chandra Kant Singh …Petitioner 1. Heard learned counsel for the

5. We have heard learned counsel If all the aforesaid conditions are

Counsel for the Revisionist: 3. By means of this Revision, order

APPELLATE JURISDICTION cross-objection, the bank has allowed

Registration Act 1908-Section-77- unregistered 'wills' of Smt. Ram Lalli.

for registration is a 'will'. Therefore, by a probate petition or in a civil suit when

Sanjay Singh (supra) as well as this 4. Having considered the aforesaid

Counsel for the Respondents: 3. The petitioner was engaged as

strength of such continuance, if the got employed should be directed to be

others 2008(10) SCC 1 has observed as creation, continuance and abolition of

Petition No.35179 of 1998 cannot be Sri Dinesh Kacker

16. In view of the above, the Counsel for the Respondents:

services were terminated without (Administration-II) were also examined.

permanent reserves to cover recurring Ordinances are to be prescribed by the

APPELLATE JURISDICTION 2. This application has been filed

ORIGINAL JURISDICTION (Delivered by Hon'ble S.U. Khan, J.)

5. Ultimately, Prescribed Authority 8. Moreover by virtue of Section

argument is wholly irrelevant and has cannot be said to be capricious, illegal or

8. Coming to the judgement relied 9. In view of the above discussions,

Counsel for the Respondents: petition) by which order, the 5th

summing up the scope of exercise of with in exercise of jurisdiction by this

Counsel for the Respondents: (Delivered by Hon’ble Prakash Krishna, J.)

issued under sections 4 or 6 of the Act, is consolidation operation was going on

"Consolidation" means dispute between the State of Uttar Pradesh

make arrangement to interview the circumstances, the appointment shall be

1. Heard Sri Raj Kumar Khanna, 4. Sri Prem Chandra, learned

17. No order as to costs. of Section 6(2) of the 1976 Act, which

jurisdiction. Aforesaid order dated 6. In the meantime the respondent

of the said Act shall apply to employees intention of so doing, by notification in

11. To appreciate the rival {Provided that in relation to any

"1. Short title, extent, 13. Section 2 of the 1936 Act

Notes.- When there is a manger who is class of establishment specified by

"(F) Application of Payment of repugnancy or inconsistency between the

industry or in any notified industries. promotion employees whose wages

the compensation has to be worked out in ORIGINAL JURISDICTION

35. In view of the aforesaid

doubt its veracity regarding about 19 years. A photocopy of the

4. A rejoinder affidavit has been of age done by the C.M.O., Gorakhpur,

Constitution of India Art. 226- 4. The Apex Court in AIR 1984

6. In view of settled legal position,

7. The writ petition is accordingly

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