1 All] In Re Vs. K.P. Seth & Ors. 377 · Advocate did not filed any reply but sought time, which...

1 All] In Re Vs. K.P. Seth & Ors. 377

ORIGINAL JURISDICTIONCRIMINAL SIDE

DATED: ALLAHABAD 07.04.2015

BEFORETHE HON'BLE SUDHIR AGARWAL, J.

THE HON'BLE SHASHI KANT, J.

Criminal Contempt Application No. 15 of2012

In Re. ...ApplicantVersus

K.P. Seth & Ors. ...Contemnors

Counsel for the Applicant:A.G.A., Sri Sudhir Mehrotra

Counsel for the Respondents:Sri Arvind Kumar Tripathi, Sri K.K. Arora,Sri Rahul Sripat

Contempt of Court Act, 1971-CriminalContempt-office bearer of BarAssociation-disturbing court functioning-use of defamatory language addressingcost-held-ex-facie illegal amount tocriminal contempt-exercising powerunder chapter 24 Rule 11 (3) of HighCourt Rule 1952 and Section 34 ofAdvocate Act 1961-restrained frompracticing for 30 days with fine of Rs.2000/--in case of default shall undergo15 days simple imprisonment-apologynot bonafied

Held: Para-20Besides, in exercise of our powers underChapter 24 Rule 11(3) of The AllahabadHigh Court Rules, 1952, framed underSection 34(1) of Advocates Act, 1961, werestrain two contemnors from practisingin Civil Court/District Judgeship, Rampurfor a period of thirty days. They shall notenter premises of Civil Court/DistrictJudgeship, Rampur for a period of thirtydays', which shall commence from 23rdApril, 2015.

Case Law discussed:[2009 (4) ALJ 434]

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

1. Sri Kamla Pati Seth, Advocate(K.P. Seth) S/o Late Jagdish Narain andMohd. Qurban, Advocate on behalf of BarAssociation, Rampur, identified by theirrespective counsel Sri Rahul Sripat andSri K.K. Arora are present in the Court.

2. This criminal contempt has beeninitiated against two contemnors, Sri KamlaPati Seth and Mohd. Qurban, Advocates, andregistered on a reference made by Sri S.P.Singh, District Judge, Rampur vide letterdated 4th July, 2012. It is stated therein thattwo contemnors alongwith large number ofother Advocates entered Court rooms, raisedslogans, took out Advocates who werepresent and working in the Court, forcibly,and disrupted Court proceedings on06.06.2012, between 12.15 P.M. and 1.15P.M. Report of disruption of Courtfunctioning, slogans etc. was made by theother presiding officers of Rampur Judgshipnamely, Sri Shyam Lal Kori, Chief JudicialMagistrate; Sri Navneet Kumar Giri,Additional Civil Judge (SeniorDivision)/Additional Chief JudicialMagistrate; Sri Mumtaz Ali, AdditionalChief Judicial Magistrate, Court No. 2; SriGyanendra Singh Yadav, Additional ChiefJudicial Magistrate, Court no. 3; Sri SitaRam, Civil Judge (Junior Division)/JudicialMagistrate; Sri Sanjay Kumar Singh,Additional Civil Judge (JuniorDivision)/Judicial Magistrate, Court No. 2and Sri Yajuvendra Vikram Singh,Additional Civil Judge (JuniorDivision)/Judicial Magistrate etc. Again on7th June, 2012, such a report was given bySmt. Alka Bharti, Additional Civil Judge(Junior Division)/Judicial Magistrate, CourtNo. 1, Rampur to the effect that at about1.00P.M., when she was busy in Court, SriK.P. Seth and Sri Qurban Ali, Advocates

378 INDIAN LAW REPORTS ALLAHABAD SERIES

who were also office bearers of BarAssociation as President and Secretaryrespectively approached the gate of Courtroom, prevented litigants and Advocatesfrom entering the Court room, forcibly, andraised slogans. After lunch, aforesaidAdvocates again disrupted Courtproceedings and functioning.

3. Complaint letters were also madepart of the reference letter of DistrictJudge, Rampur. Relevant extract ofcomplaint of Smt. Alka Bharti dated06.06.2012, reads as under :

Þiqu% vijkUg djhc 1-00 cts tc nSfud is'khds le; vf/koDrkx.k o okndkjh U;k;ky; esamifLFkr Fks rFkk eSa U;kf;d dk;Z lEikfnr dj jghFkh] rHkh ckj ds v/;{k Jh ds0ih0lsB] cknokgklfpo dqckZu vyh o Jh tquSn [kku dqNvf/koDrkvksa ds lkFk U;k;ky; esa vk;s vkSj ukjsckthdjus yxs rFkk tkfrlwpd 'kCnksa dk iz;ksx djrs gq,vHknz Hkk"kk dk iz;ksx fd;k rFkk vf/koDrkx.k ookndkfj;ksa dks tcjnLrh U;k;ky; d{k ls ckgj ysx;s rFkk iqu% U;kf;d dk;Z djus easa O;o/kku mRiUufd;k x;kA ckj v/;{k us ;g Hkh dgk fd ;fn esjsi{k esa eu&ekfQd vkns'k ugha gksxk] rks U;k;ky; esadk;Z ugha djus fn;k tk;sxkAß

English Translation by the Court :

"Again at 1 p.m., while dainik peshibeing underway, the counsels and litigantswere present in the court and I wasdischarging my judicial functions; at thatvery time Bar president Sri K.P. Seth,general secretary Sri Kurban Ali and SriJunaid Khan, alongwith some othercounsels, came over to the court; resortedto sloganeering, used indecent languagelaced with casteist words, forced thecounsels and litigants out of the court roomand again obstructed judicial proceedings.The Bar president also threatened that if afavourable order is not passed, the courtshall not be allowed to run."

4. Taking cognizance of aforesaidcontempt reference, this Court issuednotice to Sri K.P. Seth, Mohd. Qurbanand Sri Junaid Khan, Advocates videorder dated 26.07.2012, to show cause,why they should not be punished forabove act of contempt.

5. On behalf of Mohd. Qurban and SriJunaid Khan, Advocates affidavits were filedtendering unconditional apology, but havinggone through, the Court rejected the samevide order dated 27.09.2012. Sri K.P. Seth,Advocate did not filed any reply but soughttime, which was granted.

6. Thereafter, Court formulatedcharges against three Advocates videorder dated 10.10.2012, as under :-

"Sri K.P. Seth, President District BarAssociation, Rampur

Sri Qurban Ali, Advocate, Secretary,District Bar Association,

Sri Junaid Khan, Advocate.

(i) That you on 06.06.2012 at 10.30a.m. alongwith some other Advocatesentered into the court room of Smt. AlkaBharti, Additional Civil Judge (J.D.),Court No. 1, Rampr and shouted sloganby using indecent language and therebydisrupted the court proceedings.

(ii) That you on the same day at01.00 p.m. again indulged in sloganshouting, using unparliamentary andabusive language against the PresingJudge coerced and also coercing litigantsand advocates to leave the court roomand thereby stalled and threatened to stallthe functioning of the court only becauseyou, K.P. Seth, solicited favour from the


above noted Additional Civil Judge indifferent judicial proceedings.

(iii) That you all on 06.06.2012along with other members of the BarAssociation resolved to boycott the courtof Smt. Alka Bharti and transmitted theresolution to the District Judge, Rampurand again withdrew it without any reason,which was also an act of contempt, due tobeing instance of acts done by you forgaining undue favour from a Judge in ajudicial proceedings, which was beinghandled by the above noted Smt. AlkaBharti by bullying her down by the aboveacts and threat to boycott her court

The above charges was explained tothe contemnors to which they pleaded notguilty and claimed to be tried."

7. Sri Rahul Sripat, Advocate hasput in appearance on behalf of Sri K.P.Seth, while Sri K.K. Arora, Advocate hasput in appearance on behalf of Mohd.Qurban. In respect to Sri Junaid Khan it isinformed that during pendency of theseproceedings he is no more.

8. These proceedings are nowconfined to two contemnors, Sri K.P. Sethand Mohd. Qurban, Advocates.

9. Though, aforesaid contemnorshave taken defence in respect to thecharges by filing replies, but, when todaymatter was taken up, Learned counselsappearing for the two contemnors, at theoutset stated that they are not contestingthe matter, but admitting the guilt andtherefore, Court may not look into thedefence they have taken in their replies.Both contemnors, also stated that beingoffice bearers of Bar Association whenresolution was passed, they got indulged

in the aforesaid activities, for which theyhave no excuse at all but they are now notputting any defence before the Court, butadmit their guilt and pray for mercy andbenevolence. They further requested toaccept their unconditional apology.

10. On behalf of contemnor no. 2,i.e. Mohd. Qurban, an affidavit sworn on7th April, 2015 was also filed, statingtherein that he is not entering into meritsof the pleadings and defence and submitsunconditional apology.

11. Sri Rahul Sripat, and Sri K.K.Arora, Advocates appearing on behalf of twocontemnors stated at the Bar that Court mayignore their defence taken in their replies inrespect to the charges and instead, showingmagnanimity and benevolence, pardon themand they assure that in future no suchconduct shall be shown. Both contemnorssupport what their counsels, stated andpleaded for leniency in the matter, requestingthe Court to pardon them.

12. So far as question of acceptanceof apology is concerned, it is already onrecord that before formulation of charges,when contemnors tendered apology,looking to their replies and othercircumstances, Court rejected the same.

13. Today, situation is thatcontemnors, almost have come to the cornerand apology, apparently, means to avoidsevere punishment. The guilt has beenadmitted by them, hence, charges standproved. That being so, question of apology,apparently, is with intention to avoid seriouspunishment of imprisonment or fine or both,as the case may be.

14. The question as to when anapology can be said to be bonafide and


unconditional has been examined in detailby a larger Bench of five Judges of thisCourt in Suo Motu Action taken by theCourt Vs. Smt. Sadhna Upadhyaya,Advocate [2009 (4) ALJ 434] and someof the relevant observations made by theCourt are reproduced as under :-

"66. The ordinary dictionarymeaning of apology is a speech indefence; a regretful acknowledge orexcuse for failure. An explanation offeredto a person affected by one's action thatno offence was intended, coupled with theexpression of regret for any that may havebeen given; or a frank acknowledgementof the offence with expression of regretfor it, by way of reparation. (Refer toMurray's Dictionary). In short an apologyis something written or said in defence ofwhat appears to other people to be wrongand is an expression of regret.

67. To apologize, is to speak injustification, explanation or palliation ofa fault. It is to serve as a satisfaction forany failure that may have causeddissatisfaction. It carves out an excuse ordefensive argument acknowledging andexpressing regrets for a fault withoutsetting up any defence. The faultcommitted, cannot be reversed but it canbe repented for. An apology is a substitutewhich is peculiar in nature and suchcharacter is very subtly reflected in thespeech of Benjamin Disraeli the formerBritish Prime Minister who said it in thefollowing words in his speech in theHouse of Commons on 28.7.1871:

"Apologies only account for the evilwhich they cannot alter."

69. To our mind if an unconditionalapology is tendered, then it should betempered with a sense of genuine remorseand unflinching repentance. Nojustifications for the cause are to be

pleaded and insisted inasmuch as, oncesuch an apology is tendered, then in thatevent the guilt is almost unhesitatinglyadmitted and an expression of contritionexhibiting a real mood not to commit anysuch mistake in future is indicated. It is insuch circumstances that the court startscontemplating as to whether the trust thatthe court desires and legitimately expectscan be reposed or not.

70. An honest unconditional apologyis normally received by the court withimplicit faith. The faith is diminished if itis tainted with consequences. However,unconditional apology, even if tenderedvoluntarily and not strategically to avoidpunishment, is no absolute assurance ofdischarge. The court has to weigh thecircumstances keeping in view the objectfor which such powers are preservedespecially in superior courts.

73. ........ An apology is not apalliative medicine to mesmerise a courtfor sometime. It has to generate a sort ofa permanent belief that the tender ofapology is genuine and is likely to have abaneful effect. Not a casual or formalpassing of affairs to avoid punishment.Such an apology with defence raises apresumption of predominant whim ofcontradictions and lacks in sincerity.

74. A suspicious and defensiveapproach by the contemnor herself cannotinvoke sympathies or any other equitableconsiderations. There appears to be abarrier of confusion in her about her ownfate which might have impelled her not togive up her defence. There is no opencommitment to an unqualified apologyand is hedged by desperate attempts tojustify her stand. Inspite of the longopportunity available to the contemnorwe are surprised at her stolidity for aremorseful apology. The apology is


superficial and is only an upholstery withno sense of depth in it.

76. The elements of remorse,repentance and contrition are what canbe described as the life and blood of abonafide expression of apology. To detestthe existence of such virtues for judgingan act of contempt, is to deprive the lawof its morality which it deserves andwhich is also necessary to preserve thesame. It is like asking to live comfortablyin a room with all its air having beenpumped out.

78. Remorse is deep regretexperiencing the pain of a guiltyconscience. It is self-condemnation. Oncethe guilt is realised, then the naturalfeelings of humanity that assertthemselves, is known as remorse.Shakespeare with his undoubted masteryof thought and language has depicted thisat several places in the character ofMacbeth and lady Macbeth, when theytalk of the merciless killings of innocentpersons at the behest of Macbeth. Toquote one such line:-

"I am afraid to think what I havedone;

look on it again I dare not."

15. Looking to the circumstances inwhich alleged apology has come forth atthis stage, it cannot be said to be bonafide,sincere and unconditional. In our view,contemnors deserve appropriatepunishment, though, considering the factthat contemnors have accepted guilt andhave tendered apology to the Court, wewould be justified in giving dueweightage to this conduct whiledetermining as to what appropriatepunishment would be, in this case.

16. Before coming to punishmentpart, we find it necessary to observe that

of late it has become a regular feature inthe subordinate courts where judicialproceedings are being disrupted byAdvocates collectively or in the group ofindividuals and otherwise by raisingslogans, using abusive language and manya times creating other kind of disruptionslike breaking window panes, striking onthe doors of court rooms heavily andpreventing litigants and others to enterCourt rooms etc. Virtually, in the State ofUttar Pradesh substantial period offunctioning in subordinate courts isgetting waste due to such disruption andobstruction by Advocates.

17. It is true, that two contemnorswere office bearers of Advocates BareAssociation i.e. they were holding office ofPresident and Secretary, but, neverthelessboth were Advocates first, and had seriousresponsibility towards maintaining decorumand allowing smooth functioning of Courts.If collectively, Association of Advocatestook a decision to do some thing which wasnot just, legal or valid, it was expected fromthem not to become a part of suchproceedings and instead they could havetaken appropriate steps for keepingthemselves away, instead of becoming partof such illegal and contemptuous activitiesof their colleagues. Unfortunately theyfailed in showing respect to the Court andmaintaining its majesty. They took activeparticipation in doing some thing which wasex-facie illegal and amounts to criminalcontempt, by lowering down the authorityand dignity of officers of Court in particularand Court of law as an institution in general.

18. People have lot of faith andconfidence in the system ofadministration of justice with hope andtrust that institution of justice shall comeforward to do away injustice, caused to


them, and would impart complete justiceto them. Where process of administrationof justice is interfered with in such amanner, the faith and confidence of publicis bound to fade away.

19. Considering the entire facts andcircumstances and conduct shown by twocontemnors before this Court, we awardpunishment of simple imprisonment for aday i.e. till raising of the Court and fine ofRs.2,000/- each, failing which, they shallundergo simple imprisonment for afurther period of fifteen days'.

20. Besides, in exercise of ourpowers under Chapter 24 Rule 11(3) ofThe Allahabad High Court Rules, 1952,framed under Section 34(1) of AdvocatesAct, 1961, we restrain two contemnorsfrom practising in Civil Court/DistrictJudgeship, Rampur for a period of thirtydays. They shall not enter premises ofCivil Court/District Judgeship, Rampurfor a period of thirty days', which shallcommence from 23rd April, 2015.

21. Conduct of both contemnors shallalso remain under constant observation of theDistrict Judge, Rampur for a period of twoyears' and in case, they are found indulged inany otherwise activity causing disruption etc.in the court, matter shall be reported to thisCourt forthwith. Copy of this order shall becommunicated to District Judge, Rampurforthwith, for compliance of aforesaiddirections.

22. The two contemnors present inthe Court, at this stage, stated that they aresurrendering before this Court to serve thesentence and may be taken in custody.They also prayed, that they be permitted todeposit fine within such time as the Courtmay direct.

23. In view of above, contemnorsare taken in custody to serve sentence ofone day simple imprisonment and shall bereleased on rising of the Court. Fine ofRs.2,000/- each may be deposited by thetwo contemnors within a week.

24. Criminal contempt application isaccordingly disposed of with the directionsas above.

--------REVISIONAL JURISDICTION

CIVIL SIDEDATED: ALLAHABAD 03.04.2015

BEFORETHE HON'BLE PRADEEP KUMAR SINGH

BAGHEL, J.

Civil Revision No. 16 of 2010

Ram Lakhan Gupta ...RevisionistVersus

M/S Taksal Theatre Pvt. Ltd. ..Opp. Party

Counsel for the Revisionist:H.K. Srivastava, C.K. Parikh

Counsel for the Opp. Party:Shailendra, A.K. Gupta, Chandan Sharma,U.N. Sharma

Provincial Small Causes Court Act-Section 25-Scope of Revision-concurrentfinding of fact-default in rent-recordedby Court below-word 'rent'-as perSection 7 of Act no. 13 of 1972-includesthe maintenance and service chargesalso-held-justified-no interference callfor.

Held: Para-26After careful consideration of the matterI am of the view that Court below hascorrectly appreciated the evidence onrecord and its findings on the issue ofdefault do not warrant any interferenceby the Court in its revisional jurisdictionunder section 25 of the Act.

1 All] Ram Lakhan Gupta Vs. M/s Taksal Theature Pvt. Ltd. 383

Case Law discussed:(1990) 2 SCC 651; AIR 2000 Delhi 69; 1997(1) AWC 378; AIR 1957 SC 309; (1990) 2 SCC651; AIR 1976 Allahabad 362; 2000 (2) JCLR375 (All) (FB); 1997 (1) AWC 378; AIR 2000Delhi 378; AIR 2000 Delhi 69; (2014) 9 SCC78.

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

1. This civil revision under section25 of Provincial Small Causes Court,18871 has been preferred by atenant/revisionist against the judgmentand decree dated 25.11.2009 passed bythe Additional District Judge, Varanasifor the arrears of rent and his ejectment inSCC suit.

2. Briefly stated the facts are that MsTaksal Theaters Private Limited is aCompany registered under the IndianCompanies Act, 1956. The Taksal Theaterbuilding situate at Nadesar in Varanasi.The tenant-revisionist is a tenant of 3rdfloor in the said building. Theaccommodation in question is 25' x9'' x 9'x 2'' x 18' 6'' total area is 380.80 squarefeet. The said portion was let out to thetenant-revisionist in February, 1988.According to the landlord the present rentof the building is Rs.2687/- per monthincluding the service charges. Thelandlord claims that the provisions of theU.P. Act No. 13 of 1972 are notapplicable to the said building as the rentis above Rs.2000/- per month.

3. The landlord on 28.4.2007 issueda composite notice of demand terminatingthe tenancy and called upon the tenant tovacate the premises after the thirty daystime from the date of receipt of the notice.The said notice was served on 30.4.2007,but the tenant did not vacate the premises

within stipulated period and submitted areply on 10.5.2007. The landlordinstituted a suit in small cause court,Varanasi being Suit No. 16 of 2007 forthe eviction of the tenant-revisionist andfor the recovery of arrears of rentamounting to Rs. 9516/- and the damages.

4. It was averred that on 1.2.1988 thedemised premises was let out to the tenantfor eleven months. At present the rent isRs.2,687/- per month including the servicecharges. The provisions of Rent Control Actare not applicable. It is further stated that asthe tenancy was only for eleven months andafter the expiry of the said period thelandlord does not want to let out the premisesin question to the tenant, therefore videnotice dated 28.4.2007 the tenancy has beenterminated after giving notice of thirty days.

5. In the plaint it was stated that thelandlord is a Private Limited Companyregistered under the Indian CompaniesAct, 1956 and Sri Gopi Dargan is itsDirector who was authorized to institutethe suit no. 16 of 2007 (M/s TaksalTheatres Private Limited v. Ram LakhanGupta). The tenant-revisionist filed awritten statement and contested the suit. Itwas admitted by the tenant that a portionof Taksal Theater building was let out tohim. Further it was claimed that the saidtenancy was created under amemorandum dated 16.2.1988 which wasexecuted between landlord and tenant.The original agreement was taken andretained by the landlord.

6. In the additional plea the tenanttook the stand that initially monthly rentwas only Rs.500/- for total covered areaof 3rd floor. Beside the rent it was agreedbetween the parties that the tenant shallpay service charge of Rs.300/- per month.


According to tenant-revisionist the deedof memorandum contains a renewalclause subject to enhancement of the rent@ 20% after expiry of every three years.The landlord has been pressurizing thetenant-revisionist to increase the rent andservice charges every time and the tenanthad no option but to yield to the illegaldemand of the landlord. It is further statedthat tenant-revisionist in order to avoidlitigation and harassment agreed to thecondition of increasing the rent andservice charges @ 20% on expiry of everythree years.

7. The landlord examined GopiDargan as PW 1 and Ram Lakhan Guptathe tenant-revisionist was examined asDW-1.. While deciding the issue no.1 thetrial court held that Gopi Dargan wasauthorized to file the suit. The issue no.2was decided by the trial court also infavour of the landlord that the provisionsof Act No. 13 of 1972 are not applicableon the premises on the ground that therent was above Rs.2000/- per months. Thetrial court rejected the plea of the tenant-revisionist that the rent was onlyRs.1640/- and the service chargeRs.1045/- cannot be included in the rent.The court found that the service chargewas included in rent therefore, theprovisions of Act, No.13 of 1972 was notapplicable. The third issue regarding thenotice the trial court found that the noticewas valid and the illegality pointed out bythe tenant-revisionist was not sustainable.On the above finding the suit of thelandlord was decreed.

8. I have learned counsel for thetenant-revisionist Mr.C.K.Parikh and SriU.N.Sharma, learned Senior Advocateassisted by Sri Chandan Sharma, learnedcounsel for the landlord respondent.

9. Learned counsel for the tenant-revisionist submitted that on 16.2.2008two separate memorandum were executedbetween the parties. The first one was inrespect of rent which was Rs.500/- permonth and on the same day a separate andindependent agreement was also enteredinto between the parties in respect ofservice charge as service agreement forseparate amount of Rs.300/- as servicecharge and it cannot be treated as rent.Under section 2(1)(g) of the U.P.Act No.13 of 1972 a building is exempted fromits operation, if the rent is aboveRs.2,000/- per month. He submitted thatservice charge cannot be treated as a partof rent therefore, the finding recorded bythe court below on issue no.2 that theservice charge was included in the rentand for the said reason the total amount ofrent was Rs.2687/- therefore theprovisions of Act No. 13 of 1972 wouldnot be applicable.

10. Learned counsel for the tenant-revisionist failed to cite any authority thatservice charge cannot be included in therent.

11. Learned counsel for the landlordsubmitted that Section 3 (1) of the ActNo. 13 of 1972 defines the building.Section 7 of the Act provides that thetenant shall be liable to pay the landlordin addition to and as part of the rent, thecertain taxes or proportionate part thereof,if any, payable in respect of the buildingor part under this tenancy. It was furthersubmitted that the term building means aresidential or non residential buildingroofed structure and includes any landincluding any garden, garages and outhouses, appurtenant to such building; anyfurniture supplied by the landlord for usein such building ; any fittings and fixtures


affixed to such building for the morebeneficial enjoyment thereof.

12. Learned counsel for the landlordhas placed reliance on a judgment of theSupreme Court in the case of Pushpa SenGupta v. Susma Ghose (1990) 2 SCC 651,Sewa International Fashions v. Smt.Suman Kathpalia and others, AIR 2000Delhi 69. and Manager, Punjab NationalBank, Shamshabad Agra and others v.District Judge, Agra and others, 1997 (1)AWC 378. in support of his submissionhe submitted that the word 'rent 'includesnot only which is strictly under the rentbut also demand in respect of amenities orservices provided by landlord under theterms of tenancy.

13. He lastly urged that Section 105of the Transfer of Property Act, 1882defines 'leases' which states that a lease ofimmovable property is a transfer or a rightto enjoy such property made available forcertain time, express or implied, or ofmoney.

14. I have considered the rivalsubmissions and perused the record. It is acommon ground that at present the rent ofthe premises is Rs.2,687/- per month. Theprincipal question that arises forconsideration is whether the servicecharge can be included in the rent or not.If the service charge is not a part of therent then the provisions of the RentControl Act, 1972 would be attractedbecause the rent would fall belowRs.2000/- per month. The issue whetherthe service charge or other amenities canbe part of th rent has been decided in aseries of decisions by the Supreme Courtand this Court also. It is noteworthy thatword 'rent' has not been defined under theU.P .Act No. 13 of 1972.

15. The Supreme Court in the caseof Karnani Properties Ltd. v. MissAugustine (AIR 1957 SC 309) consideredthe term 'rent'. The Court was consideringa case arising out from the West BengalPremises Rent Control (TemporaryProvisions) Act (17 of 1950). In the saidcase the word 'rent' was not defined. TheSupreme Court relying on a judgment ofProperty Holding Company Ltd. v. Clark,(1948-1 KB 630) held that the term 'rent'is comprehensive and it includes allpayment by the tenant to be paid to hislandlord for the use and occupation of thebuilding. It also includes the furnishing,electric installations and other amenitiesagreed between the parties. The relevantpart of the judgment reads as under :-

“The term 'rent' has not been definedin the Act. Hence it must be taken to havebeen used in its ordinary dictionarymeaning. The term 'rent' is comprehensiveenough, to include all payments agreed bythe tenant to be paid to his landlord forthe use and occupation not only of thebuilding and its appurtenances but also offurnishings, electric installations andother amenities agreed between theparties to be provided by and at the costof the landlord. Therefore all that isincluded in the term 'rent' is within thepurview of the Act."

(emphasis supplied by me)

16. The judgment of KarnaniProperties Ltd.(supra) was relied by theSupreme Court in Pushpa Sen Gupta v.Susma Ghose (1990) 2 SCC 651. ThisCourt also in the case of P.L.Kureel TalibMankab, Bidhan Parishad v. Beni Prasadand another, (AIR 1976 Allahabad 362)considered the service charges which thelandlord had been realizing from the


tenant every month. In the said case theservices included maintenance and operationof lift, electricity, furnishing and cleaningwater pump, salary of the watchman etc. TheCourt was of the view that the servicecharges were part of the 'rent'. The Court hasrelied the judgment of the Supreme Court inKarnani Properties Ltd. (supra). Same viewhas been taken by the Full Bench of thisCourt in the case of Gokaran Singh v. IstAdditional District and Sessions Judge,Hardoi and others, 2000 (2) JCLR 375 (All)(FB). The full Bench held that word 'rent' inabsence of any definition must be held tohave been used in its ordinary dictionarymeaning and the term 'rent' is comprehensiveand it includes all payments agreed by thetenant to be paid to his landlord. Paragraph13 of the judgment held thus :-

"Before proceeding further, we willhave to see as to what is meant by term'arrears of rent' as used in clause (a) ofSub-section (2) of Section 20 of the Act.Under the Act or the Rules framedthereunder, term 'rent' has not beendefined. Therefore, it must be held tohave been used in its ordinary dictionarymeaning. Term' rent' is comprehensiveenough, to include all payments agreed bythe tenant to be paid to his landlord forthe used and occupation not only of thebuilding and its appurtenances but also offurnishes, electricity installation and otheramenities agreed between the parties to beprovided by and at the cost of thelandlord, as held by the Apex Court whiledealing with a case under West BengalPremises (Rent Control) TemporaryProvision Act, 1950, the provisions ofwhich are analogous to the provisions ofthe Act , In Karanani Properties Ltd., AIR1957 SC 309. The rent may be agreed rentor standard rent in view of provisions ofSection 4 (2) of the Act."

17. A similar view has been takenby this Court in the case of Manager,Punjab National Bank, Shamshabad, Agraand others v. District Judge, Agra andothers , 1997 (1) AWC. 378.

18. In the Sewa InternationalFashions v. Smt. Suman Kathpalia andothers, AIR 2000 Delhi 69, the DelhiHigh Court took the view that apart fromthe money which is paid as rent if anyservice is rendered and if any payment ismade in respect of the same it shall alsobe included within the definition of rent.In the said case also the issue was whetherthe maintenance charges paid by thetenant shall be included in the rent. It wasurged before the Delhi High Court thatthe maintenance charges cannot becomputed as rent and therefore thepayment made towards maintenancecharges cannot be said to be paymenttowards rent. The Delhi High Courtrelying on the judgment in the case ofKarnani Properties Ltd. (supra) andfollowing the judgment of the High Court,Allahabad in the case of P.L.Kureel TalibMankab, Bidhan Parishad v. Beni Prasadand another (supra) held that maintenancecharges could be included within theambit of expression rent. The relevantpart of the judgment reads as under :-

" It is an established proposition oflaw that rent includes not only what isoriginally described as rent in agreementbetween a landlord and tenant but alsothose payment which is made for theamenities provided by the landlord underthe agreement between him and thetenant. The payment made towards themaintenance charges of the premisesrented out and also for providingamenities to the tenant would also comewithin the expression 'rent' as rent


includes all payments agreed to be paidby the tenant to his landlord for the useand occupation not only of the buildingbut also of furnishing, electricinstallations and other amenities."

19. From the aforesaid judgments itemerges that the word 'rent is acomprehensive and it includes themaintenance charges/service charges.

20. Now coming to the facts of thiscase, the Landlord has filed the memo ofrent agreement dated 16.2.1988 regardingservice charges and rent agreement for thetenancy for 11 months as paper No. 19GA/32 to 35 and paper No. 19 Ga/36 to38. Those documents are on record of thecase also as Annexure- 1 , 2 and 3 to theStay Application of Civil Revision.

21. The relevant part of theagreement dated 16.2.1988 regardingservice charge reads as under :-

"That the company shall be responsiblefor the maintenance of common roads,common passage, common lights and otherservices provided in the tenancy agreementand the tenant shall pay Rs.300/- (Rupeesthree hundred only) per month to theCompany against the said services."

22. From perusal of the agreement it isclear that tenant had agreed to pay the servicecharges to the landlord. The agreement alsoprovides for enhancement of service charge.Indisputably the agreement has been actedupon as the tenant has been paying agreedamount.

23. It is noteworthy that tenant in hisdeposition has stated that he has theoriginal receipt of the landlord but he has not

filed it. The landlord has established from thedocumentary evidence as well as from theoral statement that service charges were partof rent. Learned counsel for the revisionistcould not satisfy the Court that the finding offacts recorded by the court below suffersfrom any perversity.

24. This Court has taken consistentview that the revisional court whileexercising its power under section 25 ofthe Act, ordinarily will not set aside thefinding of facts and substitute its ownfinding after re appreciation of evidence.The Court interfere only in those caseswhere it finds the finding is based on noevidence or suffers from vice ofperversity. Reference may be made to thejudgment in Laxmi Kishore v. Har PrasadKishore v. Har Prasad Shukla- 1979 AllCJ 473; Om Prakash Gupta v. AdditionalDistrict Judge, Aligarh 1996 All. RC (2)532; Man Mohan Dixit v. AdditionalDistrict Judge, 1996 All. RC (2)561:(1997 AIHC 740); Anwaruddin v.Additional District Judge, Aligarh 1999All. CJ 54: (AIR 1999 All 218), RajendraNath Tripathi v. Jagdish Nath Gupta 1999All. CJ 431: (1999 All. LJ 1429) and HarSwarup Nigam v. District Judge 1999 All.CJ 990.

25. The Supreme Court has recently inthe case of Hindustan Petroleum CorporationLimited v. Dilbahar Singh, (2014) 9 SCC 78,has held that ordinarily appellate jurisdictioninvolves a rehearing but in the revisionaljurisdiction Court cannot act as Second Courtof first appeal. Paragraph 31 of the judgmentreads as under:-

"31. We are in full agreement withthe view expressed in Sri Raja LakshmiDyeing Works v. Rangaswamy Chettiar,(1980) 4 SCC 259 that where both


expressions "appeal" and "revision" areemployed in a statute, obviously, theexpression "revision" is meant to convey theidea of a much narrower jurisdiction thanthat conveyed by the expression "appeal".The use of two expressions "appeal" and"revision" when used in one statuteconferring appellate power and revisionalpower, we think, is not without purpose andsignificance. Ordinarily, appellatejurisdiction involves a rehearing while it isnot so in the case of revisional jurisdictionwhen the same statute provides the remedyby way of an "appeal" and so also of a"revision". If that were so, the revisionalpower would become coextensive with thatof the trial Court or the subordinate tribunalwhich is never the case. The classicstatement in Dattonpant GopalvaraoDevakate v. Vithalrao Maruthirao Janagaval,(1975) 2 SCC 246 that revisional powerunder the Rent Control Act may not be asnarrow as the revisional power under Section115 of the Code but, at the same time, it isnot wide enough to make the High Court asecond court of first appeal, commends to usand we approve the same. We are of theview that in the garb of revisional jurisdictionunder the above three Rent Control Statutes,the High Court is not conferred a status ofsecond court of first appeal and the HighCourt should not enlarge the scope ofrevisional jurisdiction to that extent."

26. After careful consideration ofthe matter I am of the view that Courtbelow has correctly appreciated theevidence on record and its findings on theissue of default do not warrant anyinterference by the Court in its revisionaljurisdiction under section 25 of the Act.

27. For the reasons recorded hereinabove, revision lacks merit and itaccordingly dismissed.

28. The tenant -revisionist is grantedthree months time to vacate the premisessubject to the following conditions:-

(I)the tenant shall submit anundertaking in the court below that hewill handover the vacant and peacefulpossession to the landlord on or before15th July,2015.

(II)he will continue to pay the rent oneach succeeding month till vacation of theaccommodation on 7th day of eachmonth.

(III)He will not create any third partyinterest in the disputed premises.

29. There shall be no order as tocosts.

--------ORIGINAL JURISDICTION

CIVIL SIDEDATED: LUCKNOW 01.04.2015

BEFORETHE HON'BLE ADITYA NATH MITTAL, J.

Rent Control No. 73 of 2011

Krishna Mohan Mahrotra ...PetitionerVersus

A.D.J. Lakhimpur Kheri & Ors....Respondents

Counsel for the Petitioner:Mohd. Aslam Khan

Counsel for the Respondents:Nirankar Nath Jaiswal

U.P. Urban Building (Regulation of lettingRent & Eviction) Rules 1972-Rule 34(i)(g) and Rule 22(f)-issue ofcommission-can not be as matter of right-sole prerogative of Court.

Held: Para-26 & 2726. Further to go for local inspection orissue of commission for the proper

1 All] Krishna Mohan Mahrotra Vs. A.D.J. Lakhimpur Kheri & Ors. 389

disposal of the controversy pending is asole prerogative of the Court to decidewhether to move the same or not.

27. Accordingly, it is a sole domain ofthe Court to issue a commission or notand the local inspection or commissioncan not be claimed as a matter of rightby a party, so arguments as advanced bythe learned counsel for petitioner forissuing commission having no force andis liable to be rejected.

Case Law discussed:1988 (2) ARC 348; 1999 (2) ARC 289; 2005(1) ARC 555; 2006 (60) ALR 359; (2002) 9SCC 375; 2005 (23) LCD 336; 2007 (1) AWC961; 2010 (1) AWC 371; 2014 (32) LCD 262;1997 (2) JCLR 860; [2010 (2) A.D.J. 758]1992 2 ARC 596; 1992 (1) ARC page 423;2010 (2) ARC 84; 2010 (2) ARC 23; 2010 (2)ARC 95; (2015) 0 Supreme (SC) 158.

(Delivered by Hon'ble Aditya Nath Mittal, J.)

1. Heard Mohd. Arif Khan, SeniorCounsel assisted by Mohd. Aslam Khanlearned counsel for the petitioner; SriNirankar Nath Jaiswal learned counsel forthe respondents no. 3 and 4 and perusedthe pleadings of writ petition.

2. This writ petition has been filedwith a prayer to issue writ of certiorariquashing the order dated 17.05.2011passed by the Additional District Judge,Court no. 3 Lakhimpur Kheri whereby thejudgement dated 21.11.2009 passed bythe Additional Chief Judicial Magistrate,Court no.2, Lakhimpur Kheri has beenupheld.

3. The brief facts of the case are thatthe respondents had filed an applicationunder Section 21(1)(a) of the Act No. 13of 1972 stating that he is the owner of thebuilding and the petitioner is the tenant @Rs.200/- per month in his shop. There are

two major sons of the landlord and thesaid shop is required for his sons as he hasno alternate shop. The landlord hadrequested the tenant to vacate the shop butthe said shop has not been vacated.

4. The tenant had contested the caseand admitted that he is the tenant @Rs.200/- per month. The previous ownerof the shop was Bankey Lal Gupta whohad given it on rent to Raman LalMehrotra in the year 1962 at about 35years ago. The half of the shop was gotvacated and after the death of Bankey LalGupta, the said shop was sold to thepresent landlord, who started his businessin the said shop. The landlord is engagedin the business of preparation of 'Samosa'and 'Namkeen' at a large level and bothhis sons also remained busy in the saidbusiness. The tenant is running the shopof D.C.M. Cloths and he has a goodwill,therefore, it is not possible to vacate thesaid shop.

5. Both the parties had adduced theirevidence before the court below and thecourt below after appreciating theevidence on record had allowed theapplication on the ground that thelandlord has the bonafide need. The saidjudgement was challenged by way of RentControl Appeal No.5 of 2009 before theAdditional District Judge, LakhimpurKheri, which was dismissed by thejudgement and order dated 17.05.2011.

6. Learned counsel for the petitionerhas submitted that the opposite parties no.3 and 4 have no bonafide or genuine needbecause they are carrying on the businessof selling 'Samosa' and 'Namkeen' at alarge scale with the help of their son. Theopposite parties no. 3 and 4 are alsocarrying on their business on the


accommodation available at the first floorand during the pendency of the casebefore the opposite party no.2, theopposite party no.3 had filed his affidavitspecifically stating therein that he is readyto provide the accommodation on the firstfloor, which is in the shape of a room tothe petitioner but that point has not beenconsidered by the court below. It has alsobeen submitted that the Rule 16(D) hasalso not been dealt with in accordancewith law and the application of thepetitioner for issuance of commission wasalso rejected wrongly. It has also beensubmitted that in paragraph 17 of thegrounds, the order-sheet has beenmentioned in which the learnedAdditional District Judge has directed thatthere is no need to issue commission sofar as the application for providingalternative accommodation is concernedand it will be appropriate to dispose of theapplication at the time of final hearing ofthe appeal and the point regardinghardship can be inferred thereon but whiledeciding the appeal, this point has notbeen considered. Therefore, the saidjudgement is perverse and is liable to beset aside.

7. In support of his arguments,learned counsel for the petitioner hasrelied upon 1988 (2) ARC 348 (M/sJawahar Lal Ratan Chand Nagar andanother vs. VIIth Additional DistrictJudge, Varanasi and others, wherein theHon'ble Single Judge of this court relyingupon the case of Jivram Ranchhod DasThakkar and another vs. TulshiramRatanchand Mantri and others reported inAIR 1977 SC 1357 has held that

"adopting the same principle itappears to be just and proper to partitionthis shop in dispute also half and half

between the landlord and the tenant. Theparties through their counsel have giventheir consent that in the circumstances ofthe case they are agreeable to the partitionof the disputed shop half and half betweenthem so that both parties may be able tocarry on their business in the half portionfalling on their shape."

8. Learned counsel for petitioner hasfurther relied upon 1999 (2) ARC 289(Anil Kumar and others vs. IXthAdditional District Judge, Kanpur Nagarand another, in which the Hon'ble SingleJudge of this Court has held as under:

"In the result, the writ petition is partlyallowed. The tenant shall vacate thedisputed accommodation provided thepetitioner given vacant possession of thefirst floor accommodation marked by me byletters EFGH MNOP and IJKL. RespondentNo. 2 shall give a notice to him. On givingsuch a notice, the tenant shall vacate thedisputed accommodation within one monthand will handover the disputedaccommodation to the landlord-respondent.If there is any dispute in regard to theexchange of the accommodation, anapplication can be filed before thePrescribed Authority, who will execute theorder in accordance with the observationsand directions given by me. Considering thefacts and circumstances of the case, theparties shall bear their own costs the rent ofthe accommodation will be same which isbeing paid by the tenant at present."

9. He has further relied upon 2005(1) ARC 555 (Pratap Narain Tandon vs.Abdul Mukadadir wherein it has beenheld as under :

"A perusal of the orders ofPrescribed Authority as well as the


Appellant Authority demonstrates thatneither the Prescribed Authority nor theAppellate Authority considered thequestion of part release of theaccommodation. Therefore, in the interestof justice, without entering into the meritsof the rival contentions, I remand back thematter to the Appellate Authority to bedecided the matter after consideration ofquestion of part release also in accordancewith law."

10. Learned counsel has furtherrelied upon 2006 (60) ALR 359 (SwarajKumar vs. Arvind Kumar) in which theHon'ble Single Judge of this Court hasconsidered the aspect of the release of thepart of the accommodation for thepurpose of landlord and tenant both andremanded the matter back to consider thequestion of part release.

11. Learned counsel for the oppositeparties no.3 and 4 has submitted thatduring the pendency of the case, theywere ready to provide the alternateaccommodation but the petitioner hasrefused to accept the said alternateaccommodation. Therefore, now he cannot take the benefit of that offer. It hasalso been submitted that there is noperversity or illegality in the judgement ofthe court below and there are concurrentfindings of fact by the courts below,which cannot be inferred by this Hon'bleCourt in exercise of writ jurisdictionunder Article 226 of the Constitution ofIndia. It has also been submitted thatArticle 226 do not permit re-appreciatingthe evidence on record.

12. In support of his arguments,learned counsel for the respondents no. 3and 4 has relied upon (2002) 9 SCC 375(Mohd. Shahnawaz Akhtar and another

vs. Ist Additional District Judge Varanasiand others in which the Hon'ble ApexCourt has held as under :

"We have carefully perused thejudgement of the trial court and the ordersof learned Additional District Judge asalso of the High Court. The High Court,we are constrained to observe, has actedlike an appellate court and re-appreciatedthe evidence and thereby exercised ajurisdiction which it did not have. TheHigh Court has nowhere arrived at afinding that there was any error ofjurisdiction committed by any of thecourts below or the finding of the factimpugned before it suffered fromperversity. In our opinion, in exercise ofwrit jurisdiction, the High Court ought notto have entered into reappreciation ofevidence and dislodged the finding of factrecorded by the trial court and maintained inrevision by the learned Additional DistrictJudge. To satisfy our own conscience,wehave gone through the record. In ouropinion, the findings arrived at by the trialcourt are such as could have beenreasonably arrived at and are well-reasonedand therefore, they are not open tointerference. The learned Additional DistrictJudge rightly affirmed those findings. In asmuch as the order of the courts below werenot liable to be interfered with in exercise ofthe writ jurisdiction by the High Court, theimpugned order of the High Court dated 30-04-1997 cannot be sustained and is setaside. The order of the trial court, as upheldby the learned District Judge, is restored.No order as to the costs."

13. Learned counsel has furtherrelied upon 2005 (23) LCD 336 (PrakashChandra Gupta vs. District Judge, Unnaoand others) in which the Hon'ble SingleJudge of this Court has held as under:


"so for as issue of commission isconcerned, the same, as argued by thelearned counsel for the tenant, was soughtfor finding out feasibility whether thelandlord could satisfy his need by gettinga shop constructed for himself on theupper floor with a stair case adjacent tothe shop in question. Learned counsel forthe landlord rightly placed reliance on thejudgement of this Court in Sarla Ahuja vs.United India Insurance Co. Ltd. AIR 1999SCC 100, wherein it has been observedthat tenant has not to suggest terms to thelandlord as to how he can adjust himselfwithout possession of tenanted premises.Thus, the said question is totally out ofcontest and in case need of the landlord isgenuine and comparative hardship lies inhis favour then tenant has not to suggestthat landlord should get his need fulfilledby getting another accommodationconstructed."

14. Further in the case of JankiPrasad vs. Kashi Nath Mishra reported in2007 (1) AWC 961, the Hon'ble SingleJudge of this Court has held as under:

"It is evident that both the courtsbelow, after appraisal of evidence of boththe parties, have given concurrent findingof fact that the need of the landlord isgreater than the tenant and that the tenanthas got another shop adjacent to shop indispute where he may shift his business.

In Harbans Lal v. Jasmohan Saran1986 ALJ 84, it has been held that a writin the nature of certiorari may be Issuedonly if the order of the Inferior courtsuffers from the error of jurisdiction orfrom a breach of the principles of naturaljustice or is vitiated by a manifest orapparent error of law. There is no sanctionenabling the High Court to reappraise theevidence without sufficient reason in law

and reach finding of fact contrary to thoserendered by an inferior court. When HighCourt proceeds to do so, it acts plainly inexcess of its powers.

In the instant case, counsel for thepetitioner could not establish that theorders of the courts below suffer from theerror of jurisdiction or from a breach ofthe principles of natural justice or vitiatedby a manifest or apparent error of law.Thus, it would be inappropriate in thecircumstances for High Court toreappraise the evidence without sufficientreason in law and reach finding of factcontrary to those rendered by the courtsbelow."

15. Learned counsel has furtherrelied upon 2010 (1) AWC 371 (RamNarayan Singh vs. Additional DistrictJudge/Special Judge E.C. Act, Etawahand others in which the Hon'ble SingleJudge of this court has held as under:

"The Apex Court has ruled on thequestion of comparative hardship in thecase of Badri Narayan Chuni Lal BhutadaVs. Govindram Ram Gopal Mundada,A.I.R. 2003 S.C., 2713. Failure of thetenant to search an alternativeaccommodation after institution of therelease application is good enough reasonto decide the question of hardship againstthe tenant and refuse comparison of likelyhardship on this ground alone. Similarview was adopted in the case ofAzamuddin Vs. Malika Bano Smt.),2008(3) A.R.C., 570. In the case ofSiddalingamma and another Vs. MamthaShenoy, A.I.R. 2001 S.C. 2896, the ApexCourt was of the view that since the RentControl Act is basically meant for thebenefit of the tenants and provisions ofthe release on the ground of bonafideneed is the only provision which treats the


landlord with some sympathy and,therefore, if the tenant is satisfied that theaccommodation in which he is livingsince very long time thus it should not bereleased on the asking of the landlord.This leniency cannot be allowed. TheCourts, if during the proceedings come toa conclusion that comparison of relativehardship caused to the landlord and tenantis a step-in-aid and beneficial to thetenant, therefore, comparison of hardshipis necessary. However, if the tenant failsto establish its bonafide that duringcontinuation of the proceedings the tenantdid make an effort to search for analternative accommodation but failed todo so only then a view in favour of thetenant is possible in such an event. If thetenant fails to establish this, the courts arewell within their rights to refusecomparison of hardship."

16. Lastly learned counsel for theopposite parties no. 3 and 4 has relied on2014 (32) LCD 262 (Keshar Bai vs.Chhunulal), wherein the Hon'ble SupremeCourt has held as under:

"It is well settled by a long line ofjudgements of this Court that the HighCourt should not interfere with aconcurrent finding of fact unless it isperverse. (See: Deep Chandra Juneja,Yash Pal & Firojuddin). In this case, forthe reasons which we shall soon record,we are unable to find any such perversityin the concurrent finding of fact returnedby the courts below warranting the HighCourt's interference."

17. From the perusal of the aforesaidjudgements, the legal position is crystalclear that if the order of the court belowsuffers from error of jurisdiction or breachof the principles of natural justice or is

vitiated by a manifest or apparent error oflaw, it may be set aside. It is also settledposition that High Court cannotreappraise the evidence without sufficientreasons and reach finding of fact contraryto those rendered by the court below. TheHon'ble Apex Court has held that wherethere are concurrent findings of fact, theHigh Court should not interfere unless thefindings are perverse.

18. Learned counsel for thepetitioner has mainly emphasised that theprovisions of Rule 16(1)(d) of U.P. UrbanBuildings (Regulation of Letting Rent andEviction) Rules 1972 have not beenconsidered by the court below because therespondents no. 3 and 4 had specificallymentioned in their affidavit that they areready to provide alternate accommodationto the petitioner. Therefore, the findingsof the learned court below are perverse.

19. I do not find any substance in thesubmissions of the learned counsel for thepetitioner because the trial court whiledeciding the issue no.2 has specificallydealt with the said affidavit in which theoffer was given for alternateaccommodation. The learned court belowhas come to the conclusion that thepetitioner himself has neither accepted thesaid offer of the landlord nor has shownany willingness to accept the said offerand he has not come forward that he isready to take the alternativeaccommodation. On the contrary, thetenant has given suggestion to thelandlord that the said portion may beutilized by his sons.

20. It is settled preposition of lawthat the landlord is the best judge of hisneeds and it cannot be decided by thetenant that where the landlord or his


family members will reside or carry ontheir business. Accordingly, theprovisions of Rule 16(1)(d) of the Ruleshave been dealt with specifically.Therefore, the law cited by the learnedcounsel for the petitioner has norelevance.

21. It has also been submitted that theapplication for commission was rejected bythe trial court without any sufficientgrounds. Therefore, the learned court belowhas committed jurisdictional error becauseunder the provisions of Section 34, theprescribed authority has the powers of CivilCourt. The application for commission wasmoved on 25.07.2009, a copy of which hasbeen filed as annexure 4, in which it wasrequested that Amin Commissioner bedirected to inspect the shop of the landlordand the portion of the first floor. In the mainsuit, the shop of the landlord or the portionof the first floor of the building was not indispute. The trail court has rejected the saidapplication by order dated 03.08.2009holding that there was no dispute regardingthe location of the shop in question and thelandlord has himself stated in theapplication that he is doing the business of'Samosa' and 'Namkeen' and the portion ofthe first floor has also been described.

22. As far as the provision ofSection 34(1)(g) and the Rule 22 (f) areconcerned, the commission may be issuedby the court, if it is not able to arrive at ajust conclusion or where the court feelsthat there is some ambiguity in theevidence of the parties, which can beclarified by making local inspection orinspection through commission.

23. Local inspection or issue acommission by the court cannot beclaimed as of right by any party. Such

inspections are made to appreciate theevidence already on record and Court isnot expected to visit the site for collectingevidence. (See:- Randhir Singh SheoranVs. 6th Additional District Judge, 1997(2)JCLR 860, Radhey Shyam Vs. A.D.J.,Court no. 13, Lucknow and others,[2010(2) A.D.J., 758] and Sonpal Vs. 4thAdditional District Judge, Aligarh andothers, 1992 2 ARC, 596).

24. In the case of Smt. ShamshunNisha Vs. Ist Additional District Judge,Lucknow and others 1992, (1) ARC page423, it is held as under :

"By means of the present writpetition, the petitioner challenges theorder, dated 13.05.1991, passed by IstAdditional District Judge, Lucknow,contained in Annexure No. 6 by which thepetitioner's request for local inspectionwas rejected by the appellate Court. Theappellate Court pointed out that thepetitioner had been given sufficientopportunity to rebut the evidence of theexpert. However, the fact is not disputedthat the appeal is still pending and inappeal only an application for localinspection of the site by the AdvocateCommissioner has been rejected.Therefore, in my opinion, the said ordercannot be challenged in the writ petition."

25. The aforesaid view was furtherreiterated by this Court in the casefollowing cases:-

(i) Avinash Chandra Tewari Vs.A.D.J. Court No. 3, Unnao & others, 2010(2) ARC 84

(ii) Radha Rani Mehrotra (Smt. And5 others Vs. Learned prescribedAuthority/Civil Judge, S.D. and 2 others,2010 (2) ARC 23


(iii) Radhey Shayam and others Vs.Additional District Judge, Lucknow andothers 2010 (2) ARC 95

26. Further to go for local inspectionor issue of commission for the properdisposal of the controversy pending is asole prerogative of the Court to decidewhether to move the same or not.

27. Accordingly, it is a sole domainof the Court to issue a commission or notand the local inspection or commissioncan not be claimed as a matter of right bya party, so arguments as advanced by thelearned counsel for petitioner for issuingcommission having no force and is liableto be rejected.

28. As the situation and location ofthe shop in dispute was not in controversyand the landlord has also specified hisshop as well as the portion of the firstfloor, therefore, in the facts andcircumstances of the case, there was noambiguity regarding the location andsituation of the shop in question. Thus,the application for commission has alsobeen rightly rejected.

29. Learned counsel for thepetitioner has further emphasised that inthe order dated 08.06.2010, the learnedAdditional District Judge, Kheri hasobserved that there is no need to issuecommission. So far as the application forproviding alternate accommodation isconcerned, it will be appropriate todispose of this application at the time ofhearing of the appeal and the pointregarding the hardship can be inferredthereon, but the learned AdditionalDistrict Judge Kheri has not dealt withthis point while deciding the Rent ControlAppeal. I do not find any substance in the

submission of the learned counsel for theappellant because the said point has beendiscussed at length at page 11 and 12 ofthe judgement of the appellate court dated17.05.2011 wherein the court has come tothe conclusion that the landlord cannot becompelled to make available the rooms atthe first floor.

30. Both the learned courts below haveconsidered the bonafide need and thecomparative hardship of the parties and havecome to the conclusion that the landlord hasthe bonafide need and the comparativehardships is also in favour of the landlordbecause the shop in question is required forhis sons who have now become major. Thefindings of both the courts below areconcurrent and I do not find any good groundto interfere with the findings. I do not findany error of jurisdiction or perversity in theimpugned judgement.

31. This writ petition has been filedunder Article 226 of the Constitution witha prayer to issue a writ of certiorari. Thejudicial order of the courts below havebeen challenged.

32. Hon'ble Apex Court in a recentjudgement reported in (2015) 0 Supreme(SC) 158 [Radhey Shyam vs. ChhabiNath] has held that a writ of certiorari isnot available against the judicial order ofa competent court because the court couldnot violate the fundamental rights. It hasfurther been held that even incidentalviolation cannot be held to be violative offundamental rights. It has further beenheld that an order of civil court could bechallenged under Article 227 and notunder Article 226.

33. Present writ petition has beenfiled under Article 226 of the Constitution


of India with a prayer to quash the orderdated 17.05.2011 passed by theAdditional District Judge, Court no. 3Lakhimpur Kheri. Thus, the writ petitionis also not maintainable to this aspect ofthe matter.

34. Accordingly the writ petition isdismissed. The interim order dated31.05.2011 stands vacated. The petitioner isdirected to vacate the premises in questionwithin a period of two months from today.



BEFORETHE HON'BLE AJAI LAMBA, J.

THE HON'BLE AKHTAR HUSAIN KHAN, J.

Habeas Corpus No. 78 of 2015

Km. Ankita ...PetitionerVersus

State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:K.K. Tewari

Counsel for the Respondents:Govt. Advocate

Constitution of India, Art.-226-HabeasCorpus petition-rejection-for release ofcustody to her parent-on ground ofimpediment of review under Section 362Cr.P.C.-held-earlier she confinement innari niketan-on refusal to join thecompany of her parent-now beingpregnant getting majority desirous to gowith her father-held curtailment of herliberty not permissible-approach ofJudge wholly insensitive and injudiciousbeing irresponsible-order quashed-direction to release the detainee tocustody of her father given.

Held: Para-11 & 14

11. In the case in hand, the detenuefiled an application for being released incustody of her own parents. We fail tounderstand as to under whatcircumstance, law or procedure, theapplication of the detenue could havebeen dismissed. The detenue is a victim,and not the accused. The relevantconsiderations have not been kept inmind by the court while deciding theapplication.

14. Considering the stand of thedetenue, the court should haveimmediately passed orders for herrelease in the custody of the parents.The parents are not aliens for theirdaughter, who is pregnant. The orderdenying the detenue to live with herparents is not only wholly on account ofinsensitive approach, but is alsoinjudicious, and irresponsible.

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

1. The petition has been filedthrough Ramesh Kumar with theallegation that his daughter Ankita, thedetenue has been kept in illegal detentionin the Women Protection Home,Lucknow.

2. It has been pointed out that on19.7.2014, one Chhanga Raidas abductedthe detenue with the help of otheraccused. In that regard, Crime No.1205 of2014 under Sections 363, 366 I.P.C.,Police Station Asiwan, District Unnaowas registered. During investigation,Section 376(2) (D) alongwith Section 3/4of Prevention of Children from SexualOffences Act(for short 'POCSO Act')were also added.

3. The prosecutrix was recovered on1.11.2014 and was medically examined.Medical age of the detenue/prosecutrixwas found to be 19 years. Statement of

1 All] Km. Ankita Vs. State of U.P. & Anr. 397

the detenue/prosecutrix was recorded.Mother of the detenue moved anapplication for custody of the detenue butthe court refused to give custody to themother and the detenue has been sent toWomen Protection Home, Lucknow onthe ground that she is a minor and she hadrefused to go with her parents, vide orderAnnexure No.1 dated 9.1.2015.

4. On 14.1.2015, the detenue gavean application to the Superintendent,Women Protection Home, Lucknowstating that she is pregnant and does notwant to live in protection home and wantsto live with her parents.

5. Order Annexure No.2 dated12.2.2015 has been passed on the premisethat vide earlier order Annexure No.1dated 9.1.2015, the detenue had beenconfined to Women Protection Home,Lucknow because she had refused to gowith her parents. The court concerned viz.Shri Jai Singh Pundeer, AdditionalSessions Judge, Court No.1, SpecialJudge, POCSO Act, Unnao has stated thatit would tentamount to review earlier oforder Annexure No.1 dated 9.1.2015.

6. We have considered thecontention of learned counsel.

7. We have also questioned thedetenue Ankita. Ankita has stated in courtthat she had given an application dated14.1.2015 showing her desire to go withher parents.

8. We find the approach of theAdditional Sessions Judge to be whollyinappropriate. The impediment of reviewunder Section 362 Cr.P.C. cannot bestrictly invoked in such proceedings.Annexure No.1 is not an order passed

during the course of a trial or otherproceedings in appeal or revision. Suchorders of detention of girls are passedonly as stop gap arrangement.

9. At times, it is desirable, in theinterest and welfare of a young girl thatshe be allowed to give a thought in regardto her future before deciding whether shewants to go with an accused or herparents. At times, the girl is a minor andtherefore is not allowed to live in thecompany of the accused. The girl in suchcircumstances, can be confined to WomenProtection Home/Nari Niketan only if sherefuses to go with her parents.

10. In our considered opinion, theduration of stay of detenue, such as thepetitioner, should be permitted for theshortest period of time. By such detention,liberty of girls is curtailed, whichordinarily is not permissible in law. Aconstitutional right vested in a person,particularly liberty cannot be curtailed forconvenience of a court or for other suchreasons.

11. In the case in hand, the detenuefiled an application for being released incustody of her own parents. We fail tounderstand as to under what circumstance,law or procedure, the application of thedetenue could have been dismissed. Thedetenue is a victim, and not the accused.The relevant considerations have not beenkept in mind by the court while decidingthe application.

12. The reality of the conditionsprevailing in Nari Niketan/ProtectionHomes also cannot be ignored. Suchprotection homes are not being maintainedunder ideal conditions, under ideal staff.There is every likelihood of abuse of girls in


such homes. Long confinement in suchcircumstances, is likely to torment theinmates mentally and emotionally. This isnot permissible in law.

13. Considering the totality of thefacts and circumstances of the case, wealso record our anguish at the conduct ofthe court in entertaining application dated14.1.2015 and forwarded to the court on15.1.2015, on 12.2.2015, approximatelyafter one month. Such application shouldbe taken up and dealt with immediately,and not beyond a period of one week.

14. Considering the stand of thedetenue, the court should have immediatelypassed orders for her release in the custodyof the parents. The parents are not aliens fortheir daughter, who is pregnant. The orderdenying the detenue to live with her parentsis not only wholly on account of insensitiveapproach, but is also injudicious, andirresponsible.

15. Considering the totality of thefacts and circumstances of the case, thepetition is allowed. Annexure No2 dated12.2.2015 is hereby quashed. DetenueAnkita is hereby directed to be released inthe custody of her father Ramesh Kumar.

16. Let a copy of this order bereleased under the signature of BenchSecretary of this Court.

17. Let a copy of the order be alsoforwarded to District & Sessions Judge,Unnao.

--------APPELLATE JURISDICTION


BEFORE

THE HON'BLE DR. DHANANJAYA YESHWANTCHANDRACHUD, C.J.

THE HON'BLE MANOJ KUMAR GUPTA, J.

Special Appeal No. 256 of 2015

Manmohan Mishra ...AppellantVersus

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

Counsel for the Appellant:Kundan Rai, P.K. Jain, Vishal Kashyap

Counsel for the Respondents:C.S.C., A.K. Yadav

U.P. Secondary Education Service SelectionBoard Rules 1998-Rule-9-Bar to appointmale teacher in girls institution-whethercan be termed unreasonable? held-'No'-various reasons discussed.

Held: Para-19In view of this legal position, we wouldhave to hold, though for the reasons whichwe have indicated, that there is no merit inthe challenge to the view which has beentaken by the learned Single Judge. The rule-making authority in framing Rule 9 has nottaken over an essential legislative function.The rule-making authority has nottransgressed the limitations on its statutorypower under Section 35 of the Act of 1982.Rule 9 is perfectly in conformity with theprovisions of the Act of 1982 and cannot beregarded as being unreasonable.

Case Law discussed:AIR 1981 SC 1829; AIR 1954 SC 321; (1979) 4SCC 260; 2008 (3) ESC 409 (SC)

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

1. The appellant havingunsuccessfully pursued a writ proceedingunder Article 226 of the Constitution, is inappeal against a judgment and order ofthe learned Single Judge dated 15 April2015.

1 All] Manmohan Mishra Vs. State of U.P. & Ors. 399

2. The appellant was appointed as aLecturer in Physics on 21 January 1980 inthe D.P. Girls Inter College, Allahabad,an institution which is recognised underthe Uttar Pradesh Intermediate EducationAct, 19211. An advertisement waspublished by the Uttar Pradesh SecondaryEducation Services Selection Board2 forappointment of the Principal of theinstitution in 2011. On 12 March 2015,the Board invited two senior mostteachers of the college for an interviewfor the post which was scheduled to beheld on 16 April 2015. The second seniormost teacher in the seniority list is statedto have attained the age of superannuationon 24 December 2014 and was continuingin service until the end of the academicsession. The appellant applied for hisname being forwarded for interview underRule 12(6) of the U.P. SecondaryEducation Services Selection BoardRules, 19983. The Committee ofManagement submitted the recordspertaining to the appellant and the seniormost teacher. The Board rejected thecandidature of the appellant on the groundthat he was not eligible for appointmenton the post of Principal being a malecandidate (as a result of the bar created byRule 9 of the Rules of 1998) and theinstitution was directed to send the nameof the next senior most woman teacher.Aggrieved, the appellant filed a writpetition seeking, inter alia, to challengethe order dated 9 April 2015, rejecting hiscandidature and seeking a mandamus tothe Board to allow the appellant to appearin the interview scheduled to be held on16 April 2015. The learned Single Judgedismissed the writ petition holding thatRule 9 of the Rules of 1998 prohibits theappointment of a male candidate in a girlsinstitution as Headmaster or Principal.The learned Single Judge held that the

restriction was not in conflict with eitherthe Act of 1921 or the U.P. SecondaryEducation Services Selection Board Act,19824 nor was it unreasonable. Thepetition was accordingly dismissed.

3. The Uttar Pradesh IntermediateEducation Act, 1921 was enacted to establisha Board of High School and IntermediateEducation. Section 16-E envisages that thehead of the institution and teachers shall beappointed by the Committee of Managementin the manner which is thereinafter provided.The Act of 1982 established the Board forthe selection of teachers in institutionsrecognised under the Act of 1921. TheStatement of Objects and Reasonsaccompanying the introduction of the Bill inthe state legislature furnish the followingrationale for the enactment of the Act:

"The appointment of teachers insecondary institutions recognised by theBoard of High School and IntermediateEducation was governed by theIntermediate Education Act, 1921 andregulations made thereunder. It was feltthat the selection of teachers under theprovisions of the said Act and theregulations was some times not free andfair. Besides, the field of selection wasalso very much restricted. This adverselyaffected the availability of suitableteachers and the standard of education. Itwas therefore, considered necessary toconstitute Secondary Education ServiceCommission at the State level, to selectPrincipals, Lecturers, Headmasters andL.T. Grade teachers, and SecondaryEducation Selection Boards at theregional level, to select and makeavailable suitable candidates forcomparatively lower posts inC.T./J.T.C./B.T.C. Grade for suchinstitutions."


4. The object of enacting Act 5 of1982 was to obviate the allegations thatthe selection of teachers under theprovisions of the Act of 1921 had notbeen free and fair. The object was toensure that selection of teachers includingPrincipals and Headmasters would bemade on an objective and fair basis.Section 9 (a) of the Act of 1982empowers the Board to prepare guidelineson matters relating to the method ofrecruitment and promotion of teachers.Under Section 9(i) of the Act of 1982, theBoard is to perform such other duties andexercise such other powers as may beprescribed or as may be incidental orconducive to the discharge of its functionsunder the Act or the Rules or Regulationsmade under it. Section 10 of the Act of1982 lays down the procedure forselection by direct recruitment underwhich the Management has to determinethe number of vacancies existing or likelyto fall vacant during the year ofrecruitment and to notify the vacancies tothe Board in such manner as mayprescribed. Section 10(2) of the Act of1982 provides that the procedure forselection of candidates for directrecruitment to the post of teachers shall besuch as may be prescribed. Theexpression 'Teacher' is defined in Section2(k) of the Act of 1982 to mean a personemployed for imparting instruction in aninstitution and to include a Principal or aHeadmaster. Under Section 11, upon thenotification of the vacancy, the Board hasto prepare a panel of persons found mostsuitable for appointment which is to beintimated to the Management of theinstitution. The Management is requiredto issue an appointment to the selectedcandidate. Section 16 of the Act of 1982provides that notwithstanding anything tothe contrary contained in the Act of 1921

or the Regulations framed under it, everyappointment of a teacher shall be made bythe Management only on therecommendation of the Board. Section 32of the Act of 1982 deals with theapplicability of the Act of 1921 andprovides as follows:

"32. Applicability of U.P. Act No.IIof 1921. - The provisions of theIntermediate Education Act, 1921 and theRegulation made thereunder in so far asthey are not inconsistent with theprovisions of this Act or the rules orregulations made thereunder shallcontinue to be in force for the purposes ofselection, appointment, promotion,dismissal, removal, termination orreduction in rank of a teacher."

5. A rule making power is conferredupon the State Government by Section 35of the Act of 1982 under which rules areto be framed for carrying out the purposes ofthe Act. In exercise of the rule makingpower, the State Government initially framedthe Uttar Pradesh Secondary EducationServices Commission Rules, 19835. Thesewere followed by the Uttar PradeshSecondary Education Services CommissionRules, 19956 and ultimately by the Rules of1998. Under Rule 10 of the Rules of 1998,recruitment to the post of Principal of anIntermediate College is to be by directrecruitment. Under Rule 11(2)(b) of theRules of 1998, it has been provided that withregard to the post of Principal or Headmaster,the Management has to forward names oftwo senior most teachers together with theirservice records to the Board.

6. Rule 5 of the Rules of 1998 dealswith academic qualifications forappointment to the post of teacher and isin the following terms:-


"5. Academic qualifications. - Acandidate for appointment to a post ofteacher must possess qualificationsspecified in Regulation 1 of Chapter II ofthe Regulations made under theIntermediate Education Act, 1921."

7. Consequently, the qualificationswhich have been specified in Regulation 1of Chapter II of the Regulations madeunder the Act of 1921 have beenincorporated by Rule 5 of the Rules of1998. Rule 9 of the Rules of 1998, uponwhich the controversy in the present caseturns, provides as follows:

"9. Bar to appoint a male candidatein a girls' institution - No male candidateshall be eligible for appointment to thepost a in a girls' institution:

Provided that nothing contained inthis rule shall apply to -

(a) a candidate already working as aconfirmed teacher in a girls' institutionfor appointment by promotion to a higherpost of teacher, other than the post ofhead of institution in the same institution;or

(b) a blind candidate forappointment as a teacher for the subjectof Music :

Provided further that when a suitablelady candidate is not available forappointment to the post of a teacher otherthan the post of head of institution, or forany other sufficient reason the Board issatisfied that it is expedient in the interestof the students so to do, it may select amale candidate for such post :

Provided also that before selecting amale candidate in accordance with thepreceding proviso, the Board may obtainand consider the views of theManagement of the institution concernedand the Joint Director."

8. In its substantive part, Rule 9provides that a male candidate shall notbe eligible for appointment to the post ofa teacher in a girls institution. However,clause (a) of the first proviso to Rule 9protects the services of candidates whoare already working as confirmed teachersin a girls institution by securing their rightto appointment by promotion to a higherpost of teacher other than a post of thehead of the institution. The secondproviso, however, stipulates that when asuitable lady candidate is not available forappointment as a teacher other than thepost of a head of the institution or for anysufficient reason, deemed expedient in theinterest of students, the Board may selecta male candidate for the post. Theprohibition contained in Rule 9 of theRules of 1998 is similar to acorresponding provision in Rule 3 (2) ofthe Rules of 1983 and almost identical toRule 9 of the Rules of 1995.

9. Now, it is in this background thatit would be necessary to appreciate thesubmissions which have been urged onbehalf of the appellant by learned counsel.The submissions are as follows:

(i) The duty and function of theBoard under the Act of 1982 is to providethe procedure for selection of candidatesas is evident from Section 10(2) of theAct of 1982. The Board does not have thestatutory power to frame qualifications forappointments of teachers and, in fact,Rule 5 of the Rules of 1998 incorporatesthe qualifications prescribed in Regulation1 of Chapter II of the Regulations framedunder the Intermediate Education Act,1921;

(ii) The right of a qualified teacherunder the Act of 1921 cannot be takenaway by the rule making power conferred


on the State by Section 35 of the Act of1982. Rights which have been conferredunder the Act of 1921 cannot be takenaway by subordinate legislation framedunder the Act of 1982;

(iii) Rule 9 of the Rules of 1998 isultra vires the provisions of Section 35 ofthe Act of 1982. The Act of 1982 does notempower the Board to framequalifications for appointment as ateacher;

(iv) The framing of qualificationsconstitutes an essential legislativefunction which cannot be delegated tosubordinate legislation; and

(v) The restriction which is imposedby Rule 9 of the Rules of 1998 isunreasonable.

10. The Secondary EducationServices Selection Board was constitutedby Act 5 of the Act of 1982; the object ofthe state legislature being to establish aBoard which would bring objectivity andfairness in the appointment of teachers ininstitutions which are governed by theIntermediate Education Act, 1921. As wehave noticed earlier, the Board has wideranging powers and duties under Section9 of the Act of 1982, including thepreparation of guidelines on mattersrelating to the method of recruitment andpromotion of teachers and theperformance of duties and exercise ofpowers, as may be incidental orconducive, to the discharge of itsfunctions under the Act. Section 10(2) ofthe Act of 1982 envisages that theprocedure for selection of candidates fordirect recruitment to the post of teachersshall be such as may be prescribed. UnderSection 32 of the Act of 1982, theprovisions of the Act of 1921 as well asthe Regulations which were framed underit, were to continue to remain in force for

the purpose of selection, appointment,promotion, dismissal, removal,termination or reduction in rank ofteachers insofar as they are notinconsistent with the provisions of theAct. This provision, to our mind, is a clearrecognition by the state legislature of twothings. Firstly, the statutory provisionscontained in the Act of 1921, as well as itsRegulations, would continue to hold thefield, inter alia, in matters of selection,appointment and promotion of teachersinsofar as they were not inconsistent withthe provisions contained in the Act of1982 as well as in the Rules andRegulations made under the Act.Secondly, the language of Section 32indicates that under the Act of 1982 aswell as the Rules or Regulations whichcould be framed under it, provisions couldbe made in the matter of selection,appointment and promotion of teachersamong other things. These could even beat variance with those under the Act of1921 and the rules and regulations underit. For, unless such a power to makeprovisions in the Rules and Regulationsframed under the Act of 1982 in regard toselection, appointment and promotion ofteachers among other things, wascomprehended, there would be nopossibility of any inconsistency. The factthat the legislature did envisage aninconsistency conceivably as arising andgave an overriding effect, to the extent ofthe inconsistency, to the Act of 1982 andto the Rules and Regulations made underit, indicate both the sweep and ambit ofthe regulatory power under the Act of1982 as well as the overriding forcewhich would operate in respect of thestatutory provisions contained in the Actas well as in the Rules and theRegulations. In fact, it must also beemphasised that in Section 32 of the Act


of 1982, the legislature contemplated aninconsistency not merely with the provisionsof the subsequent Act but also with its Rulesand Regulations. In either event, it is the Actof 1982 as well as the Rules and Regulationsframed thereunder which would prevail tothe extent of inconsistency. Rule 5 of theRules of 1998 incorporates the qualificationswhich are specified in Regulation 1 ofChapter II of the Regulations made under theAct of 1921.

11. Rule 9 of the Rules of 1998essentially ensures that for appointment tothe post of a teacher in a girls institution acandidate should not be a male. However,clause (a) to the first proviso to Rule 9stipulates that if a candidate was alreadyworking as a confirmed teacher in a girlsinstitution, such a candidate could secureappointment by promotion to a higherpost of teacher other than the head of theinstitution. Moreover, under clause (b) tothe first proviso, the Board is empoweredto select even a male candidate forappointment to the post of a teacher otherthan the head of an institution when asuitable woman candidate is not availableor where the Board is satisfied for anyother sufficient reason that it is expedientin the interest of the students to do so.These provisions in Rule 9 are based onan expert assessment by the delegate ofthe legislature that such a provision wasnecessary in the State of Uttar Pradesh toprotect the interest and welfare of studentsin an institution exclusively meant forgirls. The rule-making authority is entitledto form an opinion that in order toencourage girls' education in the State, aconducive atmosphere should be created.As part of a measure for creating aconducive environment for impartingeducation and to encourage the formationof public confidence in a girls' institution,

it is open to the delegate to form anassessment that in such an institution,male candidates should not be appointedas teachers, save and except in certainexceptional situations. Those exceptionalsituations have also been categorized inRule 9. However, in the case of a head ofan institution, a male candidate has beenregarded as not being eligible. There is adistinction between the duties andfunctions which are discharged by thehead of the institution and by a mereteacher. The head of an institution has animportant role to play in inculcatingdiscipline among the teaching and non-teaching staff as well as among thestudents. The head of the institution hasduties and functions which a teacher doesnot possess. The distinction is based on areasonable classification.

12. The Supreme Court in thecelebrated judgment in the case of AirIndia Versus Nergesh Meerza7 ruled that'what Articles 15 (1) and 16 (2) prohibit isthat discrimination should not be madeonly and only on the ground of sex. TheseArticles of the Constitution do notprohibit the State from makingdiscrimination on the ground of sexcoupled with other considerations'. .

13. For arriving at such a conclusiontheir Lordships of the Supreme Courtplaced reliance on a previous judgment inthe case of Yusuf Abdul Aziz VersusState of Bombay8 wherein, it was heldthat sex is a permissible classification.Therein, the Court observed as under: -

"Article 14 is general and must beread with the other provisions which setout the ambit of fundamental rights. Sex isa sound classification and although therecan be no discrimination in general on


that ground, the Constitution itselfprovides for special provisions in the caseof women and children. The two articlesread together validate the impugnedclause in Section 497 of the Indian PenalCode."

14. In a later decision in Miss C.B.Muthamma Versus Union of India9,Hon'ble Mr. Justice Krishna Iyer,speaking for the Supreme Court made thefollowing observations: -

"We do not mean to universalise ordogmatise that men and women are equalin all occupations and all situations anddo not exclude the need to pragmatisewhere the requirements of particularemployment, the sensitivities of sex or thepeculiarities of societal sectors or thehandicaps of either sex may compelselectivity. But save where the thedifferentiation is demonstrable, the rule ofequality must govern." (emphasissupplied)

15. The legislature or its delegatecan legitimately be of the view that inorder to encourage greater access toeducation to girl students in intermediateeducation, the post of head of theinstitution should be filled in only on thebasis that the candidate, who is chosen,should not be a male candidate. Thiscannot be regarded as being unreasonableor as violative of Article 14 of theConstitution. This does not indicate alegislative opinion formed either by thestate legislature or by its delegate as to theunsuitability of male candidates ingeneral, but an assessment by the rule-making authority that the interest ofwomen's education can be sub-served bestby the creation of a conduciveenvironment in which a greater degree of

confidence is generated by theappointment of women as teachers or asheads of institutions. It is trite law that itis open to the legislature or to its delegateto take into account the prevailing socialcircumstances in the area within itsregulatory power and social realitieswhich have a bearing on such policydecisions. Aspects such as the safety ofgirl students, the possibility of abuse andthe need to protect girl students of aparticular age group are considerationswhich cannot be regarded as being alienor extraneous to the exercise of regulatorypowers. In this view of the matter, theimpugned Rule cannot be faulted as beingunreasonable or as violative of Article 14.As time goes by, a regulation which isconceived in the best interest of youngwomen students at a particular point oftime, may need to be modulated basedupon experience gained, the developmentof education and the awareness ofwomen's rights in society. When the timeis right to do so is a matter for legislativejudgment on which the Court cannotexpress any opinion. Significantly, theprovision in the present case does notexclude women. A provision whichrestricts, curtails or circumscribes therights of women - in the workplace, ineducational institutions or elsewhere -would have to meet a heavy burden. Itwould be a discrimination against womenon grounds of gender which isconstitutionally impermissible. But theprovision before us is not a provision thatexcludes women.

16. There is no merit in thesubmission that the right which has beenconferred by the Act of 1921 has beentaken away by subordinate legislationwhich has been framed under the Act of1982. As a first principle of law, there can


be no dispute about the proposition thatsubordinate legislation is subservient toan enactment of the state legislature. But,in the present case, the scheme of the twostate enactments has to be understood inits correct perspective. The object ofsetting up the Secondary EducationServices Selection Board under the Act of1982, was to substitute the method ofselection which prevailed under the Act of1921 in the field of intermediateeducation and to confer the power on theBoard to regulate appointments inintermediate institutions governed by theAct of 1921. The powers which have beenvested in the Board, more particularly, bySection 9, Section 10 and Section 35 arewide enough to extend to the framing ofrules to define the qualifications ofteachers. This, as we have noted earlier, isevident from Section 32 which confers aparamount effect upon the statutoryprovisions of the Act of 1982 and theRules and Regulations framed thereunderover the statutory provisions contained inthe Act of 1921 and its Rules andRegulations in the event of inconsistency.In fact, while framing Rule 5, the delegateof the legislature incorporated thequalifications contained in Regulation 1of Chapter II of the Regulations madeunder the Act of 1921. Insofar as thepower is concerned, it would have beenopen to the subordinate legislation toframe its own qualifications. However,while framing Rule 5, the delegate of thelegislature has adopted the convenientlegislative device of incorporating thequalifications which were alreadyprescribed under the Act of 1921 whilemaking Rule 5. These are legislativemodalities which are well accepted. TheAct of 1982, in fact, does contemplatethat the statutory provisions contained inthe Act of 1921 as well as its rules and

regulations must give way in the event ofinconsistency with the Act of 1982 or theRules and Regulations framed under it.

17. Insofar as the issue before thisCourt is concerned, a considerable degreeof guidance can be obtained from thejudgment of a Supreme Court in BalbirKaur and another Vs. U.P. SecondaryEducation Services Selection Board,Allahabad and others10. In that case, anadvertisement was issued under the Act of1982 for filling up vacancies of principalsin institutions region-wise. The names oftwo senior most teachers were to beforwarded by the Management inaccordance with Rule 11 (2) (b) of theRules of 1998. The challenge in that casewas that candidates who were eligible forselection under Regulation 1 of Chapter IIof the Regulations framed under the Actof 1921 had been excluded. Thecontention was that Regulation 1 ofChapter II provided only for a stipulatedexperience of Class IX to XII and notteaching experience as a lecturer, as wasprescribed in the advertisements. In thatcontext, the Supreme Court held asfollows:

"Having come to the said conclusion,the issue which still survives forconsideration is whether for appointmentto the post of Principal, the qualifyingexperience as stipulated in the said `Note'would apply or the one prescribed in theAppendix-A to Regulation I of Chapter IIof the Regulations made under theIntermediate Act. In our view, answer tothe question can be found in Section 32 ofthe Principal Act, which provides that theprovision of the Intermediate Act andRegulations made thereunder willcontinue to be in force in case they arenot inconsistent with the Principal Act


and the Rules made thereunder. As notedhereinbefore `Note' to sub rule (5) of Rule12 of 1998 Rules prescribes therequirement of experience for the post,which is different from what is prescribedin the said Appendix A and, therefore,there being a conflict between the twoprovisions, in the teeth of Section 32, thesaid `Note' shall have an overriding effectover Appendix A insofar as the questionof experience is concerned."

18. The judgment of the SupremeCourt, therefore, is a clear answer tosubmission which has been urged onbehalf of the appellant. The SupremeCourt observed that the Note to sub-rule 5of Rule 12 of the Rules of 1998prescribed the requirement of experiencefor the post which was different fromwhat was prescribed in the Regulationsframed under the Act of 1921.Consequently, the Note would have anoverriding effect insofar as the question ofexperience was concerned. .

19. In view of this legal position, wewould have to hold, though for thereasons which we have indicated, thatthere is no merit in the challenge to theview which has been taken by the learnedSingle Judge. The rule-making authorityin framing Rule 9 has not taken over anessential legislative function. The rule-making authority has not transgressed thelimitations on its statutory power underSection 35 of the Act of 1982. Rule 9 isperfectly in conformity with theprovisions of the Act of 1982 and cannotbe regarded as being unreasonable.

20. For these reasons, we hold thatthe learned Single Judge was not in errorin dismissing the writ petition andupholding the rejection of the candidature

of the appellant based on the provisions ofRule 9 of the Act of 1982.

21. The special appeal accordinglystand dismissed. There shall be no orderas to costs.




BAGHEL, J.


Raghunath Goel ...RevisionistVersus

Yogendra Singh Nehru ...Opposite Party

Counsel for the Revisionist:Anurag Khanna, Mohit Kumar Singh,Tarun Agarwal

Counsel for the Opp. Party:Vijaya Prakash

Small Causes Court Act 1887-Section-25-Revision-against order passed by SmallCauses Court-suit for arrears of rent andeviction decreed-rate of rent andexecuting of rent deed-admitted-whether entire Chaudhary Bhawan or itspart-was under tenantry-being questionof fact-can not be adjudicated in revisionfinding based on evidence available onrecord-no interference called for.

Held: Para-29In view of the above the next questionarises that whether this Court shouldexercise its jurisdiction under Section 25to set aside finding of facts recorded bythe court below. For the reasonsrecorded above, I find that the courtbelow has recorded finding of factsagainst the tenant which are based onrelevant evidence on record. The learnedcounsel for the revisionist failed to point

1 All] Raghunath Goel Vs. Yogendra Singh Nehru 407

out that the findings are not based onevidence of record. The scope ofinterference under revisional jurisdictionunder Section 25 came to be consideredin long line of decisions of the SupremeCourt and this Court.

Case Law discussed:(2008) 8 SCC 564; (2012) 8 SCC 516; (2000) 6SCC 394; 1981 ARC 545; 1996 (2) ARC 532;1996 (2) ARC 561; 1999 (1) ACJ 54; 1999 (1)ACJ 431; 1999 (2) ACJ 990; AIR 1969 SC1344; AIR 1987 SC 1782; (2002) 3 SCC 626;(2014) 9 SCC 78; (1980) 4 SCC 259.


1. The tenant/ defendant haspreferred this Civil Revision underSection 25 of the Provincial Small CauseCourts Act, 18871 against the order dated16 August 2011 passed by Judge SmallCauses Court, whereby the suit for theeviction of tenant has been decreed.

2. The essential facts are; theplaintiff/respondent is the owner andlandlord of the premises ChaudharyBhawan situated at Niwari Road, ModiNagar, District Ghaziabad. The landlordinstituted a suit no. 72 of 2006 in the Courtof Judge, Small Causes Court, Ghaziabadfor the eviction of the tenant/ revisionist andfor the recovery of Rs. 3,18,600/- as arrearsof rent together with pendente lite andfurther interest. The landlord has furtherclaimed damages at the rate of Rs. 25,000/-per month for the use and occupation of thepremises from 16 July 2005 till the premisesis actually vacated by the defendant and thepossession is handed over to the landlord.He further claimed a sum of Rs. 2 lacs asdamages for the expenses incurred by himin making modification of the premises.The landlord's case was that he let out aportion of the house, Chaudhary Bhawan

consisting three halls, three rooms, twoverandas and two galleries at the rate of Rs.18,000/- per month w.e.f. 27.1.2004. Thelandlord and the tenant entered into anagreement dated 27.1.2004 in the saidpremises for a period of three years. Thetenant had taken the premises on rent forrunning a Coaching Institute / EducationalInstitution. On the request of the tenant thelandlord had made suitable alterations in hispremises as per the need of the tenant.Accordingly, he has incurred a sum ofapproximately Rs.2 lacs for themodifications. As the tenant wanted to runthe educational institution, the existingkitchens were altered to make the room forthe said purposes.

3. It is stated that after the alterationof the building the tenant took thepossession of the premises on 27.1.2004.But the tenant did not make the paymentof rent in terms of the agreement. It isaverred in the plaint that for the reasonsbest known to the tenant he has not usedthe building. The furniture is lying in thebuilding and his associates/ employeescome to the premises and sit there for thewhole day and leave it after locking thesame. The landlord repeatedly maderequests for the payment of arrears of therent but the tenant was not serious aboutthe payment of the rent. When the tenantdid not pay any heed to the repeatedrequests of the landlord for the paymentof his arrears of rent and the current rentthe land lord had no option but to send anotice dated 17 June 2005 under Section106 of the Transfer of Property Act,18822 for terminating his tenancy anddemanding arrears of rent and forvacation of the premises. It is stated thatthe said notice was duly served upon thedefendant/ tenant but neither he made thepayment of rent nor vacated the premises.


4. The tenant contested the suit. Inits written statement the tenant admittedthe fact that the tenancy commenced on27.1.2004 in terms of the agreement at therate of Rs. 18,000/- per month but thelandlord had given possession of only onehall, one room and in the rest of thepremises the landlord has been keepinghis goods and living in the same premises.The landlord had assured the tenant thatwithin 8-10 days he would vacate theremaining part of the tenanted premisesand will handover the possession of therest of the building in terms of theagreement. The tenant also admitted thatan agreement was entered into betweenthe landlord and the tenant on 27.1.2004but the landlord did not handover thepossession of entire premises as per theagreement, for the said reason there wasno relationship of landlord and tenantbetween the parties. It has also been statedthat the landlord has refused to accept therent.

5. It was further averred that aftersometime the tenant wanted to vacate thepremises by removing his effects from thepremises but the landlord did not permithim. It is also stated that in February 2004the landlord has taken back the possessionof one room and has let out to some otherpersons and his goods lying in thepremises, has also been given to the newtenant for their use.

6. The landlord has examinedhimself as P.W.-1 and Naupal Singh asP.W.-2 and also filed some documentaryevidence; copy of the notice dated17.6.2005, agreement which wasexhibited, reply submitted by the tenant tothe notice, the report of the amin inanother suit no. 1449 of 1996 "YogendraSingh vs. Nagar Palika and others" etc.

The tenant has examined himself and hasfiled the affidavit of one Karamveer, whowas also examined as DW-2. The tenantdid not file any documentary evidence.The Trial Court has framed two issues; (i)whether on 27.1.2004 the part of theChaudhary Bhwan consisting of threehalls, three rooms, two varandas and twogalleries have been let out to thedefendant or entire building ChaudharyBhawan was let out, and (ii) Whether thedefendant is entitled for any other relief.

7. In respect of the issue no. 1, theTrial Court found that the landlord let outthree halls, three rooms, two verandas andtwo galleries to the tenant. The TrialCourt has recorded a finding that it was anadmitted case of the tenant that anagreement was entered into on 27.1.2004in respect of three halls, three rooms, twoverandas and two galleries at the rate ofRs. 18,000/- per month. The court hasalso relied upon the report of the amindated 20.4.2006 against which noobjection was filed by the tenant. TheCourt has also referred the report of theamin in another Suit No. 1449/1996"Yogenera Singh Vs. Nagar Palika andothers". The court has referred some otheradmissions like a paper no. 32Ga dated 2December 2004, a communication sent bythe tenant to the landlord regardingfurniture etc.. The court has disbelievedthe case of the tenant that since thepossession of the entire accommodationwas not handed over to him, therefore, hecould not use the premises for the purposeto run the coaching classes. In this regardthe court has referred the statement of thetenant that when he could not get thepossession of the entire accommodationthen he sent a notice to the landlord togive the possession of the premises as perthe agreement, however the tenant did not


file the said notice as evidence on therecord. There is no explanation of thetenant on record that why he has not filedsaid evidence.

8. In view of the aforesaid findingsthe Trial Court has decreed the suit for theeviction and arrears of rent.

9. I have heard Sri Ravi Kant,learned Senior Advocate assisted by SriTarun Agrawal, learned counsel for therevisionist, and Sri Vijay Prakash, learnedCounsel for the respondent-landlord.

10. The learned Senior Advocatesubmitted that from the perusal of theagreement dated 27.1.2004 it is evidentthat the entire premises was given on rentfor three years to the tenant. Since the rentagreement does not contain any furtherdetail of the tenanted property then it isexplicit under the agreement that entireChaudhary Bhawan premises was givenon the rent. It was further submitted thatthe premises was let out for a period ofthree years, therefore, it was required tobe compulsorily registered as per Section107 of the Act No. 4 of 1882. He furtherurged that the rent agreement wasexecuted on a stamp-paper of Rs. 100/-,thus having regard to Section 49 of theRegistration Act, the rent deed wasclearly inadmissible in the evidence,therefore, Trial Court grievously erred inplacing reliance on the said document.For the above reasons, none of the clausesof the rent agreement including the clauserelating to fixation of rent of Rs. 18,000/-per month could have been received inevidence. The reliance has been placed ona judgement of the Supreme Court in thecase of K.B. Saha and Sons PrivateLimited v. Development ConsultantLimited3.

11. It was also submitted that sincethe attesting witnesses were notexamined, hence it could not have beenrelied upon by the Trial Court. Lastly itwas urged that the Trial Court haswrongly placed the burden of proof on thedefendant.

12. The learned counsel for therevisionist Sri Vijay Prakash submitted thatthe defendant/ revisionist was a tenant of aportion of the above premises, ChaudharyBhawan, consisting of three halls, threerooms, two verandas and two galleries onmonthly rent of Rs. 18,000/- w.e.f.27.1.2004. The defendant/ revisionist did notpay rent from 27.1.2004 to 16.7.2005 in spiteof repeated demand, thus a notice was senton 17 June 2005 terminating the tenancy ofthe defendant and in spite of the said noticehe did not make the payment. It is furthersubmitted that the amin made a spotinspection of the tenanted accommodation on20.4.2006 in the presence of both the partiesand defendant/ revisionist did not file anyobjection to the report submitted by theamin. The Trial Court has rightly relied onthe said report, other evidence and hasrecorded a finding of fact which should notbe disturbed under the revisional jurisdictionunder Section 25 of the Act No. 9 of 1887.

13. Lastly, it was urged that the TrialCourt has decreed the suit on the basis ofthe admission of the defendant/ revisioniston the point of rate of rent and theexistence of the tenant and landlordrelationship between him and the plaintiff.The revisionist has failed to point out anyjurisdictional error in the judgementpassed by the learned court below. Lastly,it was urged that the findings recorded bythe Trial Court on the issue of existenceof tenancy and rate of rent are the findingsof facts which do not require any


interference by this Court under Section25 of the Provincial Small Cause CourtsAct.

14. I have heard learned counsel forthe parties, considered their submissionsand perused the record.

15. The parties are not in conflict onthe fact that they entered into anagreement dated 27.1.2004 for creating atenancy of the premises and according tothe tenant he got the possession of onehall, one room. From the evidence on therecord it is evident that the ChaudharyBhawan is a huge building, in which sometenants like Pragyan Classes, IIT, MedicalEntrance etc. were running their coachingclasses/ institutions at the time ofinstitution of the suit.

16. In the written statement thetenant has admitted about the agreementdated 27.1.2004 and the rate of rent alsoat the rate of Rs. 18,000 per month. It isapposite to extract paragraph-2 of thewritten statement, thus:

**2- ;g fd okni= dh /kkjk 2 ftl izdkjof.kZr gS] xyr gS] Lohdkj ugha gS A lgh rF; ;ggS fd izfroknh us oknh ls iz'uxr lEifRr dksfdjk, ij fy;k Fkk vkSj fdjk,nkjh 27-1-2004 ls'kq: gksuh Fkh rFkk iwjs Hkou dk fdjk;k18000@&:i;s izfrekg r; gqvk Fkk A oknh }kjkizfroknh dks lEiw.kZ Hkou e; leLr fuekZ.k dsfdjk, ij nsuk r; gqvk Fkk ijUrq ftl le;fdjk,nkjh 'kq: gqbZ Fkh] ml le; Hkou dk ,d gky,oa ,d dejk [kkyh Fkk vkSj 'ks"k Hkou esa oknh dklkeku j[kk Fkk] ftlesa oknh jg jgk Fkk A oknh }kjkizfroknh ls ;g dgk x;k Fkk fd og vkB&nl fnuesa vius lkeku dks dgha vkSj f'kQ~V dj nsxk vkSjiwjs Hkou dk dCtk oknh dks ns nsxk A dFku bldsfoijhr oknh xyr gS] Lohdkj ugha gS A**

17. The only dispute raised by thetenant was that the landlord had agreed to

let out the entire premises and not only apart of the premises. In the writtenstatement the tenant has averred that inthe said premises three other educationalinstitutions were running. Thus the caseof the tenant that the entire premises waslet out to him, has been rightlydisbelieved by the Trial Court. The TrialCourt has recorded a finding of fact withregard to a part of the tenancy on the basisof two Amin reports.

18. It is noteworthy that the tenanthas not filed any objection against theamin's report of this case. It is also notdisputed that the tenant has not filed anydocumentary evidence in support of hiscase. The tenant has examined oneKaramveer as DW-2, who has admittedthat he had not seen the house, and is alsonot aware of the fact that the entire houseis consisting of 100 rooms, which hasbeen let out to the tenant.

19. The oral statement of the tenantalso failed to inspire the confidence of thecourt. He has also admitted that he had sent anotice to the landlord when he could not getthe possession of the entire premises but theTrial Court has rightly recorded that he hasnot filed the notice as an evidence.

20. Now I may deal with thesubmissions of the learned Senioradvocate.

21. It was contended on behalf ofthe revisionist that the premises was letout for a period of three years, therefore,the rent agreement dated 27.1.2004 wasrequired to be compulsorily registered asper Section 107 of the Act No. 4 of 1882.It is further urged that the court below haserred by placing reliance on such anunregistered document. He has placed


reliance on a judgement of the SupremeCourt in K.B. Saha and Sons Private Limited(supra). In the said case a residential flat waslet out to M/s Development ConsultantLimited by the landlord by a memorandumdated 30 March 1976. The flat was let out fora particular officer, Keshab Das andmembers of his family, and for not otherpurposes. One of the terms of thememorandum was that if the tenant intendedto use the flat in question for any purposeother than providing residentialaccommodation to its employee Keshab Das,the tenant would seek written consent fromthe landlord.

22. The Company informed thelandlord that its employee Mr. KeshabDas had vacated the flat and the Companywanted to repair it and to allot it to someother employee. The landlord refused togive his consent for the same and heprotested that the Company has no rightto allot the premises to another employee,therefore, it must surrender the same oncevacated by Mr. Keshab Das. The landlordinstituted Title Suit No. 19 of 1992 fordeclaration and permanent injunction thatas per terms of memorandum dated30.3.1976 the Company had no right toallot the said premises to any otheremployee after its employee Mr. KeshabDas had vacated the premises. The TrialCourt granted an interim injunction. Lateron, the landlord issued a notice underSection 13(6) of the West BengalPremises Tenancy Act, 1956 calling uponthe Company to vacate the suit premises.In response to the said notice when theCompany refused to vacate the premises,he filed another suit being Title Suit No.39 of 1995 praying for ejectment of therespondents from the suit premises. TheCompany filed a written statement andone of the plea taken on it was that they

have paid the rent to the appellant and assuch the tenancy was protected by theprovisions of the West Bengal PremisesTenancy Act, 1956. A further plea wastaken by it was that the tenancyagreement entered into by the parties, wasillegal and invalid and as such theagreement was against the Statute.Therefore, no injunction could be grantedagainst them.

23. The Trial Court recorded a findinginter alia that the respondent had depositedthe rent in the office of the Rent Controller,Calcutta, therefore, he was not a defaulterand was not liable to be evicted on theground of default. The tenant could bedirected to vacate the suit premises only onproof of grounds mentioned in Section 13(1)of the Act. The agreement was not registeredwhich was required to be registered underSection 49 of the Registration Act, therefore,the agreement was not admissible inevidence. The trial court dismissed both thesuits. Against the order of the trial court twofirst appeals were filed. The High Courtaffirmed the judgement and decree passed bythe Assistant District Judge whereby both thesuits were dismissed.

24. The matter was carried to theSupreme Court by the landlord. TheSupreme Court, after considering largenumber of the judgements on the point ofrequirement of registration, held as under:

"34. From the principles laid down inthe various decisions of this Court and theHigh Courts, as referred to hereinabove, itis evident that:

1. A document required to beregistered, if unregistered is notadmissible into evidence under Section 49of the Registration Act.


2. Such unregistered document canhowever be used as an evidence ofcollateral purpose as provided in theproviso to Section 49 of the RegistrationAct.

3.A collateral transaction must beindependent of, or divisible from, thetransaction to effect which the lawrequired registration.

4.A collateral transaction must be atransaction not itself required to beeffected by a registered document, that is,a transaction creating, etc. any right, titleor interest in immovable property of thevalue of one hundred rupees and upwards.

5.If a document is inadmissible inevidence for want of registration, none ofits terms can be admitted in evidence andthat to use a document for the purpose ofproving an important clause would not beusing it as a collateral purpose."

25. From a perusal of the law laiddown by the Supreme Court it is evident thatan unregistered document can be used as theevidence of collateral purpose as providedunder the proviso to Section 49 of theRegistration Act. In the said case, thelandlord had relied on clause-9 of the leaseagreement for the purpose that the tenant wasliable to be evicted because of violation ofclause-9 of the lease agreement. The courtfound that since the suit was filed only on theground of clause-9 of the unregistereddocument, therefore, it was not for acollateral purpose.

26. In the present case the tenant hasadmitted the terms of the agreement withregard to the rate of rent and the possession,therefore, the case relied by the learnedSenior Advocate stands on completelydifferent footing.

27. In the case of Ahmedsaheb(Dead) By Lrs. and others v. Sayed Imail4the landlord filed a civil suit for therecovery of arrears of rent. The tenantadmitted the fact that the premises was letout to him at the rate of Rs. 800/- peryear. It was also admitted that the rentwas due from him. The High Courtobserved that it is needless to emphasizethat an admission of a party in theproceedings, either in the pleading or oral,is the best evidence and the same does notneed any further corroboration. The Courtobserved as under:

"12.... In our considered opinion, thatvital aspect in the case viz. the admissionof the respondent in the written statementabout the rate of rent and the furtheradmission about its non-payment for theentire period for which the claim wasmade in the three suits was sufficient tosupport the suit claim. The High Courtfailed to note the said factor whiledeciding the second appeal which led tothe dismissal of the appeals. Even whileeschewing Exhibit 69 from consideration,the High Court should have noted that therelationship of landlord and tenant asbetween the plaintiffs and defendants wasan established factor and the rate of rentwas admitted as Rs. 800 per year."

28. In the same judgement theSupreme Court has referred and relied itsearlier judgement in the case of Anthonyv. K.C. Ittoop & Sons5. Followingdiscussion and conclusion are apt andrelevant for the purpose of the case:

"14.When it is admitted by both sidesthat the appellant was inducted into thepossession of the building by the ownerthereof and that the appellant was payingmonthly rent or had agreed to pay rent in


respect of the building, the legal characterof the appellant's possession has to beattributed to a jural relationship betweenthe parties. Such a jural relationship, onthe fact situation of this case, cannot beplaced anything different from that oflessor and lessee falling within thepurview of the second paragraph ofSection 107 of the TP Act extractedabove. From the pleadings of the partiesthere is no possibility for holding that thenature of possession of the appellant inrespect of the building is anything otherthan as a lessee."

29. In view of the above the nextquestion arises that whether this Courtshould exercise its jurisdiction under Section25 to set aside finding of facts recorded bythe court below. For the reasons recordedabove, I find that the court below hasrecorded finding of facts against the tenantwhich are based on relevant evidence onrecord. The learned counsel for therevisionist failed to point out that the findingsare not based on evidence of record. Thescope of interference under revisionaljurisdiction under Section 25 came to beconsidered in long line of decisions of theSupreme Court and this Court.

30. A Division Bench of this Courtin the case of Laxmi Kishore and anotherv. Har Prasad Shukla6, has elaboratelyconsidered the scope of interference underSection 25 of the Small Cause Courts Actand held as under:

"3. This provision confers a supervisoryand not a appellate power. The record can becalled for seeing that the decree is accordingto law. If it is not, the revisional court canpass such order with respect thereto as it maythink fit. This power is conditional on therevisional court finding that the decree or

order sought to be revised was not accordingto law. The phrase 'pass such orders withrespect thereto as it thinks fit' has come upfor consideration before the Supreme Courtin several decisions..."

31. Similar view has beenconsistently taken by this Court in a longline of decisions. Reference may be madeto the judgements in the cases of OmPrakash Gupta v. Vth Additional District& Sessions Judge, Aligarh and others7;Man Mohan Dixit v. Additional DistrictJudge/ Special Judge (E.C. Act), Jalaun atOrai and others8; Anwar Uddin v. IstAdditional District Judge, Aligarh andothers9; Rajendra Nath Tripathi andanother v. Jagdish Dutt Gupta andanother10; and Har Swarup Nigam v.District Judge, Allahabad and others11.

32. The Supreme Court in the caseof Malini Ayyappa Naicker v. SethManghraj Udhavdas Firm &others12,held as under:

"9. It may be remembered that Shah, J.was also a party to the decision in HariShankar's case, 1962 Supp 1 SCR 933 =(AIR 1963 SC 698) (supra). We see noconflict between the two decisions. Theformer decision enumerates some of thecircumstances under which the High Courtcan interfere while considering whether thedecision under review was made accordingto law. All that it laid down in AbdulShakur's case is that the High Court is notcompetent to disturb a finding of fact reachedby the District Court even if in reaching thatfinding it was required to take intoconsideration a statutory presumption."

33. The Supreme Court in the caseof Girdharbhai v. Saiyed MohmadMirasaheb Kadri13,held thus:


"16...We must, however, guardourselves against permitting in the guiseof revision substitution of one view wheretwo views are possible and the Court ofSmall Causes has taken a particular view.If a possible view has been taken, theHigh Court would be exceeding itsjurisdiction to substitute its own viewwith that of the courts below because itconsiders it to be a better view. The factthat the High Court would have taken adifferent view is wholly irrelevant. Judgedby the standard, we are of the opinion thatthe High Court in this case had exceededits jurisdiction."

34. The Supreme Court in the caseof Harsavardhan Chokkani v. BhupendraN. Patel and others14, held as under:

"7... Nonetheless, the High Court isexercising the revisional power which inits very nature is a truncated power. Thewidth of the powers of the revisionalcourt cannot be equated with the powersof the appellate court. In examining thelegality and the propriety of the orderunder challenge, what is required to beseen by the High Court is whether it is inviolation of any statutory provision or abinding precedent or suffers frommisreading of the evidence or omission toconsider relevant clinching evidence orwhere the inference drawn from the factsproved is such that no reasonable personcould arrive at or the like. It is only insuch situations that interference by theHigh Court in revision in a finding of factwill be justified. Mere possibility of adifferent view is no ground to interfere inexercise of revisional power..."

35. The Supreme Court in HindustanPetroleum Corporation Limited v.Dilbahar Singh15, has elaborately

considered the scope of the revision in thefollowing words:

"31. We are in full agreement withthe view expressed in Sri Raja LakshmiDyeing Works16 that where bothexpressions "appeal" and "revision" areemployed in a statute, obviously, theexpression "revision" is meant to convey theidea of a much narrower jurisdiction thanthat conveyed by the expression "appeal".The use of two expressions "appeal" and"revision" when used in one statuteconferring appellate power and revisionalpower, we think, is not without purpose andsignificance. Ordinarily, appellatejurisdiction involves a rehearing while it isnot so in the case of revisional jurisdictionwhen the same statute provides the remedyby way of an "appeal" and so also of a"revision". If that were so, the revisionalpower would become coextensive with thatof the trial Court or the subordinate tribunalwhich is never the case. The classicstatement in Dattonpant17 that revisionalpower under the Rent Control Act may notbe as narrow as the revisional power underSection 115 of the Code but, at the sametime, it is not wide enough to make the HighCourt a second court of first appeal,commends to us and we approve the same.We are of the view that in the garb ofrevisional jurisdiction under the above threeRent Control Statutes, the High Court is notconferred a status of second court of firstappeal and the High Court should not enlargethe scope of revisional jurisdiction to thatextent."

36. In the present case the tenant hasadmitted that he got the possession on27.1.2004. He has also not disputed the rateof the rent at the rate of Rs. 18000/- permonth, thus in my view a jural relationshipbetween the parties came into existence. The

1 All] Smt. Richa Khare & Ors. Vs. Ankit Gupta & Ors. 415

parties are on conflict with regard to the factwhether the landlord had given thepossession of entire premises or not. Asnoted above, the said disputed question offact cannot be adjudicated in revisionaljurisdiction under Section 25 of the SmallCause Courts Act. The court below hasrecorded a finding of fact on the basis of theunrebutted report of the Amin and the otherevidence on the record.

37. In view of the above, therevision lacks merit and it is accordinglydismissed.

38. The tenant-revisionist is grantedthree months' time to vacate the premisessubject to the following conditions;

(i) the tenant shall submit anundertaking in the court below that hewill handover the vacant and peacefulpossession to the landlord on or before 3July 2015;

(ii) he will continue to pay the renton each succeeding month till vacation ofthe accommodation on 07th day of eachmonth.

(iii) he will not create any third partyinterest in the disputed premises.

39. No order as to costs--------

REVISIONAL JURISDICTIONCIVIL SIDE

DATED: ALLAHABAD 10.04.2015


BAGHEL, J.


Smt. Richa Khare & Ors. ...RevisionistVersus

Ankit Gupta & Ors. ...Opp. Parties

Counsel for the Revisionist:Amit Kumar Shukla

Counsel for the Opp. Parties:Arun Kumar Shukla

C.P.C.-Section 115-Civil Revision -against rejection-application to amendheading in provision-instead of 163 A-should be Section 166-held-Tribunaltaken hyper technical view-in bothsections-the vehicle owner or insurancecompany-on fault of injured or deceased-can be defeat claim-no prejudice caused.

Held: Para-12Significantly, in the amendmentapplication no amendment of thepleading or the relief has been sought bythe claimants. Thus, there is no questionof change of nature of the case.Moreover, if the amendment is allowed,no prejudice will be caused either to theowner or to the insurance company asunder both the provisions i.e. Sections163A and 166, the owner and theinsurance company can defeat the claimof the claimants on the ground of fault onthe part of the claimants or injured.

Case Law discussed:AIR 2004 SC 2107:(2004) 5 SCC 385; 2007ACJ 2067 Gujrat (DB); 2008 ACJ 909Rajasthan (FB); 2012 Law Suit (SC) 200:(2012) 5 SCC 337; 2012 Law Suit (SC)642:(2012) 11 SC 341; 1998 Law Suit (AP243:AIR 1998 AP 337; 2007 Law Suit (KAR)439; Laws (APH)-2006-9-10; (2012) 2 SCC356; (2012) 2 SCC 300; (2005) 7 SCC 534;(2006) 12 SCC 1; (2008) 5 SCC 117; (2008) 14SCC 364; (2009) 2 SCC 409:(2009) 1 SCC(Civ) 562; (2010) 10 SCC 512:(2010) 4 SCC(Civ) 239; (2011) 12 SCC 268; (2009) 10 SCC626:(2009) 4 SCC (Civ) 294.(2006) 4 SCC 385;(2009) 10 SCC 84.


1. This civil revision under Section115 of the Code of Civil Procedure,


19081 arises out of an order dated 22ndAugust, 2013 passed by the AdditionalDistrict Judge/Special Judge (ECAct)/Motor Accidents Claims Tribunal,Shahjahanpur2 in Motor Accident ClaimPetition No. 297 of 2010 (Smt. RichaKhare v. Ankit Gupta and others)whereby the Tribunal has rejected theamendment application of the claimants-revisionists under Order VI Rule 17 CPC.

2. The essential facts are that lateSanjay Khare, husband of the revisionistno. 1 and father of the revisionist nos. 2and 3, was a Government employeeworking on the post of Assistant Nazir (I)at District Court, Shahjahanpur. He metan accident on 25th September, 2008 witha truck bearing Registration No. U.P.27C-5624. He succumbed to his injuries on30th September, 2008. The revisionistsmoved a claim petition before theTribunal under Section 163A of the MotorVehicles Act, 19883 which was registeredas Motor Accident Claim Petition No. 297of 2010 (Smt. Richa Khare v. AnkitGupta and others). The case of theclaimants-revisionists was that on thefateful day the driver of the offendingvehicle, which is owned by therespondent no. 1 and insured by therespondent no. 2, was driving the vehiclerashly and negligently and he hit thehusband of the revisionist no. 1 who wasreturning to his home. In the claimpetition, a claim of Rs.50,45,400/- wasraised. The claim petition was contestedby the defendants-respondents.

3. In the claim petition theclaimants-revisionists moved anapplication for amendment under OrderVI Rule 17 CPC on 07th August, 2013 onthe ground that due to clerical mistake,the claim petition was filed under Section

163A of the Act instead of Section 166.Thus, the claimants sought the only relieffor amendment of section of the claimpetition. The said amendment wasopposed by the respondents on the groundthat it had been filed at a belated stage.The amendment application has beenrejected by the Tribunal by the impugnedorder dated 22nd August, 2013 on theground that there was an option to theclaimants to move the claim petitioneither under Section 163A or underSection 166 of the Act. The Tribunalfurther took the view that the proceedingunder Section 163A of the Act is of finalnature which cannot be converted, and inthis regard the Tribunal has placedreliance on the judgements in DeepalGirishbhai Soni and others v. United IndiaInsurance Co. Ltd., Baroda4, New IndiaAssurance Company Limited v. V.B.N.Panchan Bhai Patel5, and United IndiaInsurance Company Limited v. SatyaNarayan Sharma6. The Tribunal hasfurther held that the amendmentapplication has been filed after aconsiderable delay.

4. I have heard learned counselappearing for the parties.

5. Learned counsel for therevisionists submitted that the claimants-revisionists did not seek any amendmentin the pleading or the relief of the claimpetition but they only wanted to amendthe section, under which the claimpetition was filed. The amendment wasnot going to change the basic nature of theclaim petition. In fact, the amendmentwas a bona fide and legitimate. However,the Tribunal has taken a hypertechnicalapproach in rejecting the amendment.Lastly, he urged that under Section 163Aof the Act a person whose annual income


is Rs.40,000/- or less is covered, which isevident from the Second Schedule of theAct. Under Section 163A of the Act,being a social security provisionproviding for a distinct scheme, onlythose persons whose annual income isupto Rs.40,000/- can take the benefitthereof. All other claims are required tobe determined in terms of Chapter XII ofthe Act. He has placed reliance on severaljudgements of the Supreme Court andother High Courts in RameshkumarAgarwal v. Rajmala Exports PrivateLimited and others7, Abdul Rehman andanother v. Mohd. Ruldu and others8, Smt.Pochamma and others v. Mirza DawoodBagi and another9, Bangalore MetroTransport Corporation v.Lakshmamma10, Deekonda SureshDharmoji and others v. New IndiaAssurance Company Limited andothers11.

6. Learned counsel for therespondents has supported the findings ofthe Tribunal. No other submission hasbeen made.

7. I have considered the rivalsubmissions advanced by the learnedcounsel appearing for the parties andperused the record.

8. Section 163A of the Act wasinserted in Chapter XI of the Act by ActNo. 54 of 1994 with effect from 14thNovember, 1994. It provides the specialprovisions for payment of compensationon structured formula basis which isindicated in the Second Schedule of theAct. Under Chapter X of the Act, Section140 provides liability to paycompensation in certain cases on theprinciple of 'no fault'. Chapter XII of theAct deals with the Claims Tribunals.

Section 166 provides that an applicationfor compensation arising out of anaccident may be made, amongst others, bythe person who has sustained the injury,or, where death has resulted from theaccident, by all or any of the legalrepresentatives of the deceased.

9. The distinction among Sections140, 163A and 166 of the Act has beenelaborately considered by the SupremeCourt in the case of Deepal GirishbhaiSoni (supra). In the said case, theSupreme Court has held that Section 140of the Act provides for the claim forcompensation under no fault liability andby the reason of the said provision, afixed sum is to be paid. The SupremeCourt has further held that Section 140 ofthe Act deals with the interimcompensation but Section 163A wasinserted in the Act to avoid the longdrawn trial or proof of negligence in thecause of accident. The said section wasinserted for grant of immediate relief to asection of people whose annual income isnot more than Rs.40,000/-, whereasSection 166 under Chapter XII of the Actdoes not have any such ceiling.

10. The Supreme Court in the caseof National Insurance Company Limitedv. Sinitha and others12 has considered thedistinction between Sections 140 and163A of the Act. The Court held that theclaim of compensation under Section 140of the Act cannot be defeated because ofany of the fault grounds i.e. "wrongfulact", "neglect" or "default". Thus, in thecase of Section 140, the owner or insurercannot take a plea that there was fault onthe part of the claimant or the deceased.Therefore, the claim made under Section140 is based on "no-fault liability"principle. However, under Section 163A


of the Act it is not essential for theclaimants to plead or establish that theaccident suffers from "wrongful act" or"neglect" or "default" of the offendingvehicle, but the owner or the insurancecompany can plead that there was"wrongful act", "neglect" or "default" onthe part of the deceased/ injured. In casethe owner or the insurance companyestablished that the accident took placedue to fault of the deceased/injured thenthe claim petition can be defeated. TheCourt while drawing distinction betweenno fault theory held as under:

"27. Thus, in our view, it is open to aparty concerned (the owner or the insurer)to defeat a claim raised under Section163-A of the Act by pleading andestablishing any one of the three "faults",namely, "wrongful act", "neglect" or"default". But for the above reason wefind no plausible logic in the wisdom ofthe legislature for providing an additionalnegative bar precluding the defence fromdefeating a claim for compensation inSection 140 of the Act and in avoiding toinclude a similar negative bar in Section163-A of the Act. The object forincorporating sub-section (2) in Section163-A of the Act is that the burden ofpleading and establishing proof of"wrongful act", "neglect" or "default"would not rest on the shoulders of theclaimant. The absence of a provisionsimilar to sub-section (4) of Section 140of the Act from Section 163-A of the Actis for shifting the onus of proof on thegrounds of "wrongful act", "neglect" or"default" on to the shoulders of thedefence (the owner or the insurancecompany). A claim which can be defeatedon the basis of any of the aforesaidconsiderations, regulated under the "fault"liability principle. We have no hesitation

therefore to conclude that Section 163-Aof the Act is founded on the "fault"liability principle."

11. In the present case, a copy of theclaim petition is on the record. From aperusal of pleadings of the claim petitionit is evident that all the necessarypleadings required under Section 166 ofthe Act have been made in the claimpetition and a claim of Rs.50,45,400/-hasbeen made. It is also pleaded by theclaimants in the claim petition that theaccident had taken place due to rash andnegligent driving of the truck driver.Thus, all the necessary ingredients for anapplication under Section 166 of the Actare present in the claim petition.

12. Significantly, in the amendmentapplication no amendment of the pleadingor the relief has been sought by theclaimants. Thus, there is no question ofchange of nature of the case. Moreover, ifthe amendment is allowed, no prejudicewill be caused either to the owner or tothe insurance company as under both theprovisions i.e. Sections 163A and 166, theowner and the insurance company candefeat the claim of the claimants on theground of fault on the part of theclaimants or injured.

13. Insofar as the finding of theTribunal that the amendment applicationhas been moved at a belated stage isconcerned, the law in respect of suchamendment has been considered by theSupreme Court in the case of J. Samueland others v. Gattu Mahesh and others13,in the following terms:

"23. Though the counsel for theappellants have cited many decisions, onperusal, we are of the view that some of


those cases have been decided prior to theinsertion of Order 6 Rule 17 with proviso oron the peculiar facts of that case. This Courtin various decisions upheld the power that indeserving cases, the Court can allow delayedamendment by compensating the other sideby awarding costs. The entire object of theamendment to Order 6 Rule 17 as introducedin 2002 is to stall filing of application foramending a pleading subsequent to thecommencement of trial, to avoid surprisesand that the parties had sufficient knowledgeof other's case. It also helps checking thedelays in filing the applications. [VideAniglase Yohannan v. Ramlatha14,Ajendraprasadji N. Pandey v. SwamiKeshavprakeshdasji N.15, Chander KantaBansal v. Rajinder Singh Anand16,Rajkumar Gurawara v. S.K. Sarwagi and Co.(P) Ltd.17, Vidyabai v. Padmalatha18 andMan Kaur v. Hartar Singh Sangha19.]"

(Emphasis supplied by me)

14. In the case of State of MadhyaPradesh v. Union of India and another20the Supreme Court has held that in casethe amendment is moved at a belatedstage, the Court has wide and unfettereddiscretion to allow the amendment of thepleadings on such terms as it appears tothe Court proper and just. The amendmentcannot be refused if it is found that fordeciding the real controversy between theparties it can be allowed on payment ofcost. The relevant part of the judgementreads as under:

"10. This Court, while consideringOrder 6 Rule 17 of the Code, in severaljudgments has laid down the principles tobe applicable in the case of amendment ofplaint which are as follows:

(i) Surender Kumar Sharma v.Makhan Singh21, at para 5: (SCC p. 627)

"5. As noted hereinearlier, the prayerfor amendment was refused by the HighCourt on two grounds. So far as the firstground is concerned i.e. the prayer foramendment was a belated one, we are ofthe view that even if it was belated, thenalso, the question that needs to be decidedis to see whether by allowing theamendment, the real controversy betweenthe parties may be resolved. It is wellsettled that under Order 6 Rule 17 of theCode of Civil Procedure, wide powersand unfettered discretion have beenconferred on the court to allowamendment of the pleadings to a party insuch a manner and on such terms as itappears to the court just and proper. Evenif, such an application for amendment ofthe plaint was filed belatedly, suchbelated amendment cannot be refused if itis found that for deciding the realcontroversy between the parties, it can beallowed on payment of costs. Therefore,in our view, mere delay and laches inmaking the application for amendmentcannot be a ground to refuse theamendment."

(ii) **** **** ****(iii) **** **** ****(iv) Rajesh Kumar Aggarwal v. K.K.

Modi22, at paras 15 & 16: (SCC pp. 392-93)

"15. The object of the rule is that thecourts should try the merits of the casethat come before them and should,consequently, allow all amendments thatmay be necessary for determining the realquestion in controversy between theparties provided it does not cause injusticeor prejudice to the other side.

16. Order 6 Rule 17 consists of twoparts. Whereas the first part isdiscretionary (may) and leaves it to thecourt to order amendment of pleading.


The second part is imperative (shall) andenjoins the court to allow all amendmentswhich are necessary for the purpose ofdetermining the real question incontroversy between the parties."

15. The Supreme Court in RevajeetuBuilders and Developers v.Narayanaswamy and Sons and others23has culled out certain factors to be takeninto consideration while dealing with theapplication for amendment:

"63. On critically analyzing both theEnglish and Indian cases, some basicprinciples emerge which ought to be takeninto consideration while allowing orrejecting the application for amendment:

(1) whether the amendment sought isimperative for proper and effectiveadjudication of the case;

(2) whether the application foramendment is bona fide or mala fide;

(3) the amendment should not causesuch prejudice to the other side whichcannot be compensated adequately interms of money;

(4) refusing amendment would infact lead to injustice or lead to multiplelitigation;

(5) whether the proposed amendmentconstitutionally or fundamentally changesthe nature and character of the case; and

(6) as a general rule, the court shoulddecline amendments if a fresh suit on theamended claims would be barred bylimitation on the date of application.

These are some of the importantfactors which may be kept in mind whiledealing with application filed under Order6 Rule 17. These are only illustrative andnot exhaustive."

16. Applying the aforesaidparameters to the present case, it is

evident that the Tribunal has taken ahypertechnical view and has rejected theamendment application on wrongpremise.

17. In view of the above, theimpugned order dated 22nd August, 2013passed by the Tribunal is set aside. Thematter is remitted to the Tribunal todecide the amendment application afreshwithin three months from the date ofcommunication of this order.

18. The revision is, accordingly,allowed. No order as to costs.


CRIMINAL SIDEDATED: ALLAHABAD 10.04.2015

BEFORETHE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Criminal Revision No. 497 of 2006

Abhay Kumar Dubey ...RevisionistVersus

State of U.P. & Ors. ...Opp. Parties

Counsel for the Revisionist:Arvind Kumar Tewari

Counsel for the Respondents:Govt. Advocate

Criminal Revision-Against order byMagistrate-treating complaint case-instead directing the police to registeredthe case-on application under Section156 (3) Cr.P.C.-held-finding byMagistrate-controversy being civil innature-rightly treated it the complaintcase-no illegality committed-revisionrejected.

Held: Para-9In present matter all evidence requiredto be proved in the case is withinknowledge of revisionist. Learned Court

1 All] Abhay Kumar Dubey Vs. State of U.P. & Ors. 421

below had rightly mentioned in impugnedorder that matter relating to applicationu/s 156(3) Cr.P.C. may be a matterrelating to exclusive dispute of civil nature.Therefore no impropriety or irregularityappears to have been committed by theCourt below by not ordering theinvestigation by the police and directingthe case to be registered as complaintcase. Therefore impugned order should notbe interfered with in revision. Revision,accordingly, is dismissed.

Case Law discussed:2001 (2) C.Cr.J. 644(All.); 2005 (51)ACC 901;2007 (59) ACC 739.

(Delivered by Hon'ble Pramod KumarSrivastava, J.)

1. This revision has been filedagainst the order dated 12.01.2006 passedby Chief Judicial Magistrate, Etawah inCriminal Misc. Case No. 133/2005,Abhay Kumar Dubey Vs. Netram &others by which application under section156(3) Cr.P.C. was registered ascomplaint case.

2. Present revisionist had moved anapplication dated 09-12-2005 in Courtbelow u/s 156 (3) Cr.P.C. After hearingthe counsel for applicant/revisionist theCourt below had passed its impugnedorder 12-01-2006 by which applicationu/s 156 (3) Cr.P.C of applicant wasregistered as complaint case. Aggrievedby this order present revision had beenpreferred.

3. None appeared on behalf ofrevisionist. Heard learned AGA andperused memo of revision.

4. Code of Criminal Procedure hadgiven different type of powers to dealwith such matters relating to commission

of cognizable offences when broughtbefore it. Code and various case laws hadset guidelines for Courts to deals withsuch matters. In ruling 2001 (2) C.Cr.J.644 (All); Ram Babu Gupta vs. State ofU.P. & others full bench of this Courtheld that:

"On receiving of such complaint,different courses are open to theMagistrate he may with the aid of powerconferred by Section 156 (3) direct thepolice to register a case and investigate inthe matter as provided in Chapter XII orhe may treat the same as complaint andproceed in the manner as provided inChapter XV of the Code. While resortingto the first mode in as much as directingthe police for investigation he should notpass order in a routine manner. Heshould apply his judicial mind and onglimpse of the complaint, if he is primafacie of the view that the allegations madetherein constituted commission of acognizable offence requiring thoroughinvestigation, he may direct the police toperform their statutory duties asenvisaged in law. " - - - - - - - - "Wherethe Magistrate receives a complaint or anapplication which otherwise fulfills therequirement of a complaint envisaged bysection 2 (d) of Cr.P.C. and the factsalleged therein disclose commission of anoffence, he is not always bound to takecognizance. This is clear from the use ofthe words "may take cognizance" which inthe context in which they occur in section190 of the Code cannot be equated with'must take cognizance '. The word 'may'gives discretion to the Magistrate in thematter. Two courses are open to him. Hemay either take cognizance under section190 or may forward the complaint topolice under section 156 (3) Cr. P.C. forinvestigation."


5. In ruling 2005 (51) ACC 901,Dharmendra @ Pappu vs. State of U.P. &others this Court held that:

"From the perusal of the allegationsmade in the application under section156(3) Cr.P.C. it appears that on thebasis of the allegations made therein aprima facie cognizable offence is madeout against the accused and theallegations are of such nature whichrequire investigation by the police. Insuch circumstances the Magistrate wasunder obligation to direct the S.O. ofpolice station concerned to register thecase and investigate them."

6. Section 156(3) CrPC reads "AnyMagistrate empowered under section 190may order such an investigation as above-mentioned." It is noteworthy that there isword "may" and not "shall" in thisprovision. From the perusal of theallegations made in the application undersection 156(3) Cr.P.C. it appears that onthe basis of the allegations made therein aprima facie cognizable offence is madeout against the accused and the allegationsare of such nature which requiresinvestigation by the police, in suchcircumstances the Magistrate may directthe S.O. of police station concerned toregister the case and investigate them.

7. The jurisdiction of a Magistrate todispose of application u/s 156 (3) Cr.P.C.cannot be exercised arbitrarily, but thereare certain specific norms for it. Forordering the investigation on applicationu/s 156(3) Cr.P.C. there must be primafacie commission of cognizable offenceand must be the allegations are of suchnature which require investigation by thepolice. Even if there appears commissionof cognizable offence in application

containing complaint, Magistrate is notalways obliged to order the police forinvestigation, if there is actually nothingto be investigated. In such case applicantcan take recourse of procedure ofcomplaint case. Order for investigation isto be made only when allegations are ofsuch nature that actually requiresinvestigation.

8. In ruling 2007 (59) ACC 739;Sukhwasi vs. State of U.P. division benchof this Court had held as under:

"Applications under section 156(3)Cr.P.C. are coming in torrents.Provisions under section 156(3) Cr.P.C.should be used sparingly. They should notbe used unless there is something unusualand extra ordinary like miscarriage ofjustice which warrants a direction to thePolice to register a case. Such applicationshould not be allowed because the lawprovides them with an alternative remedyof filing a complaint, therefore, recourseshould not normally be permitted foravailing the provisions of section 156(3)Cr.P.C.

The reference is, therefore, answeredin the manner that it is not incumbentupon a Magistrate to allow an applicationsection 156(3) Cr.P.C. and there is nosuch legal mandate. He may or may notallow the application in his discretion.The second leg of the reference is alsoanswered in the manner that theMagistrate has discretion to treat anapplication section 156(3) Cr.P.C. as acomplaint."

9. In present matter all evidencerequired to be proved in the case is withinknowledge of revisionist. Learned Courtbelow had rightly mentioned in impugned

1 All] Neeraj Kumar Mishra Vs. State of U.P. & Ors. 423

order that matter relating to application u/s156(3) Cr.P.C. may be a matter relating toexclusive dispute of civil nature. Thereforeno impropriety or irregularity appears tohave been committed by the Court below bynot ordering the investigation by the policeand directing the case to be registered ascomplaint case. Therefore impugned ordershould not be interfered with in revision.Revision, accordingly, is dismissed.



BEFORETHE HON'BLE SATYENDRA SINGH CHAUHAN, J.

Misc. Single No. 1138 of 2015

Neeraj Kumar Mishra ...PetitionerVersus


Counsel for the Petitioner:Sushil Kumar, Akshat Srivastava

Counsel for the Respondents:C.S.C., Yogendra Nath Yadav

Constitution of India, Art.-226-Locusstandie-petitioner being member of GaonSabha-challenging order by which noticeunder Rule 49-A-withdrawn-againstprivate respondent-unless resolutionpassed by Gaon Sabha-empowering to filewrit petition-individual capacity-petition -held-not maintainable.

Held: Para-6Be that as it may, the question before thisCourt is as to whether the petitioner, inindividual capacity, being a member of theGram Panchayat can challenge the orderpassed by the Collector. There is noresolution passed by the Gaon Sabha,authorizing the petitioner to challenge theorder passed by the Collector.

Case Law discussed:

1982 ALJ 76

(Delivered by Hon'ble Satyendra SinghChauhan, J.)

1. Heard learned counsel for thepetitioner, learned Standing Counsel aswell as learned counsel for the GaonSabha.

2. The order in this case wasreserved on 17.3.2015. Learned counselfor the petitioner wanted to place certaincase laws for perusal of the Court, but nocase law has been filed by the counsel forthe petitioner, which may lend support tothe argument advanced on behalf of thepetitioner.

3. The petitioner, who happens to be amember of the Gaon Sabha, has comeforward to challenge the order dated30.9.1993 passed by the Tehsildar (Nyayik),the order dated 16.7.2010 passed by theTehsildar Sadar and the order dated03.9.2014 passed by the Collector, Raebarelias contained in Annexure Nos.1, 2 and 3respectively to the writ petition..

4. The earlier proceedings wereinitiated against the petitioner on the reportsubmitted by the Lekhpal in 1983 under Rule115(C) of U.P. Z.A. and L.R. Rules. TheNayab Tehsildar submitted a report on24.3.1990 and after considering that report,notice issued under Rule 49-A of the U.P.Z.A. And L.R. Rules was taken back.

5. The present report, which hasbeen filed against the petitioner, has beenfiled at the instance of village rivalry andthat the private respondent has establishedin the earlier round of litigation that pattawas executed in his favour and he is inpossession since long.


6. Be that as it may, the questionbefore this Court is as to whether thepetitioner, in individual capacity, being amember of the Gram Panchayat canchallenge the order passed by theCollector. There is no resolution passedby the Gaon Sabha, authorizing thepetitioner to challenge the order passed bythe Collector.

7. The law contemplates that ifsomebody wants to challenge the actionof the revenue authorities on behalf of theGaon Sabha, then there has to be aresolution on behalf of the Gaon Sabha tochallenge the same.

8. In the case of Sita Ram vs.Deputy Director of Consolidation andothers 1982 ALJ 76, the Court in Para-22,held as under:

"22. Thus, in view of the above I amof the opinion that the objection filed bythe opposite party No.3 Sheo Prasadcannot be treated to be a valid objectionon behalf of the Gaon Sabha underSection 9A(2) of the U.P. Consolidation ofHoldings Act, on the ground that he washimself an interested person underSection 9A(2) of the Act, as admittedly theLand Management Committee of theGaon Sabha had not passed anyresolution taking decision to fileobjection, appeal and revision noropposite party no.3 was authorised to filethose on behalf of the Gaon Sabha. It isalso not disputed that the action of theopposite party no.3, in filing objections,appeal, and revision on behalf of theGaon Sabha, was not ratified by the LandManagement Committee in its meetings.Thus, the objections, appeal and revisionfiled by opposite party no.3 Sheo Prasadon behalf of the Gaon Sabha were wholly

incompetent and opposite party nos.1 and2 acted illegally and without jurisdictionin passing the impugned orders."

9. I, therefore, find that the writpetition on behalf of the petitioner inindividual capacity is not maintainable. Itis accordingly dismissed.

--------APPELLATE JURISDICTION


BEFORETHE HON'BLE KRISHNA MURARI, J.THE HON'BLE PRATYUSH KUMAR, J.

First Appeal From Order No. 1240 of 2000

The Oriental Insurance Co. Ltd.Allahabad ...Appellant

VersusManoj Kumar & Ors. ...Respondents

Counsel for the Appellant:Sri S.C. Srivastava

Counsel for the Respondents:Sri Siddharth Srivastava, Sri S.D. Ojha

Motor Vehicle Act, 1988-Section 173-Appeal by Insurance Company-awardfixing liability upon appellant-admittedlyaccident took place on 03.09.97-licenseof driving renewed only on 08.10.1997-stood expired on 09.09.96-more thanone year-held-benefit of Section 15 ofAct-not available-appellant not liable topay-if any amount paid in compliance ofaward-liberty to realize from theclaimants-appeal allowed.

Held: Para-11 & 1711. The accident, in this case,admittedly took place on 03.09.1997.Although, there is nothing on record toindicate as to when the renewal wasapplied, but this much is clear that thelicence was renewed after more than ayear from its expiry and, thus, on the

1 All] The Oriential Insurance Co. Ltd. Allahabad Vs. Manoj Kumar & Ors. 425

date of accident, the driver did not havea valid driving licence.

17. The offending vehicle was clearly beingdriven in breach of Section 149 (2) (a) (ii) ofthe Act and, thus, the insurance companycannot be held liable to pay thecompensation. The insurance company hasalready been directed to make payment ofthe amount to the claimant-respondents.The insurance company shall be liable torecover the same from the owner of theoffending vehicle, namely, respondent no. 4.

Case Law discussed:2007 (2) TAC 393 (SC); (2003) 3 SCC 338.

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

1. Heard Shri S.C. Srivastava,learned counsel for the appellant, ShriSiddharth Srivastava, learned counsel forthe claimant-respondent nos. 1 to 3 andShri S.D. Ojha for respondent no. 4.

2. This appeal under Section 173 of theMotor Vehicles Act (for short the Act) hasbeen filed by Insurance company challengingthe judgment and award dated 31.05.2000passed by Additional District Judge/MotorAccident Claims Tribunal, Meerut awardinga sum of Rs.5,85,500/- as compensation tothe claimant-respondent nos. 1 to 3.

3. Facts, in short, giving rise to thedispute are as under.

4. A claim petition claimingcompensation to the tune of Rs.20 lacswas preferred by the claimant-respondentson the allegation that on 03.09.1997 whendeceased Sobha Ram was going on hismoped no. U.P. 15D 1960 to his office atabout 10 am, when he reached telephoneexchange, then near SSD Crossing, BusNo. UHN 1152, which was being driven inrash and negligent manner, hit the moped,

which caused grievous injuries andresulted into death of Sobha Ram. It wasfurther pleaded that the deceased wasaged 55 years and was working in CDAPension office and his total incomeincluding that of from agriculture wasRs.12,559/- per month. The proceedingswere contested by the appellant-insurancecompany denying the allegations. It waspleaded in the additional pleas that theaccident was caused due to ownnegligence of the deceased and the driverof the bus was not having a valid drivinglicence. The Tribunal, on the basis of thepleadings of the parties, framed twoissues.

(1) Whether the accident was causeddue to rash and negligent driving of theoffending vehicle UHN 1152.

(2) Whether the claimants wereentitled for any compensation and if yes,then how much and from whom.

5. After analysing the oral anddocumentary evidence brought on record,the Tribunal returned a finding that theaccident was caused due to rash andnegligent driving of the driver of theoffending vehicle no. UHN 1152, whichresulted in the death of Sobha Ram.

6. On the question of quantum ofcompensation, on the basis of thedocumentary evidence brought on record inthe form of salary slip, the Tribunal returneda finding that the monthly income of thedeceased was Rs.10,252/- and afterdeducting 1/3rd towards personal expenses,determined his annual income to beRs.72,000/-. Treating the age of the deceasedto be 55 years, the Tribunal in accordancewith the Schedule II applied a multiplier of 8and in this manner, determined the totalcompensation to be Rs.5,85,500/-.


7. Learned counsel for the appellantsvehemently contended that since the driverof the offending vehicle was not having avalid driving licence, which fact wasestablished before the Tribunal by cogentevidence, hence, the Tribunal committed amanifest error of law in not allowing theright to the appellant to recover the amountof compensation from the owner. It isfurther submitted that since the vehicle wasbeing driven in violation of the insurancepolicy as the driver did not have a validdriving licence, as such, it was the insurer,who was liable to pay the compensation andthe liability has wrongly been fastened uponthe appellant.

8. A perusal of the award goes toshow that it was pleaded and establishedbefore the Tribunal that the driving licenceof the driver of the offending vehicleexpired on 09.09.1996 and admittedly itwas renewed from 08.10.1997. Theaccident, admittedly, took place on03.09.1997. Thus, what is to be seen iswhether the renewal made on 08.10.1997would relate back to the date of its expiry.

9. Section 15 of the Act relate to therenewal of the driving licence. Therelevant part of Section 15 for thepurposes of the case reads as under.

"15. Renewal of driving licences.-(1) Any licensing authority may, onapplication made to it, renew a drivinglicence issued under the provisions of thisAct with effect from the date of its expiry:

Provided that in any case where theapplication for the renewal of a licence ismade more than thirty days after the date ofits expiry, the driving licence shall berenewed with effect from the date of itsrenewal."

10. A perusal of the aforesaidprovision makes it clear that, in case, therenewal is applied, where the applicationfor renewal is made within 30 days fromthe date of expiry, the renewal shall relateback to the date of expire, otherwise if theapplication is made beyond 30 days, itwould be effected from the date of itsrenewal. Proviso to Section 15 (1) makesit clear that the original licence granteddespite expiry only remain operative onlyfor a period of 30 days from the date ofexpiry and, in case, if an application ismade within this period, it would relateback to the said date, otherwise it wouldbe deemed to be renewed from the date ofits renewal.

11. The accident, in this case,admittedly took place on 03.09.1997.Although, there is nothing on record toindicate as to when the renewal wasapplied, but this much is clear that thelicence was renewed after more than ayear from its expiry and, thus, on the dateof accident, the driver did not have a validdriving licence.

12. This view came up forconsideration before the Hon'ble ApexCourt in the case of Ishwar Chandra &Ors. Vs. Oriental Insurance Co. Ltd. &Ors., 2007 (2) TAC 393 (SC). Afterconsidering the provisions of the Act, theHon'ble Apex Court has observed asunder.

"From a bare perusal of the saidprovision, it would appear that the licenceis renewed in terms of the said Act andthe rules framed thereunder. The provisoappended to Section 15 (1) of the Act inno uncertain terms states that whereas theoriginal licence granted despite expiryremains valid for a period of 30 days from

1 All] The Oriential Insurance Co. Ltd. Allahabad Vs. Manoj Kumar & Ors. 427

the date of expiry, if any application forrenewal thereof is filed thereafter, thesame would be renewed from the date ofits renewal. The accident took place on28.04.1995. As on the said date, therenewal application had not been filed,the driver, did not have a valid licence onthe date when the vehicle met with theaccident."

13. Learned counsel for therespondent no. 4, owner relying upon thejudgment of the Hon'ble Apex Court inthe case of United India Insurance Co.Ltd. Vs. Lehru & Ors., (2003) 3 SCC 338,contended that once the driver had a validdriving licence and he was drivingcompetently, it cannot be said that therewas a breach of Section 149 (2) (a) (ii) ofthe Act and the insurer would not beabsolved from liability and the Tribunalrightly fastened the liability of paying thecompensation on the insurance company.

14. The case before the Hon'bleApex Court was one where the drivinglicence of the driver of the offendingvehicle was found to be fake. Keepingthat factor in consideration, the Hon'bleApex Court in paragraph 20 observed asunder.

"When an owner is hiring a driver hewill therefore have to check whether thedriver has a driving licence. If the driverproduces a driving licence which on theface of it looks genuine, the owner is notexpected to find out whether the licencehas in fact been issued by a competentauthority or not. The owner would thentake the test of the driver. If he finds thatthe driver is competent to drive thevehicle, he will hire the driver. We find itrather strange that Insurance Companiesexpect owners to make enquiries with

RTO's, which are spread all over thecountry, whether the driving licenceshown to them is valid or not. Thus wherethe owner has satisfied himself that thedriver has a licence and is drivingcompetently there would be no breach ofSection 149(2)(a)(ii). The InsuranceCompany would not then be absolved ofliability. If it ultimately turns out that thelicence was fake the Insurance Companywould continue to remain liable unlessthey prove that the owner/insured wasaware or had noticed that the licence wasfake and still permitted that person todrive. More importantly even in such acase the Insurance Company wouldremain liable to the innocent third party,but it may be able to recover from theinsured."

15. We see no reason as to how thesaid judgment is of any help to therespondent no. 4 or comes to his rescue. Itwas a case where the licence was fakeand, thus, the Hon'ble Apex Court heldthat the owner of the vehicle is notexpected to verify the driving licence,which on the face of it, looks to begenuine. However, in the case in hand, theowner is supposed to be aware that thedriving licence of the driver is to expireand it was his duty to have ensured thatthe driver gets the licence renewed withinthe time.

16. Thus, the reliance placed byrespondent no. 4 in the case of Lehru(supra) is misplaced and, as such, thejudgment is of no avail to him. Since thedriver of the offending vehicle was nothaving a valid driving licence on the dateof accident, the vehicle was being drivenin a breach of the condition of the policyrequiring the vehicle to be driven by aperson, who is duly licenced.


17. The offending vehicle wasclearly being driven in breach of Section149 (2) (a) (ii) of the Act and, thus, theinsurance company cannot be held liableto pay the compensation. The insurancecompany has already been directed tomake payment of the amount to theclaimant-respondents. The insurancecompany shall be liable to recover thesame from the owner of the offendingvehicle, namely, respondent no. 4.

18. The appeal stands allowed to theextent directed above.



BEFORETHE HON'BLE DEVENDRA KUMAR

UPADHYAYA, J.

Service Single No. 1495 of 2015

Smt. Neha Sharma ...PetitionerVersus


Counsel for the Petitioner:Shivam Sharma

Counsel for the Respondents:C.S.C.

Constitution of India, Art.-226-Scope ofJudicial Review-essential qualification-forTGT(English)-3 years Bachelor's degreewith English subject-petitioner being M.A.(English) with 2 year English course ingraduation-claims appointment-held-withlimited scope of judicial review-neithermandamus can be issued to bring withingeligibility zone-nor can interfere-petitiondismissed.

Held: Para-17Thus, in view of the aforesaidpronouncements of Hon'ble Supreme

Court it can safely be summed up thatthe grounds of judicial review by thisCourt in exercise of its jurisdiction underArticle 226 of the Constitution of India ina case where challenge is made to theprescription of essential educationalqualification for a teaching post, is verylimited.

Case Law discussed:Civil Appeal No. 1010 of 2000; AIR 1965 SC491; [(1997) 1 SCC 253]; [(2007) 5 SCC 519];[(1990) 1 SCC 288; [(2008) 10 SCC 1].

(Delivered by Hon'ble Devendra KumarUpadhyaya, J.)

1. Heard Shri Ratnesh Chandra,learned counsel appearing for thepetitioner and learned Standing Counselappearing for the respondents.

2. These proceedings under Article226 of the Constitution of India have beeninstituted by the petitioner challenging theadvertisement dated 17.03.2015, in so faras it restricts selection to the post ofTrained Graduate Teacher (English) onlyto the candidates, who have graduatedwith English in all the three years of theirGraduation Course, to the exclusion ofcandidates credited with a degree of PostGraduation in English.

3. In effect, the petitioner challengesthe educational qualification prescribedby the respondent no.2 forselection/appointment as TrainedGraduate Teacher (English), according towhich, only those Graduates in Englishwill be eligible, who have studied Englishas a subject in all the three years of theirGraduation Course.

4. The State Government has taken adecision to establish Model Schools in theState of Uttar Pradesh and for the said

1 All] Smt. Neha Sharma Vs. State of U.P. & Ors. 429

purpose Rajya Model School Organization,Uttar Pradesh, has been established as aSociety. The purpose of establishing RajyaModel School Organization, it appears, isto establish Model Schools on the patternof Kendriya Vidyalayas establishedthroughout the country by KendriyaVidyalaya Sangathan. The Rajya ModelSchool Organization, Uttar Pradesh hasadvertised various teaching posts to befilled in these Model Schools, which are tobe established and affiliated with theCentral Board of Secondary Education,New Delhi.

5. As per the annexure no.3 annexedwith this petition, the essentialqualification prescribed for the post ofTrained Graduate Teacher in English isthat the candidate should possessGraduation Degree in English with 50%minimum marks along with the degree ofB.Ed./L.T. from a University establishedunder law or from any other Institution.

6. The petitioner is a Post Graduatein English from University of Lucknow.She is also possessed of a B.Ed. Degreefrom Indra Gandhi National OpenUniversity. Further, the petitioner has alsoqualified the Central Teacher EligibilityTest (CTET) conducted by the CentralBoard of Secondary Education, NewDelhi. The petitioner also possesses aGraduation Degree from LucknowUniversity. She studied Geography andPsychology as two subjects in the thirdand last year of her B.A. Course. In thefirst and second year of B.A. Course, thepetitioner had studied English as one ofthe subjects.

7. Submission of learned counsel forthe petitioner is that the petitionerpossesses a qualification higher than the

educational qualification prescribed bythe Rajya Model School Organization,and hence, she is better equipped to teachthe students, who are to be impartededucation in class VI to X. It has furtherbeen argued by the learned counsel for thepetitioner that if a candidate possesseshigher qualification than the essentialqualification prescribed, the same cannotbe permitted to come as a hurdle inhis/her way to seek public employment.

8. It has also been stated by thelearned counsel for the petitioner that theModel Schools being established by theState of Uttar Pradesh, are going to beaffiliated with Central Board ofSecondary Education for the purposes ofadmitting the students to participate in theexamination conducted by the said Boardand Central Board of SecondaryEducation has framed bye laws for thepurposes of regulating various aspects ofthe institutions, which are affiliated withit. He has further stated that the CentralBoard of Secondary Education affiliationbye laws prescribe qualification forappointment as Trained Graduate Teacher(English) as Graduation in/with thesubject, recognized Degree/Diploma inEducation and B.A.B.Ed. with English ofthe Regional College of Education. Hehas further submitted that since the ModelSchools are going to be affiliated withCentral Board of Secondary Education,hence, it was incumbent upon the RajyaModel School Organization to haveborrowed the qualification prescribed bythe Central Board of Secondary Educationin its affiliation bye laws.

9. Learned counsel for the petitionerin support of his submission that higherqualification should not come to thedisadvantage of a candidate seeking


employment, has relied upon a judgmentof Hon'ble Supreme Court in the case ofMohd. Riazul Usman Gani and ors. vs.District and Sessions Judge, Nagpur andothers, (Civil Appeal No.1010 of 2000),rendered on 11.02.2000.

10. Per contra, Shri PratyushTripathi and Shri Ajay Kumar, learnedStanding Counsels, have submitted thatthe qualification prescribed by the RajyaModel School Organization for the post ofTrained Graduate Teacher in English,have been borrowed from theprescriptions made for the said purpose bythe Kendriya Vidyalaya Sangathan. It hasalso been stated by the learned StandingCounsels that it is not only that thequalification for the post in question onlyhas been borrowed from the prescriptionsmade by the Kendriya VidyalayaSangathan, but it has been borrowed forall the teaching posts.

11. The question, thus, which callsfor determination by the Court is as towhether a candidate, possessing aMaster's Degree in English having studiedEnglish only in two years of his/herGraduation Course, instead of studyingEnglish in all the three years of thecourse, can be said to have been wronglyexcluded by the respondents from thezone of eligibility.

12. Before dealing with thesubmission advanced by the learnedcounsel for the petitioner in support of hiscase, it would be apt to state that this isnot the province of this Court in exerciseof its jurisdiction under Article 226 of theConstitution of India to go into andprescribe the essential qualification forselection/appointment on a post. In thecase of University of Mysore and Another

vs. C.D. Govinda Rao & another, reportedin AIR 1965 SC 491,it has been observedby Hon'ble Supreme Court that normallyit is wise and safe for the courts to leavethe decision of academic matters toexperts, who are more familiar with theproblems they face than the courtsgenerally can be.

13. It is equally well settledprinciple of law that it is the policy of theGovernment or the employer to create apost or to prescribe the qualification forthe post. The Court or any Tribunal isdevoid of any power to give any suchdirection. The judgment of Hon'bleSupreme Court in the case of theCommissioner, Corporation of Madras vs.Madras Corporation Teachers' Mandramand others, reported in [(1997) 1 SCC253] can be referred to in this regard. Yetanother judgment of Hon'ble SupremeCourt in the case of Bihar Public ServiceCommission and others vs. Kamini andothers, reported in [(2007) 5 SCC 519,can be mentioned to reiterate the aforesaidprinciple, wherein Hon'ble Supreme Courthas held that it is well settled that in thefield of education, a Court of Law cannotact as an expert.

14. In the case of J. Ranga Swamyvs. Government of Andhra Pradesh andothers, reported in [(1990) 1 SCC 288, ithas been held by the Supreme Court thatit is not for the Court to consider therelevance of qualifications prescribed forvarious posts.

15. Reference may also be had toanother judgment of Hon'ble SupremeCourt in the case of Official Liquidatorvs. Dayanand and others, reported in[(2008) 10 SCC 1], wherein it has beenlaid down by Hon'ble Supreme Court that

1 All] Smt. Neha Sharma Vs. State of U.P. & Ors. 431

though the decision of the employer tocreate or abolish posts or cadres or toprescribe the source or mode ofrecruitment and laying down thequalification, etc. is not immune fromjudicial review. However, the Court willalways be extremely cautious andcircumspect in interfering in such matters.

16. Para 59 of the aforesaidjudgment in the case of OfficialLiquidator (supra) is relevant which isquoted hereinbelow:

"The creation and abolition of posts,formation and structuring/restructuring ofcadres, prescribing the source and modeof recruitment and qualifications andcriteria of selection etc. are matters whichfall within the exclusive domain of theemployer. Although the decision of theemployer to create or abolish posts orcadres or to prescribe the source or modeof recruitment and laying down thequalification etc. is not immune fromjudicial review, the Court will always beextremely cautious and circumspect intinkering with the exercise of discretionby the employer. The Court cannot sit inappeal over the judgment of the employerand ordain that a particular post ornumber of posts be created or filled by aparticular mode of recruitment. Thepower of judicial review can be exercisedin such matters only if it is shown that theaction of the employer is contrary to anyconstitutional or statutory provisions or ispatently arbitrary or vitiated by malafides."

17. Thus, in view of the aforesaidpronouncements of Hon'ble SupremeCourt it can safely be summed up that thegrounds of judicial review by this Courtin exercise of its jurisdiction under Article

226 of the Constitution of India in a casewhere challenge is made to theprescription of essential educationalqualification for a teaching post, is verylimited.

18. It has been stated by the learnedStanding Counsel, which fact is notdisputed, that essential educationalqualification for all the posts in ModelSchools to be established by the State ofUttar Pradesh including the post ofTrained Graduate Teacher (English) hasbeen borrowed from the prescriptionmade for the said purpose by theKendriya Vidyalaya Sangathan.

19. One of the purposes, as observedabove, for establishing the Model Schoolsin the State of U.P. is to establish theseinstitutions on the pattern on whichKendriya Vidyalayas in the entire countryhave been established by KendriyaVidyalaya Sangathan, which functionsunder the aegis of Central Government.Thus, it cannot be said that educationalqualification prescribed for the post inquestion by the Rajya Model SchoolOrganization, U.P. is without any basis.

20. As already observed above, thequalification which has been prescribedfor the post in question has beenborrowed from the prescription made inthat regard by Kendriya Vidyalaya, hence,the ground being urged by the learnedcounsel for the petitioner that thequalification is unreasonable and withoutany basis, in so far as it excludes the PostGraduates in English from the zone ofeligibility is not tenable.

21. So far as the submission madeby the learned counsel for the petitionerthat since the institutions, which are going


to be set up by Rajya Model SchoolOrganization, are to be affiliated with theCentral Board of Secondary Education, assuch the qualification prescribed in theaffiliation bye laws framed by the saidBoard are binding and appointment ofteachers in these institutions should alsobe made in accordance with theprescriptions made in the affiliation byelaws is concerned, It may only beindicated that the said bye laws do notappear to be binding for the reason thatKendriya Vidyalaya established byKendriya Vidyalaya Sangathan, have alsobeen affiliated with the Central Board ofSecondary Education and KendriyaVidyalayas' prescription for appointmentto the post of TGT (English), isGraduation in English with the conditionthat the candidate should have studiedEnglish in all the thee years of hisBachelor's Course.

22. The last submission made by thelearned counsel for the petitioner on thebasis of judgment rendered by Hon'bleSupreme Court in the case of Mohd.Riazul Usman Gani and ors. (supra) that acriteria which denies a candidate his rightto be considered for appointment against apost on the ground that he is havinghigher qualification than the qualificationprescribed cannot be reasonable also doesnot have any bearing on the fate of thiswrit petition.

23. In the case of Mohd. Riazul UsmanGani and ors. (supra), the matter whichcaught attention of Hon'ble Supreme Courtwas in relation to appointment of peons inthe subordinate judiciary of the BombayHigh Court. The qualification prescribed forthe post of peon in the said case was "notlower than a pass in the Examination ofStandard IV in the Regional Language."

Certain candidates desirous of appointmentto the said post of peon were having higherqualification and at the time of short listing,the candidates having higher qualificationthan a pass in Examination of Standard IV,were excluded from the zone ofconsideration. Hon'ble Supreme Court whileexamining the rules relating to various posts,including the posts where recruitment wasmade by way of making promotion fromamongst the peons and qualification for suchhigher posts was higher than the qualificationprescribed for the post of peon, hasconsidered that in case a peon having higherqualification is excluded from the zone ofconsideration for appointment on the saidpost, then promotion to the posts fromamongst the peons, who did not fulfill therequirement of higher qualification, could notbe made. Further, Hon'ble Supreme Courthas decided the said case of Mohd. RiazulUsman Gani and ors. (supra) in the facts ofthe said case, relevant observations made byHon'ble Supreme Court in the said case is asfollows:

"A criterion which has the effect ofdenying a candidate his right to beconsidered for the post on the principle thathe is having higher qualification, thanprescribed cannot be rational. We have notbeen able to appreciate as to why thosecandidates who possessed qualificationsequivalent to SSC examination could alsonot be considered. We are saying this on thefacts of the case in hand and should not beunderstood as laying down a rule ofuniversal application."

(Emphasis supplied by the Court)

24. From a perusal of theaforequoted observations made byHon'ble Supreme Court in the case ofMohd. Riazul Usman Gani and ors.

1 All] Satyendra @ Maggan & Ors. Vs. State of U.P. & Anr. 433

(supra) makes it clear that the propositionthat a candidate cannot be denied hisparticipation for selection for appointmenton a post on the basis that he is havinghigher qualification, thus, cannot beapplied universally. The application of thesaid principle of law would depend on thefacts and circumstances of the case.

25. In the instant case, it is notknown as to whether the incumbent, whowould be appointed on the post of TGT(English) teacher, would have anyavenues of promotion. Even if thepromotional avenues are made availableto such TGT (English) teacher, whatwould be the eligibility criteria forpromotion to the higher post is also notknown. Thus, looking to the facts of thiscase, the judgment rendered by Hon'bleSupreme Court in the case of Mohd.Riazul Usman Gani and ors. (supra) doesnot come to the rescue of the petitioner.

26. At the cost of reiteration, it maybe stated that the fact that the respondentshave borrowed the qualification forappointment to the post in question on theprescriptions made in that regard byKendriya Vidyalaya Sangathan, itself issufficient to sustain the qualificationprescribed by the respondents which hasbeen challenged in this writ petition.

27. It may further be observed that inexercise of its jurisdiction under Article 226of the Constitution of India, neither theprescription made by the respondents forappointment to the post in question can beset aside nor any Mandamus can be issued toinclude the candidates having Post Graduatequalification in English within the eligibilityzone. Such matters, as observed above, are inthe exclusive domain of the employer or theGovernment being a policy matter.

28. For the reasons given anddiscussions made above in the precedingparagraphs, I do not find any illegality inthe impugned qualification prescribed bythe respondents for the post in question.

29. Accordingly, the writ petition isdismissed.

30. Before parting the case, I may,however, observe that for consideration ofcandidates having Post Graduatequalification in English for consideration ofappointment on the post of TGT (English),since such authority lies with the employer,it would be open to the petitioner to take upher cause before the authority concerned byway of making a representation. If thepetitioner in this regard makes arepresentation to the authority concernedraising all the pleas, which may be availableto her, the same shall be considered anddecided by the authority concerned withoutbeing influenced by any of the observationsmade hereinabove.

31. There will be no order as tocosts.



BEFORETHE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Criminal Revision No. 2120 of 2007

Satyendra @ Maggan & Ors. RevisionistsVersus

State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:Hira Lal

Counsel for the Opp. Parties:Govt. Advocate


Criminal Revision-Summoning order-complaint case-offence under section452, 504, 506, 379 IPC-summoningorder-without application of judicialmind-without going through statementsrecorded under section 202 Cr.P.C-not aproper order under prescribed procedureof law-quashed.

Held: Para-8In light of this legal position I have gonethrough the impugned order. A perusal ofthis order indicates that learnedMagistrate had written nothing concerningfacts of the case in hand. Neither anydiscussion of evidence was made, nor wasit considered as to which accused hadallegedly committed what overt act. Theaccused person of complaint weresummoned for offences mentioned in thatapplication. I doubt whether the learnedMagistrate had actually read statementsu/ss 200, 202 CrPC or the documents ofthe original file or not. No reason wasmentioned in the impugned order as towhat those documents contain, and howthey help the prosecution case. Impugnedorder clearly lacks the reflection ofapplication of judicial discretion or mind.Nothing is there which may show thatlearned Magistrate, before passing of theorder under challenge had considered factsof the case and evidence or law. Thereforeit appears that, in fact, no judicial mindwas applied before the passing ofimpugned order of summoning. Such ordercannot be accepted as a proper legaljudicial order passed after following dueprocedure of law.

Case Law discussed:1998 UPCrR 118; 2002 Cri.L.J. 996; 2003 (47)ACC 1017.

(Delivered by Hon'ble Pramod KumarSrivastava, J.)

1. This revision has been filedagainst the order dated 18-05-2007 passedby Judicial Magistrate- Chakia, Chandauliin criminal complaint case no. 777 / 2006

Mewa Prasad vs. Satyendra & Others, p.s.Baburi, Chandauli.

2. In complaint case before it, afterreceiving evidences under section 200 and202 CrPC from the complainant/ O.P. No.-2,the Court below had passed summoningorder dated 18-05-2007 by which accusedwere summoned for offences u/ss 452, 504,56, 379 IPC. Aggrieved by this impugnedorder one summoned accused persons hadpreferred present revision with prayer toquash the summoning order.

3. In ruling "M/s. Pepsi Food Ltd. &another vs. Special Judicial Magistrate &others, 1998 UPCrR 118" Hon'bleSupreme Court held :-

"Summoning of an accused in acriminal case is a serious matter. Criminallaw cannot be set into motion as a matter ofcourse. It is not that the complainant has tobring only two witnesses to support hisallegations in the complaint to have thecriminal law set into motion. The order of theMagistrate summoning the accused mustreflect that he has applied his mind to thefacts of the case and the law applicablethereto. He has to examine the nature ofallegations made in the complaint and theevidence both oral and documentary insupport thereof and would that be sufficientfor the complainant to succeed in bringingcharge home to the accused. It is not that theMagistrate is a silent spectator at the time ofrecording of preliminary evidence beforesummoning the accused. Magistrate had tocarefully scrutinize the evidence brought onrecord and may even himself put questions tothe complainant and his witnesses to elicitanswers to find out the truthfulness of theallegations or otherwise and then examine ifany offence is prima facie committed by allor any of the accused."

1 All] Satyendra @ Maggan & Ors. Vs. State of U.P. & Anr. 435

4. In ruling "Paul George vs. State,2002 Cri.L.J. 996" Hon'ble SupremeCourt held :-

"We feel that whatever be theoutcome of the pleas raised by theappellant on merit, the order disposing ofthe matter must indicate application ofmind to the case and some reasons beassigned for negating or accepting suchpleas.- - - - -

5. It is true that it may depend uponthe nature of the matter which is beingdealt with by the Court and the nature ofthe jurisdiction being exercised as to inwhat manner the reasons may be recordede.g. in an order of affirmance detailedreasons or discussion may not benecessary but some brief indication by theapplication of mind may be traceable toaffirm an order would certainly berequired. Mere ritual of repeating thewords or language used in the provisions,saying that no illegality, impropriety orjurisdictional error is found in thejudgment under challenge without even awhisper of the merits of the matter ornature of pleas raised does not meet therequirement of decision of a casejudicially."

6. In ruling "Chhaya William (Smt.)& others vs. State of U.P. & another, 2003(47) ACC 1017" this Court held :-

"I have carefully gone through thelaw laid down by Hon'ble Apex Court. Nodoubt on one hand the enquiry conductedunder section 202 Cr.P.C. does not needto be detailed enquiry or scrutiny ofevidence to that extent which is requiredfor the purposes of the trial or conviction,but at the same time, the Court has not tosit as a silent spectator. It must apply its

mind while passing order for the issue ofsummonses under section 204(1) of theCode of Criminal Procedure."

7. As held by superior Courts thepassing of order of summoning anyperson as accused is a very importantmatter, which initiates criminalproceeding against him. Such orderscannot be passed summarily or withoutapplying judicial mind.

8. In light of this legal position Ihave gone through the impugned order. Aperusal of this order indicates that learnedMagistrate had written nothingconcerning facts of the case in hand.Neither any discussion of evidence wasmade, nor was it considered as to whichaccused had allegedly committed whatovert act. The accused person ofcomplaint were summoned for offencesmentioned in that application. I doubtwhether the learned Magistrate hadactually read statements u/ss 200, 202CrPC or the documents of the original fileor not. No reason was mentioned in theimpugned order as to what thosedocuments contain, and how they help theprosecution case. Impugned order clearlylacks the reflection of application ofjudicial discretion or mind. Nothing isthere which may show that learnedMagistrate, before passing of the orderunder challenge had considered facts ofthe case and evidence or law. Therefore itappears that, in fact, no judicial mind wasapplied before the passing of impugnedorder of summoning. Such order cannotbe accepted as a proper legal judicialorder passed after following dueprocedure of law.

9. Therefore impugned order isquashed. Revision, accordingly, succeeds.


The case is remanded back to trial Courtwith direction to afford complainant theopportunity of hearing and pass afresh thespeaking order on point of summoning inlight of points discussed in the body ofjudgment.

--------

ORIGINAL JURISDICTIONCIVIL SIDE

DATED: LUCKNOW 07.04.2015

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

Service Single No. 2532 of 2014

Virendra Kumar Srivastava & Anr.Petitioners

VersusThe Hon'ble High Court of Judicature atAllahabad ...Respondent

Counsel for the Petitioner:Noorul Hasnain Khan, Mohan Singh

Counsel for the Respondent:Manish Kumar, Gaurav Mehrotra,Surendra Kumar Shukla

Provident Fund (U.P.) Rules, 1985, Rule-5 read with U.P. Retirement BenefitRules 1961-Rule 5(2)-Right andobligation of nominee-deceasedemployee ignoring his wife anddaughter-in service record-shown 'niece'as nominee-contrary to provisions ofRules 5(2)-nominee not entitled for anybenefit.

Held: Para-19As far as the appointment under Dying inHarness Rules is concerned, it isestablished from the documents broughton record by the official respondentsthat Smt. Vinita Srivastava and Km.Shilpi Srivastava are the wife anddaughter of the deceased. Furthermore,the petitioner do not fall within thedefinition of "family" under the 1974

Rules. Therefore, the action of theofficial respondents cannot be said to beunreasonable or legally unjustified.

Case Law discussed:2004 Vol. 106 (4) Bombay; 2011 (2) AWC1576 (SC)

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

1. Heard learned counsel for partiesand perused the record.

2. By means of present writ petition,petitioners have inter-alia prayed for awrit in the nature of mandamuscommanding the respondents to makepayment of the post death benefits of LateArvind Nath Srivastava together with12% interest and to consider the petitionerno. 1 for appointment under Dying inHarness Rules, 1974.

3. Submission of learned counsel forthe petitioners is that Late Arvind NathSrivastava was a peon in High Court,Lucknow Bench, Lucknow who died on26.5.2013 during service tenure. It hasbeen averred in the writ petition that sincethe relations between Late Arvind NathSrivastava and opposite parties no. 3 & 4( wife and daughter of deceased) werestrained and litigation were also going onbetween them, the deceased had deprivedthem from being nominee in the servicerecord and he was looked after bypetitioner no. 1. As the petitioner no. 1,Virendra Kumar Srivastava was malenominee in service record by the deceasedhe made an application to the SeniorRegistrar (opposite party no. 2) forpayment of post death benefits of LateArvind Nath Srivastava in their favour.On this application, the Joint Registrar(Accounts) of the Court vide letter dated

1 All] Virendra Kumar Srivastava & Anr. Vs. The Hon’ble High Court of Judicature at Allahabad 437

18.11.2013 asked for the SuccessionCertificate issued by the competentauthority for payment of amount underGroup Insurance Scheme.

4. According to petitioner, later on itcame to their knowledge that oppositeparties no. 3 & 4 (the wife and daughter)have also moved application before theconcerned authority for making paymentof post death benefits of Late Arvind NathSrivastava. Km. Shilpi Srivastava d/o lateArvind Nath Srivastava (opposite Partyno. 4) also moved an application on29.11.2013 for appointment oncompassionate ground under Dying inHarness Rules.

5. According to petitioners lateArvind Nath Srivastava was fullyneglected by his wife and daughter and inthat situation petitioners looked after theirreal uncle late Arvind Nath Srivastava,who under the love and affection on hisown sweet free will made the petitionernominee in his service record.

6. It has been contended that sincepetitioner has been made nominee, he isentitled to receive the post death benefitsof the deceased.

7. Refuting the allegations of thepetitioners, learned Counsel appearing forthe official respondents no. 1 and 2 (HighCourt etc.) submitted that petitioner no. 1is the nephew and petitioner no. 2 is nieceof the deceased employee Late ArvindNath Srivastava and as per Rules, they donot fall within the definition of ''Family'for the purpose of payment of post deathdues of the deceased. So far as filling ofNomination Form by the deceased isconcerned, Late Arvind Nath Srivastavahad shown petitioner no. 2 as daughter in

the column of relation, as would beevident from Annexure No. 3 enclosedwith the petition. In order to ascertaincorrect facts a legal heir verificationreport was sought from the office of theDistrict Magistrate, Lucknow, as well asfrom the office of District Magistrate, RaeBareli who in their reports have indicatedthat Smt. Vineeta Srivastava and Km.Shilpi Srivastava as wife and daughter ofthe deceased respectively. So far as claimof petitioner no. 1 is concerned, the samehas been rejected vide order dated12.7.2013, but quashing of this order hasnot been sought and as such, the saidorder is intact till today.

8. I have heard learned counsel forparties and gingerly perused the record.

9. Before dealing with the issueregarding release of post death dues infavour of the petitioners, who are said tobe the nephew and niece of the deceased,it is imperative to refer the definition ofnomination and family as laid down in theGeneral Provident fund (Uttar Pradesh)Rules, 1985. Rule 5 deals withnomination and reads as under:

"Nomination.--(1) A subscriber shallat the time of joining the Fund submit tothe Head of Department/Head of Office anomination conferring on one or morepersons the right to receive the amountthat may stand to his credit in the Fund inthe event of his death, before that amounthas become payable or, having becomepayable, has not been paid:

Provided that a subscriber who has afamily at the time of making thenominations shall make such nominationonly in favour of a member or membersof his family:


Provided further that the nominationmade by the subscriber in respect of anyother provident fund to which he wassubscribing before joining the fund shall,if the amount to his credit in such otherfund has been transferred to his credit inthe fund, be deemed to be a nominationduly made under this rule until he makes anomination in accordance with the rule.

10. At this juncture, it would also beuseful to reproduce the definition ofnomination and Family pension as laiddown in the U.P. Retirement BenefitRules, 1961.

11. Part II of the U.P. RetirementBenefit Rules, 1961 deals with the Death-cum-retirement Gratuity. Rule 5(2), whichis relevant for the present purpose, isreproduced herein-below;

Death-cum-retirement Gratuity :(1).....

(2) if an officer dies while in servicea gratuity, the amount of which shall,subject to a minimum of 12 times and amaximum of 16½ times the emoluments,be an amount equal to one-fourth of theemoluments of the officer multiplied bythe total number of six monthly periods ofqualifying service, shall be paid to theperson or persons on whom the right toreceive the gratuity is conferred undersub-rules (1) to (8) of Rule 6 and if thereis no such person, it shall be paid in themanner indicated in sub-Rule (9) of thatrule.

Rule 6(1) deals with the nominationand reads as under;

Nomination-(1). A Governmentservant shall, as soon as he acquires or ifhe already holds a lien on a permanentpensionable post, make a nomination

conferring on one or more persons theright to receive any gratuity that may besanctioned under sub-rule (2) or sub-rule(3) of the rule 5 and gratuity which afterbecoming admissible to him under sub-rule (1) of that rule is not paid to himbefore death.

Provided that if at the time of makingthe Notification the officer has a familythe nomination shall not be in favour ofany person other than one or more of themembers of his family.

12. Rule-7 deals with the FamilyPension, which reads as under;

Family Pension -(1). The familypension not exceeding the amountspecified in sub-Rule (2) below may begranted for a period of ten years to thefamily of an officer who dies, whetherafter retirement or while still in serviceafter completion of not less than 20 yearsqualifying service.

Provided that the period of paymentof family pension shall in no case extendbeyond a period of five years from thedate on which the deceased officerreached or would have reached the age ofcompulsory retirement.

13. The word "family has also beendefined in U.P. Government ServantsDying in Harness Rules, 1974, which isbeing reproduced herein-under:-.

"2(c)'family' shall include thefollowing relations of the deceasedGovernment servant:

(i) wife or husband;(ii) sons/adopted sons;(iii) unmarried daughters, unmarried

adopted daughters, widowed daughtersand widowed daughters-in-law;

1 All] Virendra Kumar Srivastava & Anr. Vs. The Hon’ble High Court of Judicature at Allahabad 439

(iv) unmarried brothers, unmarriedsisters and widowed mother dependent onthe deceased Government servant, if thedeceased Government servant wasunmarried;

(v) aforementioned relations of suchmissing Government servant who hasbeen declared as "dead" by the competentcourt;

Provided that if a person belongingto any of the above mentioned relations ofthe deceased Government servant is notavailable or is found to be physically andmentally unfit and thus, ineligible foremployment in Government service, thenonly in such situation the word "family"shall also include the grandsons and theunmarried grand daughters of thedeceased Government servant dependenton him."

5. Recruitment of a member of thefamily of the deceased-(1) In case ofGovernment servant dies in harness afterthe commencement of these rules and thespouse of the deceased Governmentservant is not already employed under theCentral Government or a StateGovernment or a Corporation owned orcontrolled by the Central Government or aState Government, one member of hisfamily who is not already employed underthe Central Government or a StateGovernment or a Corporation owned orcontrolled by the Central Government or astate Government shall, on making anapplication for the purposes, be given asuitable employment in Governmentservice on a post except the post which iswithin the purview of the Uttar PradeshPublic Service Commission, in relaxationof the normal recruitment rules if suchperson-

(i) fulfills the educationalqualifications prescribed for the post,

(ii) is otherwise qualified for theGovernment service, and

(iii) makes the application foremployment within five years the date ofthe death of Government servant:-

Provided that where the StateGovernment is satisfied that the time limitfixed for making the application foremployment causes undue hardship in anyparticular case, if may dispense with orrelax the requirement as it may considernecessary for dealing with the case in ajust and equitable manner.

14. As averred above Rule 6 of theUttar Pradesh Retirement Benefit Rules,1961 provides that at the time of makingnomination, if the officer has a family, thenomination shall not be in favour of anyperson other than one or more of themembers of his family. From the perusalof the nomination form available onrecord, it is evident that late Arvind NathSrivastava nominated Ms. RanjanaSrivastava his niece mentioning her as hisdaughter, despite the fact that his ownfamily member i.e. daughter and wifewere present and as such the nominationmade by late Arvind Srivastava is in totalbreach contravention of U.P. RetirementBenefit Rules, 1961 Rules. As far as theassertion of the petitioner that as towhether the deceased was informed aboutthe nomination being made by him is notadmissible in law, has no relevancy as lateArvind Nath Srivastava has shown Km.Ranjana Srivastava as daughter in thecolumn of relations, and there was nooccasion for the department to disbeliefthe statement of fact given by thedeceased. The doubt arose when morethan one person came forward to claimpost-death service benefits.


15. In the case of (GangubaiBhagwan Salawade & others vs. Smt.Chimanabai Suryabhan Salawade &others) reported in 2004 Vol. 106(4)Bombay, it has been held that at the timeof making nomination, it must be made infavour of one of the members of hisfamily. Relevant paragraph 5 of thejudgment reads as under:-

"It is no doubt true that once there isa nomination, the amounts must be paidover to the nominee under the Payment ofGratuity Act. A nominee can be anyperson who belongs to the family of thedeceased. Section 6 of the Act makes itclear that if the employee has a family atthe time of making nomination, thenomination must be made in favour ofone of the members of his family. Anynomination made by the employee infavour of a person who is not a memberof his family is void. If the employee atthe time of making a nomination has nofamily but subsequently acquires a family,the nomination made earlier becomesinvalid and a fresh nomination must bemade by the employee in favour of themembers of his family. "Family" has beendefined under section 2(h) of the Act. Inrelation to a male employee the wordincludes his wife, his children whethermarried or unmarried, his dependentparents and the dependent parents of hiswife and the widow and children of hispredeceased son."

16. In Ram Chander Talwar andanother vs. Devender umar Talwar andothers; 2011 (2) AWC 1576 (SC), theApex Court, while dealing with Section45 ZA of the Banking Regulation Act, hasheld that nominee of depositor has right toreceive money lying in account ofdepositor after his death but he is not

owner of money, so received. In thiscontext paragraph 5 of the aforesaidjudgment is being reproduced as under:-

" Section 45 ZA (2) merely puts thenominee in the shoes of the depositorafter his death and clothes him with theexclusive right to receive the money lyingin the account. It gives him all the rightsof the depositor so far as the depositor'saccount is concerned. But by no stretch ofimagination makes the nominee the ownerof the money lying in the account. Itneeds to be remembered that the BankingRegulation Act is enacted to consolidateand amend the law relating to banking. Itis in no way concerned with the questionof succession. All the monies receivableby the nominee by virtue of Section 45ZA (2) would, therefore, form part of theestate of the deceased depsoitor anddevolve according to the rule ofsuccession to which the depositor may begoverned.

17. Thus, it is evident that bynomination a person is authorized toreceive the benefits from suchmembership in the event of death of theperson, who had nominated him. It doesnot amount to a bequest in favour of thenominee; nor does it create any right inthe nominee except to collect it. Putting itdifferently, a nomination made by aperson in favour of another does notcreate a title in the property. It is onlymeant to provide for the interregnumbetween the death and the fulladministration of the estate and does notconfer any permanent right to the propertyforming part of estate of the deceased. .

18. It would be pertinent to mentionhere that the claim of the petitioner no.1has been rejected by the official

1 All] Hansaram Mishra Vs. State of U.P. & Ors. 441

respondents vide order dated 12.7.2013which was communicated vide orderdated 15.7.2013 but surprisingly, neitherany disclosure about the aforesaid orderof rejection has been made in the writpetition nor the quashing of the said orderhas been sought in the writ petition.

19. As far as the appointment underDying in Harness Rules is concerned, it isestablished from the documents broughton record by the official respondents thatSmt. Vinita Srivastava and Km. ShilpiSrivastava are the wife and daughter ofthe deceased. Furthermore, the petitionerdo not fall within the definition of"family" under the 1974 Rules. Therefore,the action of the official respondentscannot be said to be unreasonable orlegally unjustified.

20. It may be added that during thecourse of arguments, it has been broughtto the notice of the court that thepetitioners have entered into acompromise with the wife of deceasedArvind Nath Srivastava, who is privaterespondent in the present proceedings. Asper compromise, all post death beneifitsof Late Arvind Nath Srivastava shall bepaid in equal share to the petitioners. Thewife-respondent shall receive familypension and the petitioners and otherprivate respondents would have noobjection with regard to compassionateappointment to Km.Shilpi Sriavasta.

21. Having examined the matter inthe light of the relevant Rules, referred toabove, the compromise said to have beenentered into between the parties, cannotbe said to be a valid document in the eyesof law, as the same is against theprovisions of law because in presence ofreal daughter and wife of the petitioner,

the court cannot direct the officialrespondents to make payment of postdeath benefits in favour of the petitioners.Needless to say, that the court cannot gocontrary to rule to recognize thecompromise. In other words, by consentor agreement, parties cannot achieve whatis contrary to law and the court is notbound to accept the compromise enteredinto between the parties to the legalproceedings.

22. In view of the aforesaid detaildiscussions, the petitioner is not entitledfor any relief and the writ petition ishereby dismissed. The officialrespondents shall make the payment ofpost death benefits, family pension anddealt the matter of compassionateappointment strictly in accordance withrelevant rules.



BEFORETHE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Writ-A No. 42556 of 2013

Hansaram Mishra ...PetitionerVersus


Counsel for the Petitioner:Sri Anil Kumar


Constitution of India, Art.-226-Dismissalfrom service-without opportunity ofpersonal hearing-without supply of enquiryreport-without opportunity to cross-examine the witness-held-Principle ofNatural Justice violated-quashed on groundof disproportionate punishment also.


Held: Para-9 & 229. Learned counsel for the petitionersubmits that the impugned order dated15.07.2013 passed by respondent No. 3and order dated 01.08.1994 passed bythe respondent No. 1 cannot besustained on the ground that thedisciplinary proceedings were vitiated inlaw and as such no opportunity ofpersonal hearing had ever been affordedto the petitioner nor even the inquiryreport had been supplied to him andfurther submits that even he had notbeen permitted to cross-examine thewitnesses, therefore, the completeinquiry was against the principles ofnatural justice.

22. Considering the facts andcircumstances of the case, the punishmentawarded to the petitioner of dismissalfrom service is too harsh and totallydisproportionate to the charges, for whichhe had been found guilty. The punishmentof dismissal from service are resorted onlyif there is very grave misconduct. Thepunishment from dismissal from serviceimposed on the petitioner is too harsh andis liable to be set-aside.

Case Law discussed:AIR 1998 SC 3038; AIR 2000 SC 277; 2003 (1)AWC 84 (SC); 2002(3) UPLBEC 2799; AIR 1987SC 2386; AIR 1994 SC 215; 2001 (4) AWC 2630,2002 Lab IC 259.

(Delivered by Hon'ble Mahesh ChandraTripahi, J.)

1. Heard Sri Ram Krishna and SriAnil Kumar, learned counsels for thepetitioner and Sri Pankaj Rai, learnedAdditional Chief Standing Counsel for therespondents.

2. By means of the present writ petition,the petitioner has prayed for quashing theimpugned order dated 15.07.2013 passed byrespondent No. 3 and order dated 01.08.1994passed by the respondent No. 1.

3. After exchange of affidavits, thewrit petition is disposed of finally.

4. Brief facts giving rise to the presentwrit petition are that the petitioner wasappointed as regular Sahkari Kurk Amin oncommission basis in the year 1978 inKishan Sewa Sahkari Samiti PakariyaHakim Puwayan, Sahjahanpur in the payscale of Rs. 354-350. The appointmentletter has been brought on record asAnnexure No. 1 to the writ petition.

5. It has been averred in the writpetition that the petitioner had lodged anF.I.R., against one Sri Satnam Singh,against whom an allegation had beenlevelled that he had kidnapped thepetitioner and the petitioner was rescued bythe people of the locality and on the sameday one F.I.R. had also been lodged by SriBhupendra Tripathi, Planning Director ofZila Gram Vikas Adhikaran, Shahjahanpuragainst the petitioner regarding the allegeddemand of Rs. 500/- as bribe from SriSatnam Singh and in this regard an F.I.R.,had been lodged under Sections 395, 224,225, 333, 427, 161 and 323 IPC and Section5 (2) of Prevention of Anti Corruption Act.The same was registered as Case Crime No.10 of 1993. The petitioner against the saidF.I.R. had filed criminal case and this Courtvide order dated 17.02.1993 had passedinterim order in favour of the petitioner withfollowing observations:-

"Standing Counsel desires and isgranted one month's time to file counteraffidavit. The rejoinder affidavit may befiled within two weeks next. List thereafterfor hearing on admission.

In the meanwhile and until furtherorders, both investigation and the arrestof the petitioner shall remain stayed."


6. The District Magistrate,Shahjahanpur vide order dated 20.01.1993had suspended the petitioner on the basisof the allegations which were levelledagainst the petitioner as per the FirstInformation Report. Aggrieved with theorder dated 20.01.1993, the petitioner hadfiled writ petition and the same had beendisposed of vide order dated 02.04.1993with direction to the respondents tocomplete the disciplinary proceedingagainst petitioner within three months.Thereafter, the petitioner had beencharge-sheeted on 15.03.1994 and inresponse he has submitted reply on02.04.1994. Thereafter, the petitioner hadreceived show cause notice dated23.04.1994 sent by the respondent No. 1stating therein that all the charges againstthe petitioner were found to be correct asper inquiry report and if the petitioner isto say anything, he may submit hisresponse.

7. It has been averred in the writpetition that no copy of the inquiry reporthad ever been given to the petitioner andthe same had been conducted behind hisback and no opportunity had beenafforded to the petitioner and further thepetitioner had been denied the right tocross-examine the witnesses. It appearsfrom the record that in spite of thecategorical direction issued by this Courtfor concluding the inquiry in the matterbut the same had not taken place withinstipulated time. The petitioner wascompelled again to approach this Court bymeans of Contempt Petition No. 1120 of1994 and the Hon'ble Contempt Courtvide order dated 22.07.1994 had issuednotices to the respondent No. 1. Afterreceiving notices, the petitioner hadreceived communication dated02.09.1994 by which it had been indicates

that the petitioner's service had alreadybeen terminated vide order dated01.08.1994. It has also been averred thatthe petitioner had assailed the terminationorder dated 01.08.1994 through WritPetition No. 33183 of 1994 andmeanwhile, the petitioner had also movedan application to the State Governmentthrough Commissioner with prayer forinitiation of fresh inquiry. Thereafter, videletter dated 01.05.2003, the DistrictAssistant Registrar Co-operative Societydirected the Additional DevelopmentOfficer (Co-operative) to conduct the freshenquiry in the matter and as per thedirection the Additional DevelopmentOfficer (Co-operative) conducted theinquiry and submitted report on 06.05.2003.Meanwhile, the police has also inquired intothe matter in pursuance to the directionissued by this Court dated 14.10.2003 andafter conducting the inquiry theinvestigating officer had submitted finalreport on 22.12.2007. It is categoricallyaverred in the Paragraph No. 30 of the writpetition that learned Sessions Judge,Shahjahanpur vide order dated 16.07.2008had accepted the final report.

8. It is relevant to mention at thisstage that the petitioner who had filedearlier writ petition which was pendingconsideration before this Court wasfinally disposed of vide order dated08.1.2012 with observation that thepetitioner may filed appeal before theDivisional Commissioner under Rule 11of the Uttar Pradesh Government Servant(Discipline & Appeal) 1999 and the samemay be considered and decided withintwo months. The Commissioner, BareillyDivision, Bareilly vide order dated15.07.2013 had dismissed the appeal. Thesame is assailed by means of the presentwrit petition.


9. Learned counsel for the petitionersubmits that the impugned order dated15.07.2013 passed by respondent No. 3and order dated 01.08.1994 passed by therespondent No. 1 cannot be sustained onthe ground that the disciplinaryproceedings were vitiated in law and assuch no opportunity of personal hearinghad ever been afforded to the petitionernor even the inquiry report had beensupplied to him and further submits thateven he had not been permitted to cross-examine the witnesses, therefore, thecomplete inquiry was against theprinciples of natural justice.

10. Learned counsel for thepetitioner further submits that theallegation had been levelled against thepetitioner for asking bribe of Rs. 500/-from on Sri Satnam Singh against whomhe had firstly lodged the F.I.R., thecomplete story was concocted and haddeliberately implicated him just only tomalign and tarnish the image of thepetitioner. He further submits that in thepresent matter, the police had inquiredinto the matter and investigatedthoroughly regarding the allegedincidence and once it had beeninvestigated by the police department andsubmitted the final report and further thesame had been accepted by the learnedSessions Judge on 16.07.2008, then inview of the aforesaid circumstances, theimpugned order cannot be sustained andpetitioner cannot be held for guilty ofsuch petty offence and whereas thedepartmental inquiry had been taken placein violation of principles of naturaljustice. Therefore, the order impugnedcannot be sustained.

11. Sri Pankaj Rai, learnedAdditional Chief Standing Counsel

submits that in the departmentalproceeding, the petitioner had been givenample opportunity to defend himself andin the departmental inquiry, he was foundto be guilty even his departmental appealhas also been rejected, therefore, at thisstage, he cannot be permitted to submitthat the inquiry was in violation of theprinciples of natural justice. He furthersubmits that the criminal proceedings areentirely different even if the final reporthad been submitted in the criminal matter,even though the departmental proceedingwould not be vitiated and the petitioner isnot entitled for any relief in this regard.

12. Heard rival submissions oflearned counsel for the parties andperused the record.

13. Bare perusal of the impugnedorders, the allegation which had beenlevelled by one Sri Satnam Singh S/o SriGurdeep Singh who was admittedly thedefaulter and had moved a representationto the District Magistrate that thepetitioner had asked Rs. 500/- from himand, therefore, he may be apprehended,therefore, the direction was issued on18.01.1993 to Superior Officers toapprehend the petitioner on the spot and ithas been alleged that the petitioner wasapprehended while receiving Rs. 500/-and once he was caught, he misbehaved tothe Superior Officers. It is relevant tonotice at this stage, that the said plot hadbeen designed on the dictate of a defaulterand as per departmental inquiry, nothingconcrete had been established regardingthe alleged incidence. Once after thoroughinquiry, the police department hadsubmitted final report regarding thealleged incidence and not found thepetitioner guilty for taking any bribe thenthe order impugned cannot be sustained in


the light of the aforesaid facts andcircumstances whereas in the departmentalinquiry, the procedure was flagrantlyviolated. Even the inquiry report had notbeen supplied to the petitioner and he hadbeen denied for the cross-examination in thesaid proceedings.

14. The aforementioned facts wouldeventually prove that there were variousflaws in the inquiry process, the allegationwas levelled against petitioner by a personwho was admittedly defaulter, his versionhas been taken as sacrosanct by thedepartment and no efforts had been madeto find out the correct facts by thedepartment and even his past servicerecord had not been taken intoconsideration, very leisurely allegationswere made and complainant version wastaken as gospel truth and every effortswere made just to nab the petitioner. Asalready noticed above, since the charge onwhich punishment has been imposed onbehest of the defaulter, even though samewas thoroughly investigated by the policeand once the final report had beensubmitted in favour of the petitioner andfurther whole departmental inquiry wasmade in violation to natural justice, thenwhat is left to be considered andexamined by this Court as to whetherpunishment imposed was commensuratewith the said charges.

15. Learned counsel for thepetitioner has relied upon the judgmentpassed in State of U.P. Vs. ShatrughanLal and another, AIR 1998 SC 3038. Forready reference, paragraph Nos. 4, 5, 6, 7,9 & 10 are reproduced herein below:-

"4. Now, one of the principles ofnatural justice is that a person againstwhom an action is proposed to be taken has

to be given an opportunity of hearing. thisopportunity has to be an effectiveopportunity and not a mere pretence. Indepartmental proceedings where charge-sheet is issued and the documents which areproposed to be utilised against that personare indicated in the charge sheet but copiesthereof are not supplied to him in spite of hisrequest, and he is, at the same time, calledupon to submit his reply, it cannot be saidthat an effective opportunity to defend wasprovided to him. (see: Chandrama Tewarivs. Union of India 1987 (Supp.) SCC 518:AIR 1988 SC 177; Kashinath Dikshita vs.Union of India & Ors. 1986 (3) SCC 229:AIR 1986 SC 2118; State of Uttar Pradeshvs. Mohd. Sharif (1982) 2 SCC 376: AIR1982 SC 937).

5. In High Court of Punjab &Haryana vs. Amrik Singh 1995 (Supp.) 1SCC 321, it was indicated that thedelinquent officer must be supplied copiesof documents relied upon in support of thecharges. It was further indicated that ifthe documents are voluminous and copiescannot be supplied, then such officer mustbe given an opportunity to inspect thesame, or else, the principles of naturaljustice would be violated.

6. Preliminary inquiry which isconducted invariably on the back of thedelinquent employee may, often,constitute the whole basis of the charge-sheet. Before a person is, therefore, calledupon to submit his reply to the chargesheet, he must, on a request made by himin that behalf, be supplied the copies ofthe statements of witnesses recordedduring the preliminary enquiryparticularly if those witnesses areproposed to be examined at thedepartmental trial. This principle wasreiterated in Kashinath Dikshita vs.


Union of India & Ors. (1986) 3 SCC 229(supra), wherein it was also laid downthat this lapse would vitiate thedepartmental proceedings unless it wasshown and established as a fact that non-supply of copies of those document in hisdefence.

7. Applying the above principles tothe instant case, it will be seen that thecopies of the documents which wereindicated in the charge sheet to be reliedupon as proof in support of articles ofcharges were not supplied to therespondent nor was any offer made to himto inspect those documents.

9. This paragraph of the writtenstatement contains an admission of theappellant that copies of the documentsspecified in the charge sheet were notsupplied to the respondent as therespondent had every right to inspectthem at any time. This assertion clearlyindicates that although it is admitted thatthe copies of the documents were notsupplied to the respondent and althoughhe had the right to inspect thosedocuments, neither were the copies givento him nor were the records madeavailable to him for inspection. If theappellant did not intend to give copies ofthe documents to the respondent, it shouldhave been indicated to the respondent inwriting that he may inspect thosedocuments. Merely saying that therespondent could have inspected thedocuments at any time is not enough. Hehas to be informed that the documents, ofwhich the copies were asked for by himmay be inspected. The access to recordmust be assured to him.

10. It has also been found thatduring the course of the preliminaryenquiry, a number of witnesses wereexamined against the respondent in hisabsence, and rightly so, as the delinquents

are not associated in the preliminaryenquiry, and thereafter the charge sheetwas drawn up. The copies of thosestatements, though asked for by therespondent, were not supplied to him.Since there was a failure on the part ofthe appellant in this regard too, theprinciples of natural justice were violatedand the respondent was not afforded aneffective opportunity of hearing,particularly as the appellant failed toestablish that non-supply of the copies ofstatements recorded during preliminaryenquiry had not caused any prejudice tothe respondent in defending himself. "

16. Learned counsel for thepetitioner has also relied upon thejudgment passed in Hardwari Lal. Vs.State of U.P. and others, AIR 2000 SC277. For ready reference, paragraph Nos.3 & 5 are reproduced herein below:-

3. Before us the sole ground urged isas to the non-observance of the principlesof natural justice in not examining thecomplainant, Shri Virender Singh, andwitness, Jagdish Ram. The Tribunal aswell as the High Court have brushedaside the grievance made by the appellantthat the non-examination of those twopersons has prejudiced his case.Examination of these two witnesses wouldhave revealed as to whether the complaintmade by Virender Singh was the bestperson to speak to its veracity. So also,Jagdish Ram, who had accompanied theappellant to the hospital for medicalexamination, would have been animportant witness to prove the state or thecondition of the appellant. We do no thinkthe Tribunal and the High Court werejustified in thinking that non-examinationof these two persons could not bematerial. In these circumstances, we are


of the view that the High Court and theTribunal erred in not attachingimportance to this contention of theappellant.

5. In the circumstances, we aresatisfied that there was no proper enquiryheld by the authorities and on this shortground we quash the order of dismissalpassed against the appellant by settingaside the order made by the High Courtaffirming the order of the Tribunal anddirect that the appellant be reinstated inservice. Considering the fact of long lapseof time before the date of dismissal andreinstatement, and no blame can be poutonly on the door of the respondents, wethink it appropriate to award 50 per centof the back salary being payable to theappellant. We thus allow the appeal, filedby the appellant. However, there shall beno order as to costs.

17. In the case of State of U.P. v.Ramakant Yadav, 2003 (1) AWC 84 (SC); 2002 (3) UPLBEC 2799, the SupremeCourt reversed the order of the HighCourt whereby the punishment had beenreduced to reinstatement in service onpayment of 50% of back wages with awarning to the delinquent, and held thatthe High Court ought not to haveInterfered with the quantum ofpunishment in the facts of that case. TheSupreme Court in the case of State of U.P.v. Ashok Kumar Singh, AIR 1996 SC736, held that where the employee hadabsented himself from duty without leaveon several occasions, the High Court wasnot correct in holding that his absencefrom duty would not amount to such agreat charge so as to impose the penaltyof dismissal from service.

18. On the contrary the Apex Courtin the case of Ranjit Thakur v. Union of

India and Ors., AIR 1987 SC 2386, hasheld that "the question of the choice andquantum of punishment is within theJurisdiction and discretion of the Court-Martial. But the sentence has to suit theoffence and the offender. It should not bevindictive or unduly harsh. It should notbe so disproportionate to the offence as toshock the conscience and amount in itselfto conclusive evidence of bias. Thedoctrine of proportionality, as part of theconcept of judicial review, would ensurethat even on an aspect which is,otherwise, within the exclusive provinceof the Court-Marital, if the decision of theCourt even as to sentence is an outrageousdefiance of logic, then the sentence wouldnot be immune from correction.Irrationality and perversity are recognizedgrounds of judicial review."

19. In the case of Union of India andothers v. Giriraj Sharma, AIR 1994 SC215, the Apex Court held that over-staying of leave subsequent to the order ofrejection of application for extension ofleave could not be considered to be asever enough charge to warrantpunishment of dismissal from service andthe same was held to be harsh anddisproportionate. A Division Bench ofthis Court in the case of Harpal Singh v.State Public Services Tribunal, Lucknowand Ors. 2000 (2) AWC 1075 : 2000 (86)FLR 334, held that where it was onaccount of negligence of the constable ofthe G.R.P. that one passenger wasmisbehaved with and was murdered, thesame could not be a case of seriousmisconduct and held that the punishmentof dismissal from service was totallydisproportionate to the offence and thusdirected reinstatement of the employee inservice, with half back wages and alsoordered that he be given a severe warning.


Further, in the case of Alexandar Pal Singhv. Divisional Operating Superintendent,1987 (2) ATC 922 (SC), the Supreme Courtheld that ordinarily the Court or Tribunalcannot interfere with the discretion of thepunishing authority in imposing particularpenalty but this rule has an exception. If thepenalty imposed is grossly disproportionatewith the misconduct committed, then theCourt can interfere. The railway employeeon being charged with negligence in notreporting to the railway hospital for treatmentwas removed from service. The SupremeCourt found it fit to interfere with thepunishment of removal from service andmodified it to withholding of twoIncrements.

20. A Division Bench of this Courtin the case of Suresh Kumar Tiwari v.D.I.G., P.A.C. and Anr., 2001 (4) AWC2630, 2002 Lab IC 259, has, whilereiterating the view of the Supreme Court,held that the High Court normally doesnot interfere with the quantum ofpunishment unless the punishment shocksthe conscience of the Court.

21. In the light of the law laid downby the Apex Court as well as this Court,in my view the broad principle whichemerges is that normally, it is thedisciplinary authority which should bebest left with the duty of imposing thepunishment after considering the facts andcircumstances of the case. However, it iswell settled that in case, if on the admittedfacts, the punishment imposed is grosslydisproportionate to the offence, whichshocks the conscience of the Court, theCourt has the power and jurisdiction tointerfere with the punishment imposed.

22. Considering the facts andcircumstances of the case, the punishment

awarded to the petitioner of dismissalfrom service is too harsh and totallydisproportionate to the charges, for whichhe had been found guilty. The punishmentof dismissal from service are resortedonly if there is very grave misconduct.The punishment from dismissal fromservice imposed on the petitioner is tooharsh and is liable to be set-aside.

23. Accordingly, the impugnedorder dated 15.07.2013 passed byrespondent No. 3 and order dated01.08.1994 passed by the respondent No.1 cannot be sustained and are quashed.

24. In view of above, the writpetition is allowed with the direction tothe respondents concerned to pay to thepetitioner half of the salary since removalfrom the department on basis of no workno pay and further respondents to payentire arrears within two months timefrom the date of production of a certifiedcopy of this order.



BEFORETHE HON'BLE SURYA PRAKASH KESARWANI, J.

Writ-C No. 46759 of 2014

Mohd. Wazid ...PetitionerVersus

The Presiding Officer Cen. Govt. & Anr....Respondents

Counsel for the Petitioner:Sri Ranjeet Asthana, Sri AbhishekSrivastava

Counsel for the Respondents:Sri Anadi Krishna Narayana, Sri Ashok Kr.Lal

1 All] Mohd. Wazid Vs. The Presiding Officer Cen. Govt. & Anr. 449

Constitution of India, Art.-226-Rejection ofclaim-for back wages mainly on ground-workman failed to proof of working forcertain period-while petitioner workmanalready moved to summon the record andalso vehemently pressed-but no orderpassed-held-in view of ‘Director fisheriesTerminal Department’-award-unsustainable-matter remitted back for fresh consideration.

Held: Para-8I find that that the petitioner haspressed his application for summoning ofthe relevant document, however, therespondent No.1 did not pass any orderon the said application and merelyobserved in concluding paragraph No.23of the impugned award that "I do notfind that there is any malafide intentionof the opposite party in withholding therecords because the opposite party, theirwitnesses have specifically stated thatthe workman did not work during theperiod 2005-06." Thus the respondentNo.1 merely relied upon the allegationsmade by the Respondent No.2. Noreasons have been assigned by theRespondent No.1 for the aforesaidconclusion. The Respondent No.1 shouldhave considered the application of thepetitioner for summoning of the recordsand should have directed theRespondent no.2 to produce the recordsin evidence. The action of theRespondent No.2 in not doing so cannotbe sustained in view of the law laid downby Hon'ble Supreme Court in the cases ofDirector, Fisheries Terminal Department(supra) and R.M. Yellatti (supra).

Case Law discussed:(2011) 2 SCC (L & T) 153; (2010) 1 SCC (L &T)1 , (2010) 1 SCC 47.

(Delivered by Hon'ble Surya PrakashKesarwani, J.)

1. Heard Sri Ranjeet Asthana,learned counsel for the petitioner. No oneappears on behalf of the Respondent No.2even in the revised call.

2. Briefly stated the facts of thepresent case are that undisputedly thepetitioner was engaged on temporarybasis by the Respondent No.2 asmessenger at Naini Branch, Allahabad forthe period from 6.5.2000 to 8.9.2004.However, according to the petitioner hecontinuously worked from 6.5.2000 till4th November, 2006 on which date hisservices were illegally terminated by theRespondent No.2. Thereafter he raised anindustrial dispute and the CentralGovernment vide order dated 7.1.2008referred the following question to theprescribed authority:

"2. Whether the action of themanagement of Bank of Baroda, interminating the services of Sri Mohd.Wazid Messenger, with effect from4.11.2006 is justified and legal? If not towhat relief the concerned workman isentitled to?"

3. It appears that the aforesaidreference was registered as IndustrialDispute Case No. 25 of 2008. During thecourse of proceeding in the aforesaidIndustrial Dispute case, before theRespondent No.1 the petitioner filed 25documents and the Respondent No.2 filed10 documents. The Respondent No.2produced two witnesses, namely, Sri RamPalat (MW-1), who was an officer of thebank and Sri Manglesh Dubey (MW-2).The witnesses were examined. As perimpugned award the petitioner filedphotostat copies of some vouchers. Hemoved an application dated 26th October,2009 before the Respondent No.1 forsummoning certain documents. Despitethe application moved by the petitioner,the records were not summoned.Although in the impugned award theRespondent No.1 noted the facts in some


detail but he rejected the claim of thepetitioner without consideration to thefacts of the case and his application forsummoning of the records. The relevantportion of the impugned award isreproduced below:

"22. I have respectfully gone throughthe principle laid down by the Hon'bleApex Court, but considering the facts andcircumstances of the present case, I am ofthe view that the workman cannot takeany benefit from this decision.

23. I have examined the contention ofthe workman that the opposite party didnot file the relevant documents relating tothe period 2005-06. I do not find thatthere is any malafide intention of theopposite party in withholding the recordsbecause the opposite party, theirwitnesses have specifically stated that theworkman did not work during the period2005-06. This fact can also be reliedbecause when the workman himself isfiling all the related vouchers etc. then hecould not have also filed the other entiredocument relating to the period 2005-06,but there is no such document which mayprove that the workman has completed240 days of continuous working.Therefore, the workman has miserablyfailed to prove this case.

24. Reference is therefore, decidedagainst the workman and in favour of themanagement."

4. From paragraph No. 21 of theimpugned award it is evident that thepetitioner pressed his application forsummoning of the records and also reliedupon a judgment of Hon'ble SupremeCourt in the case of Devinder Singh Vs.Municipal Council Sanaur (2011) 2 SCC(L&T) 153.

5. In the case of Devender Singh(supra) while dealing with the industrialdispute under Section 25 of the Act, theHon'ble Supreme Court held as under:

"12. Section 2 (s) contains anexhaustive definition of the term"workman". The definition takes within itsambit any person including an apprenticeemployed in any industry to do anymanual, unskilled, skilled, technical,operational, clerical or supervisory workfor hire or reward and it is immaterialthat the terms of employment are notreduced into writing. The definition alsoincludes a person, who has beendismissed, discharged or retrenched inconnection with an industrial dispute oras a consequence of such dispute orwhose dismissal, discharge orretrenchment has led to that dispute. Thelast segment of the definition specifiescertain exclusions. A person to whom theAir Force Act, 1950, or the Army Act,1950, or the Navy Act, 1957, is applicableor who is employed in the police serviceas an officer or other employee of aprison or who is employed mainly inmanagerial or administrative capacity orwho is employed in a supervisory capacityand is drawing specified wages permensem or exercises mainly managerialfunctions does not fall within thedefinition of the term "workman".

13. The source of employment, themethod of recruitment, the terms andconditions of employment/contract ofservice, the quantum of wages/pay andthe mode of payment are not at allrelevant for deciding whether or not aperoson is a workman within the meaningof Section 2 (s) of the Act. it is apposite toobserve that the definition of workmanalso does not make any distinctionbetween full-time and part-time employee

1 All] Mohd. Wazid Vs. The Presiding Officer Cen. Govt. & Anr. 451

or a person appointed on contract basis.There is nothing in the plain language ofSection 2 (s) from which it can be inferredthat only a person employed on a regularbasis or a person employed for doingwhole-time job is a workman and the oneemployed on temporary, part-time orcontract basis on fixed wages or as acasual employee or for doing duty forfixed hours is not a workman.

6. In the case of Director, FisheriesTerminal Department Vs. BhikubhaiMeghajibhai Chavda (2010) 1 SCC(L&T) 1, (2010) 1 SCC 47 whileconsidering the case of a daily wagerworkman under the Industrial DisputeAct, 1947 (hereinafter referred to as the'Act') held in paragraph Nos. 16,17,18 and19 as under:

"16. This Court in R.M. Yellatti Vs.Asstt. Executive Engineer has observed :(SCC p. 116, para 17)

"17. ..... However, applying generalprinciples and on reading the [aforesaid]judgments, we find that this Court hasrepeatedly taken the view that the burdenof proof is on the claimant to show that hehad worked for 240 days in a given year.This burden is discharged only upon theworkman stepping in the witness box. Thisburden is discharged upon the workmanadducing cogent evidence, both oral anddocumentary. In cases of termination ofservices of daily-waged earners, therewill be no letter of appointment ortermination. There will also be no receiptor proof of payment. Thus in most cases,the workman (the claimant) can only callupon the employer to produce before thecourt the nominal muster roll for thegiven period, the letter of appoin tment ortermination, if any, the wage register, theattendance register, etc. Drawing the

adverse inference ultimately woulddepend thereafter on the facts of eachcase."

17. Applying the principles laid downin the above case by this Court, theevidence produced by the appellant hasnot been consistent. The appellant claimsthat the respondent did not work for 240days. The respondent was a workmanhired on a daily-wage basis. So it isobvious, as this Court pointed out in theabove case that he would have difficultyin having access to all the officialdocuments, muster rolls, etc. inconnection with his service. He has comeforward and deposed, so in our opinionthe burden of proof shifts to the appellantemployer to prove that he id not complete240 days of service in the requisite periodof constitute continuous service.

18. It is the contention of theappellant that the services of therespondent were terminated in 1988. Thewitnesses produced by the appellantstated that the respondent stopped comingto work from February, 1988. Thedocumentary evidence produced by theappellant is contradictory to this fact as itshows that the respondent was workingduring February, 1989 also.

19. It has also been observed by theHigh Court that the muster roll for 1986-1987 was not completely produced. Theappellant has inexplicably failed toproduce the complete records and musterrolls from 1985 to 1991, in spite of thedirection issued by the Labour Court toproduce the same. In fact there has beenpartically no challenge to the deposition ofthe respondent during cross-examination.In this regard, it would be pertinent tomention the observation of the three-JudgeBench of this Court in Municipal Corpn.Faridabad Vs. Siri Niwas wherein it isobserved: (SCC p. 198, para 15)


"15. A court of law even in a casewhere provisions of the Indian Evidence Actapply, may presume or may not presume thatif a party despite possession of the bestevidence had not produced the same, itwould have gone against his contentions.The matter, however, would be differentwhere despite direction by a court theevidence is withheld."

7. From the law laid down by Hon'bleSupreme Court in the case of Director,Fisheries Terminal Department (supra) andalso the law laid down by the Hon'bleSupreme Court in the Case of R.M. YellattiVs. Asstt. Executive Engineer (2006) 1 SCC106 para 17 it is clear that in case oftermination of services of daily-wagesearner, there will be no letter of appointmentor termination. There will also be no receiptor proof of payment. Thus the workman(claimant) can only call upon the employer toproduce before the court the nominal musterroll for the given period, the letter ofappointment or termination, if any, the wageregister, the attendance register etc. Drawingof adverse inference ultimately woulddepend thereafter on the facts of each case.

8. I find that that the petitioner haspressed his application for summoning ofthe relevant document, however, therespondent No.1 did not pass any order onthe said application and merely observedin concluding paragraph No.23 of theimpugned award that "I do not find thatthere is any malafide intention of theopposite party in withholding the recordsbecause the opposite party, their witnesseshave specifically stated that the workmandid not work during the period 2005-06."Thus the respondent No.1 merely relied uponthe allegations made by the Respondent No.2.No reasons have been assigned by theRespondent No.1 for the aforesaid conclusion.

The Respondent No.1 should haveconsidered the application of thepetitioner for summoning of the recordsand should have directed the Respondentno.2 to produce the records in evidence.The action of the Respondent No.2 in notdoing so cannot be sustained in view ofthe law laid down by Hon'ble SupremeCourt in the cases of Director, FisheriesTerminal Department (supra) and R.M.Yellatti (supra).

9. In view of the above discussions,the impugned award dated 31.12.2013passed by the Respondent No.1 inIndustrial Dispute No. 25 of 2008 cannotbe sustained and is hereby set aside. Thematter is remitted back to the RespondentNo.1 to decide the aforesaid case afresh inaccordance with law after affording to theparties concerned.

10. It is further directed that theRespondent No.1 shall make effort todecide the case as expeditiously aspossible preferably within a period of fourmonths from the date of production of acertified copy of this order.

11. The writ petition is allowed tothe extent indicated above.



BEFORETHE HON'BLE DR. DHANANAJAYA YESHWANT

CHANDRACHUD, C.J.THE HON'BLE SUNEET KUMAR, J.

Writ-C No. 50570 OF 2014

Neeraj Kumar Rai & Ors. ...PetitionersVersus


1 All] Neeraj Kumar Rai & Ors. Vs. State of U.P. & Ors. 453

Counsel for the Petitioners:Shri Seemant Singh, Shri Sadanand Singh

Counsel for the Respondents:C.S.C., Shri Anil Kumar Pandey, Shri GyanPrakash, Shri Kshetresh Chandra Shukla,Shri R.A. Akhtar

Right of Children to Free and CompulsoryEducation Act 2009-Section 23(1)-Powerof national council for teacher education -amendment in criteria-prescribingminimum academic qualification-eligibilitycriteria from 45% to 50%-held-onceregulatory authority laid down minimumqualification-not permissible for writ courtto sit over as expert body.

Held: Para-12In our view, the true meaning of thenotification dated 29 July 2011 wouldhave to be construed on the basis of thelanguage of the notification as it stands.If NCTE intends to make eligiblecandidates with a Postgraduate degreewith at least 50 percent marks, nothingprevents the regulatory authority fromamending the notification. However, weare emphatically of the view that oncean expert statutory body has beenvested under Section 23(1) of the Act of2009 with the function of laying downthe minimum qualifications forappointment of teachers, it would not bepermissible for the Court under Article226 of the Constitution to tinker with thequalifications as prescribed or to expandthe ambit of the prescribed qualificationsby including a Postgraduate degree witha stipulated percentage of marks assufficient compliance. These are matterswhich lie in the realm of policy for theexpert authority. NCTE has sufficientpowers under the law to amend thenotification. The High Court cannot whileinterpreting the notification rewrite thelanguage of the notification. The HighCourt cannot add or include additionalcategories.

Case Law discussed:[2010 (7) ADJ 403 (FB)]; 2009 (1) ADJ 232.

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

1. By these proceedings which havebeen instituted by 31 petitioners underArticle 226 of the Constitution, there is achallenge to the constitutional validity ofClause (III) (i) (a) of a notification dated29 July 2011 issued by the NationalCouncil for Teacher Education1 for thepurpose of amending earlier notificationslaying down minimum qualifications ofeligibility for appointment as a teacher.NCTE has issued the said notification inexercise of powers conferred by Section23 (1) of the Right of Children to Freeand Compulsory Education Act, 20092.

2. The petitioners have passed theTeacher Eligibility Test3 after completingtheir B Ed course and after being awardedthe degree qualification. Admittedly, thepetitioners did not secure more than 45percent marks in the Bachelor's degreeexamination. They obtained admission tothe B Ed course on the strength of havingobtained more than 50 percent marks inthe Postgraduate degree examination. TheState Government issued a GovernmentOrder dated 27 September 2011 formaking appointments of AssistantTeachers in Junior Basic Schools.Following an amendment made by NCTEon 29 July 2011, the State Governmentissued a Government Order dated 27September 2011. An advertisement wasissued on 30 November 2011 by DistrictBasic Education Officers in the State forappointments of teachers in Junior BasicSchools, for teaching students betweenthe classes I to V. These facts are not indispute.

3. The Regulations framed by NCTEin 2002, 2005 and 2007 provided, inter


alia, for eligibility to seek admission tothe B Ed degree programme. In all thethree sets of Regulations, the requirementof eligibility was that a candidate shouldhave obtained at least 45 percent markseither in the Bachelor's degree or in theMaster's degree. Clause 4 of the 2002Regulations provided that candidates withat least 45 percent marks in theBachelor's/Master's degree with at leasttwo school subjects at the Graduationlevel would be eligible for admission.Clause 3 of the Regulations of 2005,contained a similar stipulation. Clause 3.2of the 2007 Regulations similarlyprovided for eligibility by stipulating thatcandidates with at least 45 percent markseither in the Bachelor's degree and/or inthe Master's degree or any otherqualification equivalent thereto, areeligible for admission to the B Ed degreeprogramme. On 31 August 2009, anotification was issued by NCTE underwhich it was stipulated that, for admissionto the B Ed degree programme, acandidate should have obtained either aBachelor's or Master's degree with at least50 percent marks. The requirement of aminimum of 45 percent marks in theBachelor's or Master's degree was, thus,enhanced in the Regulations of 2009, to50 percent.

4. NCTE issued a notification on 23August 2010, in exercise of powersconferred by Section 23(1) of the Act of2009 for the purpose of laying downminimum qualifications for a person to beeligible for appointment as a teacher inclasses I to VIII in a school referred to inSection 2 (n) of the Act of 2009. Paragraph 3of the notification provided for the training tobe undergone. On 29 July 2011, Para 3 of theprincipal notification was amended. Asamended, the requirement is as follows:-

"(III) For para 3 of the PrincipalNotification the following shall besubstituted, namely:-

(i) Training to be undergone. - Aperson -

(a) with Graduation with at least 50%marks and B. Ed. qualification or with atleast 45% marks and 1-year Bachelor inEducation (B. Ed.), in accordance withthe NCTE (Recognition, Norms andProcedure) Regulations issued from timeto time in this regard, shall also beeligible for appointment to Class I to V upto 1st January 2012, provided he/sheundergoes, after appointment, an NCTErecognized 6-month Special Programmein Elementary Education;

(b) with D. Ed. (Special Education)or B. Ed. (Special Education)qualification shall undergo, afterappointment an NCTE recognized 6-month Special Programme in ElementaryEducation."

5. The grievance of the petitioners isthat they were not being considered forselection and appointment as teachers inJunior Basic Schools in pursuance of theadvertisements issued by the StateGovernment, on the ground that they hadnot secured at least 45 percent marks inthe Graduation. The submission of thepetitioners is that in framing the amendingnotification dated 29 July 2011, NCTEhas overlooked the position that a personwith at least 50 percent marks at theGraduate or Postgraduate stage is eligiblefor admission to the B Ed degreeprogramme. Consequently, it has beenurged that the requirement which has beenlaid down in the notification dated 29 July2011 should incorporate, in addition, aPost-graduation with at least 50 percentmarks. This submission proceeds on thebasis that the notification dated 29 July


2011 uses the expression "in accordancewith the NCTE (Recognition, Norms andProcedure) Regulations issued from timeto time" in this regard. Based on thosewords, it has been submitted that a personwho had received less than 45 percentmarks in the Graduation but had receivedmore than 50 percent marks in the Post-graduation was eligible for admission tothe B Ed degree course. Hence, there is noreason or rational to exclude candidates,such as the petitioners, who have securedless than 45 percent marks in theirGraduation, so long as they havecompleted the B Ed degree qualificationson the strength of having obtained morethan 50 percent marks in the Postgraduatedegree programme.

6. This is the submission which fallsfor consideration.

7. Now, at the outset, it must benoted that there are two distinct facets.The first is the requirement which hasbeen laid down by NCTE for securingadmission for the B Ed degree course.The second is the requirement which hasbeen laid down by NCTE under Section23 (1) of the Act of 2009 for teachingclasses I to VIII. Insofar as the eligibilityrequirements for admission to the B Eddegree course are concerned, theRegulations framed by NCTE in 2002,2005 and 2007 required a candidate toobtain at least 45 percent marks either inthe Bachelor's degree course or in theMaster's degree course. In 2009, thisrequirement of 45 percent marks at theminimum was enhanced to 50 percentwhen a notification was issued 31 August2009.

8. The notification issued by NCTEon 29 July 2011 under Section 23(1), on

the other hand, prescribes therequirements in terms of minimumqualifications and training for a teacherfor teaching students of classes I to VIII.Section 23 of the Act of 2009, inter-alia,provides as follows:-

"23. Qualifications for appointmentand terms and conditions of service ofteachers.- (1) Any person possessing suchminimum qualifications, as laid down byan academic authority, authorised by theCentral Government, by notification, shallbe eligible for appointment as a teacher.

(2) Where a State does not haveadequate institutions offering courses ortraining in teacher education, or teacherspossessing minimum qualifications as laiddown under sub-section (1) are notavailable in sufficient numbers, theCentral Government may, if it deemsnecessary, by notification, relax theminimum qualifications required forappointment as a teacher, for such period,not exceeding five years, as may bespecified in that notification:

Provided that a teacher who, at thecommencement of this Act, does notpossess minimum qualifications as laiddown under sub-section (1), shall acquiresuch minimum qualifications within aperiod of five years.

9. Under sub-section (1) of Section23, to be eligible for appointment as ateacher, a person must possess suchminimum qualifications as are laid downby an academic authority authorized bythe Central Government. NCTE is thatacademic authority authorized by theCentral Government. Under sub-section(2), the Central Government was vestedwith the power to relax the minimumqualifications required for appointment asa teacher for a period of not more than


five years, where the State did not haveadequate number of institutions offeringcourses or training in teacher education,or teachers possessing the minimumqualifications laid down under sub-section(1). Under the proviso to sub-section (2),a teacher who, at the commencement ofthe Act, did not possess the minimumqualifications prescribed in sub-section(1), was required to acquire them within aperiod of five years. Now, while issuingthe notification on 29 July 2011prescribing the training to be undergone,NCTE stipulated two categories in Clause(III) (i) (a). The first category consists ofpersons with Graduation with at least 50percent marks and a B Ed qualification.The second category consists of personswith a Graduation with at least 45 percentmarks and a one year B Ed in accordancewith the NCTE (Recognition, Norms andProcedure) Regulations issued from timeto time. The separate requirements of atleast 50 percent marks in the Graduation(for the first category) and 45 percentmarks in Graduation (for the secondcategory) are obviously made having dueregard to the fact that prior to 31 August2009 and under the Regulations of 2002,2005 and 2007, a Graduation with at least45 percent marks was the eligibilitycondition for admission to the B Eddegree course (though, as we have noted,a Post-graduation with a minimum of 45percent marks was also eligible). Witheffect from 31 August 2009, therequirement of eligibility was enhanced to50 percent marks in the Graduation orPost-graduation for admission to the B Eddegree course. Clause (III) (i) (a),therefore, brought within its purviewcandidates who have at least 45 percentmarks or, as the case may be, at least 50percent marks in the Graduation havingdue regard to the provisions of the

Regulations of 2002, 2005, 2007 and2009. Significantly, NCTE, while framingthe requirement in the notification of 29July 2011, did not contemplate that thosewith a Postgraduate degree with at least45 percent or 50 percent marks, as thecase may be, would be brought within thepurview of the notification. NCTE couldhave but has not done so. We are unableto read into the words "in accordance withthe NCTE (Recognition, Norms andProcedure) Regulations issued from timeto time" an implicit addition of a Post-graduation with at least 45 percent marksso as to cover those candidates who maynot have secured at least 45 percent marksin the Graduation. Eligibility foradmission to the B Ed degree course isone thing and the requirement forteaching students of classes I to V is quiteanother. The notification dated 29 July2011 lays down minimum qualificationsfor a person to be eligible for appointmentas a teacher. In our view, there is nothingarbitrary or unconstitutional in NCTElaying down the requirement that in orderto provide instruction in Junior BasicSchools for teaching students from classesI to VIII, a person must be a Graduatewith at least a minimum of marks asstipulated therein. Hence, merely becausethe petitioners have obtained more than50 percent marks in the Postgraduatedegree, that would not make them eligiblein terms of Clause (III) (i) (a) of thenotification dated 29 July 2011 when,admittedly, they do not have a minimumof 50 percent marks in the Graduation.

10. Reliance was sought to be placedon behalf of the petitioners on a counteraffidavit which has been filed on behalf ofthe NCTE in the present proceedings.Paragraphs 5 and 6 of the affidavit read asfollows:-


"5. That on the issue of prescribingminimum marks, these minimum markswere stipulated in accordance with theminimum marks required for seekingadmission in the B. Ed Course as laiddown in the NCTE (Recognition, Normsand Procedure) Regulations, notified fromtime to time. As per NCTE's Regulations2007/2009, the entry qualification for B.Ed is as under:

"Candidates with at least 45%/50%marks either in the Bachelor's Degreeand/or in the Master's Degree or any otherqualification equivalent thereto, areeligible for admission to the programme."

Accordingly, in case, the candidatehas acquired the minimum percentage ofmarks as per NCTE's Regulations eitherin Bachelor's Degree and/or in theMaster's Degree or any other qualificationequivalent thereto, is eligible to appear inTeacher Eligibility Test by virtue of theNCTE's Regulations in this regard.

6. That as regards another claim ofthe petitioner with regard to becoming aschool teacher merely by acquiring ateacher education qualification, it may bementioned that acquiring a degree ordiploma in various teacher educationcourses does not confer any right of suchperson to become a teacher. It merelymakes such a person eligible forappointment as school teacher. It is for theappointment authority or the recruitmentagency to appoint teachers in accordancewith the extant recruitment rules. Thenotification issued by the NCTE layingdown the teacher qualifications is inaccordance with the mandate given to itby the Central Government for setting thenorms from the view point of quality.Accordingly the various qualificationsspecified in the NCTE notificationincluding the requirement of passing TETare in accordance with law. The contention

of the petitioners that by acquiring a teachereducation qualification a right has beenconferred upon them to become a schoolteacher, as per prevailing recruitment rules atthe time of obtaining the teacherqualification, is not tenable in the eyes oflaw."

11. Similarly, reliance was placed ona counter affidavit filed by the NCTE inSpecial Appeal No 2076 of 2011 insimilar terms.

12. In our view, the true meaning ofthe notification dated 29 July 2011 wouldhave to be construed on the basis of thelanguage of the notification as it stands. IfNCTE intends to make eligible candidateswith a Postgraduate degree with at least 50percent marks, nothing prevents theregulatory authority from amending thenotification. However, we are emphaticallyof the view that once an expert statutorybody has been vested under Section 23(1) ofthe Act of 2009 with the function of layingdown the minimum qualifications forappointment of teachers, it would not bepermissible for the Court under Article 226of the Constitution to tinker with thequalifications as prescribed or to expand theambit of the prescribed qualifications byincluding a Postgraduate degree with astipulated percentage of marks as sufficientcompliance. These are matters which lie inthe realm of policy for the expert authority.NCTE has sufficient powers under the law toamend the notification. The High Courtcannot while interpreting the notificationrewrite the language of the notification. TheHigh Court cannot add or include additionalcategories.

13. Learned Senior Counselappearing on behalf of the petitioners hassought to place reliance on two Full Bench


judgments of this Court. The judgment of theFull Bench in Jitendra Kumar Soni Vs Stateof U P4 held that it was not open to the StateGovernment to exclude students who hadobtained their degree or diploma, inter alia,in LT/B P Ed/D P Ed/C P Ed frominstitutions and universities established bylaw situate at places outside the State andduly recognized by NCTE from applyingeither for the Special BTC or BTC course.The second judgment of the Full Bench inBhupendra Nath Tripathi Vs State of U P5held, inter-alia, that a degree which wasbeing granted earlier by Universities inexercise of powers under Section 22 of theUniversity Grants Commission Act, 1956could not be inferior than a degree of B Ednow awarded from institutions after theirrecognition under Section 14 (3) of theNCTE Act, 1993. The Full Bench held thatthe exclusion of candidates (from the field ofeligibility for the Special Basic TrainingCourse 2007) who have obtained a B Eddegree prior to the enforcement of the NCTEAct, 1993 or after the enforcement thereofduring the period when the application of theinstitution or university for recognition waspending consideration, would be violative ofArticle 14 of the Constitution. Neither of thetwo decisions of the Full Bench have anyrelevance to the issue which has been raisedin these proceedings. Plainly, the petitionersdo not meet the requirements contained inthe notification dated 29 July 2011.

14. For these reasons, we hold thatthere is no substance in the writ petition.The petition shall stand, accordingly,dismissed. However, there shall be noorder as to costs.



BEFORE

THE HON'BLE RAMESH SINHA, J.

Application u/s 482 No. 50877 of 2014

Gajraj Singh ...ApplicantVersus

State of U.P. ...Opp. Party

Counsel for the Applicant:Sri Ajay Vashistha

Counsel for the Opp. Party:Govt. Advocate.

Cr.P.C. Section 482-Release of minorgirl-offence u/s 363/366 IPC-rejectionof ground being minor-of age 17 years 6month 5 days-in view law laid down byApex Court in Smt. Parvati Devi andKalyani Chaudhary-even a minor can notbe detained in Nari Niketan against herwill-being girl-detention amounts illegalconfinement-order impugned quashed-direction to release forthwith to goanywhere according to her wish.

Held: Para-8In the case in hand, the question of theapplicant being a minor is irrelevant as evena minor cannot be kept in protective homeagainst her will. The applicant may hardlybe said that she is not a women or girlwhich come within a preview ofSuppression of Immoral Traffic in Womenand Girls Act. Thus, it is clear cut case ofillegal confinement of minor against herwishes violating fundamental right. Hence,the impugned order dated 26.05.2014passed by the Special Judge/ AdditionalSessions Judge, Court No.1, Kasganj ishereby quashed and it is directed theSuperintendent of Nari Niketan, Mathura torelease the victim Dolly daughter of GajrajSing be set at liberty to go in according toher own wish.

Case Law discussed:1992 All Crl. Cases 32; 1978 Criminal LawJournal 103.

(Delivered by Hon'ble Ramesh Sinha, J.)

1 All] Gajraj Singh Vs. State of U.P. 459

1. Heard Sri Ajay Vashistha, learnedcounsel for the applicant and Sri I.B.Yadav, learned AGA for the State.

2. The present application underSection 482 Cr.P.C. has been filed forquashing of the impugned order dated26.05.2014 passed by Special Judge/Additional Sessions Judge, Court No.1,Kasganj, in S.T. No. 31 of 2014 (State Vs.Ajeet and others), under Sections 363,366 IPC and 3/4 Protection of Childrenfrom Sexual Offence Act, 2012, P.S.Sahawar, District Kasganj.

3. The fact as emerges out from therecord is that the first information reportlodged by applicant who is father of thevictim girl on 23.02.2014 which wasregistered as Case Crime No. 52 of 2014under Sections 363, 366 IPC, P.S.Sahawar, District Kasganj with anallegation that on 23.02.2014 her minordaughter whose date of birth is18.08.1996, was enticed away by one Ajitson of Rajvir Singh along with Rajveerand Virendra son of Deen Dayal. On20.05.2014 daughter of the applicant wasrecovered from the possession of co-accused Ajit and chargesheet has beensubmitted in the case against Ajit onlyunder Section 366 and 363 and 3/ 4POCSO Act. The applicant thereaftermoved an application before the SpecialJudge/ Additional Sessions Judge CourtNo.1, Kasganj to release his minordaughter and simultaneously as he is hernatural guardian being father and on20.05.2014 girl be given in his custody.The accused Ajit also moved anapplication on 24.05.2014 for the custodyof the victim on the ground that he washer husband as both of them have marriedon 03.03.2014. The accused Ajit as wellas the victim girl filed a writ petition

being Civil Misc. Writ Petition No.1473of 2014 which was disposed of by thisCourt on on 10.03.2014 with a directionthat restraining any person frominterfering in their matrimonial life as sheis major. The Court rejected theapplication of the applicant as well as theaccused Ajit and come to the conclusionthat the girl was minor who was sent toNari Niketan and further order that whenshe attain majority, the victim girl shouldbe released. Hence the present petitionhas been filed by the applicant forquashing of the impugned order passed bythe court below.

4. It has been submitted by learnedcounsel for the applicant that the applicantis father of the victim girl and she isminor as per the high school certificateher date of birth is 18.08.1996 and hebeing a natural guardian the custody ofthe victim girl should be given to him.

5. Learned AGA has tried to justifythe order passed by the trial courtrejecting the application of the applicantas well as accused has opposed the prayerfor quashing of the order and stated thatsaid order has been passed by the courtbelow in accordance with law.

6. Considering the submissionsadvanced by learned counsel for theparties and perused the report, the claimof the applicant that her daughter was aminor girl as per the high schoolcertificate her date of birth is 18.08.1996and at the time of incident she was 17year six months and 5 days. He furthersubmits that as per the medical report thegirl has also found to be less than 18 yearson the date of incident but she, as per herstatement recorded under Section 164Cr.P.C. stated her age is 21 years and


further stated that she had voluntarilygone with the applicant and on her ownsweet will marriage with accused Ajit andthe said fact was also informed by herparent that she would marry with AjitSingh but her parents were against thesaid marriage. In her statement she alsostated that Ajit had not enticed her awayand she has voluntarily accompanied withAjit. The court below while deciding thecustody of the victim on the applicationfiled by the applicant as well as Ajit Singhhad also tried to know wish of the victimwho has stated that she wants to go with herhusband Ajit Singh but finding her to beminor, it found proper for sending her NariNiketan till she attained majority. It is wellsettled law that a minor can not be confinedin Nari Niketan against her wishes. In thisregard, the Judgement of this Court in thecase of Smt. Parvati Devi Vs. State of U.P.and another reported in 1992 All Crl. Cases32 in which it has been observed by theApex Court that the confinement of a victimin Nari Niketan against her wishes, cannot beauthorised under any provisions of the Code.There is no such legal provision wherein theMagistrate has been authorized to issuedirections that a minor female child shall,against her wishes, be kept in Nari Niketan.

7. In the case of Mrs. KalyaniChaudhory Vs State of U.P. and othersreported in 1978 Criminal Law Journal103, a Division Bench of this Court heldthat no person can be kept in protectivehome unless she is required to be keptthere either in pursuance of theSuppression of Immoral Traffic inWomen and Girls Act or under someother law permitting her detention in sucha Home.

8. In the case in hand, the questionof the applicant being a minor is

irrelevant as even a minor cannot be keptin protective home against her will. Theapplicant may hardly be said that she isnot a women or girl which come within apreview of Suppression of ImmoralTraffic in Women and Girls Act. Thus, itis clear cut case of illegal confinement ofminor against her wishes violatingfundamental right. Hence, the impugnedorder dated 26.05.2014 passed by theSpecial Judge/ Additional Sessions Judge,Court No.1, Kasganj is hereby quashedand it is directed the Superintendent ofNari Niketan, Mathura to release thevictim Dolly daughter of Gajraj Sing beset at liberty to go in according to her ownwish.

9. The present application standsdisposed of.



BEFORETHE HON'BLE SUNEET KUMAR, J.

Writ-A No. -57990 of 2014

Ram Mohini Devi (Smt.) ...PetitionerVersus


Counsel for the Petitioner:Sri Gopal Srivastava, Sri H.R. Mishra


Uttar Pradesh Retirement Benefits Rules,1961-Rule 3(3), 5(i), Rule 7(c)-claim offamily pension-by second wife withconsent of first wife-in service record hername already shown as nominee-held-when marriage itself void-consent offirst wife-immaterial- rejection-held-proper-petition dismissed.

1 All] Ram Mohini Devi (Smt.) State of U.P. & Ors. 461

Held: Para-33For the reasons and law stated,hereinabove, the second wife cannotclaim pension on the consent of the firstwife, even if the second wife is eligibleunder the Rules to receive familypension, as long as, the first wife is aliveor does not remarry.

Case Law discussed:1988 (25) ACC 119; [(2001) 1 U.P.L.B.E.C.8691]; [(2004) 3 U.P.L.B.E.C 2292]; [2000 (1)ESC 577 (S.C.)]; 2000 (1) ESC 135 (S.C.); AIR1984 SC 346.

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

1. The petitioner is the second wifeof Prem Narain Srivastava (deceased),according to the petitioner, the marriagewas solemnized, with the consent of thefirst wife namely Smt. Kunti Devi in1954. The husband of the petitioner aGram Panchayat Adhikari was workingwith the respondent no. 3, Zila PanchayatRaj Adhikari, Basti. The petitioner wasnominated for receiving gratuity, G.P.F.and life insurance. The husband retired on31.03.1997, on attaining the age ofsuperannuation, subsequently, died on20.10.2002; petitioner made anapplication for family pension which wasnot granted, aggrieved, the petitionerapproached the Court by filing (WritPetition no. 53165 of 2003) petitionchallenging the rejection order dated04.03.2004, passed by the respondent no.2, Director, Pension Nideshalaya, U.P.Lucknow. The writ petition was allowedby judgment and order dated 15.07.2013.The operative portion of judgment beingrelevant is extracted:

"The petitioner has brought on recordthe papers showing nomination made byher husband in her favour in respect of theGratuity, General Provident Fund and

Group Insurance, as Annexure-2 to thewrit petition. Said statement has beenmade in paragraph-8 of the writ petition.In paragraph-12 of the counter affidavit,whereunder paragraph-8 of the writpetition has been replied, said statementof fact has not been denied. Thus, this factis established that husband of thepetitioner had made nomination in favourof the petitioner for his other post retiralbenefits and the first wife of late PremNarain Lal Srivastava has given heraffidavit that she has no objection in casethe petitioner is granted family pension.However, I find that in the impugnedorder the Director, Pension Directorate,Lucknow has failed to advert to thosematerial facts and documents. Thus, theimpugned order has been passed withoutapplication of mind and as such, the sameneeds to be quashed. Accordingly, theorder dated 04.03.2004 passed by theDirector, Pension Directorate, U.P.,Lucknow, the respondent no. 1, is herebyquashed. The matter is remitted back tothe Director, Pension Directorate, U.P.,Lucknow, to reconsider the same afreshafter giving opportunity to the petitionerand pass appropriate order in accordancewith law within six weeks from the dateof communication of this order.

Accordingly, the writ petition isallowed.

No order as to costs."

2. The order was not complied with,aggrieved the petitioner filed ContemptPetition1 (No. 2965 of 2014), the Courton 13.05.2014 directed the Director,Pension Nideshalaya, U.P., Lucknow tocomply the order of the writ court. Therespondent no. 2 by impugned order dated24.06.2014 rejected the claim of thepetitioner, for the reason, that since thedeceased employee, in the pension paper,


had mentioned the name of both thewives, accordingly, direction/opinion wassought from the State Government. TheGovernment vide letter dated 23.10.2013,pursuant to Government Order dated24.08.1966, opined that in the event of thedeceased employee having two wives thesenior wife would be entitled to familypension until her death/remarriage. Thefamily pension being non transferablecannot be given to the petitioner, even onan affidavit of the senior wiferelinquishing her claim, to family pensionin favour of the petitioner.

3. Sri H.R. Mishra, learned SeniorAdvocate, assisted by Sri GopalSrivastava, learned counsel appearing forthe petitioner would submit that since thefirst wife has no objection, in case secondwife is given family pension and furtherthe first wife had given her consent, on anaffidavit, to the competent authority, thus,would contend, that the petitioner, alsobeing a nominee for gratuity, G.P.F., andgroup insurance, is entitled to familypension, further, the impugned order is inteeth of the judgment and order dated15.07.2013 passed in the earlier writpetition.

4. In rebuttal, learned StandingCounsel, would submit that the impugnedorder is legal, family as defined in theRules, would not include the second wife,hence the petitioner is not entitled tofamily pension, as long as, the first wife isalive and eligible to receive the familypension.

5. Rival submissions fall forconsideration.

6. The sole question to bedetermined is as to whether the first wife

(senior wife), of the deceased employee,could relinquish her claim to familypension upon the second wife under theRules.

7. It is not in dispute between theparties that the provisions of the UttarPradesh Retirement Benefits Rules, 19612is applicable in respect of the grant offamily pension. The Rules have beenframed in exercise of powers conferredunder the proviso to Article 309 of theConstitution of India. Rule 2 provides thatthe Rules shall apply to all officers underthe rule making power of the Governor.

8. Further, the pension provisionscontained in Civil Service Regulationsshall continue to apply to the officersexcept in so far as they are inconsistentwith any of the provisions of these rules.

9. Sub-section (3) of rule 3 defines"family", part relevant for the case isextracted:

"[(3) "Family" means the followingrelatives of an officer:

(i) wife, in the case of any maleofficer;

(ii) husband, in the case of a femaleofficer;

(iii).......................(iv)........................(v).........................(vi)........................(vii)........................(viii)......................(4)........................(5).........................

10. Part-II of the Rules provides forDeath-cum-Retirement Gratuity and Part-III deals with Family Pension.


11. Rule 7(1) under Part-IIIprovides, family pension may be grantedto the family of an officer who dies. Rule7(1) is as follows:-

"7. Family Pension.-(1) A familypension not exceeding the amountspecified in sub-rule (2) below may begranted for a period of ten years to thefamily of an officer who dies, whetherafter retirement or while still in serviceafter completion of not less than 20 years'qualifying service:"

12. Sub-rule (3) of rule 7 providesthat pension shall not be payable underthis Part to a person mentioned thereunderand would include a widowed femalemember of the family, in the event of herremarriage and to a person who is not amember of the deceased officer's family,sub-rule reads as follows:-

"(3) No pension shall be payableunder this Part-

(a) to a persons mentioned in clause(b) of sub-rule (4) below, unless thepension sanctioning authority is satisfiedthat such person was dependent on thedeceased officer for support;

(b) to an unmarried female memberof the family, in the event of hermarriage;

(c) to a widowed female member ofthe family, in the event of her remarriage;

(d) to a brother of the deceasedofficer on his attaining the age of 18years; and

(e) to a person who is not a memberof the deceased officer's family.

(4) Except as may be provided by anomination under sub-rule (5) below:

(a) a pension sanctioned under thisPart shall be granted-

(i) to the eldest surviving widow, ifthe deceased was a male officer or to thehusband, if the deceased was a femaleofficer;

(ii) failing the widow or husband, asthe case may be, to the eldest survivingson;

(iii) failing (i) and (ii) above, to theeldest surviving unmarried daughter;

(iv) these failing, to the eldestwidowed daughter; and

Note.- The expression "eldestsurviving widow" occurring in clause (a)(i) above, should be construed withreference to the seniority according to thedate of marriage with the officer and notwith reference to the age of survivingwidows.

(5) A Government Servant shallimmediately after his confirmation, makea nomination in Form "E" indicating theorder in which a pension sanctioned underhis part should be payable to the membersof his family, and to the extent it is valid,the pension will be payable in accordancewith such nomination provided thenominee concerned is not ineligible, onthe date on which the pension maybecome payable to him or her to receivethe pension under the provisions of sub-rule(3). In case the nominee concerned isor has become ineligible to receive thepension under the said sub-rule, thepension shall be granted to the personnext lower in the order in suchnomination. The provisions of sub-rules(5)(b),(7) and (8) of Rule 6 shall apply inrespect of nominations under this sub-rule.

(6)(a) a pension awarded under thispart shall not be payable to more than onemember of the deceased officer's family atthe same time.

(b) If a pension awarded under thispart ceases to be payable before the expiry


of the period mentioned in the proviso tosub-rule (1) on account of death or marriageof the recipient or any other causes, it will beregranted to the person next lower in theorder mentioned in sub-rule (4) or to theperson next lower in the order shown in thenomination under sub-rule (5), as the casemay be, who satisfies the other provisions ofthis part."

13. A bare perusal of the Rules, isindicative that the definition of familydoes not include the second wife, it onlyrefers to 'wife', and family pension, as perRule 7(1), is granted to the member of the'family' of an officer, sub-rule 3(e) ofRule 7 provides, pension is not payable toa person who is not a member of thedeceased/officer's family, sub-rule 4(a)(i)provides that pension shall be sanctionedunder Part III to the eldest survivingwidow and the note appended to the ruleclarifies that expression "eldest survivingwidow" should be construed withreference to the seniority according to thedate of marriage with the officer and notwith reference to the age of survivingwidows.

14. Sub-rule (5) requires theGovernment Servant to make nominationindicating the order in which pensionsanctioned would be payable to themembers of his 'family', provided thenominee concerned is not ineligible, onthe date on which the pension maybecome payable to him or her to receivethe pension under the provisions of sub-rule (3) of rule 7. Thus, the scheme of theRules provide that in case theGovernment servant leaves behind twowives, the second wife not being amember of the family, is not eligible tofamily pension, as long as, the first wifesurvives. Further, there could not have

been any nomination in favour of thesecond wife as she was ineligible to havebeen nominated under sub-rule (5), beingnot a member of the family, thus,ineligible to receive pension under sub-rule (3) of rule 7.

15. Learned counsel for thepetitioner has not brought on recordForm-E i.e. nomination in favour of thepetitioner for pension, whereas,nomination to receive the gratuity andother payments have been brought onrecord. Nomination for death-cum-retirement gratuity is dealt with under rule6 and is not applicable to nominations forpension under sub-rule (5) of rule 7, bothbeing under different Part of the Rules.

16. Taking a case that there wasnomination in favour of the second wife,the pension would have been payable inaccordance to such nomination providedthe nominee is not ineligible, on the dateon which the pension became payable toher under sub-rule 3 of rule 7. In the factsof the present case, since the first wife isalive on the date on which the familypension became due, the second wifecannot set up a claim for family pensioneven on the consent of the first wife,further, nomination in favour of secondwife would be invalid as she being not amember of the government servantsfamily (sub-rule (3)(e) of rule 7).

17. Learned Standing Counselwould submit that after enactment ofHindu Marriage Act 19553 the secondmarriage would be void, hence the secondwife would otherwise be ineligible forfamily pension.

18. There is merit in the argument oflearned Standing Counsel, provided the


second marriage was contracted after theenactment of Hindu Marriage Act,however, in the facts of the present case,it is pleaded that the petitioner hadcontracted marriage with the GovernmentServant in 1954 i.e. before thecommencement of Hindu Marriage Act,hence her marriage would not be void.

19. The Hindu Marriage Act cameinto force on 18.05.1955, the Actamended and codified the law relating tomarriage among Hindus. Section 4provides that the Act has an overridingeffect. Section 4 is extracted:

"4. Overriding effect of Act.-Save asotherwise expressly provided in this Act.-

(a) any text rule or interpretation ofHindu law or any custom or usage as partof that law in force immediately beforethe commencement of this Act shall ceaseto have effect with respect to any matterfor which provision is made in this Act;

(b) any other law in forceimmediately before the commencement ofthis Act shall cease to have effect in so faras it is consistent with any of theprovisions contained in this Act."

20. Section 5 provides the theconditions for Hindu marriage betweentwo Hindus and one of the conditionprovides that neither party should have aspouse living at the time of marriage.Section 5(i) is reproduced:-

"5. Conditions for a Hindu marriage.-A marriage may be solemnized betweenany two Hindus, if the followingconditions are fulfilled, namely:-

(i) neither party has a spouse livingat the time of marriage;"

21. Section 11 provides forvoid marriages. Section 11 is as follows:-

"11. Void Marriages.- Any marriagesolemnized after the commencement ofthis Act shall be null and void and may,on a petition presented by either partythereto [against the other party]4, be sodeclared by a decree of nullity if itcontravenes any one of the conditionsspecified in clauses (i), (iv) and (v) ofsection 5."

22. Section 29 of the HinduMarriage Act saves the marriagesperformed between Hindus before thecommencement of the Act. Section 29(1)is reproduced:-

"29. Savings.-(1) A marriagesolemnized between Hindus before thecommencement of this Act, which isotherwise valid, shall not be deemed to beinvalid or ever to have been invalid byreason only of the fact that the partiesthereto belonged to the same gotra orpravara or belonged to different religions,castes or sub-divisions of the same caste."

23. Thus as per the scheme of theHindu Marriage Act, marriage betweentwo Hindus solemnized before thecommencement of the Hindu MarriageAct, which was otherwise legal and valid,would be saved under Section 29 of theAct and would not be void under Section11. Thus, the marriage between thedeceased government servant and thepetitioner cannot be said to be a voidmarriage, as being solemnized prior to theenactment of the Hindu Marriage Act.Had the Government servant contracted asecond marriage after the commencementof the Hindu Marriage Act, the marriagewould have been void under the HinduMarriage Act and a nullity in the eye of


law, second wife would have no right ofbeing a legally wedded wife.

24. Further, the U.P. GovernmentServant Conduct Rules, 1956 which cameinto force on 28th July, 1956, rule 29prohibits a Government Servant frombigamous marriage. Rule 29 reads asfollows:-

"29. Bigamous marriages-(1) NoGovernment servant who has a wife livingshall contract another marriage withoutfirst obtaining the permission of theGovernment, notwithstanding that suchsubsequent marriage is permissible underthe personal law for the time beingapplicable to him."

25. Thus, two Hindus cannot contractmarriage after the enforcement of the HinduMarriage Act, if any of them is having aliving spouse, the marriage would be anullity and would also not be protected underthe Conduct Rules, as well as, the pensionrules, therefore, the "second wife" as referredto under the pension rules would onlyinclude second wife whose marriage ispermissible under the personal law, but in thecase of Hindus the second wife will have noright, whatsoever, as the law prohibitssecond marriage, as long as, the governmentservant has a spouse who is alive. Thus forharmonious construction of the Rulesgoverning pension, wherever, the ruleprovides for wives, it has to be interpreted asper the law governing marriage as applicableto the government servant and in cases wherethe second marriage is void under the law,second wife will have no status of a widowof the government servant.

26. As regards, eligibility to familypension, the pension is to be disbursed asper the provisions of the Rules. The rules

clearly state that only eligible person isentitled to receive family pension butwhere pension awarded ceases to bepayable on the death or marriage of therecipient or for any other reason, it will beregranted to the persons next lower in theorder mentioned in sub-rule (4) of Rule 7.The hindu second wife would not beeligible for family pension as long as thefirst wife is alive and has not remarried.There is no provision in the Rules forrelinquishment of family pension infavour of another person.

27. The Supreme Court in Bakulabaiand another v. Gangaram and another5,held that the marriage of a Hindu womanwith a Hindu male with a living spouseperformed after the coming into force ofthe Hindu Marriage Act, 1955 is null andvoid and the woman is not entitled tomaintenance under Section 125 of theCr.P.C.

28. This Court in Shakuntala Devi(Smt.) Versus Executive Engineer,Electricity Transmission Ist U.P.Electricity Board, Allahabad andanother6, while dealing with two wifeswherein the nomination was in favour ofthe second wife it was held that it cannotdefeat the claim of the legally weddedwife, only legally wedded wife is entitledto retiral benefits and provident fund andappointment under Dying-in-HarnessRules.

29. Similarly, view was expressed inPoonam Devi (Smt.) Versus ChiefEngineer, Electricity Board and others7.

30. The Supreme Court inRameshwari Devi Versus State of Biharand others8, where the Governmentservant being a Hindu having two living

1 All] Smt. Urmila Devi Vs. State of U.P. & Ors. 467

wives died while in service, held that secondmarriage was void under the Hindu law andhence second wife having no status of widowis not entitled to anything, however, childrenfrom the second wife would equally sharethe benefits of gratuity and family pension asper law.

31. In G.L. Bhatia v. Union of Indiaand another9, the Supreme Court held thatif a nomination is made contrary tostatutory provision, it would beinoperative. In the facts of that case, thehusband of the deceased employeeclaimed family pension while nominationwas not in his favour. The authoritiesrejected the claim of the husband for thereason that he was staying separately fromthe wife and thus was not entitled tofamily pension. The Apex Court held thatthe husband was entitled to familypension, where the rights of the parties aregoverned by statutory provisions, theindividual nomination contrary to thestatute will not operate.

32. The Apex Court in Smt. SarbatiDevi and another Versus Smt. UshaDevi10, AIR 1984 SC 346, held that amere nomination made in an insurancepolicy does not have the effect ofconferring on the nominee any beneficialinterest in the amount payable under thelife insurance policy on the death of theassured. The nomination only indicatesthe hand which is authorised to receivethe amount on the payment of which theinsurer gets a valid discharge of itsliability under the policy. The amount,however, can be claimed by the heirs ofthe assured in accordance with the law ofsuccession governing them.

33. For the reasons and law stated,hereinabove, the second wife cannot

claim pension on the consent of the firstwife, even if the second wife is eligibleunder the Rules to receive family pension,as long as, the first wife is alive or doesnot remarry.

34. I do not find any illegality orinfirmity in the order.

35. The writ petition is, accordingly,dismissed.



BEFORETHE HON'BLE DR. DHANANAJAYA YESHWANT

CHANDRACHUD, C.J.THE HON'BLE PRADEEP KUMAR SINGH

BAGHEL, J.THE HON'BLE SUNEET KUMAR, J.

Writ-C No. 58211 of 2014

Smt. Urmila Devi ..PetitionerVersus


Counsel for the Petitioner:Sri Bimal Prasad

Counsel for the Respondents:C.S.C., Sri R.B. Yadav

Uttar Pradesh Scheduled ComoditiesDistribution Order 2004- clause 28-pendingappeal-G. O. Creating third party rights ifproper? Whether the direction contained forinterim arrangement by creating third partyrights in case of ‘Vinod Misra’ and‘Jagannath Upadhyay’ is proper? held-'No'in absence of interim order in appeal-notannulled the order under appeal-accordingly interim mandamus issued inVinod Misra and Jagannath Upadhyay notcorrect law.

Held: Para-24


We, accordingly, hold that theauthorization granted to a person toconduct a fair price shop only constitutessuch a person as an agent of the StateGovernment under Clause 4(2) of theControl Order. If the authorization issuspended or cancelled, a remedy of anappeal is provided in Clause 28(3).During the pendency of an appeal, aprovision has been made in Clause 28(5),for seeking a direction that the orderunder appeal shall not take effect untilthe appeal is disposed of. If the order ofsuspension or cancellation has not beenstayed pending the disposal of theappeal, the cancellation or suspension,as the case may be, shall continue toremain in effect. The mere filing orpendency of an appeal or an applicationfor stay does not result in a deemed orautomatic stay of the order ofsuspension or cancellation. There is nosuch deeming provision. In such asituation, the State is at liberty to makenecessary administrative arrangementsto ensure the proper distribution ofscheduled commodities based on thepublic interest in the proper functioningof the Public Distribution Scheme and onan assessment of local needs andrequirements that would sub-serve theinterest of the beneficiaries. We,therefore, hold that the interimmandamus in Vinod Mishra and thejudgment in Jagannath Upadhyay's case(supra) which took a contrary view donot reflect the correct position in lawand would consequently stand overruled.The Principal Secretary, Food and CivilSupplies, shall now on the basis of thepresent judgment, issue a circular to allthe Divisional Commissioners andconcerned officials of the State so thatnecessary steps in compliance are taken.The learned Standing Counsel hasapprised the Court that the GovernmentOrder dated 10 July 2014 has since beenwithdrawn by the Principal Secretary,Food and Civil Supplies on 26 November2014 and a new Government Order hasbeen issued.

Case Law discussed:

Misc. Bench No. 11977 of 2010; Misc. BenchNo. 10373 of 2011; Writ -C No. 30600 of2012; Writ-C No. 36241 of 2014; AIR 1968 SC372; (1998) 5 SCC 637; (1998) 2 SCC 44.

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

1. The present reference to the FullBench has been occasioned by an order ofthe Division Bench dated 3 November2014. Before we set out the issues whichhave been referred for adjudication by theFull Bench, a brief reference to thebackground in which the reference arosewould be in order.

2. Clause 3 of the Uttar PradeshScheduled Commodities DistributionOrder, 20041 provides that with a view toeffecting a fair distribution of scheduledcommodities, the State Government mayissue directions under Section 3 of theEssential Commodities Act, 19552 to setup such number of fair price shops in anarea and in the manner as it deems fit.Clause 4 requires that a fair price shop berun through such person and in suchmanner as the Collector, subject to thedirections of the State Government, maydecide. A person appointed to run a fairprice shop under sub-clause (1) acts as anagent of the State Government. Moreover,under sub-clause (3), a person soappointed is required to sign anagreement, as directed by the StateGovernment, regarding the running of afair price shop in terms of the draftappended to the Control Order before thecompetent authority prior to the cominginto effect of the appointment. Severalprovisions have been thereafter made inthe Control Order for identification offamilies living below the poverty line, theissuance of ration cards, the quantitiesthat may be purchased, increase in the


number of units and for dealing withmalpractices, including in regard to theissuance of bogus ration cards. Clause 25requires the agent to observe suchconditions as the State Government or theCollector may, by an order in writing,direct from time to time in respect ofopening of the shop, maintenance ofstocks, supply and distribution ofscheduled commodities, maintenance ofaccounts, keeping of registers, filing ofreturns, issuance of receipts and othermatters. There is a prohibition on thetransfer of an agency under Clause 26.Clause 27 provides for a penalty. In thatclause, contraventions of the provisions ofthe Control Order, are liable to bepunished in accordance with the ordersissued by the State Government from timeto time. Clause 28 provides for an appealand is in the following terms:-

"28. Appeal. - (1) All appeals shalllie before the Concerned DivisionalCommissioner who shall hear and disposeof the same or may by order delegatehis/her powers to the AssistantCommissioner Food for hearing anddisposing of the appeal.

(2) Any person aggrieved by an orderof the Food Officer or the designatedauthority refusing the issue or renewal ofa ration card or cancellation of the rationcard may appeal to the AppellateAuthority within thirty days from the dateof receipt of the order.

(3) Any agent aggrieved by an orderof the competent authority suspending orcancelling agreement of the fair priceshop may appeal to the AppellateAuthority within thirty days from the dateof receipt of the order.

(4) No such appeal shall be disposedof unless the aggrieved person or agent

has been given a reasonable opportunityof being heard.

(5) Pending the disposal of an appealthe Appellate Authority may direct thatthe order under appeal shall not takeeffect until the appeal is disposed of."

3. In sub-clause (3) of Clause 28, anagent who is aggrieved by the order of acompetent authority, suspending orcancelling an agreement of a fair priceshop, has the remedy of an appeal to theappellate authority. Under Clause 28(5),the appellate authority is empowered,pending the disposal of the appeal, todirect that the order under appeal shall nottake effect until the appeal is disposed of.

4. The issue which forms the boneof contention is whether, upon thesuspension or cancellation of a licence ofa fair price shop and pending the disposalof an appeal, it is open to the StateGovernment to make an interim ortemporary arrangement by theappointment of a new fair price shopholder. Initially, this issue came up forconsideration before a Division Bench ofthis Court at Lucknow consisting of UmaNath Singh and Anil Kumar, JJ in VinodKumar Mishra Vs. State of U.P., throughSecretary, Food & Civil Supplies & Ors.3On 16 September 2011, the DivisionBench issued an interim direction in thefollowing terms:-

"We have heard learned counsel forparties and perused the pleadings of writpetition.

Of late we are noticing that onaccount of allotment of fair price shops ontemporary basis, though under theresolution of Gaon Sabha, as a result ofcancellation of earlier licence of fair price


shops, lots of unnecessary litigations havebeen generated at the cost of publicexchequer. Therefore, we direct thePrincipal Secretary, Food and CivilSupplies to ensure that till the matter isfinally settled and the Statutory Appeal isdecided, the fair price shops shall not beallotted on adhoc basis and shall beattached only to some other neighbouringfair price shops, in order to avoid creatingthird party rights.

This order shall be circulated to allthe Divisional Commissioners andDistrict Collectors forthwith forcompliance by the Principal Secretary.

Registrar of this Court shall issue acopy of this order to the PrincipalSecretary, Food and Civil Suppliesimmediately for compliance.

List the matter on 28.09.2011 forarguments."

5. On 19 October 2011, another writpetition, Jagannath Upadhyay Vs. State ofU.P., through Principal Secretary, Food &Civil Supplies & Ors.4, came up beforethe same Division Bench at Lucknow.The Division Bench in that case wasseized of a grievance that though theappeal filed under Clause 28(3) waspending before the Commissioner, theState had proceeded to create third partyrights. This, the Division Bench held, wascontrary to the directions issued on 16September 2011 at the interim stage inVinod Kumar Mishra (supra). Though thedirections which were issued on 16September 2011 were of an interlocutorynature, this time, the Division Bench inJagannath Upadhyay's case disposed ofthe writ petition finally in terms of theinterim directions in the earlier case withthe following observations:-

"Learned counsel for petitionersubmitted that though appeal of petitionerfiled under Order 28(3) of the U.P.Schedule Commodities DistributionOrder, 2004 is pending before theCommissioner concerned still therespondents have proceeded to create athird party right which is contrary to thedirections given in order dated 16.09.2011passed in Writ Petition No. 11977 (MB)of 2010 (Vinod Kumar Mishra Vs. Stateof U.P. & others).

Thus, we take a serious view of thematter and with a note of caution disposeof this writ petition with direction toauthorities to act in terms of the directionsas contained in the aforesaid order whichon reproduction reads as under:-

"We have heard learned counsel forparties and perused the pleadings of writpetition.

Of late we are noticing that onaccount of allotment of fair price shops ontemporary basis, though under theresolution of Gaon Sabha, as a result ofcancellation of earlier licence of fair priceshops, lots of unnecessary litigations havebeen generated at the cost of publicexchequer. Therefore, we direct thePrincipal Secretary, Food and CivilSupplies to ensure that till the matter isfinally settled and the Statutory Appeal isdecided, the fair price shops shall not beallotted on ad hoc basis and shall beattached only to some other neighbouringfair price shops, in order to avoid creatingthird party rights.

This order shall be circulated to allthe Divisional Commissioners andDistrict Collectors forthwith forcompliance by the Principal Secretary.

Registrar of this Court shall issue acopy of this order to the Principal


Secretary, Food and Civil Suppliesimmediately for compliance.

List the matter on 28.09.2011 forarguments."

Writ petition thus stands disposedof."

6. Subsequently, Vinod KumarMishra's case (supra), in which interimdirections had been issued on 16September 2011, was heard by theDivision Bench at Lucknow and wasdisposed of with the followingobservations:-

"Heard learned counsel for theparties and perused the record.

The licence of fair price shop of thepetitioner was set aside by the appellateforum. Thereafter, it was was restored andafter restoration, the same was granted infavour of the private-opposite party.

Submission of learned counsel forthe petitioner is that in view of settledlaw, the licence of fair price shop cannotbe granted in favour of the privateopposite party and it should have beenrestored in favour of the petitioner. Incase, it is so, that aspect of the matter canbe looked into by the District SupplyOfficer concerned. Accordingly, we giveliberty to the petitioner to represent hiscause before the District Supply Officer,District-Barabanki, who shall look intothe matter and take a decision with regardto present controversy, in accordance withlaw, by passing a speaking and reasonedorder expeditiously say preferably withina period of two months from the date ofreceipt of certified copy of the presentorder and communicate the decision to thepetitioner.

Subject to above, the writ petition isdisposed of finally."

7. Thus, it is clear that in the originalcase in which an interim direction hadbeen issued, namely, Vinod KumarMishra (supra), the final judgment of theDivision Bench was that liberty wasgranted to the petitioner to represent hiscause before the District Supply Officer,who was directed to take a fresh decisionwith a reasoned and speaking order.However, as we have noted above, in themeantime, in Jagannath Upadhyay's case(supra), the interim direction in VinodKumar Mishra's case, had been convertedinto a final operative direction. Theconsequence thereof was a direction to theeffect that the Principal Secretary (Foodand Civil Supplies) would ensure thatuntil an appeal is decided under Clause28(3), the fair price shop should not beallotted on an adhoc basis and units of theexisting fair price shop shall be attachedonly to some other neighbouring fair priceshop without creating third party rights. InWahid Khan Vs. State of U.P. andothers5, which was decided on 21 June2012, the authorization of the petitionerfor conducting a fair price shop had beencancelled and an appeal was pending. Inthe writ petition, it was urged that pendingthe disposal of the appeal, no third partyrights should be created. The DivisionBench, while dismissing the writ petition,had observed as follows:-

"A fair price shop is settled under theControl Order 2004 for the benefit of thecard holders belonging to the poor strataof the society. After the cancellation ofthe authorization, the fair price shopowner is not left with any rights, to seek adirection for restraining the districtadministration to allot the shop to anyother person during the pendency of theappeal. Where no interim order is grantedby the Commissioner, the Court is not


required to act against the very object ofthe scheme to provide for essentialcommodities at reasonable price to thepoor persons on their door steps. Therestriction on making fresh allotmentcauses extreme hardships to the poorpersons for whose benefit the fair priceshop is run. Such an order is against theobject of public distribution system. Itwill be a travesty of justice to punish thepoor people to travel long distances tocollect the scheduled commodities fromthe fair price shop to which their cards areattached, until the appeal of the person,who has been found guilty of the chargesof irregularities, is decided."

8. Subsequently, another writpetition, Rajeshwar Prasad Vs. State ofU.P. and 3 others6, came up before aDivision Bench of this Court. In that case,the authorization of the petitioner to sellscheduled commodities had beencancelled for irregularities in distributionafter a notice to show cause. Thepetitioner filed an appeal before theCommissioner under Clause 28 of theControl Order and thereafter moved thisCourt, seeking directions restraining theState from settling the shop afresh untilhis appeal was decided. In support of thewrit petition, reliance was placed on thegeneral mandamus, which was issued atLucknow in Jagannath Upadhyay's case(supra). The Division Bench by ajudgment dated 16 July 2014 held asfollows :-

"5. We have, sitting in DivisionBench, issued several orders clarifyingthat no general mandamus can be issuedby this Court. The High Court in itsextraordinary jurisdiction must confineitself to the facts of the case and issuesraised before it. The Supreme Court has

also cautioned that the High Courtsshould not ordinarily, unless it isimperative and in the interest of generalpublic, issue any such directions, whichresult into serious injustice to largenumber of people. Where the fair priceshop is cancelled and an appeal ispending, the card holders are attached tosome other shops, which in rural areas areat the distances of several kilometers. Thependency of the appeals forces thousandsof the beneficiaries under the Schemeliving below poverty line and seekingbenefit under the Antyodaya andAnyapurna Schemes to travel a longdistance to collect their entitlement ofscheduled commodities.

6. The object of the PublicDistribution Scheme is to providescheduled commodities to thebeneficiaries at their doorsteps regularlyon fair and reasonable prices. Thebeneficiaries cannot be punished onaccount of irregularities committed by thefair price shop dealer, who has sufferedcancellation of the licence and has filedan appeal. In such cases fresh shopsshould be immediately settled for thebenefits of the beneficiaries under theScheme subject to the result of the appeal.

7. We find that the generalmandamus issued on 19.10.2011 iscausing injustice to the general publicspecially poor persons, who have to travelseveral kilometers until the person, whohas committed irregularities, gets adecision in his appeal.

8. We thus declare that firstly nosuch general mandamus can be issued bythe Court and secondly the Court is notrequired to pass orders which ultimatelyresult into hardships to the people at large.

9. If any Government Order has beenissued in compliance with the directionsof this Court dated 19.10.2011 by which a


general mandamus is issued, such ordersshall be forthwith withdrawn. The StateGovernment will give publicity to theorders with directions that in cases ofcancellations of fair price shop, the freshfair price shop should be immediatelysettled for the convenience of the generalpublic.

10. This writ petition has been filedwithin a few days of filing the appeal.There is no such delay much lessunreasonable delay to interfere in thematter.

11.The writ petition is accordinglydismissed. A copy of the order will begiven to Chief Standing Counsel forcompliance."

9. The writ petition was accordinglydismissed. The Division Bench alsoobserved that if any Government Orderhad been issued in compliance with thedirections issued on 19 October 2011 inJagannath Upadhyay's case (supra), thatshall be withdrawn forthwith.

10. A Division Bench of this Courtat Lucknow considered the provisions ofClause 28 of the Control Order in VinodKumar Vs. State of U.P. and others7. Thatdecision was rendered on 19 August2014. The Division Bench, whileconstruing the provisions of Clause 28,observed as follows:-

"Clause 28 (3) provides for anappellate remedy before the AppellateAuthority against an order of suspensionor cancellation of an agreement in respectof a fair price shop. Under sub-clause (5),the Appellate Authority is dulyempowered, pending disposal of theappeal, to direct that the order againstwhich an appeal has been filed, shall nottake effect until the appeal is disposed of.

Clearly, therefore, the AppellateAuthority is vested with the power togrant a stay, pending disposal of anappeal, against an order of cancellation or,as the case may be, suspension of anagreement in respect of a fair price shop.Hence, the licence holder is entitled topursue the remedy which is provided inClause 28 of the Control Order. TheControl Order has been made inaccordance with the provisions of Section3 of the Essential Commodities Act, 1955.A person aggrieved by the suspension orcancellation of the licence is entitled tomove the Appellate Authority for aninterim stay. If the licence holder eitherdoes not move an application for aninterim stay, or having moved anapplication fails to obtain an order of stay,it would not then be possible for such alicence holder to urge that pendingdisposal of an appeal filed by him, nosteps should be taken for making alternatearrangements until the appeal is finallydisposed of. The mere filing of an appeal,as the provisions of Clause 28 wouldindicate, does not operate as a stay of theorder which is impugned. Unless anapplication for the grant a stay is movedbefore the Appellate Authority and theAppellate Authority stays the order ofsuspension or cancellation, the order ofsuspension or cancellation, as the casemay be, would continue to remain in forceuntil the appeal is finally disposed of.Having regard to this position in lawwhich clearly emerges from Clause 28, itwould not be correct to hold that the merefiling of an appeal before the AppellateAuthority would either operate as a stayof the order of suspension or cancellationor preclude the State from makingalternate arrangements for the duedistribution of essential commoditiespending disposal of the appeal. The State


may either attach the card holders of theerstwhile licensee, whose licence has beensuspended or cancelled, to another fairprice shop or may appoint a fresh licenseeto whom the fair price shop may beallotted subject to the result of the appeal.In these matters, it is necessary not to losesight of the fact that the private interest ofthe licence holder is always subordinate tothe public interest in ensuring the due andproper supply of food grains to residentsof the area. In a given case, the State may,if it is of the view that an order ofattachment of the card holders to anotherfair price shop would be administrativelyefficient, pass such an order. However, itmay well happen that attaching the cardholders to another fair price shop wouldentail and require the card holders totraverse a long distance which would beinconvenient and ultimately result inseriously affecting the right of theresidents to an efficient supply of foodgrains under the public distributionsystem. Ultimately, it is for the State totake a considered decision having regardto the predominant aspect of publicinterest in each case."

11. We may note, at this stage, thatthe Division Bench at Lucknow duly tooknote of the interim order which waspassed in Vinod Kumar Mishra (supra) on16 September 2011 and to the final orderdisposing of that petition on 12 December2011. The Division Bench also took noteof the judgment of a Division Bench inWahid Khan (supra). The attention of theDivision Bench at Lucknow was,however, not drawn to the fact that theinterim directions in Vinod KumarMishra's case had been embodied in theform of a final operative judgment inJagannath Upadhyay's case. Had this factbeen drawn to the attention of the

Division Bench, it would be reasonable toassume that the conflict between twoDivision Benches would have resulted ina reference to a Full Bench.

12. The present reference before theFull Bench has been occasioned as aresult of the conflict between the viewsexpressed in the final judgment of theDivision Bench in Jagannath Upadhyay'scase and in Rajeshwar Prasad. We mayalso note that the view of the DivisionBench in Wahid Khan is along the samelines as in Rajeshwar Prasad. Thefollowing questions have been referredfor adjudication by the Full Bench in thisreference :-

"(a) Whether the Division Bench inthe case of Rajeshwar Prasad (supra) wasjustified in declaring the mandamusissued by a coordinate Bench as bad andthereby directing that any GovernmentOrder issued in pursuance thereof may bewithdrawn forthwith or it should havereferred the matter to a larger bench.

(b) Whether both the DivisionBenches in the case of JagannathUpadhyay (supra) and Rajeshwar Prasad(supra) were correct in issuing generalmandamus either way in the matter offresh settlement of shop during thependency of the appeal before theCommissioner or not."

13. We proceed to deal with each ofthe two questions separately.

Re Question '(a)'

14. The narration in the earlier partof this judgment would indicate that inJagannath Upadhyay's case (supra), aDivision Bench of this Court in itsjudgment dated 19 October 2011 had


followed the interim directions issued inVinod Kumar Mishra's case (supra) on 16September 2011. The interim directionswere to the effect that when an agent,whose authorization to conduct a fairprice shop had been terminated, files anappeal under Section 28(3) of the ControlOrder, the Principal Secretary, Food andCivil Supplies, shall ensure that until thematter is finally settled and the statutoryappeal is decided, the fair price shop shallnot be allotted on an adhoc basis and thatthe unit holders would only be attached toa neighbouring fair price shop in order toavoid creating third party rights. InJagannath Upadhyay's case, the DivisionBench adopted the interim directions inthe earlier decision and converted theminto a final operative order in its judgmentdated 19 October 2011. Thus, what wasinitially an interim direction assumed thecharacter of a final judgment albeit inanother case. Once this was the position,and when a subsequent Division Benchhearing Wahid Khan's case was apprisedof the final judgment dated 19 October2011 in Jagannath Upadhyay's case, thejudgment of the coordinate DivisionBench ought to have been followed or, ifthe Division Bench had reservations aboutthe correctness of the view, a referenceought to have been made to the FullBench. The judgment in Wahid Khan'scase was rendered on 21 June 2012 andexpressly refers to the final judgmentdated 19 October 2011 in which a generalmandamus had been issued.Subsequently, in Rajeshwar Prasad's case,which was decided on 16 July 2014, onceagain a reference was made to the finaldecision in Jagannath Upadhyay's case.Despite the fact that there was a finaljudgment in Jagannath Upadhyay's case,the Division Bench observed in itsoperative directions that the Government

Order which had been issued incompliance with the directions of theCourt on 19 October 2011, shall bewithdrawn forthwith. On merits, theDivision Bench took the view that thegeneral mandamus which was issued on19 October 2011 was causing injustice tothe general public, specially those whoare below the poverty line who had totravel large distances until the agent,whose authorization has been cancelledfor irregularities, gets a decision on hisappeal.

15. We will, as a larger bench, berequired to consider the merits of theissues separately. But insofar as question'(a)' is concerned, this Court has to dealwith the issue of propriety and procedure.The law on the issue is clearly wellsettled. An earlier judgment of acoordinate Bench binds a subsequentBench of the High Court. If a subsequentBench, considering the same issue is ofthe view that the earlier decision iserroneous or has failed to consider thecorrect legal position, the correct courseof action is to make an order referring thecase to a larger bench. Consequently, if aSingle Judge is inclined to disagree withthe view of another Single Judge, areference is made to a Division Bench andif a Division Bench is unable to subscribeto the view of an earlier Division Benchon the subject, a reference has to be madeto the Full Bench. This is not merely amatter of procedure but of judicialpropriety which is founded on soundconsiderations of public policy.Adjudication of cases in the High Courtmust have an element of certainty.Consistency in judicial decision making isa hallmark of a system based on the ruleof law. Errors in judicial decision-makingcan be resolved by adopting recourse to


well settled judicial procedures within theCourt which consist of making a referenceto the larger bench.

16. This position has been set out inseveral decisions of the Supreme Court.In Tribhovandas Purshottamdas ThakkarVs. Ratilal Motilal Patel8, while dealingwith a case in which a Judge of the HighCourt had failed to follow an earlierjudgment of a larger bench in the sameCourt, the Supreme Court observed asfollows :-

"...Judicial decorum, propriety anddiscipline required that he should notignore it. Our system of administration ofjustice aims at certainty in the law andthat can be achieved only if Judges do notignore decisions by courts of coordinateauthority or of superior authority.Gajendragadkar, C.J., observed inBhagwan v. Ram Chand: (AIR p. 1773,para 18).

"18. ... It is hardly necessary toemphasise that considerations of judicialpropriety and decorum require that if alearned Single Judge hearing a matter isinclined to take the view that the earlierdecisions of the High Court, whether of aDivision Bench or of a Single Judge, needto be re-considered, he should not embarkupon that enquiry sitting as a SingleJudge, but should refer the matter to aDivision Bench, or, in a proper case, placethe relevant papers before the ChiefJustice to enable him to constitute a largerBench to examine the question. That isthe proper and traditional way to dealwith such matters and it is founded onhealthy principles of judicial decorum andpropriety."

17. We may advert to the decision inState of Tripura Vs. Tripura Bar

Association and others9, in which thefollowing position in law was laid down:-

"We are of the view that the DivisionBench of the High Court which hasdelivered the impugned judgment being acoordinate Bench could not have taken aview different from that taken by theearlier Division Bench of the High Courtin the case of Durgadas Purkayastha. Ifthe latter Bench wanted to take a viewdifferent than that taken by the earlierBench, the proper course for them wouldhave been to refer the matter to a largerBench. We have perused the reasonsgiven by the learned Judges for notreferring the matter to a larger Bench. Weare not satisfied that the said reasonsjustified their deciding the matter and notreferring it to the larger Bench..."

18. In Usha Kumar Vs. State ofBihar and others10, the Supreme Courtobserved as follows:-

"...One Division Bench cannot ignoreor refuse to follow the decision of anearlier Division Bench of the same Courtand proceed to give its decision contraryto the decision given by the earlierDivision Bench. If it is inclined to take adifferent view, a request should be madeto the Chief Justice to refer the same to aFull Bench..."

19. For these reasons, we answer thefirst question, by holding that the DivisionBench which decided the issue inRajeshwar Prasad (supra) was notjustified in declaring the mandamusissued by a coordinate Bench as bad andthereby directing that any GovernmentOrder issued in pursuance thereof may bewithdrawn forthwith. The correct courseof action for the Division Benches which


heard Wahid Khan and Rajeshwar Prasad(supra), if they found themselves unableto agree with the earlier decisions, was tohave referred the matter to a larger bench.

Re Question '(b)'

20. The second question which hasbeen referred for decision by the FullBench essentially turns upon the merits ofthe issue. The Control Order provides inClause 28(3) a remedy of an appeal to anagent who is aggrieved by the suspensionor cancellation of his agreement for a fairprice shop. Sub-clause (5) of Clause 28contemplates that pending the disposal ofthe appeal, the appellate authority maydirect that the order under appeal shall nottake effect until the appeal is disposed of.

21. Where a person whoseauthorization to conduct a fair price shopis aggrieved either by the suspension orcancellation of that authorization, such aperson is entitled to pursue the remedy ofa statutory appeal. In such an appeal, aprovision for seeking an interim stay hasbeen made in sub-clause (5) of Clause 28of the Control Order. If the order ofsuspension or cancellation is not stayed, itnecessarily continues to remain in forceand effect pending the disposal of theappeal. If no application for stay is madeat all, the same consequence wouldfollow. Equally, if an application for stayhas been made and refused, the order ofsuspension or cancellation, as the casemay be, would continue to remain inforce. The mere filing or pendency of anappeal or, for that matter, even thependency of an application for stay in theappeal does not operate to stay the orderof suspension or cancellation. An order ofsuspension or cancellation would continueto remain in effect unless and until it is

either stayed at the interim stage underClause 28(5) or upon the order being setaside at the final disposal of the appeal. Inview of this clear position in law, it is notopen to a person whose authorization issuspended or cancelled to seek an orderfrom the writ court under Article 226 ofthe Constitution restraining the State frommaking alternate arrangements despite thefact that no stay operates during thependency of the appeal. If a stay has beenrefused, undoubtedly, the agent whoseauthorization has been suspended orcancelled, may take recourse to his lawfulremedies but unless and until theoperation and effect of the suspension orcancellation has been stayed or set aside,the plain consequence in law is that itwould continue to remain in full force andeffect.

22. The provisions of the ControlOrder are conceived in public interest.The object and purpose of the ControlOrder is to enable the State to dischargeits fundamental duty and obligation ofensuring the equitable distribution ofscheduled commodities. The ControlOrder is conceived in the interest of thoseto whom the public distribution system isintended, who belong to the marginalizedsections of society, including personsbelow the poverty line. It is their interestwhich is paramount. The State has tomake proper arrangements to ensure theequitable distribution of essentialcommodities to those persons and must beguided by the public interest in securingthe equitable distribution of food grains,which is the paramount concern. It would,to our mind, be a travesty of justice tohold that a person whose authorizationhas been suspended or cancelled forirregularities in the distribution of foodgrains, has a right or entitlement to


prevent the State from making alternatearrangements pending the disposal of theappeal, even though the order ofsuspension or cancellation has not beenstayed. The person whose authorizationhas been cancelled or suspended is merelyconstituted as an agent of the StateGovernment by Clause 4(2) of the ControlOrder. His rights and entitlement cancertainly not be paramount over the publicinterest in securing proper distribution offood grains to the marginalized sectionsof society.

23. For these reasons, we hold thatthe Division Bench in JagannathUpadhyay's case was not justified or, forthat matter, correct in law in issuing ageneral mandamus to the effect that thePrincipal Secretary, Food and CivilSupplies shall ensure that till a statutoryappeal is decided, the fair price shop shallnot be allotted on an adhoc basis and shallbe attached to some other neighbouringfair price shop. What arrangement shouldbe made when an authorization has beensuspended or cancelled, is anadministrative matter for the State whichhas to bear in mind issues of publicinterest and local need over and above theprivate interest. In consequence, theGovernment Order which was issued on10 July 2014 in pursuance of thedirections issued by the Division Bench inJagannath Upadhyay's case (supra),decided on 19 October 2011, would haveno meaning and must be recalled by thePrincipal Secretary, Food and CivilSupplies forthwith. As regards, thegeneral mandamus which was issued bythe Division Bench in Rajeshwar Prasad(supra), we have already held that if theDivision Bench were to disagree with theearlier decisions, the correct course ofaction would have been to refer the matter

to the Full Bench. Since, eventually theconflicting views have been referred tothe Full Bench, we have put the matter torest by this judgment.

24. We, accordingly, hold that theauthorization granted to a person to conducta fair price shop only constitutes such aperson as an agent of the State Governmentunder Clause 4(2) of the Control Order. If theauthorization is suspended or cancelled, aremedy of an appeal is provided in Clause28(3). During the pendency of an appeal, aprovision has been made in Clause 28(5), forseeking a direction that the order underappeal shall not take effect until the appeal isdisposed of. If the order of suspension orcancellation has not been stayed pending thedisposal of the appeal, the cancellation orsuspension, as the case may be, shallcontinue to remain in effect. The mere filingor pendency of an appeal or an applicationfor stay does not result in a deemed orautomatic stay of the order of suspension orcancellation. There is no such deemingprovision. In such a situation, the State is atliberty to make necessary administrativearrangements to ensure the properdistribution of scheduled commodities basedon the public interest in the properfunctioning of the Public DistributionScheme and on an assessment of local needsand requirements that would sub-serve theinterest of the beneficiaries. We, therefore,hold that the interim mandamus in VinodMishra and the judgment in JagannathUpadhyay's case (supra) which took acontrary view do not reflect the correctposition in law and would consequentlystand overruled. The Principal Secretary,Food and Civil Supplies, shall now on thebasis of the present judgment, issue acircular to all the Divisional Commissionersand concerned officials of the State so thatnecessary steps in compliance are taken. The

1 All] Smt. Afroz Jahan Vs. State of U.P. & Ors. 479

learned Standing Counsel has apprised theCourt that the Government Order dated 10July 2014 has since been withdrawn by thePrincipal Secretary, Food and Civil Supplieson 26 November 2014 and a newGovernment Order has been issued.

25. The reference to the Full Benchis answered in the aforesaid terms. Thewrit petition shall now be placed beforethe regular Bench in accordance with theroster of work for disposal in the light ofthis decision.



BEFORETHE HON'BLE TARUN AGARWALA, J.

THE HON'BLE DR. SATISH CHANDRA, J.

C.M.W.P. No. 58619 of 2014

Smt. Afroz Jahan ...PetitionerVersus


Counsel for the Petitioner:Sri Amit Saxena

Counsel for the Respondents:C.S.C., Sri Chandra Pal Singh, Sri UmeshVats.

U.P. Kshetra Panchayat & Zila PanchayatAdhiniyam 1961-Section 9-A-Temporaryappointment of Pramukh-vacancy caused-on confinement in jail-District Magistrate byexercising power appointed petitioner-subsequent removal and appointment ofrespondent-3 and the respondent-4-heldillegal-after temporary arrangement-theDistrict Magistrate became functus officio-unless temporary Pramukh fails todischarge its duty-order quashed.

Held: Para-11

In the instant case, the petitioner wasdischarging his duties as officiatingPramukh. There was no occasion for theDistrict Magistrate to exercise furtherpowers under Section 9-A of the Act of1961 since no temporary vacancy hadoccurred. Merely because some membershad made a complaint against thepetitioner will not allow or justify theDistrict Magistrate to pass a fresh orderunder Section 9-A of the Act. For removalof the Pramukh including an officiatingPramukh, the procedure to be followedwould be by bringing a motion of noconfidence under Section 15 of the Act.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Sri Yogendra Singh alias Bhurawas elected as the Pramukh of the KshetraPanchayat Dilari, District Moradabad. Ittranspires that a criminal case, being CaseCrime No.142 of 2013 under Section 147,148, 149 and 302 of the Indian PenalCode was instituted against this Pramukhwho was, subsequently, arrested and sentto jail. At the present moment, the saidPramukh continues to languish in jail andhas not been bailed out on account ofwhich a temporary vacancy has occurredin the office of the Pramukh andnecessary arrangement is required to bemade by the District Magistrate underSection 9-A of the U.P. KshetraPanchayat and Zila PanchayatAdhiniyam, 1961 (hereinafter referred toas the "Act").

2. The District Magistrate, inexercise of his powers under Section 9-Aof the Act, issued an order dated27.01.2014 appointing the petitioner, whoan elected member of the kshetrapanchayat, as an officiating Pramukh.

3. It transpires that some complaintwas given by certain members against the


petitioner and, based on this complaint,the District Magistrate passed a freshorder dated 30.09.2014 removing thepetitioner from the post of officiatingPramukh and appointing the Sub-Divisional Magistrate as the officiatingPramukh. Subsequently, by another orderdated 15.10.2014 the District Magistratemodified its order dated 30.09.2014 andappointed Smt. Sazida Begum-respondentno.4 as the officiating Pramukh. Thepetitioner, being aggrieved by the actionof the District Magistrate in removing thepetitioner and appointing respondent no.3and thereafter, respondent no.4 asofficiating Pramukh has filed the presentwrit petition.

4. We have heard Sri Amit Saxena,the learned counsel for the petitioner, SriUmesh Vats, the learned counsel forrespondent no.4 and the learned StandingCounsel for respondents no.1, 2 and 3.

5. Learned counsel for the petitionersubmitted and contended vehemently thatonce the power has been exercised by theDistrict Magistrate under Section 9-A ofthe Act, he becomes functus officio andcould not pass another order removing thepetitioner from the post of officiatingPramukh and appointing another memberas the officiating Pramukh. It wascontended that power can only beexercised when there is a temporaryvacancy and, in the absence of atemporary vacancy it was not open to theDistrict Magistrate to exercise the powersafresh by removing him on someunfounded charges and appointinganother member to officiate as thePramukh. It was further contended thatassuming without admitting that theDistrict Magistrate had the powers underSection 9-A, the said order was violative

of the principles of natural justice as theimpugned order clearly indicated that hewas removed on a certain charge made bycertain members to which he was entitledto submit a reply and be given anopportunity of hearing, which in theinstant case had not been done.

6. On the other hand, the learnedStanding Counsel for respondents no.1, 2and 3 and Sri Umesh Vats, the learnedcounsel for respondent no.4 contendedthat the District Magistrate has the power tomake arrangement as he thinks fit and, in thisregard, can change the temporary Pramukh ifhe finds that such arrangement so made wasnot for the benefit of the kshetra panchayat.The learned counsel contended that theDistrict Magistrate has been given the powerto make temporary arrangement to appoint aperson as an officiating Pramukh underSection 9-A of the Act where the Pramukhwas unable to discharge his functions owingto absence, illness or any other cause and, inview of Clause 16 of the U.P. GeneralClauses Act, where a power to make theappointment is conferred upon an authority,such power to appoint also includes thepower to suspend or dismiss any person soappointed in exercise of that power. It wascontended that in the light of Clause 16 ofthe U.P. General Clauses Act, the DistrictMagistrate had the power to remove theofficiating Pramukh.

7. Having heard the learned counselfor the parties, it would be appropriate tohave a look at Section 9-A, which wassubstituted by U.P. Act No.44 of 2007.For facility, the said provision is extractedhereunder:

"9-A. Temporary arrangement incertain cases. - When the Pramukh isunable to discharge his functions owing to

1 All] Smt. Afroz Jahan Vs. State of U.P. & Ors. 481

absence, illness or any other cause, theDistrict Magistrate may, by order, makesuch arrangement, as he thinks fit, fordischarge of the functions of the Pramukhuntil the date on which the Pramukhresumes his duties."

8. From a perusal of the aforesaidprovision, it is apparently clear that wherethe Pramukh is unable to discharge hisfunctions owing to absence, illness or anyother cause, the District Magistrate wouldmake such arrangement as he thinks fitfor the discharge of the functions of thePramukh until the date on which thePramukh resumes his duty. The saidprovision makes it apparently clear andexplicit without any room for doubt thatthe District Magistrate has been conferredthe power only when a temporary vacancyon the post of Pramukh arises and thatsuch power cannot be exercised wheresuch temporary vacancy is not available.

9. In the instant case, the Pramukhwas arrested and sent to jail.Consequently, the said Pramukh could notdischarge the functions of the Pramukhand the work of the kshetra panchayatwas suffering. Therefore, a temporaryvacancy arose and the District Magistratewas justified in exercising the powers andmake such arrangement as he thought fitfor the discharge of the functions of thePramukh by appointing the petitioner toofficiate as the Pramukh.

10. In our view, once this power hasbeen exercised the District Magistratebecomes functus officio and could notpass any further order, inasmuch as thesaid temporary vacancy gets filled up. Inthe event, the temporary Pramukh failedto discharge his functions owing toabsence, illness or any other cause, in that

scenario, the District Magistrate gets freshpowers to order and make arrangement ashe thinks fit for the discharge of thefunctions of the Pramukh and nototherwise.

11. In the instant case, the petitionerwas discharging his duties as officiatingPramukh. There was no occasion for theDistrict Magistrate to exercise furtherpowers under Section 9-A of the Act of1961 since no temporary vacancy hadoccurred. Merely because some membershad made a complaint against thepetitioner will not allow or justify theDistrict Magistrate to pass a fresh orderunder Section 9-A of the Act. For removalof the Pramukh including an officiatingPramukh, the procedure to be followedwould be by bringing a motion of noconfidence under Section 15 of the Act.

12. Clause 16 of the U.P. GeneralClauses Act will not be applicable,inasmuch as the said power can only beexercised, if no different intention appearsunder the Act. The Act gives power to theDistrict Magistrate to make temporaryarrangements. The power to remove aPramukh lies with the members of thekshetra panchayat by bringing a motion ofno confidence against the Pramukh underSection 15 of the Act.

13. Consequently, we are of theopinion that the District Magistrate isdenuded of his powers for removal of anofficiating Pramukh appointed by himunder Section 9-A of the Act.

14. In view of the aforesaid, theDistrict Magistrate becomes functusofficio the moment he passes an orderunder Section 9-A of the Act and that theDistrict Magistrate can exercise his


powers afresh when another temporaryvacancy occurs.

15. The respondents concede thatthe District Magistrate could not haveappointed a Sub-Divisional Magistrateand that only a member of the kshetrapanchayat could be appointed as atemporary Pramukh as held by a DivisionBench of this Court in Smt. MamtaKanaujia and others Vs. State of U.P. andothers, 2009 (3) ALJ 339.

16. In the light of the aforesaid, theimpugned orders dated 30.9.2014 and15.10.2014 cannot be sustained and arequashed.

17. The writ petition is allowed. TheDistrict Magistrate is directed to give thecharge of officiating Pramukh to thepetitioner forthwith.



BEFORETHE HON'BLE YASHWANT VARMA, J.

Writ-A No. 60741 of 2010Along with Writ-A No. 61524 of 2010,Writ-A No. 66305 of 2010, Writ-A No.

61529 of 2010

Hansraj Singh & Ors. ...PetitionersVersus


Counsel for the Petitioners:Sri M.K. Mishra


Constitution of India, Art.-226-Recoveryof excess amount-wrongly paid towards

promotional pay-petitioners working asTube well operator-given promotionalpay w.e.f. 1990-while in 2006 afterretirement-tress out wrong done infixation-instead of 1994-benefit givenfrom 1990-held-petitioner not beinginstrumental in getting excess amount-inview of contingencies contained injudgment of Apex Court in Rafiq Masihcase-recovery not proper.

Held: Para-20If there were possibility of any doubtbeing entertained with regard to thebasic proposition with respect torecovery of amounts paid by mistake toemployees, the same has been accordeda quietus by the above pronouncementof the Apex Court.

Case Law discussed:(2004) 2 ESC, 791; 2011 (5) ESC 3035; 2014(8) SCC 883; Civil Appeal No. 11527 of 2014 .

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard Shri M.K. Mishra, learnedcounsel for the petitioners and Shri H.C.Pathak, learned Standing Counselappearing for the contesting respondents.

2. The parties are agreed that allthese four connected writ petitionsinvolve the same controversy and stemfrom similar orders of recovery of paymade against the petitioners. Accordingly,and with their consent all these writpetitions are being disposed of by thiscommon judgment.

3. Arguments have been advancedby the learned counsel for the partiestreating Writ Petition No.60741 of 2010,to be the leading writ petition. However,it would be appropriate to briefly noticethe facts of each case.

Writ Petition No.60741 of 2010.

1 All] Hansraj Singh & Ors. Vs. State of U.P. & Ors. 483

4. All the petitioners are "Tube-wellOperators" who were appointed in theIrrigation Department, Government ofU.P. on different dates between 1968-1970. Upon successful completion of 14to 16 years of satisfactory service theywere granted promotional pay scale ofRs.1200-2040/- with effect from01/5/1990. The petitioners subsequentlyretired from service in 2006-2007.However, during the course of finalizationof their pension papers, it appears that theissuance of grant of the pay scale ofRs.1200-2040/- came up for considerationand the respondents took the view that thesaid promotional pay scale was liable tobe granted to them with effect from10/10/1994. These decisions of the StateGovernment stand embodied in the orders18/12/2006 and 22/12/2006. It was on thebasis of the aforementioned orders thatindividual orders of recovery ofdifferential pay scales were issued againstthe petitioners on 05/10/2007.


5. The three petitioners in this writpetition are "Tube-well Operators" who wereworking in the Irrigation Department and hadbeen similarly granted pay scale of Rs.1200-2040/- with effect from 01/5/1990. Thesepetitioners who were appointed in the years1969, 1971 and 1976 have since retired uponattaining the age of superannuation in the year2008 and 2010. Upon the State Governmentpassing the orders dated 18/12/2006 and22/12/2006, orders of recovery dated20/12/2008 (against the petitioner nos.1 and 2herein) and 08/4/2008 (against the petitionerno.3) came to be passed.

6. Aggrieved by the aforesaid, thepresent writ petition came to be filedbefore this Court.


7. Here too, the 15 petitioners aresaid to be "Tube-well Operators" who hadbeen appointed in the years 1950, 1968,1969 and 1970. Upon completion of theirqualifying service, they were granted thepromotional pay scale of Rs.1200-2040/-with effect from 01/5/1990.

8. They subsequently retired fromservice in the years 2007, 2008, 2009 and2010.

9. Against all these petitioners andconsequent to the orders dated 18/10/2006and 22/12/2006, similar orders ofrecovery have been passed on 23/8/2007.


10. The petitioners herein wereappointed as "Tube-well Operators" in theIrrigation Department of the State of U.P.in the years 1971 and 1976. They tooupon completion of 14 to 16 years ofsatisfactory service were granted thepromotional pay scale of Rs.1200-2040/-with effect from 01/5/1990. They havesince retired from service in the years2009, 2010 and 2011. Consequent to theorders dated 18/12/2006 and 22/12/2006orders of recovery dated 27/12/2007 wereissued against the petitioners and whichform subject matter of challenge in thiswrit petition.

11. The admitted facts as theyemerge from the pleadings of the partiesare:that the petitioners upon completionof 14 to 16 years of service as "Tube-wellOperator" in the Irrigation Departmentwere granted a promotional pay scale ofRs.1200-2040/-. Continuing in service,


they were granted revised pay scales andalso retired from service in 2006-2007. Itappears that with effect from 10/10/1994,the petitioners were drawing Rs.1320/-and with consequential pay revisions theyat the time of retirement were earningRs.5500/-. The pay scale of Rs.1200-2040/- in which the petitioners weredrawing Rs.1320/- as on 10/10/1994, wasgranted to them with effect from 01/5/1990.It thereafter transpires that certainclarifications were received from the StateGovernment with regard to the dates fromwhich the said pay revisions were liable to begranted to the employees. These instructionsare contained in the communications of theState Government dated 18/10/2006 and22/12/2006. Pursuant thereto, all thepetitioners were served with orders dated05/10/2007 (Annexures-1 to 5) to the writpetition. These orders disclose the amountswhich the petitioners had drawn and retainedat the relevant time and what was actuallypayable to them as per the directives of theGovernment. These pay revision orderscarried a note that insofar as the retiredemployees are concerned, the excesspayment made to them shall be recovered inone installment. It is at this stage that thepetitioners approached this Court.

12. From the records it transpiresthat these orders passed in 2007 wereassailed before this Court only in 2010and this Court while entertaining the writpetitions did not grant any interimprotection to the petitioners.Consequently, the learned counsel for thepetitioners informs, that the excessamounts have been recovered from all thepetitioners.

13. Learned counsel for thepetitioners has submitted that the excessamount which is sought to be recovered

from the petitioners is an action which isclearly arbitrary, inasmuch as the payrevision is sought to be affected aftermore than 17 years. Elaborating hissubmissions, learned counsel for thepetitioners submitted that the petitionershad been granted the benefit of Pay Bandof Rs.1200-2040 with effect from01/5/1990, and it was this decision whichwas sought to be reviewed by the ordersdated 05/10/2007. He further submittedthat the respondents nowhere contendedthat the said excess payments came to bemade to the petitioners by virtue ofconcealment of any material facts and orany misrepresentation by them. Hetherefore, submitted, that the impugnedorders of recovery were clearly arbitraryand are accordingly liable to be quashedby this Court.

14. Learned Standing Counsel whileopposing these writ petitions hascontended that the pay revisions came tobe made pursuant to the clarificationsreceived from the Statement Governmentand that therefore, the petitioners cannotbe permitted to retain the excess amount.He further submitted that the petitionersdo not dispute the correctness of theclarifications issued by the StateGovernment and at least no such groundhas been taken in the writ petition whichmay cloud the validity of the clarificationsissued by the State Government.

15. In response to the abovesubmissions, advanced on behalf of theState Government, the learned counsel forthe petitioners while reiterating hissubmissions further urged that the actionof the respondents was not only arbitrary,but was also discriminatory. He submittedthat the recoveries sought to be madefrom the petitioners was confined to

1 All] Hansraj Singh & Ors. Vs. State of U.P. & Ors. 485

employees posted only in six Districts outof the 71 Districts of the State of U.P. Hefurther submitted that the StateGovernment had taken no steps forrecovery from the pay or pensionarybenefits of the employees who had retiredprior to 23/8/2007. These pleas ofdiscrimination have been specificallytaken in paragraphs 21 and 22 of the writpetition and the only traverse which theState Government has averred is that thediscrepancies in grant of pay scales cameto light only in the course of test checkingin some districts and that accordingly itcannot be stated that the provisions ofArticles 14 and 16 of the Constitution ofIndia had not been violated.

16. The vexed question of recoveryfrom the pay or pensionary benefits ofemployees has engaged the attention of notjust this Court, but also the Apex Court fromtime to time. Following a long line of decisionrendered by the Apex Court a Bench of thisCourt in Dr. Gopalji Mishra Vs. State of U.P.& Ors (2004) 2 ESC, 791 was pleased to holdas follows in paragraph 20:

"20. So far as the payment of excessamount, which the petitioner was notentitled is concerned, as there has beenno misrepresentation or fraud on the partof the petitioner, he cannot be asked torefund the same. More so, petitionermight have spent the same considering hisown money. Recovery thereof wouldcause great financial hardship to thepetitioner. In such circumstances,recovery should not be permitted. [VideShyam Babu Verma and Ors. v. Union ofIndia and Ors., (1994) 2 SCC 521 ; SahibRam v. State of Haryana and Ors., 1995Suppl (1) SCC 18 and V. Gangaram v.Regional Joint Director and Ors., AIR1997 SC 2776]".

17. The basic proposition laid downin the above decision has beenconsistently followed by this Court andagain reiterated in Dr. Avinash ChandGoel Vs. State of U.P. & Ors, 2011 (5)ESC 3035. Following was laid down inparagraph 7:

"7. In the present case theestablished principle of law, that a personcannot be asked to repay the amount,which was not due to him, but has beenpaid to him without any misappropriationor fraud, is squarely applicable. In thiscase the petitioner had protested even tothe alleged wrong fixation of the pay. Hehas given details of his entitlement for thecorrectness of the applicability of the payscale and the benefits to be drawn by himunder the orders of the Supreme Court inChandra Prakash's case in, which notonly the seniority but consequentialbenefits were also allowed to be given tothose medical officers who were to begiven promotions. In such case, theprinciple of law 'no work no pay' will notbe applicable."

18. There is perhaps no need toburden this judgement with reference tofurther precedents, but in order tocomplete the sequence, it would beapposite to note that the seemingcontradictions on certain judgmentsrendered by the Apex Court in this regard,led to a reference being made to a 3Judges' Bench of the Supreme Court ofIndia in State of Punjab & Ors. Vs. RafiqMasih (White Washer) etc and thejudgment handed down by the said Benchwhich stands reported in 2014 (8) SCC883 in paragraph 13 held as under:

"13. Therefore, in our opinion, thedecisions of the Court based on different


scales of Article 136 and Article 142 ofthe Constitution of India cannot be bestweighed on the same rounds of reasoningand thus in view of the aforesaiddiscussion, there is no conflict in theviews expressed in the first twojudgements and the latter judgement."

19. Upon the reference being soreturned, the main matter [Civil AppealNo. 11527 of 2014 State of Punjab andothers -v- Rafiq Masih (Whitewasher)decided on 18.12.2014] came up forconsideration before the Hon'ble SupremeCourt of India again when the Court aftertaking note of all its earlier judgmentshanded down in this regard was pleased torecord its conclusions in paragraph 12 asunder:

"12. It is not possible to postulate allsituations of hardship, which wouldgovern employees on the issue ofrecovery, where payments havemistakenly been made by the employer, inexcess of their entitlement. Be that as itmay, based on the decisions referred toherein above, we may, as a readyreference, summarise the following fewsituations, wherein recoveries by theemployers, would be impermissible inlaw:

(i) Recovery from employeesbelonging to Class-III and Class-IVservice (or Group 'C' and Group 'D'service).

(ii) Recovery from retired employees,or employees who are due to retire withinone year, of the order of recovery.

(iii) Recovery from employees, whenthe excess payment has been made for a

period in excess of five years, before theorder of recovery is issued.

(iv) Recovery in cases where anemployee has wrongfully been required todischarge duties of a higher post, and hasbeen paid accordingly, even though heshould have rightfully been required towork against an inferior post.

(v) In any other case, where theCourt arrives at the conclusion, thatrecovery if made from the employee,would be iniquitous or harsh or arbitraryto such an extent, as would far outweighthe equitable balance of the employer'sright to recover."

20. If there were possibility of anydoubt being entertained with regard to thebasic proposition with respect to recoveryof amounts paid by mistake to employees,the same has been accorded a quietus bythe above pronouncement of the ApexCourt.

21. A perusal of the broadproposition laid down in the aforesaidjudgment of the Apex Court establishesthat the case of the petitioners wouldclearly fall within the categories (i), (ii)and (iii).

22. Consequently, the impugnedorders of recovery dated 05/10/2007,passed in Writ Petition No.60741 of 2010,impugned orders dated 20/12/2008 and08/4/2008, passed in Writ PetitionNo.61524 of 2010, impugned order dated23/8/2007, passed in Writ PetitionNo.66305 of 2010, and impugned orderdated 27/12/2007 passed in Writ PetitionNo.61529 of 2010 cannot be sustainedand are liable to be quashed.

1 All] Afjal Khan Vs. State of U.P. & Ors. 487

23. Accordingly, and in view of theabove, all these writ petitions standallowed.

24. All the impugned orders dated05/10/2007, 20/12/2008 and 08/4/2008,23/8/2007, and 27/12/2007, made againstthe petitioners shall stand quashed. Thepetitioners shall be entitled to the refundof sums recovered from them pursuant tothe aforesaid orders.



BEFORETHE HON'BLE YASHWANT VARMA, J.

Writ-A No. 62804 of 2009

Afjal Khan ...PetitionerVersus

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

Counsel for the Petitioner:Sri Anil Kumar Pathak


U.P. Police Officers of Subordinate Rank(Punishment & Appeal) Rules 1991-Rule8(2)(b)-dismissal by evoking power underrule-without recording satisfaction aboutimpractically to hold enquiry-rather selfcontradictory findings recorded-on onehand conclusive and adequate evidence-onother in departmental enquiry no personwould come to give evidence-order notrefer or rely upon any such material tojustify impugned order-quashed.

Held: Para-15 & 1615. More importantly, it must be bornein mind that when powers underprovisions such as those contained inClause (b) of Rule 8(2) are exercised,there must exists material before the

authority which enables him to form anopinion that it is not reasonablypracticable to hold the departmentalinquiry. No such material appears tohave been in existence at the time whenthe impugned order was passed. At least,the order does not refer to or rely uponany such material. Nor was any suchmaterial laid before this Court to justifythe passing of the order impugned.

16. In the opinion of the Court, thecircumstances and the nature of thepersons who were likely to be involved inbringing home the charge against thepetitioner were clearly present and therewas no material on the basis of which areasonable person could have come to aconclusion that it was not reasonablypracticable to hold a regular inquiryagainst the petitioner.

Case Law discussed:2014 (13) SCC 244; SCC p. 369, para 5.

(Delivered by Hon'ble Yashwant Varma, J.)

1. The challenge in the present writpetition is to an order dated 9.2.2009dismissing the petitioner, who was aConstable in the Armed Police, fromservice. The order itself has been passed inexercise of powers conferred by Rule8(2)(b) of the U.P. Police Officers ofSubordinate Rank (Punishment AndAppeal) Rules, 1991 (hereinafter referred toas the "Rules, 1991"). The provisionaforementioned confers discretion upon theAuthority to dispense with the inquirycontemplated and liable to be conductedbefore dismissing/removing a person orinflicting upon him the punishment ofreduction in rank. A reading of the aforesaidprovision shows that the said power isavailable to be exercised if the Authority issatisfied that for reasons recorded inwriting, it is not practicable to hold such aninquiry. The provision in such sense is akin


to Article 311 (2) of the Constitution ofIndia.

2. A reading of the impugned orderestablishes that the respondent No. 2 haschosen to exercise the said power on theground that in the departmentalproceedings, no person will come forwardto give evidence. He further records thatthe continuance of the petitioner inservice would have a deleterious effect onother employees of the Department.

3. A reading of the impugned ordershows that on 5.2.2009, information withregard to the conduct of the petitioner wasreceived at about 4:25 in the evening andwhen police authorities arrived on thescene, it is alleged, that the petitioner wasfound in an intoxicated state and that hisrifle was placed against the wall. Findingthe petitioner in such a state, the policeauthorities, who had arrived at the scene,took into their custody the weapon andammunition on the person of thepetitioner whereafter, he was taken for amedical examination to Lala Lajpat RaiHospital, Kanpur. The impugned orderfurther records that upon a medicalexamination being conducted, theauthorities submitted a report whichcorroborated the fact of the Petitionerbeing under the influence of alcohol andin a state of inebriation during duty hours.The impugned order then proceeds torecord various findings on the pastconduct of the petitioner and concludesthat the conduct of the petitioner wasclearly unbecoming of a member of adisciplined force and that his continuancein service would clearly not be in thegeneral interest of discipline in theDepartment and that the conduct of thepetitioner clearly amounted to shaking theconfidence which the members of the

general public were entitled to expectfrom a member of a disciplined force.

4. It is in the aforesaid backdrop thatultimately the respondent No. 2 proceedsto record that no person would comeforward to give evidence against thepetitioner and in the absence of evidencebeing submitted against him he would getaway scot free. The respondent No. 2thereafter proceeds to impose thepunishment of dismissal upon him byexercise of powers under Rule 8(2)(b) ofthe Rules, 1991.

5. Learned counsel appearing for thePetitioner has submitted that theimpugned order is clearly illegalinasmuch as there was no material beforethe Respondent Authority which justifiedthe formation of opinion that it was not"reasonably practicable" to hold theenquiry against the Petitioner. He wouldsubmit that the circumstances did notwarrant the invocation of powersconferred by Rule 8 (2) (b) of the Rules,1991. He has further submitted that therespondent has committed a manifestillegality inasmuch as on the one hand herecords that there was more than ampleevidence against the Petitioner and on theother that no one would come forward todepose against him.

6. Learned counsel appearing for thecontesting respondents and opposing thewrit petition has submitted that thepetitioner's work and conduct was neversatisfactory and that earlier too he hadbeen suspended from duty in 1994 andthat he was also imposed penalty in theyear 1997. Referring to the materialgathered in the course of inquiry into theabove incident, the learned StandingCounsel further pointed out that on the


date of occurrence of the incident inquestion, the petitioner was found to bepresent in the Branch premises in adrunken state and is alleged to havemisbehaved with the customers. Uponreceiving such information, the police ofP.S. Najirabad reached the bank premisesand took him as also his rifle andammunition into their custody. Hesubmitted that the medical examinationcorroborated the fact that the Petitionerwas intoxicated at the relevant time andthe respondent was therefore justified interminating the services of the Petitioner.He submitted that the invocation ofpowers under Rule 8(2)(b) of the Rules,1991 was based upon the subjectivesatisfaction of the respondent and thesame did not commend any interferenceby this Court under Article 226 of theConstitution of India.

7. Before proceeding further itwould be apposite to notice the languageof Rule 8 upon which the resolution of theinstant controversy would pivot:-

"8.Dismissal and removal-- (1) Nopolice officer shall be dismissed orremoved from service by an authoritysubordinate to the appointing authority.

2. No police officer shall bedismissed, removed or reduced in rankexcept after proper inquiry anddisciplinary proceedings as contemplatedby these rules:

Provided that this rule shall notapply:

(a) Where a person is dismissed orremoved or reduced in rank on theground of conduct which has led to hisconviction on a criminal charge; or

(b) Where the authority empoweredto dismiss or remove a person or toreduce him in rank is satisfied that forsome reason to be recorded by thatauthority in writing, it is not reasonablypracticable to hold such enquiry; or

(c) Where the Government issatisfied that in the interest of the securityof the State it is not expedient to hold suchenquiry."

8. A bare reading of the aforesaidprovision makes it apparent that theholding of an inquiry and initiation ofdisciplinary proceedings against a policeofficer who is liable to bedismissed/removed from service, reducedin rank is the normal rule. Rule 8(2)(b) isin the nature of an exception and resortedthereto is to be had where the authority issatisfied that it would not be "reasonablypracticable" to hold an inquiry. Thesatisfaction must be born out from therecord in light of the fact that the saidprovision itself mandates that theauthority would record reasons in supportof his conclusion that it is not reasonablypracticable to hold such an inquiry.

9. In the opinion of the Court, nodoubt the subjective satisfaction recordedby the Disciplinary Authority exercisingpower under Rule 8 (2)(b) is entitled toweight and is not be lightly interferedwith. This because he is the man on thespot and has access to the material on thebasis of which the opinion is formed.Here, however, a caveat needs to beinserted.

10. Firstly, when such an order isquestioned in Court, the validity of theorder cannot be upheld on the mere ipsedixit of the Disciplinary Authority. In


other words the satisfaction arrived at bythe Disciplinary Authority cannot bearbitrary but must be based on objectivity.Secondly, the Court must be apprised ofthe material or the objective facts whichcompelled him to form the opinion that itwas not "reasonably practicable" to holdthe enquiry.

11. Considering a case whichinvolved interpretation of the secondproviso to Article 311 (2) of theConstitution of India (a provision in parimateria to Rule 8[2][b]) the SupremeCourt of India in Risal Singh Vs. State ofHaryana & ors. 2014 (13) SCC 244reiterated the dictum laid down by theApex Court in Union of India Vs.Tulsiram Patel [1985 (3) SCC 398] andJaswant Singh Vs. State of Punjab [1991(1) SCC 362] in the following terms:-

"6. We have already reproduced theorder passed by the competent authority.On a bare perusal of the same, it is clearas day that it is bereft of reason. Non-ascribing of reason while passing anorder dispensing with enquiry, whichotherwise is a must, definitely invalidatessuch an action. In this context, referenceto the authority in Union of India v.Tulsiram Patel2 is apposite. In the saidcase the Constitution Bench, whiledealing with the exercise of power underArticle 311(2)(b), has ruled thus: (SCC p.503, para 130)

"130. The condition precedent for theapplication of clause (b) is thesatisfaction of the disciplinary authoritythat ''it is not reasonably practicable tohold' the inquiry contemplated by clause(2) of Article 311. What is pertinent tonote is that the words used are ''notreasonably practicable' and not

''impracticable'. According to the OxfordEnglish Dictionary ''practicable' means''Capable of being put into practice,carried out in action, effected,accomplished, or done; feasible'.Webster's Third New InternationalDictionary defines the word ''practicable'inter alia as meaning ''possible topractice or perform: capable of being putinto practice, done or accomplished:feasible'. Further, the words used are not''not practicable' but ''not reasonablypracticable'. Webster's Third NewInternational Dictionary defines the word''reasonably' as ''in a reasonable manner:to a fairly sufficient extent'. Thus, whetherit was practicable to hold the inquiry ornot must be judged in the context ofwhether it was reasonably practicable todo so. It is not a total or absoluteimpracticability which is required byclause (b). What is requisite is that theholding of the inquiry is not practicable inthe opinion of a reasonable man taking areasonable view of the prevailingsituation."

12. In Jaswant Singh v. State ofPunjab the Court, while dealing with theexercise of power as conferred by way ofexception under Article 311(2)(b) of theConstitution, opined as follows: (SCC p.369, para 5)

"5. ... Clause (b) of the secondproviso to Article 311(2) can be invokedonly when the authority is satisfied fromthe material placed before him that it isnot reasonably practicable to hold adepartmental enquiry. This is clear fromthe following observation at SCR p. 270of Tulsiram case: (SCC p. 504, para 130)

A disciplinary authority is notexpected to dispense with a disciplinary


inquiry lightly or arbitrarily or out ofulterior motives or merely in order toavoid the holding of an inquiry orbecause the department's case against thegovernment servant is weak and mustfail.'

The decision to dispense with thedepartmental enquiry cannot, therefore,be rested solely on the ipse dixit of theauthority concerned. When thesatisfaction of the authority concerned isquestioned in a court of law, it isincumbent on those who support the orderto show that the satisfaction is based oncertain objective facts and is not theoutcome of the whim or caprice of theofficer concerned."

8. After so stating, the two-JudgeBench quashed the order of dismissal anddirected the appellant to be reinstated inservice forthwith with the monetarybenefits. Be it noted, it was also observedtherein that it would be open to theemployer, if so advised, notwithstandingthe lapse of time, to proceed with thedisciplinary proceedings.

9. Recently, in Reena Rani v. State ofHaryana, after referring to the variousauthorities in the field, the Court ruledthat when reasons are not ascribed, theorder is vitiated and accordingly set asidethe order of dismissal which had beenconcurred with by the Single Judge anddirected for reinstatement in service withall consequential benefits. It has alsobeen observed therein that the orderpassed by this Court would not precludethe competent authority from takingaction against the appellant inaccordance with law.

10. Tested on the touchstone of theaforesaid authorities, the irresistible

conclusion is that the order passed by theSuperintendent of Police dispensing withthe inquiry is totally unsustainable and ishereby annulled. As the foundationfounders, the order of the High Courtgiving the stamp of approval to theultimate order without addressing the lisfrom a proper perspective is alsoindefensible and resultantly, the order ofdismissal passed by the disciplinaryauthority has to pave the path ofextinction."

13. It is in the above backgroundthat the order impugned here is liable tobe judged. A perusal of the order assailedin this writ petition shows that thedisciplinary authority has taken a self-contradictory stand. On the one hand, herecords that there is conclusive andadequate evidence against the petitioner,and in the same breath, he proceeds tohold that in the departmental inquiry noperson would come forward to giveevidence against the petitioner.

14. It is not borne out from therecord as to and on what material, thisapprehension was based. Admittedly, thepetitioner is alleged to have beenapprehended at the branch of the Bank bythe police authorities in a state ofintoxication. Even it were assumed, forthe sake of argument, that the members ofthe police force who apprehended thepetitioner would not come forward, thebank officers and employees, who werewitnesses to the incident were alwaysthere. The order of the DisciplinaryAuthority does not even whisper that anattempt was made to muster thestatements of the members of the policeparty who had apprehended the petitionerat the bank premises and that they hadrefused. More fundamentally it was


admitted that the petitioner on beingapprehended at the bank premises wastaken to a hospital, where he underwent amedical examination. The result of thesaid medical examination proved that thepetitioner was in a state of intoxication atthe relevant time. The impugned ordernowhere records as to why it was notpracticable to either examine theattending doctors and other personsinvolved in the medical examination ofthe petitioner. The impugned order alsodoes not record that it was impracticableto have the Medical Examination reportproved.

15. More importantly, it must beborne in mind that when powers underprovisions such as those contained inClause (b) of Rule 8(2) are exercised,there must exists material before theauthority which enables him to form anopinion that it is not reasonablypracticable to hold the departmentalinquiry. No such material appears to havebeen in existence at the time when theimpugned order was passed. At least, theorder does not refer to or rely upon anysuch material. Nor was any such materiallaid before this Court to justify thepassing of the order impugned.

16. In the opinion of the Court, thecircumstances and the nature of thepersons who were likely to be involved inbringing home the charge against thepetitioner were clearly present and therewas no material on the basis of which areasonable person could have come to aconclusion that it was not reasonablypracticable to hold a regular inquiryagainst the petitioner.

17. Accordingly and in view of theabove, this Court has no option but to

record its conclusion that the impugnedorder cannot be sustained. In view of theabove conclusions the present writpetition deserves to be and isconsequently allowed.

18. The order dated 9.2.2009 ishereby quashed. However, in the facts andcircumstances of the case, it is left open tothe respondent to conduct a regulardepartmental inquiry against the petitionerin respect of the incident in question inaccordance with the rules applicable.



BEFORETHE HON'BLE MAHESH CHANDRA

TRIPATHI, J.

Writ-A No. 67791 of 2014

Shiv Sewak Prasad Mishra ...PetitionerVersus


Counsel for the Petitioner:Sri Vijay Gautam


Constitution of India, Art.-226-Denial ofgratuity and pension-on ground ofpendency of criminal case-admittedly nopecuniary loss caused to departmentbased on allegations of criminal case-retirement benefit cannot be withheld.

Held: Para-8It is also not the case of respondentsthat in the criminal case, there is anyallegation of loss to the Government andthere is recovery to be made from thepetitioner, which is the only exceptionrecognized by this Court in the abovementioned authorities where final

1 All] Sri Gurudwara Committee, Chakeri Vs. Union of India & Ors. 493

pension etc. may not be paid andrespondents may withhold the same.

Case Law discussed:W.P. No. 25554 of 2010; W.P. No. 26972 of2013; W.P. No. 10099 of 2013; W.P. No.17141 of 2012; Spl. Appeal D No. 1278 of2013; Spl. Appeal D No. 416 of 2014; 2013 (9)ADJ 199 (DB).

(Delivered by Hon'ble Mahesh ChandraTripathi, J.)

1. Heard Shri Vijay Gautam, learnedcounsel for the petitioner, Shri PankajRai, learned Additional Chief Standingcounsel for the respondents and perusedthe record.

2. Considering the pure legalsubmission advanced by learned counsel forthe petitioner, learned Additional ChiefStanding Counsel stated that he does notpropose to file any counter affidavit butwould make oral submissions and the writpetition may be disposed of finally at thisstage under the Rules of this Court, hence Iproceed accordingly.

3. By means of present writ petition,the petitioner has prayed for quashing theimpugned order dated 16.1.2014 passedby respondent no.5, by which the gratuityamount and other retiral benefits havebeen withheld on account of pendency ofcriminal case against the petitioner. Hehas further prayed for a direction to therespondent authorities to pay the gratuityamount and other post retiral benefits i.e.leave eacashment, insurance amount,arrears, difference of regular pensionsince 1.2.2014 and other amount to himalong with interest.

4. It is contended by learned counselfor the petitioner that during pendency of

a criminal case, retiral benefits andpension amount cannot be withheld andthis issue has been considered anddecided by this Court in Writ PetitionNo.25554 of 2010 (Lalta Prasad YadavVs. State of U.P. & 4 Ors.) decided on15.5.2013, Writ Petition No.26972 of2013 (Santosh Kumar Singh Vs. State ofU.P. & 4 Ors.) decided on 14.05.2013,Writ Petition No. 10099 of 2013, HC11AP Mishir Lal Vs. The state of U.P.and others, decided on 26.02.2013 andWrit Petition No. 17141 of 2012, HC 122AP Deo Narain Singh Vs. State of U.P.and others, decided on 20.07.2012. It isalso submitted that one of the judgment oflearned Single Judge was also assailedbefore a Division Bench in SpecialAppeal No. 84 (Defective) of 2013, whichhas also been dismissed.

5. Learned Standing Counsel hasplaced reliance on a Division Benchjudgment of this Court in State of UP and2 ors vs. Jai Prakash Special AppealDefective No.1278 of 2013 decided on17.12.2013. The Division Bench relied onRegulation 351-A of the Civil ServicesRegulation, which empowers the StateGovernment to recover from the pensionthe amount of loss found in judicial ordepartmental proceedings, to have beensustained by the Government by thenegligence or fraud during his service. Inthe said case the Division Bench furtherfound that Regulations 351, 351-A and351-AA of the Civil Services Regulationsoperate in different fields. Regulation351-AA specifically provides that where adepartmental or judicial proceeding orany enquiry by the AdministrativeTribunal is pending on the date ofretirement, a provisional pension underRegulation 919-A may be sanctioned.Regulation 919-A (3) contains a specific


prohibition on the payment of Death-Cum-Retirement Gratuity to agovernment servant until the conclusionof departmental or judicial proceedingand the issue of final orders thereon.

6. However, Shri Vijay Gautam hasplaced reliance on a subsequent DivisionBench judgment in Special AppealDefective No.416 of 2014 (State of UPand 3 ors vs. Faini Singh) decided on25.4.2014, by which the Division Benchhas dismissed the appeal filed by the StateGovernment. The relevant para-21 of thejudgment is reproduced as below:-

"21. We may point out that a merependency of any judicial proceedingcannot be a ground to exercise the powersunder Article 351AA read withRegulation 919A for withholding theretiral dues. The nature of allegations andthe gravity of charge has to be taken intoconsideration by the competent authoritybefore making an order to withhold theretiral dues. In case the pendency of anyjudicial proceeding is held to besufficient, a minor offence or even aparking ticket may be a ground towithhold the pension of a retiredemployee. Such a situation is notcontemplated under the powers conferredon the competent authority under the CivilServices Regulations."

7. Shri Vijay Gautam, learnedcounsel for the petitioner has furtherrelied upon a Division Bench judgment inNarendra Kumar Singh vs. State of UPand others 2013 (9) ADJ 199 (DB)decided on 5.10.2013. The relevant parasof the judgment are reproduced as below:-

"9. In the case of D.S.Nakara Vs.Union of India, reported in (1983) 1 SCC,

305, the Apex Court has observed asunder :

"From the discussion three thingsemerge : (1) that pension is neither abounty nor a matter of grace dependingupon the sweet will of the employer andthat it creates a vested right subject to1972 Rules which are statutory incharacter because they are enacted inexercise of powers conferred by theproviso to article 309 and clause (5) ofArticle 148 of the Constitution; (ii) thatthe pension is not an ex gratia paymentbut it is a payment for the past servicerendered; and (iii) it is a social welfaremeasure rendering socio-economic justiceto those who in the hey-day of their lifeceaselessly toiled for the employer on anassurance that in their old age they wouldnot be left in lurch....."

10. The ratio laid down in thesecases had been subsequently followed bythe Apex Court in series of its decisionsincluding the case of Secretary, O.N.G.C.Limited Vs. V.U.Warrier, reported in2005 (5) SCC, 245.

11. Division Bench of this Court inthe case of Mahesh Bal Bhardwaj Vs.U.P. Co-operative Federation Ltd. andanother (Supra) has held that gratuity andother post retiral dues, which thepetitioner is otherwise entitled under theRules, could not have been withheldeither on the pretext that criminalproceedings were pending against thepetitioner or for the reason that on theoutcome of the criminal trial, some morepunishment was intended to be awarded.

12. Learned Single Judge of this Courtin the case of Radhey Shyam Shukla Vs.State of U.P. and another (Supra) has alsotaken the similar view and has held that merependency of the criminal proceedings wouldnot authorize withholding of gratuity.


13. Division Bench of this Court inthe case of Lal Sharan Vs. State of U.P.and others (Supra) has held that mereintention to obtain sanction for initiatingdisciplinary enquiry could not be basis forwithholding the post retiral dues unlesssanctioned, granted and the disciplinaryproceedings started.

14. Apex Court in the case of Stateof Punjab and another Vs. Iqbal Singh,(Supra) has further held that since the cutof the pension and the gratuity adverselyaffects the retired employee as such ordercan not be passed without givingreasonable opportunity of making hisdefence.

15. We have also perused theGovernment Order dated 28.10.1980,annexure-CA-1 to the counter affidavit,which has been made basis forwithholding the part of the pension andallowing the interim pension. ThisGovernment Order provides the paymentof interim pension where the departmentalproceeding are pending. None of thecircular, Government Order or anyprovision has been referred before us,which provides that where nodepartmental proceeding is pending, stillthe pension can be withheld."

8. It is also not the case ofrespondents that in the criminal case,there is any allegation of loss to theGovernment and there is recovery to bemade from the petitioner, which is theonly exception recognized by this Courtin the above mentioned authorities wherefinal pension etc. may not be paid andrespondents may withhold the same.

9. For the reason stated therein, andin view of the above authorities, the writpetition is allowed and the impugnedorder dated 16.1.2014 is set aside. The

respondents are directed to pay retiralbenefits and final pension to petitionerforthwith within a period of two monthsfrom the date of production of a certifiedcopy of this order.



BEFORETHE HON'BLE B. AMIT STHALEKAR, J.

Writ-C No. 69020 of 2014

Sri Gurudwara Committee, Chakeri ...Petitioner

VersusUnion of India & Ors. ...Respondents

Counsel for the Petitioner:Sri B. Dayal, Sri Niraj Agarwal, Sri VishnuSahai

Counsel for the Respondents:C.S.C., A.S.G.I., Sri Ishan Shishu, SriRamesh Chandra Agrahari

Constitution of India, Art.-226-Alternative remedy-Revision-orderpassed by District Judge rejectingobjection under section 3-A(4) ofNational High way Act, 1956-only thePrincipal Judge of Civil Court hasjurisdiction, hence reference bad-held-Principal Civil Court as defined undersection 3(15) of General Clause Act1897-‘District Judge’ being judge ofPrincipal Civil Court having originaljurisdiction-order passed by DistrictJudge remedy to evoke revisionaljurisdiction writ either under Article 226or 227-not maintainable-conversion ofWrit Petition into revision permitted.

Held: Para-17 & 1817. It is noteworthy and not denied bythe petitioner that when his case wasnot referred to the Court but a referencehad been made by the competent


authority to the principal civil court oforiginal jurisdiction by the impugnedorder dated 21.09.2014 under Section 3-H (4) of the Act, 1956, the petitioner hadfiled his own claim petition on18.01.2013 claiming that he was aperson entitled to receive compensation(as averred in paragraph 9 of the writpetition). Thus the petitioner had himselfsubmitted to the jurisdiction of theDistrict Judge, Kanpur being theprincipal civil court having originaljurisdiction in the matter and it is notthat the District Judge did not havejurisdiction to entertain the referenceand examine the dispute since thestatutory provision of Section 3-H (4)confers such power upon the principalcivil court having original jurisdiction.

18. Therefore considering the matter inits entirety and with regard to the factsof the case and the case law referred tohereinabove , I am of the view this writpetition under Article 226 of theConstitution of India is not maintainableand the only remedy for the petitioner isby way of a revision as held by theSupreme Court in the case of SadhanaLodh (supra).

Case Law discussed:(2003) 3 SCC 524; (1976) 3 SCC 719; AIR1977 SC 747 [1977 (2) SCC 457]; AIR 1981 SC701[1981(2) SCC 103]; (1972) 4 SCC 168.

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. The petitioner in this writ petitionis seeking quashing of the order dated21.09.2012 passed by the PrescribedAuthority under the National HighwaysAct, 1956 (hereinafter referred to as theAct, 1956) under Section 3-H (4) and theorder dated 05.12.2014 passed by theAdditional Judge, Kanpur Nagar.

2. Briefly stated the case of thepetitioner is that he is the owner of twoplots, namely, plot no.48 measuring 53.55

sqm. and another plot no.49 measuring136.50 sqm. situated in Village Safipur,Kanpur Nagar which he purchased fromone Kallu by means of a registered saledeed dated 06.11.1952. The said two plotswere acquired for widening of theNational Highway No.25. Thecompensation for the two plots wasdetermined at Rs.42,89,237/-. There beingseveral claimants a notice was issued tothe President of the Guru Singh SabhaHarjender Nagar, President GurudwaraCommittee, Chakeri, Aerodrome, KanpurNagar, Niyantrak Pradhikari, PrincipalHarjender Nagar Inter College and theManager, Khalsa Vidyalaya SabhaHarjender Nagar. No notice is stated tohave been issued to the petitioner and thepetitioner remained in the dark about theproceedings. On 21.09.2012 theimpugned order was passed by theAuthority under Section 3-H (4) of theAct, 1956 making a reference to theDistrict Judge, Kanpur Nagar. When thepetitioner came to know about this, hefiled a claim petition on 18.01.2013 witha prayer for a declaration that he was aperson entitled to receive thecompensation amount. Along with theclaim petition the petitioner is stated tohave filed the Khatauni 1360 Fasli ofvillage Safipur, Tehsil and DistrictKanpur Nagar in respect of Khata No.12and also the copy of the registered saledeed dated 06.11.1952. He also filed acopy of the registered sale deed whichwas executed in favour of the KhalsaDegree College by the petitioner on25.09.2006. The reference was heard bythe Additional District Judge, Courtno.24, Kanpur Nagar along with the claimpetition of the petitioner. The petitioner'sclaim petition was rejected on the groundthat his name was not mentioned as one ofthe claimants in the reference order and as


such his case could not be considered. Anallegation has also been made by thepetitioner of collusion between the claimantHarjendar Nagar Inter College, HarjendarNagar, Kanpur Nagar and Guru SinghSabha, Harjendar Nagar, Kanpur Nagar andit is also stated that an application was filedby the Manager, Harjendar Nagar InterCollege, Harjendar Nagar, Kanpur Nagarwho gave up his claim and prayed that theamount be awarded in favour of theGurdwara, Guru Singh Sabha, HarjendarNagar, Kanpur Nagar and in pursuance ofthe said collusive compromise the impugnedorder dated 05.12.2014 was passed directingthat the amount of compensation be paid tothe Gurdwara, Guru Singh Sabha, HarjendarNagar, Kanpur Nagar.

3. The case of the petitioner, further,is that according to the competentauthority notice was issued to thepetitioner (as stated in paragraph 14 of thewrit petition) and the name of thepetitioner was also mutated in the revenuerecords in pursuance of the sale deeddated 06.11.1952 and therefore making areference only in respect of twoorganisation, namely Harjendar NagarInter College, Harjendar Nagar, KanpurNagar and Guru Singh Sabha, HarjendarNagar, Kanpur Nagar was illegal andwithout jurisdiction. It is also stated thatthe sale deed was in the name ofGurdwara Committee, Chakeri,Aerodrome, Kanpur Nagar and the claimof Gurdwara Committee was also mutatedin the revenue records and therefore thedispute at the most could only be betweenthe petitioner and the Khalsa Girls DegreeCollege in whose favour a lease deed wasexecuted by the petitioner on 25.09.2006.

4. The case of the petitioner furtheris that under the provisions of Section 3-H

(3) of the Act, 1956 the competentauthority was required to first determinethe persons who in its opinion are entitledto receive the amount payable to each ofthem and only if a dispute arises then hemay refer the same under Section 3-H (4)of the Act, 1956 to the decision of theprincipal civil court of originaljurisdiction within whose limits the landin question is situated.

5. Section 3-H (3) and Section 3-H(4) of the Act, 1956 read as under:-

"3H. Deposit and payment ofamount. (1) ...........

(3) Where several persons claim tobe interested in the amount depositedunder subsection (1), the competentauthority shall determine the persons whoin its opinion are entitled to receive theamount payable to each of them.

(4) If any dispute arises as to theapportionment of the amount or any partthereof or to any person to whom thesame or any part thereof is payable, thecompetent authority shall refer thedispute to the decision of the principalcivil court of original jurisdiction withinthe limits of whose jurisdiction the land issituated. "

6. At the outset a preliminary objectionwas raised by Sri Anoop Trivedi, learnedcounsel appearing on behalf of the Caveatoralong with Ramesh Chandra Agrahari thatsince the petitioner had challenged the orderdated 05.12.2014 passed by the AdditionalDistrict Judge, Kanpur Nagar, therefore, thewrit petition is not maintainable and the onlyremedy available to the petitioner is by wayof a revision under Section 115 of the CivilProcedure Code.


7. In support of his submissionreliance has been placed upon a judgmentof the Supreme Court reported in (2003) 3SCC 524, Sadhna Lodh Vs. NationalInsurance Company Ltd., wherein it hasbeen held that where the statutory right tofile an appeal has been provided for it isnot open to the High Court to entertain thepetition under Article 227 of theConstitution of India. Even if whereremedy by way of appeal has not beenprovided against the order and judgmentof the District Judge, the remedy availableto the aggrieved person is to file arevision before the High Court underSection 115 of the Code of CivilProcedure. Where the remedy for filing arevision before the High Court underSection 115 of the Civil Procedure Codehas been expressly barred by a StateEnactment only in such a case a petitionunder Article 227 of the Constitution ofIndia would lie and not under Article 226of the Constitution of India. Paragraph 6of the judgment reads as follows:

"[6] The right of appeal is astatutory right and where the lawprovides remedy by filing an appeal onlimited grounds, the grounds of challengecannot be enlarged by filing a petitionunder Article 226/227 of the Constitutionon the premise that the insurer has limitedgrounds available for challenging theaward given by the Tribunal. Section149(2) of the Act limits the insurer to filean appeal on those enumerated groundsand the appeal being a product of thestatute it is not open to an insurer to takeany plea other than those provided underSection 149(2) of the Act (see NationalInsurance Co. Ltd, Chandigarh vs.Nicolletta Rohtagi and others 2002(7)SCC 456). This being the legal position,the petition filed under Article 227 of the

Constitution by the insurer was whollymisconceived. Where a statutory right tofile an appeal has been provided for, it isnot open to High Court to entertain apetition under Article 227 of theConstitution. Even if where a remedy byway of an appeal has not been providedfor against the order and judgment of aDistrict Judge, the remedy available tothe aggrieved person is to file a revisionbefore the High Court under Section 115of the Code of Civil Procedure. Whereremedy for filing a revision before theHigh Court under Section 115 of CPC hasbeen expressly barred by a Stateenactment, only in such case a petitionunder Article 227 of the Constitutionwould lie and not under Article 226 of theConstitution. As a matter of anillustration, where a trial Court in a civilsuit refused to grant temporary injunctionand an appeal against refusal to grantinjunction has been rejected, and a Stateenactment has barred the remedy of filingrevision under Section 115 C.P.C., insuch a situation a writ petition underArticle 227 would lie and not underArticle 226 of the Constitution. Thus,where the State legislature has barred aremedy of filing a revision petition beforethe High Court under Section 115 C.P.C.,no petition under Article 226 of theConstitution would lie for the reason thata mere wrong decision without anythingmore is not enough to attract jurisdictionof High Court under Article 226 of theConstitution."

8. Sri Vishnu Sahai, learned counselfor the petitioner on the other handsubmitted that the provisions of 3-H (3) ofthe Act, 1956 were mandatory and beforea reference could be made to the principalcivil court having original jurisdiction, thecompetent authority under Section 3-H


(3) of the Act was required to determinethe persons who in its opinion are entitledto receive the amount payable to each ofthem and only if dispute arises at to theapportionment of the amount payable toeach of the claimants a reference wasrequired to be made under Section 3-H (4)to the principal civil court having originaljurisdiction within whose jurisdiction theland is situated.

9. The submission of Sri VishnuSahai further is that if the initial orderdated 21.09.2012 is itself bad making thereference to the principal civil court andthe same is quashed the subsequent orderof the Additional District Judge05.12.2014 would automatically becomenonest and stand quashed and thereforethe writ petition was maintainable so faras the order dated 21.09.2012 wasconcerned. In any case the said ordercould not be quashed in revisionalproceedings and therefore the writpetition was maintainable. He has referredto certain decisions.

10. Reference has been made to thejudgment reported in (1976) 3 SCC 719,Shri Farid Ahmad Abdul Samad andAnother Vs. The Municipal corporation ofthe City of Ahmedabad and Another. Thiswas a case where land belonging to theappellants had been acquired by theCorporation under compulsoryacquisition. The appellants had recordedfor a personal hearing with regard to theirobjections but the same was denied tothem. After the acquisition was confirmedthe appellants preferred an appeal to theCity Civil Court at Ahmedabad. The civilcourt rejected the claim of the appellantsand appellants thereafter took the matterto the High Court of Gujarat under Article227 of the Constitution of India. The High

Court refused to interfere holding thatSection 5 of the Land Acquisition Actwas duly complied with. Hence the SLP.In the S.L.P. the Supreme Court held thathearing objection under Section 5-A ofthe Land Acquisition Act to be given bythe Commissioner under the Bombay Actcannot be replaced by a kind of appealhearing by the City Civil Judge. TheBombay Act assigned the duty of hearingobjections to the Commissioner whoalone can hear them and not the City CivilJudge even assuming that all theobjections could be entertained by him inappeal. From these observations it issought to be submitted by the learnedcounsel that since the petitioners had notbeen heard by the competent authorityunder Section 3-H (3) this Court couldinterfere with the order of reference madeunder Section 3-H (4). In my opinion thejurisdiction which is exercised by theprincipal civil court having originaljurisdiction is not an appellate jurisdictionand the reference made under Section 3-H(4) is not by way of appeal and if the Act,1956 does not provide for any furtherappeal against the order of the principalcivil court passed under Section 3-H (4)the remedy before the aggrieved partywould only be by way of revision.

11. Reference was then made to thecase reported in AIR 1977 SC 747 [1977(2) SCC 457], Mysore State RoadTransport Corporation Vs. Mirja KhasimAli Beg and Another. This was the casedisciplinary proceedings against therespondents-Conductors of the RoadTransport Department in the State ofHyderabad. Disciplinary action was takenagainst the respondents herein in certaincash and ticket irregularities and theywere dismissed from service by theDivisional Controller of the Mysore


Government Road Transport Departmentin December, 1960. The dismissal orderwas affirmed by the General Manger ofthe Mysore Government, Road TransportDepartment. They filed suits fordeclaration of their order of dismissalfrom service as illegal. The suits weredecreed in favour of the respondents onthe ground of contravention of Article 311(1) of the Constitution of India.

12. The submission on behalf of therespondents in the case was that theoriginal order of dismissal was withoutjurisdiction and void being incontravention of Article 311 (1) of theConstitution of India and the order passedin Departmental Appeal by the GeneralManager could not cure the initial defects.

13. In my opinion the said judgmentis absolutely no application to the facts ofthe present case as in this case there is nostatutory right of appeal provided by theAct, 1956 and the jurisdiction exercisedby the principal civil court was an originaljurisdiction and not an appellatejurisdiction or by way of departmentalappeal. The appeal preferred before theGeneral Manager and the order passed byhim were orders passed in exercise ofquasi judicial powers and the same cannotbe held to be akin to the originaljurisdiction exercised by the principalcivil court under Section 3-H (4) of theAct, 1956 nor is it an order passed underany provision of the Civil ProcedureCode.

14. Reference has also been made tothe judgment report in AIR 1981 SC 701[1981 (2) SCC 103], Kshitish ChandraBose Vs. Commissioner of Ranchi. Thatwas a case where the trial court haddecreed the plaintiff's suit on the question

of title and adverse possession. Thedefendant filed an appeal before theAdditional Judicial Commissioner,Ranchi (Chota Nagpur) which affirmedthe finding of the trial court andmaintained the decree on both points. Therespondent then filed a second appeal inthe High Court which remanded the caseto the trial court for a decision only on thequestion of title. After remand theAdditional Judicial Commissioner heldthat the municipality had approved its titleto the land in dispute and dismissed theplaintiff's suit. The plaintiff then went upin appeal to the High Court whichaffirmed the finding of the AdditionalJudicial Commissioner and dismissed theappeal by judgment dated 30.09.1967 (thesecond judgment).

15. The submission of the learnedcounsel in the case was that the finding sofar as the adverse possession isconcerned, the same had become final asthe finding of the High Court in its firstjudgment had not been challenged in theSupreme Court. The said judgment also,in my opinion, has no application to thefacts of the present case since against theorder of the trial court the defendant hadpreferred an appeal before the High Courton one point, namely, that of title,therefore this court fails to see as to howthe said judgment has any application tothe facts of the present case on thequestion of maintainability of the presentwrit petition under Article 226 of theConstitution.

16. The General Clauses Act, 1897,in Section 3 (15), defines "District Judge"as 'judge of principal Civil Court oforiginal jurisdiction but shall not include aHigh Court in the exercise of its ordinaryor extraordinary original civil jurisdiction.


This means that the principal Civil Courtof original jurisdiction contemplated inSection 3-H (4) of the National HighwaysAct, 1956 is the District Judge of the CivilCourt within the limits of whosejurisdiction the land is situated.

17. It is noteworthy and not deniedby the petitioner that when his case wasnot referred to the Court but a referencehad been made by the competent authorityto the principal civil court of originaljurisdiction by the impugned order dated21.09.2014 under Section 3-H (4) of theAct, 1956, the petitioner had filed his ownclaim petition on 18.01.2013 claimingthat he was a person entitled to receivecompensation (as averred in paragraph 9of the writ petition). Thus the petitionerhad himself submitted to the jurisdictionof the District Judge, Kanpur being theprincipal civil court having originaljurisdiction in the matter and it is not thatthe District Judge did not havejurisdiction to entertain the reference andexamine the dispute since the statutoryprovision of Section 3-H (4) confers suchpower upon the principal civil courthaving original jurisdiction.

18. Therefore considering the matterin its entirety and with regard to the factsof the case and the case law referred tohereinabove , I am of the view this writpetition under Article 226 of theConstitution of India is not maintainableand the only remedy for the petitioner isby way of a revision as held by theSupreme Court in the case of SadhanaLodh (supra).

19. In (1972) 4 SCC 168, TheReliable Water Supply Service of IndiaVs. Union of India and Others theSupreme Court has held that the High

Court was competent to convert an appealinto a revision. Similar view has beentaken by a Division Bench of the KeralaHigh Court in Nafeesa Vs. DeputyCollector and Special Land AcquisitionOfficer. This was a case under theNational Highways Act, 1956 where areference had been made by theCompetent Authority under Section 3-H(4) of the Act to the principal civil courtof original jurisdiction and the learnedjudges held that there is no provision inthe National Highways Act whichprovides a right of appeal against thedecision by the Court on a referenceunder Section 3-H (4). It was also heldthat the principal civil court of originaljurisdiction is a court subordinate to theHigh Court and since no appeal lies to theHigh Court against that decision arevision under Section 115 CPC would lieand accordingly the Kerala High Courthad converted the regular first appeal intoa civil revision petition under Section 115CPC.

20. Therefore on a conspectus offacts and law discussed above this writpetition under Article 226 of theConstitution of India is not maintainable.However, the writ petition is ordered to beconverted as a Civil Revision Petitionunder Section 115 CPC with a furtherdirection to the Registry of this Court togive it a regular number as a civil revisionpetition and thereafter list the case beforethe appropriate Bench having jurisdictionin the matter.

21. Sri Vishnu Sahai, learnedcounsel for the petitioner also madevarious submissions on the merits of thecase but since this Court has nojurisdiction to enter into those questionsunder Article 226 of the Constitution, no


reference is being made to thosesubmissions.

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