Jan - High Court of Judicature at Allahabad

1 All] Mohan Singh V. U.P. Rajya Vidyut Utpadan Ltd. and others 1APPELLATE JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 05.01.2012BEFORETHE HON'BLE SYED RAFAT ALAM, C. J.THE HON'BLE RAN VIJAI SINGH, JSpecial Appeal (Defective) No. 1 of 2012Mohan Singh...AppellantVersusU.P. Rajya Vidyut Utpadan Ltd. andothers...RespondentsCounsel for the Appellant:Shri Pranav Dubey, AdvocateCounsel for the Respondents:Shri P.K. Tripathi, AdvocateU.P. Recruitment of Services(Determination of Birth) Rules 1974-Rule-2-correction of date of birthadmittedlythe appellant is class 6 thpassed-at the time of entering inservices-date of birth recorded in ServiceBook as 05.11.1951 in 1980-on06.09.2011 C.M.O. reported his age 45years, petitioner appellant neverobjected the entry-for first time filedWrit Petition-after a considerable periodsubsequentcertificate issued by C.M.O.-can not help in any manner-held at thefag end of service carrier-can not beallowed to question the entry made inService book.Held: Para 18In view of above, the law can besummarized that normally the date ofbirth entered in the service book issacrosanct and cannot be altered orchanged at the fag end of service or afterlong lapse of time. However, in a veryexceptional circumstances, where it isfound that the claim isirrefutable/incontrovertible and thesame has been raised within thelimitation provided under the relevantRules and in the absence of anylimitation, within a reasonable time,then the application for correction ofdate of birth may be made. In the case inhand, the appellant entered in service inFebruary, 1980 and as per service book,his date of birth was entered as 5thFebruary, 1951 at the time of entry inservice. However, for the first time, theappellant filed the application forcorrection of date of birth in the monthof February, 1991. Thereafter, it appears,he did not pursue the same and sleptover the matter. However, only when hewas served with the notice dated 6thSeptember, 2011 intimating that as perthe date of birth recorded in the servicebook, he shall retire on 30th November,2011 on attaining the age of 60 years, heapproached this Court by filing the writpetition. No convincing explanation iscoming forth as to why he did notapproach the Court when his allegedrepresentation filed in the year 1991 wasnot decided within a reasonable periodor time. If his application seekingcorrection was not decided, then whatprevented him to approach the Courtwithin a reasonable time. Thus, in viewof the settled law that correction in thedate of birth cannot be made at the timeof retirement from service and also inthe absence of any clinching evidencewhereupon it could be held that his dateof birth is 1962 and further in view ofRule 2 of the Rules of 1974 whichprohibits entertaining an application forcorrection of date of birth where theemployee, at the time of entry in service,was not high school passed and in thatevent the date of birth mentioned in theservice record shall be deemed to becorrect date of birth of such employee,the relief sought in the writ petition andin this appeal cannot be granted.(Delivered by Hon'ble Syed Rafat Alam, C.J.)1. This intra-court appeal, under theRules of the Court, arises from the orderof the learned Single Judge dated 3rd

2 INDIAN LAW REPORTS ALLAHABAD SERIES [2012November, 2011 dismissing theappellant's Writ Petition No. 62099 of2011.2. We have heard learned counselfor the appellant.3. The short question involved inthis appeal is as to whether the date ofbirth recorded in the service book of anemployee can be modified or changed athis instance after long lapse of time or atthe fag end of his service.?4. It appears that the appellant wasappointed as a Contract Labour in themonth of February, 1980 in the CentralStore Division of Parkisha ThermalPower Corporation at Pariksha in thedistrict of Jhansi (hereinafter referred toas the 'Corporation'). His date of birth inthe service book was recorded as 5thNovember, 1951. However, in the IdentityCard, his date of birth was mentioned as6th November, 1962. The appellantclaims that when he came to know inJanuary 1991 that his date of birth in theservice record is wrongly recorded as 5thNovember 1951 in place of 6thSeptember, 1962, he moved anapplication on 15.02.1991 for correctionof his date of birth. He further claims thatpursuant to the said application, theauthority concerned assured thatnecessary correction would be made inthe service record, however, nothing wasdone. Thereafter, the appellant submittedvarious representations/reminders but allwent in vain. The appellant, however, didnot pursue the matter. Thereafter, theappellant was served with the notice dated6th September, 2011 intimating him thatas per service record, wherein his date ofbirth is mentioned as 5th November,1951, he shall retire on 30th November,2011 on completion of 60 years of age.The aggrieved appellant, therefore, filedthe aforesaid writ petition for quashingthe notice dated 6th September, 2011 onthe ground, inter-alia, that his real date ofbirth is 6th September, 1962 and as farback as in 1991, he made a request forcorrection of his date of birth but withoutcorrecting the same or disposing of hisapplication, he has been served with thenotice, impugned in the writ petition. Thelearned Single Judge, in the order hastaken note of the fact that there is nodenial by the appellant that his date ofbirth in the service book is recorded as 5thNovember, 1951, hence, he will attain theage of superannuation on 30th November,2009 and his claim for continuance inservice on the basis of the date of birthrecorded in his Identity Card cannot beallowed. The learned Single Judge,therefore, relying on a judgment of ApexCourt in the case of Burn Standard Co.Ltd. & Ors. Vs. Shri DinabandhuMajumdar & Anr., JT 1995 (4) SC 23,wherein it has been held that the date ofbirth cannot be allowed to be changed atthe verge of retirement, dismissed the writpetition. Hence, this appeal.5. Learned counsel for the appellantvehemently contended that the learnedSingle Judge did not appreciate thesubmissions and the necessary facts foradjudication of the case and, therefore,fell in error in dismissing the writ petition.The contention is that the appellant, whencame to know that his date of birth iswrongly recorded as 5th November, 1951,immediately filed the representation forits correction on 15.02.1991, whichremained un-disposed by the authoritiesconcerned despite several reminders.Learned counsel submits that thecertificate issued by the Chief Medical

1 All] Mohan Singh V. U.P. Rajya Vidyut Utpadan Ltd. and others 3Officer, Jhansi, wherein his age has beendetermined as 45 years on the date ofissuance of such certificate, i.e.06.09.2011, has also not been taken intoaccount by the learned Single Judge. Hefurther submits that the appellant, in therepresentation, has claimed that in theschool certificate as well as the medicalcertificate, his date of birth is recorded as6th September, 1962 and, therefore, hisdate of birth entered in his service recordis required to be corrected.6. We have considered thesubmissions.7. The appellant has asserted hisclaim mainly on the basis of thecertificate issued by the Chief MedicalOfficer, Jhansi and also on the basis of thedate of birth mentioned in the mark sheetof class six. Though, in paragraph 7 of thewrit petition, it has been stated that theappellant was asked to be examined bythe Chief Medical Officer, Jhansi but thecertificate issued by him on 06.09.2007does not indicate that he was sent formedical examination for determination ofhis age by the Department/Corporation.The mark sheet of class six has also notbeen enclosed with the writ petition,though it has been stated that it isenclosed as Annexure-1 to the writpetition. It further transpires that aftermaking representation in the year 1991,the appellant though claims to havesubmitted various reminders but sat overthe matter and did not pursue further andit was only when the impugned noticeinforming him his date of retirement, hefiled the writ petition.8. The Apex Court has repeatedlyheld that on the strength of representation,stale claim should not be revived by theCourts by way of passing an order todecide the representation. In C. Jacob Vs.Director of Geology & Mining & Anr.,AIR 2009 SC 264, the Apex Court hasobserved as under:-"8. When a direction is issued by acourt/tribunal to consider or deal with therepresentation, usually the directee(person directed) examines the matter onmerits, being under the impression thatfailure to do may amount to disobedience.When an order is passed considering andrejecting the claim or representation, incompliance with direction of the court ortribunal, such an order does not revive thestale claim, nor amount to some kind of`acknowledgment of a jural relationship'to give rise to a fresh cause of action.10. We are constrained to refer to theseveral facets of the issue only toemphasize the need for circumspectionand care in issuing directions for`consideration'. If the representation is onthe face of it is stale, or does not containparticulars to show that it is regarding alive claim, courts should desist fromdirecting `consideration' of such claims."9. In the instant case, the petitionerappellanteven did not bother to approachthis Court for deciding his representationfor correction of his date of birth prior tothe notice of retirement given in the year2011.10. Learned counsel for therespondent-Corporation submitted that theprovisions of the U.P. Recruitment ofService (Determination of Date of Birth)Rules, 1974 (hereinafter referred to as the'Rules of 1974') applies to the Corporationand its employees and the date of birth for

4 INDIAN LAW REPORTS ALLAHABAD SERIES [2012the purposes of retirement would bedetermined as per Rules of 1974.11. To appreciate the controversy, itwould be useful to refer to the relevantRule. Rule 2 of the Rules of 1974, whichwas amended by first amendment in theyear 1980 and is relevant for the presentcontroversy, reads as under:-"2. Determination of correct dateof birth or age.- The date of birth of aGovernment servant as recorded in thecertificate of his having passed the HighSchool or equivalent examination at thetime of his entry into the Governmentservice, or where a Government servanthas not passed any such examination asaforesaid or has passed such examinationafter joining the service, the date of birthor the age recorded in his service book atthe time of his entry into the Governmentservice shall be deemed to be hiscorrect date of birth or age, as the casemay be, for all purposes in relation ofhis service, including eligibility forpromotion, superannuation, prematureretirement benefits, and no applicationor representation shall be entertained forcorrection of such date or age in anycircumstances whatsoever."12. From a perusal of the aboveRule, it transpires that if a person entersinto service after passing the High Schoolexamination, then the date of birthrecorded in the High School certificateshall be deemed to be his correct date ofbirth. However, in case, the employee hasentered into service before passing theHigh School examination, then the date ofbirth recorded in the service book shall bedeemed to be his correct date of birth. Thesaid Rule also provides that no applicationor representation shall be entertained forcorrection of such date or age in anycircumstances whatsoever. Thus, inrelation to correction of date of birth, alegal fiction has been made which meansthat the date of birth recorded in either ofthe circumstances referred to under Rule 2of the Rules of 1974 shall be deemed tobe correct for all purposes particularly forthe purpose of determining the age ofretirement. The effect of deemingprovision/legal fiction has beenconsidered time and again. The ApexCourt in the case of Sant Lal Gupta &Ors. Vs. Modern Cooperative GroupHousing Society Ltd. & Ors., (2010) 13SCC 336, has observed as under:-"... It is the exclusive prerogative ofthe legislature to create a legal fictionmeaning thereby to enact a deemingprovision for the purpose of assumingthe existence of a fact which does notreally exist. ..."13. Further reference may be madeto the decision of the Apex Court inManorey alias Manohar Vs. Board ofRevenue (U.P.) & Ors., (2003) 5 SCC521.14. Taking note of the dictum of theApex Court as well as Rule 2 of the Rulesof 1974, it is abundantly clear that if aperson has entered into service withoutpassing the High School examination,then the date of birth recorded in hisservice book shall be deemed to becorrect and in case the employee hasentered into service after passing the HighSchool examination, the date of birthrecorded in the High School certificateshall be deemed to be correct.15. In the case in hand, admittedly,the appellant entered in service without

1 All] Mohan Singh V. U.P. Rajya Vidyut Utpadan Ltd. and others 5passing the High School examination,therefore, the date of birth recorded in theservice book shall be deemed to becorrect and in view of the legal fictioncreated under Rule 2, no application orrepresentation for its correction could beentertained.16. That apart, the appellantapproached this Court seeking correctionin the date of birth at the fag end of hisservice and filed the writ petition in themonth of October, 2011, just a monthprior to the date of his superannuation, ashe was due to retire in the month ofNovember, 2011. It is settled legalposition that the date of birth cannot beallowed to be corrected at the fag end ofservice of an employee. Reference may bemade to the judgment of the Apex Courtin Burn Standard Co. Ltd. (supra), andState of Madhya Pradesh & Ors. Vs.Premlal Shrivas, (2011) 9 SCC 664.17. However, it is true that in certainextraordinary circumstances, an employeecan claim correction in the date of birthprovided he has got some irrefutableproof relating to his date of birth asdifferent to that recorded earlier in hisservice book and satisfies that there hasbeen real injustice to him and thecorrection sought in the date of birth is asper the procedure prescribed and within areasonable time fixed by any rule ororder. However, if there is no rule ororder prescribing the period within whichsuch application is to be filed, then suchapplication must be filed within areasonable period or time. Reference maybe made to the judgments of the ApexCourt in Union of India Vs. HarnamSingh, (1993) 2 SCC 162; State ofGujarat & Ors. Vs. Vali Mohd.Dosabhai Sindhi, (2006) 6 SCC 537,and Punjab and Haryana High Courtat Chandigarh Vs. Megh Raj Garg &Anr., AIR 2010 SC 2295.18. In view of above, the law can besummarized that normally the date ofbirth entered in the service book issacrosanct and cannot be altered orchanged at the fag end of service or afterlong lapse of time. However, in a veryexceptional circumstances, where it isfound that the claim isirrefutable/incontrovertible and the samehas been raised within the limitationprovided under the relevant Rules and inthe absence of any limitation, within areasonable time, then the application forcorrection of date of birth may be made.In the case in hand, the appellant enteredin service in February, 1980 and as perservice book, his date of birth was enteredas 5th February, 1951 at the time of entryin service. However, for the first time, theappellant filed the application forcorrection of date of birth in the month ofFebruary, 1991. Thereafter, it appears, hedid not pursue the same and slept over thematter. However, only when he wasserved with the notice dated 6thSeptember, 2011 intimating that as per thedate of birth recorded in the service book,he shall retire on 30th November, 2011 onattaining the age of 60 years, heapproached this Court by filing the writpetition. No convincing explanation iscoming forth as to why he did notapproach the Court when his allegedrepresentation filed in the year 1991 wasnot decided within a reasonable period ortime. If his application seeking correctionwas not decided, then what prevented himto approach the Court within a reasonabletime. Thus, in view of the settled law thatcorrection in the date of birth cannot bemade at the time of retirement from

6 INDIAN LAW REPORTS ALLAHABAD SERIES [2012service and also in the absence of anyclinching evidence whereupon it could beheld that his date of birth is 1962 andfurther in view of Rule 2 of the Rules of1974 which prohibits entertaining anapplication for correction of date of birthwhere the employee, at the time of entryin service, was not high school passed andin that event the date of birth mentionedin the service record shall be deemed tobe correct date of birth of such employee,the relief sought in the writ petition and inthis appeal cannot be granted.19. In view of above, we do not findany fault in the order of the learned SingleJudge.20. The appeal, being without merit,stands dismissed.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: LUCKNOW 05.01.2012BEFORETHE HON'BLE RAJIV SHARMA,J.Misc. Single No. - 4 of 1994Abdul Atiq and another ...PetitionerVersusSub Divisional Magistrate and others...RespondentsCounsel for the Petitioner:Sri S.C.SitapuriSri V.BhatiaCounsel for the Respondents:C.S.C.Constitution of India, Article 226-Demand of additional stamp duty-noallegation of concealment or fraud bypetitioner-petition pending since 1994-No counter affidavit filed-facts remainedun-contradicted-held-mere assumptionsstampduty can not be imposed.Held: Para 5It is not the case of the respondents thatthe land in question was under valued.For imposing liability for payment ofadditional stamp duty, it would be theduty of the respondents to categoricallyshow that there was some concealmentmade by the petitioner at the time ofexecution of the sale deed. On merepresumption, stamp duty cannot beimposed after valuing the constructions.Case law discussed:[2007 All.C.J. 718](Delivered by Hon'ble Rajiv Sharma,J. )1. Heard.2. Counsel for the petitioner saysthat the petitioner had purchased ahouse,which consists of room and aVerandahs in district Biswan Sitapur ofwhich sale deed was executed on 3.2.1992and had also paid a total sum of Rs.5380/- as stamp duty. Thereafter all of asudden, the opposite party no.1-SubDivisional Officer, Stamp Collector,Biswan passed an order requiring thepetitioner to make good the deficiency inthe stamp duty and also imposed ten timespenalty.3. It has been vehemently contendedthat neither any notice before passing ofthe impugned order was given or actuallyserved upon by the petitioner either by theopposite party no.1 or by the Tehsildar,who is said to have conducted inquiry inthe matter. Therefore, the impugned orderis in breach of the provisions of naturaljustice apart from being bad in law as thepenalty is excess than the prescribedunder the relevant provisions.

1 All] Smt. Suman V. Brij Kishore 74. It is to be noted that this writpetition was filed in the year 1994 andthis court while directing the respondentsto file counter affidavit also passed an adinterimorder dated 3.1.1994 staying theoperation of the impugned order. It isunfortunate that till date no counteraffidavit has been filed and as suchaverments made in the writ petitionerremained unrebutted.5. It is not the case of therespondents that the land in question wasunder valued. For imposing liability forpayment of additional stamp duty, itwould be the duty of the respondents tocategorically show that there was someconcealment made by the petitioner at thetime of execution of the sale deed. Onmere presumption, stamp duty cannot beimposed after valuing the constructions. Itis also pertinent to mention that a FullBench of this Court in Shri RameshChandra Srivastava, Kanpur vs. Stateof U.P. and others [2007All.C.J.718]held that the market value ofthe property has to be determined withreference to the date on which thedocument is executed.6. In view of the aforesaiddiscussions, the impugned order dated22.9.1993 is hereby set-aside. Consequentto follow. However, it will be open for theauthorities to pass fresh order, if they sodesire after giving opportunity of hearingto the petitioners.7. The writ petition stands allowedin above terms.---------APPELLATE JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 12.01.2012BEFORETHE HON'BLE SANJAY MISRA, J.Smt. SumanBraj KishoreFirst Appeal No. - 13 of 2012VersusCounsel for the Appellant:Sri Atul SrivastavaCounsel for the Respondents:….......................................Petitioner...RespondentHindu Marriage Act, 1955-Section 28-Appeal against judgment decree passedunder Section 13 of the Act-valuation ofappeal shown Rs. 10,000-appeal beforeHigh Court-held not maintainable.Held: Para 4 and 5The aforesaid clearly indicates thatSection 28 of the Hindu Marriage Actdoes not provide for appeal againstjudgement. It provides for appeal onlyagainst decree and since an appealunder Section 19 of the Family CourtsAct lies only against a judgement ororder, no appeal would lie under Section19 of the Family Courts Act against adecree. An appeal against a decreepassed by the Civil Judge would lie underSection 28 of the Hindu Marriage Act.Since in the present case the impugnedjudgement and decree have beenassailed under Section 28 of the HinduMarriage Act and the valuation of thisappeal is Rs. 10,000/-, the pecuniaryjurisdiction as well as appellatejurisdiction would not be with the HighCourt. An appeal against a decree passedby the original Court under Section 13 ofthe Hindu Marriage Act, would lie before

8 INDIAN LAW REPORTS ALLAHABAD SERIES [2012the court of competent appellatejurisdiction.Case law discussed:(2006 Alld. C.J. 1936)(Delivered by Hon'ble Sanjay Misra,J. )1. This is an appeal under Section 28of the Hindu Marriage Act 1955, againstthe judgement and order dated 16.11.2011and decree dated 30.11.2011 passed inCase No. 774 of 2007, Brij Kishore vs.Smt. Suman, by Additional Civil Judge(Senior Division), Court No. 2,Bulandshahar. Stamp Reporter hasreported that this appeal is notmaintainable before this Court.2. Learned counsel for the appellanthas submitted that the plaintiff respondenthad filed Original Suit No. 774 of 2007,under Section 13 of the Hindu MarriageAct, which has been decreed by the trialCourt. According to him, since theproceedings were under Section 13 of theHindu Marriage Act, the appeal underSection 19 of the Family Courts Actwould not be maintainable. However,since it is a matrimonial dispute decidedby the Civil Judge in the absence ofestablishment of Family Court inBulandshahar, the appeal would lie to theHigh Court under Section 28 of the HinduMarriage Act, as is provided underSection 19 of the Family Courts Act.3. The question was considered by aFull Bench of this Court in the case ofKiran Bala Srivastava (Smt.) vs. JaiPrakash Srivastava (2006 Alld. C.J.1936). The Full Bench considered thedifference of an appeal under Section 19(1) of the Family Courts Act, whichprovided for an appeal against ajudgement or order of the Family Court. Italso considered the provision of Section28 of the Hindu Marriage Act, whichprovides for an appeal against a decree ororder. It was held that Section 28 of theHindu Marriage Act does not provide forappeal against a judgment, therefore, theanswer to the question referred to the FullBench as to whether an appeal underSection 19 of the Family Courts Actwould lie against an order passed underSection 24 of the Hindu Marriage Act wasgiven in affirmative since the order underSection 24 granting pendente litemaintenance is a judgment and an appealwould therefore, lie under Section 19 (1)of the Family Courts Act. Paragraph 21 ofthe said judgement of the Full Bench isquoted hereunder:"21. What noticeable in sub-section(1) of Section 19 of the Act of 1984, isthat deviating from Section 96 of theCode of 1908 or from sub-section (1) ofSection 28 of the Act of 1955, it providesfor appeals against "judgment". The Codeof Civil Procedure, 1908, does notprovide for appeal against judgments. Itprovides for appeals against decrees andorders. Likewise Section 28 of the Act of1955 also does not provide for appealsagainst judgments. It provides for appealsonly against decrees [see: sub-section (1)]and against certain orders [see: subsection(2)]. The question arises as to whythe legislature made a departure byproviding appeal against judgments also,under sub-section (1) of Section 19 of theAct of 1984. Not that the legislature wasnot aware of the established practice ordid not know the meaning of the wordjudgment, as given by the Apex Court inKhimji's case (supra)."4. The aforesaid clearly indicatesthat Section 28 of the Hindu Marriage Actdoes not provide for appeal against

1 All] Ravindra Kumar Singh and others V. State of U.P. and others 9judgement. It provides for appeal onlyagainst decree and since an appeal underSection 19 of the Family Courts Act liesonly against a judgement or order, noappeal would lie under Section 19 of theFamily Courts Act against a decree. Anappeal against a decree passed by theCivil Judge would lie under Section 28 ofthe Hindu Marriage Act.5. Since in the present case theimpugned judgement and decree havebeen assailed under Section 28 of theHindu Marriage Act and the valuation ofthis appeal is Rs. 10,000/-, the pecuniaryjurisdiction as well as appellatejurisdiction would not be with the HighCourt. An appeal against a decree passedby the original Court under Section 13 ofthe Hindu Marriage Act, would lie beforethe court of competent appellatejurisdiction.6. In view of the aforesaidcircumstances, the report of the StampReporter is accepted and it is upheld. Thisappeal is not maintainable before the HighCourt. The appellant may avail hisremedy under Section 28 of the HinduMarriage Act before the competent courthaving appellate jurisdiction againstdecrees. The period, w.e.f. 16.11.2011(the date when present appeal waspresented before the Stamp Reporter) to12.01.2012 i.e. today, shall be givenbenefit of for the purpose of limitation, incase the appeal is filed under Section 28of Hindu Marriage Act against a decreeby the appellant. This appeal is dismissedas not maintainable before this Court.7. No order is passed as to costs.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: LUCKNOW 24.01.2012BEFORETHE HON'BLE RITU RAJ AWASTHI,J.Misc. Single No. - 84 of 2012Ravindra Kumar Singh and others...PetitionerVersusState of U.P. Thro Secy. Department ofHome and others ...RespondentsCounsel for the Petitioner:Sri Vinay P.Singh RathoreCounsel for the Respondent:C.S.C.Sri N.C.MehrotraSri O.P. Srivastava.Constitution of India, Article 226-General Direction to deposit Fire ArmLicense with dealer-considering LokSabha or Vidhan Sabha election-withoutconsidering individual role regardingapprehensive of danger of violence-heldillegal-withoutbeing written order ofcompetent authority-such directionunsustainable.Held: Para 10"23. Considering the facts andcircumstances of the case these writpetitions are disposed of with thefollowing directions:(1) A writ in the nature ofMandamus commanding the State of U.P.is issued directing that the citizens whohave valid fire arm licenses including thepetitioners may not be compelled todeposit their fire arms in general merelyon the basis that Lok Sabha Election is tobe held in near future.(2) It is also directed that noDistrict Magistrate or District

10 INDIAN LAW REPORTS ALLAHABAD SERIES [2012Superintendent of Police or any officersubordinate to them shall compel thecitizen in general to deposit their firearm unless thee is an order of theCentral Government as indicated in thebody of the judgment.(3) The decision made in the case ofMohd. Arif Khan v. District Magistrate(Supra) by the Division Bench of thisCourt shall be followed by the StateGovernment and its officers posted inthe districts within the State of U.P.24. However, the above directionsshall not preclude the competentofficer/authority to passorders/prohibitory orders in individualcases or in general under the provisionsof Arms Act or Code of CriminalProcedure 1973 after application of mindin accordance with law."Case law discussed:1994 LCD (Vol. 12), page 93; 1999 (17) LCD,page 1171(Delivered by Hon'ble Ritu Raj Awasthi,J. )1. Learned Standing Counsel hasproduced the copy of the GovernmentOrder dated 29.12.2011, which is takenon record.2. Heard Mr. Mohd. Arif Khan,learned Senior Advocate, appearing forthe petitioners as well as Mr. SanjaySareen, learned Standing Counselappearing for the State and Mr. ManishMathur, learned counsel appearing forElection Commission.3. With the consent of parties'counsels the case has been heard finally atthe admission stage.4. This is a bunch of writ petitionsinvolving the same legal question andsimilar facts, therefore, they are beingheard together and are decided by acommon order.5. By earlier order this Court haddirected the learned Standing Counsel toseek instructions in the matter.6. Mr. Sanjay Sareen, learnedStanding Counsel on the basis ofinstructions submits that on the basis ofdirections issued by the ElectionCommission of India, the GovernmentOrder dated December 29, 2011 has beenissued wherein it has been provided thatgeneral orders for deposit of firearms isnot necessary. On declaration of electionsthe District Magistrate of the concerneddistricts would review theactivities/antecedents of the licenseholders of firearms so that free, fair andindependent elections are held and onlythose licensee would be required todeposit their firearms, who have beenidentified. The license of only thosepersons would be deposited from whomthere is a danger of violence in theelections.7. It is the clear stand of the Statethat no general orders have been issuedfor deposit of firearms by the publicduring elections.8. Mohd. Arif Khan, learned SeniorAdvocate appearing for the petitionerssubmitted that in spite of the fact thatthere is no specificcircular/order/directions for deposit offirearms, the police of the concernedpolice station are compelling thepetitioners to deposit their firearms in thepolice station or with the firearm dealers.9. In support of his submissions, herelied on a Division Bench Judgment of

1 All] Ravindra Kumar Singh and others V. State of U.P. and others 11this Court rendered in the case of Mohd.Arif Khan Vs. District Magistrate andothers, reported in 1994 LCD (Vol.12),page 93, wherein the Division Bench ofthis Court had quashed the circular dated16.7.1993 issued by the ElectionCommission requiring the firearm licenseholders to deposit all their firearms withthe District Administration during theperiod of one week from the day after thelast date for withdrawal of candidaturesand the fire arm would remain depositedtill the declaration of the result and noperson shall be allowed to carry his ownpersonal fire arms. The relevantparagraphs 7, 21 and 22 are reproducedbelow:"7. We have heard the learnedcounsel for the petitioners and learnedChief Standing Counsel on behalf of theopposite parties nos. 1 to 5 and 7 in WritPetition No. 4782 (MB) of 1993 and Dr.Ashok Nigam, Senior Standing Counsel,Central Government on behalf of theChief Election Commissioner, oppositeparty no.6. After hearing the learnedcounsel for the parties and perusing therecord, we passed the following order intheir presence:-"We have heard the learned counselfor the parties at length.We are satisfied that the impugnedorder dated 18.10.1993 passed by theDistrict Magistrate, Lucknow containedin Annexure No. 3 to the writ petition andAnnexure-A-4 to the counter-affidavit ofopposite party no.1 are liable to bequashed. Therefore, for reasons to follow,we allow the writ petition and quash theaforesaid impugned order subject,however, to the observation that it will beopen to the opposite party no.1 to passsuch order afresh in his discretion inaccordance with law as may beconsidered by him appropriate andwarranted by the circumstances."21. We have no doubt in our mindthat the democracy being the basicfeature of our Constitution, it must beensured that free, fair and peacefulelections are held and for that purposethe Constitutional authorities as well asother authorities must have the fullestscope for taking appropriate action inexercise of their powers according totheir discretion under the Constitutionand the existing laws. We have, therefore,made it clear that even after the quashingof the impugned order dated October 18,1993 it will be open to the DistrictMagistrate to take such action inaccordance with law, whether underSection 144 CrPC or otherwise, as heconsiders necessary and appropriate inhis discretion in the circumstances of thecase.22. It is for these reasons that wehave passed the order indicated earlierallowing the writ petitions and quashingthe impugned order dated October 18,1993 and leaving it open to the DistrictMagistrate to take appropriate actionaccording to law in future."10. He also relied on the case ofShahabuddin Vs. State of U.P. andothers, reported in 1999 (17) LCD, page1171, wherein this Court had issueddirections that the citizens who have validfirearm licenses including the petitionersshall not be compelled to deposit theirfirearms in general merely on the basisthat Lok Sabha election is to be held innear future. The relevant paras 23 and 24

12 INDIAN LAW REPORTS ALLAHABAD SERIES [2012of the aforesaid judgment are reproducedbelow:"23. Considering the facts andcircumstances of the case these writpetitions are disposed of with thefollowing directions:(1) A writ in the nature of Mandamuscommanding the State of U.P. is issueddirecting that the citizens who have validfire arm licenses including the petitionersmay not be compelled to deposit their firearms in general merely on the basis thatLok Sabha Election is to be held in nearfuture.(2) It is also directed that no DistrictMagistrate or District Superintendent ofPolice or any officer subordinate to themshall compel the citizen in general todeposit their fire arm unless thee is anorder of the Central Government asindicated in the body of the judgment.(3) The decision made in the case ofMohd. Arif Khan v. District Magistrate(Supra) by the Division Bench of thisCourt shall be followed by the StateGovernment and its officers posted in thedistricts within the State of U.P.24. However, the above directionsshall not preclude the competentofficer/authority to passorders/prohibitory orders in individualcases or in general under the provisionsof Arms Act or Code of CriminalProcedure 1973 after application of mindin accordance with law."11. I have considered the varioussubmissions made by the learned counselfor the parties.12. Since the learned StandingCounsel on the basis of instructionssubmits that there is no specificdirection/order/ circular/notificationissued by the Election Commission aswell as by the State Government that allthe licensee of fire arms are required todeposit their fire arms during VidhanSabha Elections and the GovernmentOrder dated December 29, 2011 onlyprovides that the District Magistrate of theconcerned District would review theactivities/antecedents of the licensee andidentify the persons from whom there is athreat to law and order situation duringelections and only those persons would berequired to deposit the fire arms, who arerequired individually to do so and there isno general order for deposit of fire armsduring Vidhan Sabha Elections this Courtis of the considered opinion that theopposite parties can not compel the validlicense holders of fire arms to deposittheir arms in the concerned police stationor with the firearm dealers during theVidhan Sabha Elections, which arescheduled to be held in near futurewithout there being a written order by thecompetent authority.13. In this view of the matter, thewrit petitions are allowed with thedirection that in case the petitionerspossess valid license for their firearmsand no written orders have been issued bythe competent authority to deposit theirfirearms, the opposite parties shall notcompel the petitioners to deposit theirfirearms during incoming Vidhan SabhaElections.14. The State of U.P. is directed thatthe citizens, who have valid firearmlicenses shall not be compelled to deposittheir arms in general merely on the basis

1 All] Mahendra Pratap Sharma V. State of U.P. and others 13of incoming Vidhan Sabha Elections.However, it will be open for theconcerning District Magistrates to takesuch action in accordance with lawwhether under Section 144 Cr.P.C. orotherwise or as they consider necessaryand appropriate in their discretion in thecircumstances of individual case.---------APPELLATE JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 24.01.2012BEFORETHE HON'BLE RAKESH TIWARI,J.THE HON'BLE DINESH GUPTA,J.Special Appeal No. 148 of 2008Mahendra Pratap Sharma ...PetitionerVersusState of U.P. and others ...RespondentsCounsel for the Petitioners:Sri Bhoopendra Nath SinghCounsel for the Respondents:Sri Yogendra YadavC.S.C.U.P. Recruitment of Dependant of Govt.Servant, Dying in Harness Rules 1974-Rule 5 (2) (3) as Amended by G.O. At13.10.2013-CompassionateAppointment-claimed after expiry ofstatutory period-denied on ground ofnon consideration of delay-nonappointment on compassionate groundcan not be treated as reservation-whichitself violative the rights of otherclaimants-amendment with prospectiveeffect-can not be enforcedretrospectively-held-refusalofappointment-justified.Held: Para 29There is also no provisions of keepingvacancy reserved for the minors ofdependents of government servants whodied in harness. The 51% appointmentsunder compassionate appointments is tobe made in the existing vacancies forminors in each year. If reservation ofvacancies for minors in such manner ispermitted, many a deserving dependentsof government servants who have died inharness and living in indigentcircumstances would be deprived of thebenefit of dependents U.P. Recruitmentof Dependents of Government ServantsDying in Harness Rules, 1974. The Rulewhich is a beneficial piece of legislationwould loose its beneficial part and turninto an unworkable Rule.Case law discussed:2010 (7) A.D.J. -1 (DB); 2010 (10) ADJ-289;1996 (5) SCC-308; 2008 (2) A.D.J. 433 (DB);2000 (2) E.S.C. 967; 2005 (3)U.P.L.B.E.C.2426; 1993 (supp) E.S.C 37 (L.B.);2009 (4) A.D.J.-89; 2009 (120) F.L.R. 164;2008 Vol.6 A.D.J. 741 (DB); 2003 (1)U.P.L.B.E.C.; ALR-1976 SC-1766; AIR 2006 SC2743(Delivered by Hon'ble Rakesh Tiwari,J. )1. Heard learned counsel for theparties and perused the record.2. This special appeal is preferredchallenging the validity and correctness ofthe judgment and order dated 6.11.2007by which the Civil Misc. Writ PetitionNo. 11036 of 2006, Mahendra PratapSharma versus State of U.P. and othershas been dismissed. The appellant alsoprays for setting aside the order dated18.9.2002 passed by respondent no.2,Director, Panchayat Raj, U.P. Lucknowrejecting the claim of the appellant forcompassionate appointment under theU.P. Recruitment of Dependents ofGovernment Servants Dying in HarnessRules, 1974 (hereinafter referred to as "1974 Rules") which was impugned in thewrit petition.

14 INDIAN LAW REPORTS ALLAHABAD SERIES [20123. At the time of admissionfollowing order was passed by theDivision Bench of this Court on22.1.2008." Heard Sri B.N. Singh on behalf ofthe appellant. Sri Yogendra Yadavappears for the respondents.The appeal seeks a question withrespect to interpretation of U.P.Recruitment of Dependents ofGovernment Servants Dying in HarnessRules, 1974. The matter requiresconsideration. The appeal is admitted.The appeal be listed for final hearing inthe week beginning on 12.2.2008."4. The ground of challenge by theappellant is that the order dated 18.9.2002passed by the Director Panchayat Raj U.P.in pursuance of the judgment dated6.5.2002 in Civil Misc. Writ Petition18812 of 1001, M.P.Sharma versus Stateof U.P. and others is illegal and is liableto be set aside by which the Courtdirected respondent no.2 to consider thequestion of condonation of delay. Theauthority, however, rejected the prayer forcondonation of delay by order dated18.9.2002 on the ground of latches ofmore than 5 years in moving theapplication for compassionateappointment. The power of condonationof delay vests the authority with power ofrelaxation in limitation to the applicant inmoving an application for appointment oncompassionate grounds. It is stated thatthe order dated 18.9.2002 suffers fromnon-application of mind, non-speakingand against the judgment dated 6.5.2002.5. Learned counsel for the appellanthas relied upon judgment in 2010(7)A.D.J.-1 (DB), Vivek Yadav versusState of U.P. and others and submits thatsimilar controversy has been decided byDivision Bench of this Court in whichapplication for compassionateappointment was rejected by respondentsunder Rule 5 of 1974 Rules. In that case,the father of the petitioner had died on26th May, 1986. It was argued thereinthat as soon as the petitioner becamemajor, he moved an application forcompassionate appointment but the writpetition was dismissed by the learnedSingle Judge. On appeal being filed, theappellate Court set aside the judgment ofthe learned Single Judge. The samejudgment has been relied upon in SubhasYadav versus State of U.P. and others,2010 (10) ADJ-289 . In the judgment ofthe Apex Court the case of State ofHaryana versus Rani Devi, 1996 (5)SCC-308 was distinguished in view ofrule 5 of 1974 Rules. The father ofapplicant died on 8.8.1994 when he was 6years old. He moved an application forcompassionate appointment on 5.5.2005on attaining the majority which wasrejected on the ground that the applicationwas moved after 11 years by the applicantfrom the date of death of the governmentservant. The appellate Court quashed theorder of rejection and the order passed bythe learned Single Judge directing therespondents to consider the case forappointment of the appellant.6. It is also stated that similar Rulewas considered by the Division Bench ofthis Court in judgment reported in 2008(2) A.D.J. 433 (DB), Chairman-cum-Managing Director, U.P. PowerCorporation Ltd. versus JitendraPratap Singh and 2000 (2) E.S.C. 967,Manoj Kumar Saxena versus DistrictMagistrate, Bareilly and others whereinthe father of the applicant Manoj Kumar

1 All] Mahendra Pratap Sharma V. State of U.P. and others 15died on 13.8.1987 when he was 12 yearsold. In this case also the applicant movedan application for appointment oncompassionate grounds when he attainedmajority. His application was alsorejected on the ground of delay. Thelearned Single Judge considering thejudgment of the two Division Benchesquashed the order of rejection and heldthat as the applicant moved an applicationwithin 5 years of his attaining majority assuch there is no delay in movingapplication and directed the concernedauthorities to take decision on merit onthe application.7. Relying upon the case of ManojKumar Saxena's case similar view wastaken by the learned Single Judge of thisCourt in the case of Dharmendra Singhversus State of U.P., 2005 (3)U.P.L.B.E.C. 2426 relying upon the caseof Manoj Kumar Saxena's case. In SunilKumar Srivastava versusCollector/District Magistrate,Sultanpur, 1993 (supp) E.S.C.37 (L.B.)when father of the petitioner died on9.9.1973, U.P. Recruitment ofDependents of Government ServantsDying in Harness Rules, 1974 was not inexistence. It came to be operative on31.12.1973.In that case it was held thatthe dying in harness rule is sociallegislation. It should not be considered instrict sense. Similar view is said to havebeen taken by the learned Single Judge ofthis Court in Manoj Kumar versus Stateof U.P. and others, 2009 (4) A.D.J.-89wherein the father of the applicant died inharness on 17.9.1987 when the petitionerwas minor. After he became major, hemoved an application on 27.8.1994 whichwas rejected on 21.3.1997. In paragraph 7of the judgment the Court quashed theimpugned order therein holding that 1974Rules extend consideration of statutoryright to dependents of deceased employeein Government job and it is incumbentupon the State authorities to consider thehardship of livelihood which is afundamental right guaranteed under theConstitution.8. It is further stated that in 2009(120) F.L.R. 164, Shiv Murati versusState of Andhra Pradesh Government,the scheme providing for compassionateappointment on retirement on medicalinvalidation was quashed by AndhraPradesh High Court holding such schemeto be violative of Articles 14 and 16 of theConstitution of India but in appealSupreme Court quashed the judgmentholding the scheme to be constitutionallysaved by Articles 14 and 16 of theConstitution of India. It is stated thatjudgment of the learned Single Judgeimpugned in special appeal is against thejudgment of the aforesaid Supreme Court,hence the provision of Rule 5 of theDying in Harness Rules, 1974 is notapplicable and the view taken by thelearned Single Judge in paragraphs 19,20and 22 of the judgment is contrary to rule5 which had been affirmed by DivisionBenches of the Andhra Pradesh HighCourt referred to above.9. He then submits that the judgmentpassed by the learned Single Judge is alsoagainst the binding precedence of the CoordinateBenches and Division Benchjudgments of this Court referred to aboveand in view of the Division Benchjudgment in Kuldeep Tripathi versusRam Bahadur and others, 2008 Vol.6,A.D.J.741 (DB) wherein it was held thatthe learned Single Judge or DivisionBench is bound by earlier judgmentpassed by same strength or Division

16 INDIAN LAW REPORTS ALLAHABAD SERIES [2012Benches and if Judges not agreed, has torefer the matter to Chief Justice forconstituting larger Bench and similarly inVijay Bihari Srivastava versus U.P.Posted Primary Cooperative Bank Ltd.2003(1) U.P.L.B.E.C., five Judges Benchof this Court observed that a divisionBench cannot hold that an earlier fullBench decision is not binding precedencedue to subsequent judgment of the ApexCourt as such the impugned judgment iscontrary to previous binding judgments ofthis Court passed by the learned SingleJudges and Division Benches.10. He next submits that the learnedSingle Judge in his decision relied onvarious Supreme Court judgment inwhich Rule 5 of Dying in Harness Rule1974 was not under consideration andthose judgments have no universalapplication in all cases of compassionateappointment. The Supreme Courtjudgments are to be interpreted andapplied in particular facts of the case.Same view is said to be taken by theSupreme Court in Regional Managerand others versus Pawan KumarDubey and others, ALR- 1976 SC-1766which clarify how the Supreme Courtjudgment has to be interpreted andapplied in particular facts of the case.11. The counsel for the appellantargues that learned Single Judge in theimpugned judgment has consideredcertain facts which have not beenconsidered by respondent no.2 in theimpugned order dated 19.9.2002. Thosefacts have been taken from the counteraffidavit which has been sworn bydeponent on the basis of informationreceived from file without enclosing anydocuments and such averment cannot beaccepted in view of the law laid down bythe Apex Court in Mohindra Singh Gilland others versus Chief ElectionCommission of India and others.12. Learned counsel for theappellant submits that the learned SingleJudge has not considered paragraphs 16and 19 of the writ petition in which theappellant has narrated his miserablefamily condition and continuingdisturbing economical condition whichwas being taken care of by the maternaluncle. Paragraphs 16 and 19 of the writpetition read thus:-" 16. That it is stated that familypension paid to the petitioner will not bepaid to the petitioner after attaining theage of 25 years i.e. 1.2.2007 as suchpetitioner would be hand to mouth andshall not be in a position to maintainhimself and his younger brother.19. That the petitioner's family weresolely dependent on the salary earned bylate petitioner's father and petitioner'sfather was having no other property orany income from any movable propertyand similar is a position of the uncle ofthe petitioner who has been maintainingthe petitioner and since family pensionreceived by the petitioner is very meagerand on Rs.2200/-, petitioner or hisyounger brother son cannot continued hisstudies and maintained themselves assuch condition of the petitioner's family isvery pitiable and petitioner was forced toleft his studies but respondents have notconsidered the petitioner pitiablecondition due to which petitioner and hisyounger brother's carrier is at stake."13. Learned counsel for therespondents submits that the appellantcannot claim compassionate appointment

1 All] Mahendra Pratap Sharma V. State of U.P. and others 17after a lapse of more than five years sincethe date of death of the deceased (fatherof the appellant) as provided under rule 5para 2(3) of the 1974 Rules which hasbeen amended vide G.O.no. 6/12/73/Ka-2/93 dated 13.10.1993. It is stated thatneither the mother of the appellant norany member of his family including theappellant had filed any application withinfive years since the date of death of thedeceased, the father of the appellant.14. He also submits that theappellant cannot get appointment ingovernment services due to poverty andother reasons if the appellant is givencompassionate appointment after lapse ofmore than five years since the date of thedeath of his father the same would createsevere difficulty to the State respondentsas 5% of vacancy in the relevant year onlycan be filled up by appointment oncompassionate ground; that the Director,Panchayati Raj Uttar Pradesh, Luckowhad already decided the representationdated 11.6.2002 made by the appellantvide order dated 18.9.2002 afterconsidering his comment dated 19.8.2002submitted by the then District PanchayatiRaj Officer and the entire aspects of thecase. There is no illegality or irregularityin the impugned judgment and order dated6.11.2007 passed by the learned SingleJudge and the present special appeal isliable to be dismissed with costs.15. It is stated that from the record itis apparent that the petitioner's father lateRam Kishore Sharma was working asVillage Panchayat Officer and died inharness on 2.8.1989; that petitioner'smother Smt. Satyawati Devi was offeredbenefit of 1974 Rules by the respondentsbut she by her letter dated 9.3.1992informed that due to mental stress shewould not like to serve the departmentand that the widow of the deceasedemployee also informed the authorities on30.8.1989 that her two sons aged aboutfive years and two years respectively anda daughter aged about 12 years wereminor and, therefore, none of them wereeligible for compassionate appointment atthat time. She also sent a letter dated9.3.1992 requesting the authorities tokeep a post vacant till one of her sonsbecomes major to get appointment.Further the petitioner's application dated28th February 2001 which was receivedin the concerned office on 11th April2001 was considered and by order dated9th May 2001 it was rejected in view ofRule 5 of 1974 Rules on the ground thatthe representation has rightly beenrejected as belated as such the petitionercannot be considered for compassionateappointment.16. The mother of the petitioner alsosubsequently died on 19.3.1995. She wasgetting family pension in her lifetime.After her death, it was paid to theunmarried daughter, i.e. sister of thepetitioner and after her marriage, thefamily pension was sanctioned to theminor sons through their legal guardianSri Rajveer Sharma. The petitioner whosedate of birth is 24.1.1983 passed his HighSchool in 1997 and Intermediate in 2000and has graduated in 2004 the appellantsubmitted an application on 28.2.2001before the District Panchayat Raj Officer,Aligarh, claiming compassionateappointment under 1974 Rules due todeath of his father on 2.8.1989 stating thatas now he has attained age of majority, heshould be considered for the saidappointment. He submitted a reminderletter dated 4.8.2001 and thereafterapproached this Court in writ petition no.

18 INDIAN LAW REPORTS ALLAHABAD SERIES [201218812 of 2002 having received noresponse from the respondents.17. The aforesaid writ petition wasfinally disposed of vide judgment dated6.5.2002, permitting the petitioner tomake a fresh representation before theDirector, Panchayat Raj, U.P.Government who was further directed todecide the same within a period of threemonths. Pursuant to the said order, thepetitioner submitted his representationdated 11.6.2002 to the Director,Panchayat Raj, Lucknow who rejected thesame by order dated 18.9.2002 impugnedin this writ petition. In order to completethe facts, Sri Singh, learned counsel forthe petitioner has informed that thepetitioner had obtained his graduationdegree in Commerce from AgraUniversity in 2004.18. The contention of learnedcounsel for the respondents is that hisclaim after the death of father, thepetitioner's mother Smt. Satyawati Devisubmitted an application dated 30thAugust 1989 requesting to providecompassionate appointment to one SriKishan Lal who was younger brother ofher deceased husband. The claim couldnot be accepted since the brother of thedeceased employee was not entitled forcompassionate appointment under 1974Rules. In rebuttal it is submitted by thepetitioner that it is not disputed that theclaim of the petitioner's uncle forcompassionate appointment was rejectedby the respondents but it is said thatthereafter his mother informed therespondents that after attaining majorityone of her son may be providedcompassionate appointment. It is statedthat the petitioner and his family membersare not getting any help from his unclewho is residing separately. It is also statedthat in a number of cases, the StateGovernment has made compassionateappointment after a long time relaxingfive years requirement under 1974 Rulesand, therefore, adherence to the said timeschedule in the case of the petitioner isapparently arbitrary and discriminatory.19. The contention of learnedcounsel for the petitioner appellant is thatproviso to Rule 5 of 1974 Rules asamended vide notification dated13.10.1993 by (Third Amendment) Rules,1993, it was open to the StateGovernment to relax limitation of fiveyears for making appointment under 1974Rules in appropriate cases but in the caseof the petitioner, the said discretion hasnot been exercised as such the impugnedorder is liable to be set aside.20. The point which requiresconsideration in this case is as to whethera minor dependent upon his father can beconsidered for appointment ascompassionate grounds or after attainingmajority can claim compassionateappointment and whether the authoritiesmust relax the normal recruitmentprocedure in his favour though othereligible persons in the family of thedeceased ( mother of the petitioner in thiscase ) did not accept the offer. Whetherthe offer of appointment in such asituation is a must even though the familyhas survived well for such a long time.21. The purpose and objective ofcompassionate appointment is to provideimmediate succour to the bereaved familywhose sole bread earner has died inharness. It is not a source of recruitment.It only enables the family to tide over thesudden situation crisis and not to give a

1 All] Mahendra Pratap Sharma V. State of U.P. and others 19member of such family a post much less apost held by the deceased. It is not a kindof right of succession in the service wherethe employee has died in harness. Thecompassionate appointment has alwaysbeen considered to be an exception to thenormal mode of recruitment to beexercised only in deserving cases wherethe family of the deceased is left in coldpenury on death of bread earner. TheRules have been made for the family ofthe deceased employee in consideration ofservices rendered by him and legitimateexpectations, change in status and affairsof the family endangered by the erstwhileemployment which are suddenlyupturned. It cannot be allowed as a matterof course. There is no question ofreserving a vacancy for the Dependents ofdeceased employee so as to provide themas and when they claim the same afteracquiring requisite qualification, age etc.If compassionate appointment is allowedafter reasonably long time, it would defeatthe very object of assisting the family ofdeceased employee to tide over thesudden crisis resulting due to the death ofbread earner, leaving his/her family inpenury and without any means oflivelihood. The matter has beenconsidered by the Apex Court as well asthis Court time and again and it would beuseful to have a bird's eye view on someof such authorities of Apex Court.22. If the family has sufficientmeans to survive for years together andcan take care of the minors who haveturned into major after undergoingeducational qualification etc. that itselfwould be evident to show that now thefamily is not in financial crises as it couldhave at the time of sudden demise of thedeceased necessitating compassionateappointment at a late stage i.e. afterseveral years.23. In State of Jammu & Kashmirand others Vs. Sajad Ahmed Mir AIR2006 SC 2743 similar facts were involvedand considering the same, the Apex Courtheld that when the deceased employeedied in 1987 and his son approached theauthorities in 1999, i.e., more than adecade, the same itself disentitles him toclaim any benefit of compassionateappointment and observed that the viewtaken by the High Court in favour of thedependant of the deceased employeeamounts to misplaced sympathy. Itreiterated the objective of compassionateappointment as under:" We may also observe that when theDivision Bench of the High Court wasconsidering the case of the applicantholding that he had sought 'compassion',the Bench ought to have considered thelarger issue as well and it is that such anappointment is an exception to thegeneral rule. Normally, an employment inGovernment or other public sectorsshould be open to all eligible candidateswho can come forward to apply andcompete with each other. It is inconsonance with Article 14 of theConstitution. On the basis of competitivemerits, an appointment should be made topublic office. This general rule should notbe departed except where compellingcircumstances demand, such as, death ofsole bread earner and likelihood of thefamily suffering because of the setback.Once it is proved that in spite of death ofbread earner, the family survived andsubstantial period is over, there is nonecessity to say 'goodbye' to normal ruleof appointment and to show favour to oneat the cost of interests of several others

20 INDIAN LAW REPORTS ALLAHABAD SERIES [2012ignoring the mandate of Article 14 of theConstitution of India."24. Admittedly, the petitioner'sfather died on 2.8.1989 when the old Rule5 was in operation. At the relevant timeapplication for compassionateappointment was to be submitted within areasonable period of time. Therefore,there was no provision for relaxation ofperiod of limitation by the StateGovernment. On the contrary, a perusal ofthe then existing Rule 5 makes it clearthat it stresses upon to offer employmenton compassionate ground to the deservingpersons of the family without any delay toenable it to survive . Meaning thereby thatthe application ought to have beensubmitted by the eligible dependent of thedeceased employee without any unduedelay and with utmost expediency. Anydelayed application was liable to be dealtwith as if the family has sufficient meansto survive and, therefore, would make himdisentitled for compassionateappointment. The amendment made bynotification in 1993 is prospective andcannot help the petitioner to take anyadvantage of the new Rule since the causeof action in his case arose in 1989 when adifferent provision was in existence.Moreover, the discretion for condoningthe delay is conferred by the provisounder Rule 5 as it stood after theamendment, gives a discretion to the StateGovernment and that too is preceded by acondition for consideration ofappointment on compassionate grounds inspecial cases i.e. where undue hardshiphas caused to the family of the deceasedwhich is living in indigent circumstancesand it is expedient and where it is in thedeserving case it would be in the interestof justice that the provision pertaining tolimitation of five years period needs to berelaxed and in other cases itt does not giveany right to a person to claim relaxationthereafter. In the facts and circumstancesof the case, in our considered view, Rule5 as brought on the statute book bynotification dated 13.10.1993 cannot helpthe petitioner for maintaining hisapplication for compassionateappointment after more than 12 years.25. Paragraphs 16 and 19 aforesaiddo not give an impression that the familyof the deceased was in immediate need offinancial assistance as the petitioner hasaverred therein that he would be hand tomouth after his attaining 25 years of age.The argument that the petitioner is livingseparately with his uncle is also belied byparagraph 19 of the writ petition and evenif he is living along with his uncle, itcannot be said that the family is living inindigent circumstances for the reasonsgiven herein above in this judgment.26. Admittedly, the mother of theappellant had requested the authorities toprovide compassionate appointment to thebrother of the deceased which wasdeclined by the authorities and in thatcircumstances, she prayed for reservationof a post for one of her sons oncompassionate ground. It is also anadmitted fact that the family claims to beliving separately from their uncle.Moreover, it has survived more than 22years after the death of the deceased. Thechildren have got education as the courthas been informed that the appellant hasgraduated in 2004. What is his presentstatus is not known to the counsel for theappellant i.e. as to whether he is servingany where or not and how is he maintainhis family too.

1 All] Rameshwar Prasad Shukla V. The District Inspector of School and another 2127. The aforesaid admitted factsclearly establish that the family was not inindigent circumstances as the widow ofthe deceased has refused compassionateappointment for herself and insteaddesires appointment to be given to thebrother of the deceased for she wascompelled to do so by the circumstancesas her children were minors at that time.She could have accepted the appointmentif the family was in dire financial crisis.Even though the compassionateappointment was not accepted by themother of the applicant and she has beenable to raise her children and to give goodeducation.28. It may also be noted that theapplicant did not submit any applicationfor condonation of delay. The power tocondone delay vests in the StateGovernment.29. There is also no provisions ofkeeping vacancy reserved for the minorsof dependents of government servantswho died in harness. The 51%appointments under compassionateappointments is to be made in the existingvacancies for minors in each year. Ifreservation of vacancies for minors insuch manner is permitted, many adeserving dependents of governmentservants who have died in harness andliving in indigent circumstances would bedeprived of the benefit of dependents U.P.Recruitment of Dependents ofGovernment Servants Dying in HarnessRules, 1974. The Rule which is abeneficial piece of legislation would looseits beneficial part and turn into anunworkable Rule.30. For all the reasons stated above,the respondents cannot be directed to givecompassionate appointment to theappellant after the death of deceasedemployee on 2.8.89 and on attaining themajority on 28.2.2001 i.e. more than 22years.31. The writ petition is accordingly,dismissed. No order as to costs.---------APPELLATE JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 25.01.2012BEFORETHE HON'BLE SYED RAFAT ALAM,C. J.THE HON'BLE RAN VIJAI SINGH,J.Special Appeal No. 176 of 2012Rameshwar Prasad Shukla ...PetitionerVersusThe District Inspector of School andanother...RespondentsCounsel for the Petitioner:Sri Ashok Kumar SrivastavaCounsel for the Respondents:C.S.C.Constitution of India-Article, 226-WritPetition-claiming salary from stateexchequer-without impleading StateGovernment-petition itself notmaintainable-working on basis of interimorder-for considerable period-afterdismissal of petition being merged withfinal judgment-equity can not prevailover statutory provision-view taken byLearned Single Judge-not suffer fromany error.Held: Para 8In view of above, we are of the view thatsince the petitioner-appellant filed thewrit petition claiming salary from theState exchequer, therefore, he ought tohave impleaded the State as a party andin the absence of the State as a party in

22 INDIAN LAW REPORTS ALLAHABAD SERIES [2012the writ petition, the writ petition itselfwas not maintainable.We, therefore, do not find any reason todiffer with the view taken by the learnedSingle Judge. The appeal is, accordingly,dismissed.Case law discussed:(1997) 6 SCC 574; (1994) 2 SCC 718; (2007) 1AWC 507 (SC); AIR 1977 SC 1701;AIR 2003SC 1805(Delivered by Hon'ble Syed Rafat Alam,C. J.)1. This intra-court has beenpreferred against the judgment and orderdated 16.12.2011 passed by the learnedSingle Judge in Writ Petition No. 18190of 1987 by which the appellant'sappointment was found contrary to theprovisions of law and the writ petitionwas dismissed.2. Heard learned counsel for theappellant and also perused the order of thelearned Single Judge impugned in thisappeal.3. We are of the view that the orderof the learned Single Judge does notsuffer from any error and, therefore, wehave no reason to disagree with the viewtaken by him. The law in this regard iswell settled. The Hon'ble Supreme Courtin State of Rajasthan Vs. HitendraKumar Bhatt, (1997) 6 SCC 574 hasalready held that an interim order passedin a pending proceeding merges into finalorder and, therefore, even if on thestrength of the interim order passed in thewrit petition, the appellant continued inservice, that does not confer any right toclaim continuance in service on theground that a sympathetic view ought tohave been taken since the appellantcontinued for a long period under theinterim order of this Court.4. It is well settled that justice has tobe dispensed in accordance with law andequity and sympathy shall have no placeor overriding effect over the statutoryprovisions. The Apex Court in the case ofLife Insurance Corporation of IndiaVs. Asha Ramchandra Ambedkar(Mrs.) & Anr., (1994) 2 SCC 718, hasheld as under:-"... Justice according to law is aprinciple as old as the hills. The courts areto administer law as they find it, however,inconvenient it may be.... ... ...The Courts should endeavour to findout whether a particular case whichsympathetic considerations are to beweighed falls within the scope of law.Disregardful of law, however, hard thecase may be, it should never be done..."5. In the case of Raghunath RaiBareja Vs. Punjab National Bank,(2007) 1 AWC 507 (SC), the Apex Courthas observed:-"...It is well settled that when there isa conflict between law and equity, it is thelaw which has to prevail, in accordancewith Latin maxim 'dura lex sed lex',which means 'the law is hard, but it is thelaw'. Equity can only supplement the lawbut it cannot supplant or override it.... what is administered in the Courtsis justice according to law, andconsiderations of fair play and equityhowever they may be, must yield to clearand express provision of the law."6. The matter may be examinedfrom another angle also. The petitioner-

1 All] Rameshwar Prasad Shukla V. The District Inspector of School and another 23appellant, claiming himself to be theAssistant Teacher in C.T. Grade in arecognized aided institution, has filed thewrit petition for payment of salary. Thesalary of teachers and other employees ofa recognized aided institution are payableunder the provisions of the U.P. HighSchool and Intermediate Colleges(Payment of Salaries of Teachers andother Employees) Act, 1971. Under theaforesaid Act, it is the responsibility ofthe State Government to pay the salary ofthe teachers and employees of the aidedrecognised institution. The petitionerappellant,without impleading the StateGovernment, filed the writ petition. It iswell settled that if an employee files awrit petition claiming salary from theState exchequer, then the State being anecessary party has to be impleaded andin the absence of impleadment of theState, no direction can be issued againstthe State and the writ petition would notbe maintainable. The Apex Court in thecase of Ranjeet Mal Vs. GeneralManager, Northern Railway, NewDelhi & Anr., AIR 1977 SC 1701, hasheld as under:-"It cannot be disputed that theappellant was a servant of the Union. It isequally indisputable that any order ofremoval is removal from service of theUnion. The appellant challenged thatorder. Any order which can be passed byany Court would have to be enforcedagainst the Union. The General Manageror any other authority acting in theRailway administration is as much aservant of the Union as the appellant wasin the present case.The Union of India represents theRailway administration. The Unioncarries administration through differentservants. These servants all represent theUnion in regard to activities whether inthe matter of appointment or in the matterof removal. It cannot be denied that anyorder which will be passed on anapplication under Article 226 which willhave the effect of setting aside theremoval will fasten liability on the Unionof India, and not on any servant of theUnion. Therefore, from all points of view,the Union of India was rightly held by theHigh Court to be a necessary party. Thepetition was rightly rejected by the HighCourt."7. A similar question with regard toimpleading the State came up forconsideration before the Apex Court inChief Conservator of Forests,Government of A.P. Vs. Collector &Ors., AIR 2003 SC 1805, wherein it washeld that in view of Article 200 of theConstitution of India, the Government ofIndia and also the Government of Statemay sue or be sued by the name of Unionof India or by the name of Staterespectively. The Apex Court had alsoconsidered the provisions of Section 79 ofthe Code of Civil Procedure and Rule 1 ofOrder 27 C.P.C. and held as under:-"A plain reading of Section 79 showsthat in a suit by or against theGovernment, the authority to be named asplaintiff or defendant, as the case may be,in the case of the Central Government, theUnion of India and in the case of the StateGovernment, the State, which is suing oris being sued.Order 27 of Rule 1, as mentionedabove, deals with suits by or against theGovernment or by officers in their officialcapacity. Rule 1 of Order 27 C.P.C. saysthat in any suit by or against the

24 INDIAN LAW REPORTS ALLAHABAD SERIES [2012Government, the plaint or the writtenstatement shall be signed by such personas the Government may by general orspecial order appoint in that behalf andshall be verified by any person whom theGovernment may so appoint."8. In view of above, we are of theview that since the petitioner-appellantfiled the writ petition claiming salaryfrom the State exchequer, therefore, heought to have impleaded the State as aparty and in the absence of the State as aparty in the writ petition, the writ petitionitself was not maintainable.We, therefore, do not find any reasonto differ with the view taken by the learnedSingle Judge. The appeal is, accordingly,dismissed.9. At this stage, learned counsel forthe appellant submits that the amount ofG.P.F. and other dues payable to theappellant are still lying with theDepartment. He further submits that thereis apprehension of initiation of aproceeding for recovery of the amount ofsalary already paid by the respondents.However, the aforesaid apprehension hasnot been substantiated by bringing anymaterial on record. Besides that, in theevent, if such proceedings are initiated,that will be a fresh cause of action and itwill always be open to the appellant toapproach the appropriate Courtchallenging such action/order but thatcannot be a basis to interfere with theorder of the learned Single Judge.10. The appeal, therefore, beingwithout merit, is dismissed.---------REVISIONAL JURISDICTIONCRIMINAL SIDEDATED: ALLAHABAD 31.01.2012BEFORETHE HON'BLE ASHOK SRIVASTAVA,J.Criminal Revision No. - 260 of 2012Kailash SinghState of U.P.VersusCounsel for the Petitioner:Sri Pankaj Kumar MishraCounsel for the Respondents:Pankaj Kumar MishraGovt. Advocate...Petitioner...RespondentsCriminal Revision-against order takingcognizance-without going throughcase diary-expression “cognizance”means “became aware” or to takenotice judicially-in view of law laiddown by Apex Court in Dy. ChiefController Export-import case-a detailreasoned discussion not requiredrevisiondismissed.Held: Para 4In the instant case, fact wise, law aslaid down in Dy. Chief Controller ofImports and Exports (supra) squarelyapplies. From perusal of the orderimpugned herein it does not transpirethat before taking cognizance of thecase and passing an order thereon theMagistrate had not seen the case diaryor the charge sheet. It is needless tosay that while taking cognizance of anoffence no detailed order is requiredto be passed by the Magistrate.Case law discussed:2011-ADJ-5-690; 2009 AIR Jhar-1-355;2003 (46) ACC 686 SC; 2000 (40) ACC 441SC; 2011 (73) ACC 750 (Alld./Lko.); (2008)2 SCC 492

1 All] Kailash Singh V. State of U.P. 25(Delivered by Hon'ble Ashok Srivastava,J. )1. This revision has been directedagainst the order passed by the learnedMagistrate on 5.11.2011 through whichhe has taken cognizance of the offenceregarding which a charge sheet wasfiled before him. It has been submittedfrom the side of the revisionist thatfrom perusal of the order it is evidentthat the learned Magistrate passed theorder without application of his mindand without considering the chargesheet and without going through thecase diary.2. In this connection my attentionhas been drawn from the side of therevisionist towards 2011-ADJ-5-690,Amit Garg Vs. State of U.P. & 2009AIR Jhar-1-355, Fakhruddin AhmadVs. State of Uttranchal. On the otherhand my attention has been drawntowards 2003 (46) ACC 686 SC, Dy.Chief Controller of Imports andExports Vs. Roshan Lal Agrawal &Others, AIR 2000 SC-1456, U.P.Pollution Control Board Vs. M/SMohan Meakins Ltd. & Others, 2000(40) ACC 441 SC, Kanti Bhadra SinghVs. State of West Bengal & 2011 (73)ACC 750 (Alld./Lko.) Bench, Mohd.Sayeed Vs. State of U.P., from the sideof the State.3. I have gone again through thesecase laws. In the case Dy. ChiefController of Imports & Exports(Supra), the learned Magistrate hadpassed the following orders:-“Cognizance taken, Register thecase. Issue summons to the accused.?The Apex Court has held that this orderby itself indicates that the learnedMagistrate has applied his mind andhad taken cognizance of the case. TheApex Court has discussed the termcognizance in the case of S.K.Sinha,Chief Enforcement Officer Vs.Videocon International Ltd. and Others(2008) 2 SCC 492 and has stated thatexpression ?cognizance? has not beendefined in the Code. But the word(cognizance) is of indefinite import. Ithas no esoteric or mystic significancein criminal law. It merely means?become aware of? and when used withreference to a Court or a Judge, itconnotes ?to take notice of judicially?.It indicates the point when a Court or aMagistrate takes judicial notice of anoffence with a view to initiatingproceedings in respect of such offencesaid to have been committed bysomeone.4. In the instant case, fact wise,law as laid down in Dy. ChiefController of Imports and Exports(supra) squarely applies. From perusalof the order impugned herein it doesnot transpire that before takingcognizance of the case and passing anorder thereon the Magistrate had notseen the case diary or the charge sheet.It is needless to say that while takingcognizance of an offence no detailedorder is required to be passed by theMagistrate.5. In the above circumstances I donot find that there is any force in thisrevision and accordingly it is dismissedat the admission stage.---------

26 INDIAN LAW REPORTS ALLAHABAD SERIES [2012ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 20.01.2012BEFORETHE HON'BLE SUDHIR AGARWAL,J.Civil Misc. Writ Petition No. 1181 of 2012Upma SrivastavaVersusState of U.P. & othersCounsel for the Petitioner:Sri Manish Chand UmraoCounsel for the Respondents:C.S.C.Sri Neeraj MishraSri Shamsher MauryaSri P.D.Tripathi...Petitioner...RespondentsConstitution of India, Article 226-prolongsuspension-without any progress indisciplinary action for considerableperiod of 4 years-non payment ofsubsistence allowance withoutdischarging any duty-highly derogatory,arbitrary and impertinent-arrears ofsalary from date of suspension tillreinstatement be recovered frompersonal benefit of Basic EducationOfficer-petition allowed with cost of Rs.25000.Held: Para 5This inaction, in my view, cannot bewithout any reason or indeliberate. Infact no justification, explanation orreason whatsoever has been given forthis kind of inaction on the part ofrespondents. The Court is thus justifiedin believing that it is deliberate andsurpasses the territory of arbitrariness,unreasonableness and irrationality. Suchan official cannot be allowed to go scotfreewithout accounting for the publicfunds.(Delivered by Hon'ble Sudhir Agarwal,J. )1. Pursuant to this Court's orderdated 10.01.2012, Sri J.K.Verma,presently working as Basic ShikshaAdhikari, Shahjahanpur, as identified bySri P.D.Tripathi, Advodate is present. Itis admitted by him that after suspensionorder dated 8.9.2008 no further actionwas taken against the petitioner and nocharge sheet was ever issued. However,he submitted that after receiving theorder dated 10.01.2012 passed by thisCourt inquiring as to what action hasbeen taken in the matter and whypetitioner has been kept undersuspension for such a long time withoutany inquiry in the matter, an order hasbeen passed revoking suspension on13.1.2012 pursuant whereto thepetitioner has joined.2. In the affidavit filed byrespondent No.3 nothing has been said asto why suspension of the petitionercontinued for more than 3 years and whatdisciplinary action proceeded in themeanwhile.3. In the short counter affidavitsworn by Sri J.K.Verma, Basic ShikshaAdhikari, Shahjahanpur (hereinafterreferred to as "BSA") he has said thatpetitioner was placed under suspensionon account of her unauthorized absenceand Deputy Basic Shiksha Adhikari wasappointed as enquiry officer. A reportwas submitted by Finance and AccountsOfficer, Basic Shiksha 16.10.2008wherein he has endorsed observationmade by Additional District Magistrateand has also approved the proposedaction against responsible persons.However even this affidavit nowhereshows as to when the petitioner was

1 All] Upma Srivastava V. State of U.P. and others 27issued any charge sheet, whether any oralenquiry was ever conducted or not andwhat happened after order of suspensionwas passed on 8.9.2008 whereafterDeputy District Basic Education Officer,Shahjahanpur was appointed as enquiryofficer.4. Apparently it appears that afterplacing the petitioner under suspension,Educational authorities slept over thematter, allowed the petitioner to enjoysubsistence allowance for more thanthree years without any enquirywhatsoever creating a legal lacuna in herfavour so that as an when she comes tothis Court against inaction on the part ofrespondent, she may get an order in herfavour.5. This Court, however, whensummoned respondents No.2 and 3 witha clear direction to show as to whataction was taken in this matter and whypetitioner has been kept undersuspension for such a long time withoutany inquiry, in order to cover up entireinaction and wastage of public revenuein the shape of payment of subsistenceallowance and later on full salary, passedrevocation order on 13.01.2012reinstating the petitioner. This kind ofattitude on the part of respondent No.3,which has also gone unmonitored byrespondent No.2 is really highlyderogatory, arbitrary and impertinent.They are holding public office andcustodian of public funds. They cannotmeddle with public funds by simplydistributing it to the persons not doingany work at all. Basic education has beengiven a very important role in ourConstitution also. Earlier directiveprinciples requires that State shall takesteps for providing free primaryeducation to young people, but later onrealizing its importance, which mayreflect in the literacy rate of the country,right to primary education has been madea fundamental right vide Article 21-A ofConstitution. Even the parents are undera constitutional duty to ensure primaryeducation to their wards. Thisconstitutional obligation cannot bedischarged unless effective machineryand infrastructure is made available. Thisincludes availability of competentteaching staff in the schools, their regularpresence and devoted attendance forduty. Judicial cognizance can be taken,(particularly in the light of a largenumber of cases pending before thisCourt in which State Government hastaken a stand) that thousands andthousands vacancies of primary teachersare lying. It is more shameful thatprimary institutions, which already havea teacher, are made without him/her onaccount of an action of educationalauthority for which he does not feel anyaccountability or responsibility. He madethe institution without teacher by placingthe petitioner under suspension and thenallow that situation to continue for yearstogether. If the petitioner was notperforming her job, it was a case ofurgent attention and action so thatanother teacher could have beenappointed to do the job but on the onehand educational authorities, therespondent No.3 shown as he intends totake action for ensuring proper presenceof teacher in the school but in effect hefailed in entirety. This inaction, in myview, cannot be without any reason orindeliberate. In fact no justification,explanation or reason whatsoever hasbeen given for this kind of inaction onthe part of respondents. The Court is thusjustified in believing that it is deliberate

28 INDIAN LAW REPORTS ALLAHABAD SERIES [2012and surpasses the territory ofarbitrariness, unreasonableness andirrationality. Such an official cannot beallowed to go scot-free withoutaccounting for the public funds.6. In view of the above discussion,this writ petition is disposed of with thefollowing direction:i. For the entire period the petitionerremained under suspension she shall beentitled for full salary since suspension iswholly unjustified as no departmentalenquiry was ever conducted against her.ii. The amount of salary paid to thepetitioner without actual discharge ofduty on and after 8.9.2008 i.e. aftersuspension till reinstatement shall berealized from respondent No.3 i.e. theofficer presently holding the office whois admittedly working in the said officesince 2007.iii. The Secretary, Basic Educationshall also initiate departmental enquiryagainst respondent No.3 as to why and inwhat circumstances, though petitionerwas placed under suspension, but noenquiry was conducted against her, andthereafter a situation was created inwhich she got reinstated without anyliability or responsibility. The aforesaidenquiry shall be completed by Secretary,Basic Education within three months andthe ultimate order passed by it shall beplaced before this Court after threemonths. This case will be listed in theweek commencing 14th May, 2012 onlyfor this purpose and nothing else.iv. The petitioner shall also beentitled to cost which I quantify toRs.25,000/- which shall be paid at thefirst instance by respondent No.1 but itwould have liberty to recover the samefrom respondent No.3, the presentincumbent holding the said office.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: LUCKNOW 17.01.2012BEFORETHE HON'BLE SHABIHUL HASNAIN,J.Consolidation No. - 1393 of 1980Dwarika Prasad and others ...PetitionerVersusShesh Narain and others ...RespondentsCounsel for the Petitioner:Sri P.L. MisraSri A.K. VermaSri Jagdish SinghSri R.S. TripathiCounsel for the Respondents:C.S.C.Sri G.P. TripathiSri Rakesh KumarSri Satish TripathiSri Ved Prakesh Shukla.Constitution of India, Article 226-Practice and Procedure-Dismissal of WritPetition in Default-once restored onoriginal number the status on date ofdismissal automatically revived-no needof passing specific order-admittedpetition-confirmed interim order-nevervacated prior to dismissal of defaultautomaticallyrevived-no need of passingfurther extension order.Held: Para 11In view of what has been discussedabove, there appears no need to passany fresh orders. I have already heldthat when a petition is restored to itsoriginal number, it gets the status which

1 All] Dwarika Prasad and others V. Shesh Narain and others 29was being enjoyed by it on the date itwas dismissed. Accordingly, I hold thatthe interim orders I passed in the writpetitions are continuing today. The stayis not time bound hence, there is no needto extend it for any specified time.Case law discussed:AIR 1968 Mys 283:(1967) 1 Mys LJ 414; AIR1934 Mad. 49:ILR 57 Mad 308; AIR 1956 Pat271; AIR 1978 AP 30(Delivered by Hon'ble Shabihul Hasnain,J. )C.M.Application No.100661/2011(For extension of the stay order)1. This application has been movedfor extension of the interim order grantedby this Court on 19.5.1980.2. The brief facts leading to filing ofthis application is as under:-3. The petitioners being aggrievedby the judgment dated 28.8.1986upholding the judgment dated 18.3.1981,filed the above noted writ petition inwhich an order was passed on theapplication for stay on 19.5.1980 stayingthe operation of the order dated15.1.1980. The writ petition was listed fororder on 24.8.1987 and furtherproceedings pending before theSettlement Officer Consolidation werestayed. The writ petition was listed on25.5.2010 and dismissed for want ofprosecution, whereupon an applicationwas made by the petitioners which wasallowed and the writ petition was restoredto its original number. While restoring thepetition to its original number, the stayorder granted earlier was not specificallyrevived. It is being interpreted by theopposite parties as if the stay has not beenextended. Hence, this application hasbeen moved.4. From a perusal of the record itappears that following orders were passedon 19.5.1980:"Hon' S. C. Mathur, J.Put up along with the writ petition.Meanwhile operation of the order dated11.1.1980 contained in Annexure-15passed by teh Deputy Director ofConsolidation, Pratapgarh shall remainstayed."19.5.80. Sign. Illegible"On 2.7.1980 the following orderswere passed:"Hon'ble K. N. Goyal, J.Admit. Issue notice to oppositeparties 1 to 10. In the meantime, theinterim order dated 19.5.80 shallcontinue.Sign. Illegible.2.7.80"An application for vacation of staywas moved on 20.11.1980 in whichfollowing orders were passed:"Hon' U.C.Srivastava, J.No good ground for vacating theinterim order has been made out. Theinterim order dated 19.5.80 is confirmed.Sign. Illegible.20.11.80."On 29.11.2005 this writ petition wasdismissed for non-prosecution by Hon'ble

30 INDIAN LAW REPORTS ALLAHABAD SERIES [2012R. P. Yadav, J. and following orders werepassed:Hon. R. P. Yadav, J.List has been revised.None appears for the parties.The writ petition is dismissed fornon-prosecution.29.11.05 Sign. Illegible."The petition was restored by Hon'bleR. P.Yadav on 28.2.2006 passingfollowing orders:"Hon'ble R. P. Yadav, J.Heard Learned Counsel for theparties. This is an application for settingaside the order dated 29.11.05 dismissingthe petition for non prosecution.No objection filed.Perused the affidavit.Sufficient ground has been disclosed.The application is within time.It is, therefore, allowed. The orderdated 29.11.05 is recalled and the writpetition is restored to its original number.List the case in the next cause list forfinal hearing.28.2.06 Sign. Illegible".5. It is clear that Hon'ble R. P.Yadav, J. had restored the petition to itsoriginal number and it can safely bepresumed that the petition was restored toits original number. Meaning thereby thatthe petition will obtain the same statuswhich was being contained in the writpetition on the date of dismissal for nonprosecution.It is clear that the theconfirmed stay order was operating infavour of the petitioner on 29.11.2005 asaforementioned. The restoration of apetition to its original number will meanthat stay has also revived. The petitionwas again dismissed in default by Hon'bleY. K. Sangal, J. on 25.5.2010 by passingthe following orders:Hon'ble Yogendra Kumar Sangal, J.List revised. None is present onbehalf of the petitioners.Matter is quite old of the year, 1980and listed in the old case.The writ petition is hereby dismissed.25.5.2010 Sign. Illegible."The petition was later on restored byme to its original number on 4.2.2011 bypassing the following order by the sameanalogy:-Hon'ble Shabihul Hasnain, J.C.M.Application No.77910 of 2010.This is an application for recall ofthe order dated 25.5.2010.Cause shown is sufficient.Application is allowed.Order dated 25.5.2010 is recalled.

1 All] Dwarika Prasad and others V. Shesh Narain and others 31Petition is restored to its originalnumber.4.2.2011. Sign. illegible. "6. The confirmed interim order shallbecome operative on the restoration of thepetition to its original number. Theposition is very clear. The interim ordergranted on 19.5.1980 and confirmed on.20.11.1980 has never been vacated. Itcame under eclipse for some time by thedismissal of the writ petition in defaultbut when the shadow of dismissal wasremoved by the order of this Court, theinterim order will again emerge and itsexistence can not be denied.7. I draw strength from theobservations in the case of Shivaraya Vs.Sharnappa, AIR 1968 Mys 283: (1967) 1Mys LJ 414 wherein it has been held thatthe question whether the restoration of thesuit revives ancillary orders passed beforethe dismissal of the suit depends upon theterms in which the order of dismissal ispassed and the terms in which the suit isrestored. If the Court dismisses the suitfor default, without any reference to theancillary orders passed earlier, then theinterim orders shall revive as and whenthe suit is restored. However, if the Courtdismisses the suit specifically vacating theancillary orders, then restoration will notrevive such ancillary orders.8. In the case of SaranathaAyyangar V. Muthiah Moopanar, AIR1934 Mad 49: ILR 57 Mad 308, it hasbeen held that on restoration of the suitdismissed for default all interlocutorymatters shall stand restored, unless theorder of restoration says to the contrary.That as a matter of general rule onrestoration of the suit dismissed fordefault, all interlocutory orders shall standrevived unless during the interregnumbetween the dismissal of the suit andrestoration, there is any alienation infavour of a third party.9. A similar view has been taken byteh Patna High Court in the case ofBankim Chandra V. Chandi Prasad, AIR1956 Pat 271 in which it has been heldthat orders of stay pending disposal of thesuit are ancillary orders and they are allmeant to supplement the ultimate decisionarrived at in the main suit and, therefore,when the suit, dismissed for default, isrestored by the order of the Court allancillary orders passed in the suit shallrevive, unless there is any other factor onrecord or in the order of dismissal to showto the contrary. This was also a matterunder Order 39.10. In the case of Nandipati RamReddi V. Nandipati Padma Reddy, AIR1978 AP 30 it has been held by theDivision Bench of the Andhra Pradshhigh Court that when the suit is restored,all interlocutory orders and their operationduring the period between dismissal of thesuit for default and restoration shall standrevived. That once the dismissal is setaside, the plaintiff must be restored to theposition in which he was situated, whenthe Court dismissed the suit for default.Therefore, it follows that interlocutoryorders which have been passed before thedismissal would stand revived along withthe suit when the dismissal is set asideand the suit is restored unless the Courtexpressly or by implication excludes theoperation of interlocutory orders passedduring the period between dismissal of thesuit and the restoration.

32 INDIAN LAW REPORTS ALLAHABAD SERIES [201211. In view of what has beendiscussed above, there appears no need topass any fresh orders. I have already heldthat when a petition is restored to itsoriginal number, it gets the status whichwas being enjoyed by it on the date it wasdismissed. Accordingly, I hold that theinterim orders I passed in the writpetitions are continuing today. The stay isnot time bound hence, there is no need toextend it for any specified time.12. List after two weeks for finalhearing.---------ORIGINAL JURISDICITIONCIVIL SIDEDATED: ALLAHABAD 11.01.2012BEFORETHE HON'BLE SUDHIR AGARWAL,J.Civil Misc. Writ Petition NO. 1629 of 2012Vikas Kumar & othersVersusState of U.P. & othersCounsel for the Petitioner:Sri Aditya Kumar YadavSri Mrityunjay DwivediCounsel for the Respondents:C.S.C.Sri Ramendra Pratap Singh...Petitioners...RespondentsConstitution of India, Article 14, 16-Regularization-Dailywagersappointment made without followingprocedure-long time working can not beground for regularization.Held: Para 6The Apex Court consistently since thenhas held that in absence of any statutoryprovision if a person has been engagedin a wholly illegal manner withoutfollowing procedure prescribed in statuteand in violation of Article 16 of theConstitution, such person cannot beallowed to be regularised as that wouldamount to commanding the respondentsto commit a patent illegality which isunconstitutional also.Case law discussed:(2006) 4 SCC 1; (2007) 1 SCC 575; (2008) 3SCC 505; (2009) 4 SCC 342; (2010) 2 SCC422; (2010) 4 SCC 179; 2011 (2) SCC 429(Delivered by Hon'ble Sudhir Agarwal,J.)1. Heard learned counsel for thepetitioners and perused the record.2. Petitioners are challenging theadvertisement dated 08.12.2011 (Annexure-13 to the writ petition) published by NewOkhla Industrial Development Authority(hereinafter referred to as "NOIDA"),respondent no. 3 for making recruitment onvarious Class III and IV posts.3. Learned counsel for the petitionerscontended that petitioners are working for along time and, therefore, are entitled to beconsidered for regularisation and so long asthey are not considered for regularisation,the post on which they are working, norecruitment by advertisement of vacanciescan be made.4. Learned counsel for the petitioners,however, could not dispute that none ofpetitioners were ever engaged byrespondent-authority by followingprocedure prescribed in statute consistentwith Article 16 of the Constitution of India,i.e., by advertisement of vacancy givingopportunity of consideration to all othereligible persons. The petitioners in a whollyillegal manner without following anyprocedure of selection were engagedabruptly by officials of NOIDA in awhimsical manner and they have been

1 All] Manoj Kumar Gupta V. Smt. Kamlesh Kumari and anothers 33allowed to continue obviously withcooperation of authorities who did notadmittedly follow prescribed procedure inlaw for making recruitment. Suchappointments are in the teeth of Article 16of the Constitution particularly when theauthority is "State" under Article 12 of theConstitution. Considering such types ofappointments the Constitution Bench ofApex Court in Secretary, State ofKarnataka Vs. Uma Devi (2006) 4 SCC 1held:"The High Courts acting under Article226 of the Constitution, should notordinarily issue directions for absorption,regularization or permanent continuanceunless the recruitment itself was maderegularly and in terms of the ConstitutionalScheme."5. Subsequently in some matters theobservations made by Apex Court in para53 of the judgment of Uma Devi (supra)were sought to be construed as if thepersons even if their engagement madewithout following procedure prescribed instatute but continued for some times areentitled for regularisation but thismisconstruction was clarified by ApexCourt in subsequent decisions, some ofwhich are, State of M.P. And others Vs.Lalit Kumar Verma (2007) 1 SCC 575;Rajasthan Krishi Vishva Vidyalaya,Bikaner Vs. Devi Singh, (2008) 3 SCC505; State of Karnataka Vs. G.V.Chandrashekhar (2009) 4 SCC 342;Harminder Kaur and others Vs. Union ofIndia and others (2009) 13 SCC 90;Union of India & another Vs. KartickChandra Mondal & another (2010) 2SCC 422; Satya Prakash & others Vs.State of Bihar & others (2010) 4 SCC179; and, State of Rajasthan and othersVs. Daya Lal & others, 2011(2) SCC 429.6. The Apex Court consistently sincethen has held that in absence of anystatutory provision if a person has beenengaged in a wholly illegal manner withoutfollowing procedure prescribed in statuteand in violation of Article 16 of theConstitution, such person cannot be allowedto be regularised as that would amount tocommanding the respondents to commit apatent illegality which is unconstitutionalalso.7. In the circumstances, I do not findany right of petitioners to claimregularisation and the process adopted byrespondents for filling up the vacancies byadvertisement cannot be faulted legally orotherwise.8. Dismissed.---------REVISIONAL JURISDICTIONCRIMINAL SIDEDATED: ALLAHABAD 17.01.2012BEFORETHE HON'BLE SURENDRA KUMAR,J.Criminal Revision No. 1712 of 1993Manoj Kumar Gupta ...PetitionerVersusSmt. Kamlesh Kumari and another...RespondentsCounsel for the Petitioner:Sri R.C. GuptaCounsel for the Respondent:A.G.A.Code of Criminal Procedure-Section-125(3)-Recovery Warrant-for arrears ofunpaid maintenance amount-husbandinspite of having capacity failed todeposit-order passed by Magistrateperfectly justified-warrant nointerference.

34 INDIAN LAW REPORTS ALLAHABAD SERIES [2012Held: Para 29In view of the aforesaid discussions andcase law on the point in hand, thesubmissions of the learned counsel forthe revisionist can not be accepted. Onconsideration of the facts andcircumstances of the case of the instantrevision and case law cited above, it isheld that the impugned order dated27.9.1993 passed by the Magistrate isperfectly just and legal and the samesuffers from no illegality or infirmity ofany kind. Since the husband/revisionistherein failed to pay the completeoutstanding amount of maintenance asordered by the learned Magistrate videorder dated 18.8.1989 inspite of havingfinancial capacity and sufficient meansto pay the same had knowingly madedefault in payment of the said amount,the Magistrate is fully competent torecover the maintenance amountremaining unpaid from the husband andto pay the same to Smt. Kamlesh Kumari,wife of the revisionist.Case law discussed;A.I.R. 1938 Allahabad 386 (Full Bench); AIR1958 Bombay 99 (Full Bench) in paragraph 2;AIR 1967 Calcutta 136 (DB); 1999 CRI.L.J.5060; 2005 CRI.L.J. 2615 (Supreme Court);2009 CRI.L.J. 920 (Full Bench); AIR 1919Lahore, 197; AIR 1935 Lahore, 758; AIR 1941Rangoon, 135; AIR 1949 Nagpur, 269; AIR1967 Mysore 81; 1982 Cr.L.J. 2365; 1988 (2)Crimes 33; 2000 Cri.L.J. 3893 (2000 All.L.J.1812).(Delivered by Hon'ble Surendra Kumar,J. )1. Heard learned counsel for therevisionist and learned A.G.A.2. The husband Manoj Kumar Gupta,who is revisionist, has filed this revisionpetition in this Court, impleading his wifeSmt. Kamlesh Kumari as opposite partyno. 1 and II Additional Chief JudicialMagistrate, Banda as opposite party no. 2,against the order dated 27.9.1993 passedby the II Additional Chief JudicialMagistrate, Banda in Case No.243/IX/1990-Smt. Kamlesh Kumari Vs.Manoj Kumar Gupta, under Section 125(3)Cr.P.C., Police Station Kotwali Nagar,Banda, District Banda, by which recoverywarrant for the interim maintenanceamount remaining unpaid was directed tobe issued against the husband and16.10.1993 was fixed for further orders inthe matter.3. It appears that the wife wasawarded interim maintenance since18.8.1989 at the rate of Rs. 400/- permonth in the petition under Section 125Cr.P.C. and the husband was directed topay the amount of maintenance to his wife.The amount of maintenance became duefrom 18.8.1989 to 31.7.1992, hence thewife moved an application dated 31.7.1992before the court below under Section125(3) Cr.P.C. with the prayer that arecovery warrant for Rs. 14,195/- be issuedagainst the husband. The husband filedobjections on 23.9.1993 against the saidapplication in the court below saying thatthe said application was not maintainablebecause the amount of maintenance onlyup to the period of one year could berecovered and recovery warrant could notbe issued for recovery of maintenance for aperiod exceeding one year. The husbandalso took plea that his suit for decree ofrestitution of conjugal rights in the court atAmarawati, the State of Maharshtra, wasdecreed long back and by virtue of the saiddecree, the wife was directed to live withher husband and to perform conjugal rightsand duties with her husband but the wifedid not obey the decree without anysufficient reason and the wife had desertedhim without any reasonable and sufficientcause. The husband inter-alia took the pleaby way of filing objections that he

1 All] Manoj Kumar Gupta V. Smt. Kamlesh Kumari and anothers 35ultimately filed a divorce petition underSection 13 of the Hindu Marriage Act,1955 which was allowed by the competentcourt and the decree of divorce was passedon 17.6.1986 dissolving the marriage. Onthese grounds, the husband claimed that hewas not liable to pay any interimmaintenance to his wife as she had ceasedto his wife. He had deposited Rs.4,800/- asinterim maintenance for a period of oneyear and he prayed for cancelling therecovery warrant issued for recovery ofremaining sum. The wife in the lower courtmoved another application stating thereinthat the objections by the husband on thewrong grounds were filed and the case ofmaintenance is still pending against thehusband and the order dated 18.8.1989awarding interim maintenance was inexistence and is still in existence. Thehusband challenged the order of interimmaintenance by way of filing CriminalRevision No. 121 of 1990 in the revisionalcourt, which was also dismissed by thelearned Sessions Judge, Banda videjudgment and order dated 23.5.1992. Thehusband in the court below clearlyadmitted that the Sessions Judge neitherstayed the operation of the order by whichinterim maintenance was allowed to thewife nor the lower court proceedings werestayed. It is evident from the impugnedorder itself that the husband deposited asum of Rs. 4,800/- which was due for aperiod of one year but he did not depositthe remaining unpaid amount ofmaintenance just on the ground that adecree for restitution of conjugal rightsunder Section 9 of the Hindu MarriageAct, 1955 by the court at Amarawati(Maharastra) was passed against his wife,which was not obeyed by the wife.4. The main submission of thelearned counsel for the revisionist husbandis that by virtue of provisions of Section125(3) of Criminal Procedure Code, 1973if the husband failed without sufficientcause to comply with the order of themaintenance, then the Magistrate may, forevery breach of the order can issue awarrant for levying the amount due in themanner provided for levying fines and cansentence the husband for whole or any partof each month's allowance remainingunpaid after the execution of the warrant toimprisonment for a term which can extendto one month or until payment if soonermade. No warrant could be issued forrecovery of the amount due unless theapplication was made to the court to levysuch amount within a period of one yearfrom the date on which it became due. Onthis ground, the impugned order is illegal,unjust, improper and against the provisionsof law.5. Learned A.G.A. taking me throughthe impugned order and other material, hassubmitted that this is a case of awardingmaintenance to the wife and the husband inpart compliance of the impugned order,deposited only maintenance amount up tothe period of one year. The order of interimmaintenance was passed in the year 1989and when the husband did not pay thesame within reasonable time, then the wifehad to move an application under Section125(3) of the Criminal Procedure Code,1973 with the prayer that the recoverywarrant for recovery of the aforesaidamount for the aforesaid period against herhusband be issued. It was after theimpugned order dated 27.9.1993 that thehusband made only part payment namelyup to the period of one year to his wife. Hedid not pay the remaining amount ofmaintenance on the ground that a decreefor restitution of conjugal rights waspassed in his favour against his wife by the

36 INDIAN LAW REPORTS ALLAHABAD SERIES [2012District Court, Amarawati, State ofMaharashtra on 17.6.1986 and the wife didnot comply with that decree. LearnedA.G.A. has further submitted that since theorder awarding interim maintenance to thewife and also the impugned order were inexistence against the husband revisionist,he was bound to make payment of thewhole amount of interim maintenance soas to prevent her from starvation but it wasthe husband revisionist who had driven hiswife to the stage of starvation.6. This criminal revision was filed inthis Court on 28.10.1993. This waspresented before the Court and this Courton 3.11.1993 passed the following interimorder:-"On steps issue notices to therespondent No. 1 to show-cause againstthe applicant. Summon the records of thecourts below.In the meanwhile and till furtherorders operation of the impugned orderdated 27.9.1993 shall remain stayed for aperiod of 20 days from today. If within thisperiod the applicant deposits with theCourt below a sum of Rs.5600/- andcontinues to deposit a sum of Rs. 400/-every month as directed in the basic orderof the trial Court, the operation of theorder shall remain stayed till the disposalof the stay application. In the event offailure, there shall be no stay order.3.11.93.On the same day, the same Hon'bleJudge passed the following order:-After the above order, the learnedcounsel stated that he does not press hisprayer for interim stay. The part of theorder "In the meanwhile.........." shall be nostay order" and shall be deemed to havebeen deleted."7. Before coming to the pointinvolved in this case, I think it proper todiscuss the various case law on this point.8. The Full Bench of this Court in thecase of Emperor Vs. Beni reported inA.I.R. 1938 Allahabad 386 (Full Bench)observed that the intention of theLegislature was to empower the Magistrateafter execution of one warrant only tosentence a person, who has defaulted in thepayment of maintenance ordered underSection 488 of the Criminal ProcedureCode, 1898 to imprisonment for a periodof one month in respect of each month'sdefault. The Section does not enjoin thatthere should be a separate warrant inrespect of each term of imprisonment forone month. In other words, where arrearshave been allowed to accumulate, theCourt can issue one warrant and impose acumulative sentence of imprisonment.9. The Full Bench of Bombay HighCourt in the case of Karson RamjiChawda Vs. The State of Bombayreported in AIR 1958 Bombay 99 (FullBench) in paragraph 2 observed that Subsection(3) of Section 488 of the CriminalProcedure Code, 1898 confers upon theMagistrate two independent powers, one toissue a warrant which has to be executed inthe manner laid down in the sub-sectionand the other to sentence the person also inthe manner laid down in the sub-section.The power of the Magistrate to sentencethe person failing to comply with the orderis not dependent upon the issue of thewarrant, or in other words, the issue of thewarrant is not a condition precedent to thejurisdiction of the Magistrate to sentence

1 All] Manoj Kumar Gupta V. Smt. Kamlesh Kumari and anothers 37the applicant. Therefore when so read it isclear that the power to sentence is for thewhole or any part of each month'sallowance remaining unpaid after theexecution of the warrant to imprisonmentfor a term which may extend to one monthor until payment if sooner made. Thesewords clearly lay down the power of theMagistrate. The power of the Magistrate inrespect of whole or any part of eachmonth's allowance remaining unpaid tosentence the person for a term notexceeding one month.10. In the reported case before theFull Bench of Bombay High Court, thepetitioner was ordered by the Magistrate topay maintenance to his wife and daughter.He made a default and failed to complywith this order. The wife made anapplication that there had been a default inthe payment for four months. TheMagistrate issued a warrant and thewarrant could not be executed as theapplicant had no property. The wife thenmade an application under Section 488 (3)of the Criminal Procedure Code, 1898 andon that application, the Magistrate passedan order sentencing the applicant to beimprisoned for a term of 15 days in respectof each month for which the allowanceremained unpaid. The Full Bench held thatthe Magistrate was right in the order thathe passed.11. A Division Bench of CalcuttaHigh Court in Moddari Bin Vs. SukdeoBin reported in AIR 1967 Calcutta 136(DB) while interpreting Section 488 of theCriminal Procedure Code, 1898 inparagraphs 14 and 17 had observed asunder:-"(14) The next point raised in theletter of reference is whether thepunishment can be limited only to a periodof one month as the maximum underSection 488 (3), Cri. P.C. The language ofthe section has been quoted above. Itexpressly provides that the Magistrate maysentence such person for the whole or inpart of each months allowance to a termwhich may extend to one month or untilpayment if sooner made. The maximum ofone month, in our view, in this context andon proper interpretation of the language ofthe section is relatable to a period of thearrear for one month. In other words,default of one month is punishable by onemonth's imprisonment and no more. If thedefault is more than one month then theimprisonment can be for as many monthsof default subject to a maximum of 12months. The question here is whether adefault of 9 months which had occurredcould be punishable with six months'imprisonment which the Magistrate herehas ordered. On the authorities and on theconstruction of Section 488 (3) Cri. P.C.We have come to the conclusion that theMagistrate can make an order for sixmonths' imprisonment for nine monthsdefault. In fact the maximum imprisonmentwhich he on the present facts could havegiven was 9 months, but he has given less.Section 488 (1) of the Criminal ProcedureCode provides expressly for a monthlyallowance for the wife or the child at suchmonthly rate not exceeding five hundredrupees in the whole as the Magistratethinks fit. The second proviso to Section488 (3) makes it clear that no warrantshall be issued for the recovery of anyamount due under the section unlessapplication be made to the Court to levysuch amount within a period of one yearfrom the date on which it became due. Thatwould indicate that at the most the wifecould only accumulate twelve months'maintenance and no more and the

38 INDIAN LAW REPORTS ALLAHABAD SERIES [2012Magistrate could give in such case at mosttwelve months' imprisonment and no more.The whole idea is to provide a speedy andexpeditious remedy. The idea is not topermit unnecessary accumulation ofmaintenance for the simple reason thatmaintenance is a current necessity and isnot to be used for making a claim in lumpafter a long delay.(17) Turning now to the question ofinterpretation of the expression "after theexecution of the warrant in Section 488(3), Cri. P.C. Mr. Sinha's contentioncannot succeed on the facts of this case inchallenging the Magistrate's order. Nodoubt before the execution of the warrantthe Magistrate cannot sentence thedefaulter. But on the facts as we havealready recorded the distress warrant hasbeen executed. Execution of the warrant inthis case does not mean successfulexecution of the warrant. It also includesunsuccessful execution of the warrantyielding no fruits. If the execution of thewarrant was always successful thenobviously there would be no furtherquestion of sentencing the defaulter.Besides, the sentence can be awarded bythe Magistrate under Section 488, Cri.P.C. Which expressly provides for the caseeven if the whole amount remains unpaidafter the execution of the warrant. Thatmust necessarily contemplate a case wherethe whole of the amount due remainsunrealised after unsuccessful execution ofthe distress warrant or the other warrantunder Section 386 (1) (b) of the Code ofCriminal Procedure. On the facts we havecome to the conclusion as alreadyindicated that the distress warrant issuedin this case has been unsuccessfullyexecuted and was infructuous. Therefore,the Magistrate had the right to order asentence of imprisonment. Mr. Sinha alsosuggested in argument that only thedistress warrant could not be executed, butthen the Magistrate should have followedthis by another kind of warrant to theCollector under Section 386 (1) (b), Cri.P.C. and it is only after having exhaustedboth the warrants the Magistrate's right tosentence could arise. That argument isobviously unsound. The language ofSection 386 (1) of the Criminal ProcedureCode expressly uses the words:-"Whenever an offender has beensentenced to pay a fine, the Court passingthe sentence may take action for therecovery of the fine in either or both of thefollowing ways............." and then follows(a) method of issuing a warrant for thelevy of the amount by attachment and saleof any movable property belonging to theoffender; and (b) method of issuing awarrant to the Collector of the Districtauthorising him to realise the amount byexecution according to civil processagainst the movable or immovableproperty or both, of the defaulter. Havingregard to the language "either or both ofthe following ways" it is plain that theMagistrate is not compelled to start the (b)method when the (a) method which he hadadopted previously had failed before hecould sentence a defaulter."12. The Division Bench furtherobserved that Section 488 (3) of theCriminal Procedure Code, 1898 does notexpressly lay down any requirement forissuing a show cause notice. What isimplicit or is required, is the Magistrate'ssatisfaction about the means of thedefaulter to comply with the order formaintenance, where there are sufficientmaterials before the Magistrate to come tothe conclusion that the defaulter hadsufficient means, but he is wilfully

1 All] Manoj Kumar Gupta V. Smt. Kamlesh Kumari and anothers 39neglecting to comply with the order ofmaintenance. Such notice to the defaulterbefore issuing a warrant is not requiredunder Section 488 (3) of the CriminalProcedure Code. The Division Benchrelied upon a Full Bench decision reportedin AIR 1958 Bombay 99 (FB) and AIR1959 Allahabad 556.13. The Hon'ble Supreme Court inthe case of Shahada Khatoon and othersVs. Amjad Ali and others reported in1999 CRI. L.J. 5060 (Supreme Court)while interpreting the provisions of Section125(3) of the Criminal Procedure Code,1973 (2 of 194 Cr.P.C.) held that thelanguage of sub Section (3) of Section 125Cr.P.C. is quite clear and it circumscribesthe power of the Magistrate to imposeimprisonment for a term which may extendto one month or until the payment, ifsooner made. This power of the Magistratecannot be enlarged and, therefore, the onlyremedy would be after expiry of onemonth, for breach of non-compliance ofthe order of the Magistrate the wife canapproach again to the Magistrate forsimilar relief. By no stretch of imaginationthe Magistrate can be permitted to imposesentence for more than one month. TheHon'ble Apex Court did not accept thecontention of the learned counsel for theappellant that the liability of the husbandarising out of an order passed underSection 125 Cr.P.C. to make payment ofmaintenance is a continuing one and onaccount of non payment there has been abreach of the order and, therefore, theMagistrate would be entitled to imposesentence on such a person continuing himin custody until payment is made.14. The Hon'ble Supreme Court inthe case of Shantha alias Ushadevi andanother Vs. B.G. Shivananjappa, 2005CRI. L.J. 2615 (Supreme Court) inparagraph 8 observed that Section 125Cr.P.C. is a measure of social legislationand it has to be construed liberally for thewelfare and benefit of the wife anddaughter. It is unreasonable to insist onfiling successive applications when theliability to pay the maintenance as per theorder passed under Section 125(1) is acontinuing liability. The Hon'ble SupremeCourt directed the Magistrate to takeappropriate steps under Section 125(3)Cr.P.C. in case arrears of maintenance isnot paid.15. The Hon'ble Supreme Courtfurther held that requirement of Section125 Cr.P.C. is that the wife shall move anapplication within a period of one yearfrom the date, the amount became due. Itwas further observed that in order to seekrecovery of the amount due by issuance ofwarrant as provided under Section 125Cr.P.C., the application shall be madewithin a period of one year from the datethe amount became due and if the husbandfailed to pay maintenance.16. The Full Bench of Gujarat HighCourt in the case of Suo Motu Vs. State ofGujarat reported in 2009 CRI. L.J. 920(Full Bench) has observed in paragraphs14 and 15 as under:-14.Sub-section (1) of section 125 thusprovides for monthly allowance to be paidto the wife, children, mother or father, asthe case may be, at such monthly rate asthe Magistrate thinks fit. It can thus beseen that the maintenance that theMagistrate awards under section 125 (1)becomes payable every month.Sub-section (3) of section 125provides for summary procedure for

40 INDIAN LAW REPORTS ALLAHABAD SERIES [2012recovery of such maintenance allowanceso fixed by the Magistrate, if any person soordered fails without sufficient cause tocomply with the order. It is provided thatin such a case, for every breach of theorder, the Magistrate may issue warrantfor levying the amount due in the mannerprovided for levying fines and maysentence such person for the whole or anypart of each month's allowance for themaintenance including interimmaintenance remaining unpaid toimprisonment for a term which may extendto one month or until payment if soonermade. Sub-section (3) of section 125 thusempowers the Magistrate to awardsentence upto one month for the whole orpart of each month's allowance remainingunpaid, Limitation on the power of theMagistrate to impose imprisonment for aterm not exceeding one month, therefore,has to be viewed in the background of thepurpose for which such imprisonment isprovided. As already noticed, section 125(1) refers to monthly allowance to be fixedby the Magistrate for maintenance of wife,child, father or mother on such monthlyrate as the Magistrate thinks fit. Uponfailure of a person to comply with such anorder, it is open for the Magistrate forevery beach of the order to issue warrantfor levying the amount due and further tosentence such a person for the whole orany part of each month's allowanceremaining unpaid to imprisonment for aterm which may extend to one month, Toour mind, therefore, the Legislature neverintended that regardless of the extent of thedefault on the part of the husband, theMagistrate can impose sentence only uptoone month. True interpretation of Section125 (3), in our view, would be that for eachmonth of default in payment ofmaintenance, it is open for the Magistrateto sentence the defaulting person toimprisonment for a period of one month oruntil payment if sooner made.15.The question can be looked from aslightly different angle. If for each monthof default of payment of maintenance, thewife were to file separate applicationsbefore the Magistrate, surely, it would beopen for the Magistrate to pass separateorders of sentences each not exceeding onemonth. If that be so, would it not be openfor the wife to file one consolidatedapplication for every month's defaultinstead of filing separate application foreach month of arrears and in such asituation, would it not be open for theMagistrate to pass one consolidated orderof sentence upto a maximum one month foreach month of default in payment ofmaintenance? The answer obviously is inthe affirmative as long as the application ismade by the wife within one year from thedate on which the amount has become dueas provided under sub-section (3) ofsection 125. To our mind, the Apex Courtin the case of Shahada Khatoon did not laydown that for every month's default, it isnot open for the Magistrate to sentence thedefaulting husband for more than onemonth. It is well settled that the decisionsof the Apex Court are not to be interpretedlike statutes. In the case of P.S. Sathappanv. Andhra Bank Ltd., AIR 2004 SC 5152, itwas held that judgment of the SupremeCourt must be read as a whole and theratio there from is required to be culledout from reading the same in its entiretyand not only a part of it.17. The Full Bench of Gujarat HighCourt in this judgment in paragraph 16 hasexplained the provisions of the CriminalProcedure Code, 1861 and CriminalProcedure Code, 1882. The relevant

1 All] Manoj Kumar Gupta V. Smt. Kamlesh Kumari and anothers 41portion of the paragraph 16 is quotedbelow:-16. One may notice that the provisionof section 125 (3) of the CriminalProcedure Code insofar as the same isrelevant for our purpose is similar to subsection(3) of section 488 of the CriminalProcedure Code of 1882 which reads asfollows:-"The Magistrate may, for everybreach of the order issue a warrant forlevying the amount due in the mannerhereinbefore provided for levying fines,and may sentence such person for whole orany part of each month's allowanceremaining unpaid after the execution of thewarrant, to imprisonment for a term whichmay extend to one month."Criminal Procedure Code 1882replaced the old Criminal Procedure Code1861. Similar provisions were made insection 316 of the Code of 1861. However,there were certain significant differences -Section 316 of the Code of 1861 reads asfollows:"The Magistrate may, for everybreach of the order by warrant, direct theamount due to be levied in the mannerprovided for levying fines: or many ordersuch person to be imprisoned with orwithout hard labour for any term notexceeding one month."Comparing the two provisions, it canbe seen that in section 488 of the Code of1882, the Legislature added the words;"may sentence such person for the wholeor any part of each month's allowanceremaining unpaid". Addition of words "ofeach month's allowance" are significant.Earlier provisions of section 316 of theCode of 1861 could have been interpretedas providing for the limitation on thepower of the Magistrate to imposesentence for a term not exceeding onemonth regardless of the extent of thedefault. However, the Legislature made theposition clear in the later enactment byadding words "each month's allowance",Modification in the provision was thus toremove a possible confusion. Whileunderstanding the existing provisions ofsection 125(3) which are in pari materia tosection 488(3) of the Code of 1882, thisimportant aspect has to be borne in mind.It may be noted that in the CriminalProcedure Code of 1898, these provisionswere retained in same terms as in the Codeof 1882.18. The Full Bench of Gujarat HighCourt in the said judgment in paragraph 17has clearly laid down that in the aforesaiddecision of Shahada Khatoon, the Hon'bleSupreme Court did not lay down theproposition that under sub-section (3) ofsection 125 of the Criminal ProcedureCode, it is not open for the Magistrate topass a consolidated order of sentencing thedefaulting husband in excess of one monthfor several months of defaults.19. It has been noticed that almostunanimous view of all the High Courtsbefore Shahada Khatoon's case (supra) wasthat it is open for the Magistrate to awardsentence in excess of one month in case ofseveral months of default. The learnedSingle Judge of Lahore High Court in thecase of Emperor Vs. Budhu Ram reportedin AIR 1919 Lahore, 197 whileinterpreting pari materia provisions ofSection 488 (3) of the Criminal ProcedureCode, 1898 upheld the sentence of sixmonths imposed on a husband for severalmonths of default. The contention that

42 INDIAN LAW REPORTS ALLAHABAD SERIES [2012cumulative warrant for the whole arrearsand cumulative sentence of six months wasillegal, was turned down.20. Once again the learned SingleJudge of the Lahore High Court in the caseof Emperor Vs. Sardar Muhammad, AIR1935 Lahore, 758 observed that thehusband can be committed to prison for aterm amounting to whole or any part ofeach month's allowance remaining unpaid,after execution of the warrant. In that case,six month's allowance was outstanding, itwas observed that he could be committedto prison for six months.21. A Division Bench of theRangoon High Court in the case of Ma TinTin Vs. Maung Aye, AIR 1941 Rangoon,135, observed that the Legislatureintroduced words capable of meaning thatas many months imprisonment as therewere defaults could be imposed and theCourt should construe the Act as to makethat remedy effective. The Division Benchupheld the power of the Magistrate toimpose sentence in excess of one monthfor arrears exceeding a month.22. The learned Single Judge ofNagpur High Court in the case of EmperorVs. Badhoo Mandal, AIR 1949 Nagpur,269 held that one month's imprisonment isnot the maximum sentence that can beawarded by the Magistrate and where morethan one month's maintenance allowanceremains unpaid, imprisonment for morethan one month can be awarded by theMagistrate.23. The learned Single Judge ofMysore High Court in the case ofKantappa Vs. Sharanamma, AIR 1967Mysore 81, held that the Magistrate has tocompute the term of imprisonment withreference to each month's imprisonmentand then pass a cumulative sentence.24. The Similar view was taken in G.Pratap Reddy Vs. G. Vijayalakshmi, 1982Cr. L.J. 2365 and Kashmir Singh Vs.Kartar Kaur, 1988 (2) Crimes 33,observing that the Magistrate can passsentence up to one month for each month'sunpaid allowance.25. Here it may be mentioned that itwas after the decision of the Apex Court inthe case of Shahada Khatoon (supra) 1999AIR SCW 4880 the different High Courtshave viewed the situation differently andthen following the decision in the case ofShahada Khatoon (supra), some of theHigh Courts adopted the view that theMagistrate could not have awardedpunishment for a period of 12 months at atime and that the detention andimprisonment for failure of the husband topay maintenance can not exceed onemonth.26. Adopting the same view onelearned Single Judge of Allahabad HighCourt in the case of Dilip Kumar Vs.Family Court, Gorakhpur, 2000 Cri. L. J.3893 (2000 All. L.J. 1812) held that fordefault of payment of maintenance,confinement can be only for a period ofone month and no composite order forconfinement can be passed.27. It can thus be seen that prior tothe decision of the Apex Court in ShahadaKhatoon's case, almost unanimouslydifferent High Courts of the country hadheld that limitation on power of theMagistrate to impose sentence up tomaximum of one month is relatable to eachmonth of default in payment ofmaintenance and that subject to the

1 All] Uttar Pradesh State Road Transport Corporation, Meerut V. Shouraj Singh and others 43limitation prescribed in proviso to subSection (3) of Section 125 of the Code ofthe Criminal Procedure, 1973, it is open forthe Magistrate to impose sentence up tomaximum of one month for each month ofdefault and that a composite order of thisnature can be passed by the Magistrate.28. The Hon'ble Supreme Court inthe case of Shahada Khatoon (supra) didnot lay down the ratio that regardless of theextent of default on the part of the husbandin paying maintenance, the Magistrate canimpose imprisonment of maximum of onemonth.29. In view of the aforesaiddiscussions and case law on the point inhand, the submissions of the learnedcounsel for the revisionist can not beaccepted. On consideration of the facts andcircumstances of the case of the instantrevision and case law cited above, it is heldthat the impugned order dated 27.9.1993passed by the Magistrate is perfectly justand legal and the same suffers from noillegality or infirmity of any kind. Sincethe husband/revisionist herein failed to paythe complete outstanding amount ofmaintenance as ordered by the learnedMagistrate vide order dated 18.8.1989inspite of having financial capacity andsufficient means to pay the same hadknowingly made default in payment of thesaid amount, the Magistrate is fullycompetent to recover the maintenanceamount remaining unpaid from thehusband and to pay the same to Smt.Kamlesh Kumari, wife of the revisionist.30. The learned Magistrate concernedis directed to issue recovery warrant for themaintenance amount remaining unpaidaccording to law discussed above and ifthe warrant remains unexecutable by anyother reason, then to sentence thedefaulting husband according to law.31. The revision petition beingdevoid of merits is accordingly dismissed.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 11.01.2012BEFORETHE HON'BLE KRISHNA MURARI, J.Civil Misc. Writ Petition No. 1787 of 2012Uttar Pradesh State Road TransportCorporation, Meerut ...PetitionerVersusShouraj Singh and others ...RespondentsCounsel for the Petitioner:Sri J.N. SinghCounsel for the Respondents:Sri S.M.N. Abbas AbediC.S.C.U.P. Industrial Dispute Act-1942-Section33-C-direction to give salary illegallywith-held-order passed by prescribedauthority-challenged on ground withoutadjudication-direction for salaryexecutionunder section 33-C-notmaintainable-where inspite of repeateddirection of High Court work man notallowed light work-non payment ofsalary during intervening period-nodispute of employee-employerrelationship-direction under section 33-Cheld-proper.Held: Para 7Admittedly, this Court vide order dated21.04.2000 directed the Corporation toassign some lighter work to therespondent, which was not followed andanother order dated 05.05.2000 waspassed directing the respondentworkmanto resume the duties of driver

44 INDIAN LAW REPORTS ALLAHABAD SERIES [2012and to run the bus from Meerut to Delhi.The said order was also quashed by thisCourt vide order dated 18.08.2000 and acategorical direction was issued that theworkman may be assigned lighter workother than that of the driver. Even whenthis order was not complied with by thecorporation, notices in the contemptproceedings were issued and then thepetitioner-corporation directed therespondent-workman to resume theduties as Chowkidar on 01.01.2001.Case law discussed:(2008) 7 SCC 22; 2005 SCC (L&S) 1081(Delivered by Hon'ble Krishna Murari, J. )1. Heard Shri J.N. Singh, learnedcounsel for the petitioner and ShriS.M.N. Abbas Abedi for respondent no.1.2. Respondent-workman moved anapplication under Section 33-C (2) ofthe Industrial Disputes Act (for short theAct) with a prayer to direct thepetitioner-employer to make payment ofRs.53,787.70/- along with interest assalary for the period 16.03.2000 to03.01.2001, which was illegally notpaid. Prescribed authority, Labour Courtvide award dated 17.10.2011 allowedthe claim of the respondent-workman.Aggrieved, the petitioner hasapproached this Court.3. It is contended that withoutthere being any adjudication withrespect to entitlement of the workmanfor payment of salary during this period,the claim of the respondent-workmancould not have been awarded inproceedings under Section 33-C (2) ofthe Act by the Prescribed authority,inasmuch as the said proceedings are inthe nature of execution proceedings.Reliance in support of the contentionhas been placed on the judgment of theHon'ble Apex Court in the case of D.Krishnan & Anr. Vs. Special Officer,Vellore Cooperative Sugar Mill &Anr., (2008) 7 SCC 22.4. The facts as they emerge outfrom the pleadings of the parties are thatrespondent-workman, who was workingon the post of driver in the petitionercorporation,was declared unfit onmedical grounds to work as a driver.When the petitioner-employer did notallot him any light work, respondentworkmanfiled Writ Petition No. 18757of 2000. Vide order dated 21.04.2000,the corporation was directed to allowthe workman to resume the duty and toallot him some light work. Eventhereafter the petitioner-corporationinstead of allotting him some lightwork, passed an order dated 05.05.2000allocating him the duty to drive the busfrom Meerut to Delhi and back treatingit to be a light work. Respondent againapproached this Court by seeking areview of the order dated 21.04.2000,which was allowed vide order dated18.08.2000 and order dated 05.05.2000passed by Regional Manager wasquashed and the corporation wasdirected to assign lighter work to therespondent-workman other than that ofthe driver. Even thereafter, the orderwas not complied by the corporation, asa result, contempt proceedings wereinitiated, wherein notices were issued.Thereafter, vide order dated 01.01.2001,respondent-workman was allowed toresume duty as Chowkidar. Since thepetitioner did not pay the salary from16.03.2000 to 03.01.2001, respondentworkmanmoved an application underSection 3-C (2) of the Act claimingpayment for the said period. Prescribed

1 All] Uttar Pradesh State Road Transport Corporation, Meerut V. Shouraj Singh and others 45authority finding that though therespondent-workman continued inemployment of the petitionercorporationand despite orders passedby this Court, petitioner did not allowhim to work on any post other than thatof driver, he was entitled for payment ofsalary for the said period, inasmuch asthe respondent-workman was not atfault.5. It is undisputed that withoutthere being a pre-determination oradjudication, proceedings under Section33-C (2) of the Act, which are in thenature of execution, cannot be initiated.6. The question which arises forconsideration in this case is whetherthere was any dispute with regard to theentitlement of the respondent-workmanfor wages during this period?7. Admittedly, this Court videorder dated 21.04.2000 directed theCorporation to assign some lighter workto the respondent, which was notfollowed and another order dated05.05.2000 was passed directing therespondent-workman to resume theduties of driver and to run the bus fromMeerut to Delhi. The said order wasalso quashed by this Court vide orderdated 18.08.2000 and a categoricaldirection was issued that the workmanmay be assigned lighter work other thanthat of the driver. Even when this orderwas not complied with by thecorporation, notices in the contemptproceedings were issued and then thepetitioner-corporation directed therespondent-workman to resume theduties as Chowkidar on 01.01.2001.8. The narration of the above factsclearly goes to show that respondentworkmanwas not allowed to workdespite orders passed by this Court bythe petitioner-corporation itself and,thus, it cannot be said that there was anydispute with respect to right to wagesfor the said period, which requires anyadjudication.9. Hon'ble Apex Court in the caseof State of U.P. & Anr. Vs. BrijpalSingh, 2005 SCC (L&S) 1081, hascategorically held that right to money orbenefit which is sought to be executedunder Section 33-C (2) of the Act mustbe an existing one and must arise incourse of and in relation to relationshipbetween industrial workman andemployer.10. In the facts of the present case,there was an existing right vested in therespondent-workman for payment ofwages which did not require anyadjudication, hence, the argumentadvanced on behalf of the petitioner hasno force as well as the case of D.Krishnan & Anr. (supra) relied uponby the petitioner in respect of hiscontention is not applicable and isclearly distinguishable on facts.11. In view of above facts anddiscussions, there is no force in the writpetition and the same, accordingly,stands dismissed.---------

46 INDIAN LAW REPORTS ALLAHABAD SERIES [2012ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 24.01.2012BEFORETHE HON'BLE SABHAJEET YADAV,J.Civil Misc. Writ Petition No. 2239 of 2008Ram Shiromani Yadav ...PetitionerVersusThe Conciliation Officer and others...RespondentsCounsel for the Petitioner:Sri Ajay Kumar SrivastavaSri Manu MishraCounsel for the Respondents:Sri V. SinghSri K.K. PandeyC.S.C.U.P. Industrial Dispute Act, 1947-Section10 (1)-oral termination-withoutfollowing statutory provision-withouttaking recourse of reconciliationproceeding-rejection of reference byGovt. apparent error-already 6 yearselapsed-No fruitful purpose will serve byreferring matter before the Govt. forconsidering to make referencemandamusissued to refer the disputebefore Industrial Tribunal foradjudication.Held: Para 19In instant case besides other assertionssince petitioner has stated before therespondent no.1 that his services wereterminated on 4.3.2006 withoutcompliance of provisions of IndustrialDispute Act and since then a period ofabout six years have already passed,therefore, it would not be expedient inthe interest of justice to relegate thematter before appropriate governmentfor reconsideration of the issue forreferring the dispute for industrialadjudication to the appropriate tribunalor labour court, which will again takesome considerable time. In wake of factsand circumstances of the case, referredherein before, in my opinion, it is fit casewhere a writ of mandamus should beissued to the respondent no.1 to referthe dispute for industrial adjudication tothe appropriate industrial tribunal orlabour court forthwith. Accordingly, awrit of mandamus is issued directing therespondentno.1/appropriategovernment to refer the dispute raisedby the petitioner for industrialadjudication before the appropriateindustrial tribunal or labour courtforthwith on receipt of certified copy ofthe order passed by this court.(Delivered by Hon'ble Sabhajeet Yadav,J. )1. Heard learned counsel for theparties.2. By this petition, the petitioner haschallenged the order dated 13.8.2007passed by the respondent no.1 (Annexure-6 to the writ petition), whereby thepetitioner's application for referring theindustrial dispute to the Labour court hasbeen rejected. A writ of mandamus is alsosought for directing the respondents no. 2and 3 to reinstate the petitioner in serviceas Peon in the institution in question andpay increments & salary for the period ofillegal removal from the institution.3. The brief facts leading to the caseare that the petitioner was duly appointedas Peon (Paricharak) in the AllahabadPublic School Subedarganj, Chaufatka,Allahabad (hereinafter referred to as the'Institution') on 23.1.2001 but therespondents were taking work from himfrom morning 6.00 a.m. to evening 7.00p.m. everyday and were compelled thepetitioner to do 'Jhadu Pochha' work. It isstated that the respondents were paying

1 All] Ram Shiromani Yadav V. The Conciliation Officer and others 47salary to the petitioner at the rate of Rs.800/- per month in the year 2002, Rs.1000/- per month in the year 2003, Rs.1200/- per month in the year 2004, Rs.1400/- per month since 2005 andthereafter Rs. 1500/- per month and werenot paying salary to the petitioner as perScheme of minimum wages at all. On4.3.2006 the respondents have orallyterminated the services of the petitioner.Against said oral termination thepetitioner filed an application on12.4.2006 before the respondent no.1 andprayed for constitution of reconciliationBoard with regard to the industrial disputeand for grant of relief of continuity inservice and for payment of his increasedsalary of entire period. Copy of the Memoof C.P. No. 49 of 2006 (Ram ShiromaniYadav Vs. Principal, Allahabad PublicSchool & College and others) is on recordas Annexure-1 to the writ petition.4. It is further stated that thepetitioner submitted before the respondentno. 1 various documents which are thebasis of his claim on 22.1.2007 and27.1.2007 from which it is fully provedthat the petitioner was duly appointedPeon of the institution and he had workedin the institution continuously since dateof his appointment i.e. from 23.1.2001 to4.3.2006. The respondents no.2 and 3filed their written statements on 4.1.2007and denied the claim of the petitioner.Against the written statement of therespondents no. 2 and 3 the petitioner/claimant filed his written statement/replication on 27.1.2007 and given parawise reply of the same. But withoutconsidering the documents and evidencein respect of the petitioner's appointmentand working in the Institution as Peonsince 23.1.2001 to 04.3.2006 continuouslywithout any break in service therespondent no. 1 rejected the claimpetition of the petitioner holding that thepetitioner could not prove hisemployment in the institution. Theimpugned order was published by theState Government on 13.8.2007. The copyof the impugned order dated 13.8.2007passed by the opposite party no. 1 is onrecord as Annexure No. -6 to this writpetition. It is further stated that thepetitioner is filing some documents andphotographs which prove that thepetitioner had worked in the Institutionsince 23.1.2001 to 4.3.2006. A truephotostat copy of the character certificateissued by the respondent no.2 on9.10.2001 and 22.1.2004 and somephotographs of the petitioner which havebeen taken during service of the petitionerin the Institution as Peon are on record asAnnexure No. 7 to the writ petition. Thepetitioner is ready to file several otherdocuments and photo stat copy of theAttendance Register and Salary Registeretc. before this Hon'ble Court which fullyprove that the petitioner has worked in theInstitution since 23.1.2001 to 4.3.2006continuously without any break, if thisHon'ble Court requires the same.5. It is further stated that since thepetitioner has worked in the Institutioncontinuously since 23.1.2001 to 4.3.2006without any break in service and hascompleted 240 days in three calenderyears, therefore, his services could not beterminated orally without following theprocedure laid down in the IndustrialDisputes Act. But illegally and arbitrarilywithout following the procedure laiddown in the Industrial Disputes Act, therespondents no.2 and 3 have orallyterminated the petitioner's services on4.3.2006 and ousted him from theInstitution. It is stated that the petitioner is

48 INDIAN LAW REPORTS ALLAHABAD SERIES [2012entitled to be reinstated in continuity ofhis service and is entitled to getoutstanding arrears of salary for theperiod in which he has been illegally andarbitrarily ousted from the employment ofthe Institution. The actions of therespondents are wholly arbitrary, illegaland against the provision of the IndustrialDispute Act, hence, the impugned orderdated 13.8.2007 is liable to be set asideand the petitioner is entitled to bereinstated in service in continuity of hisold services and entitled to get allconsequential benefits.6. Learned counsel for the petitionerhas contended that impugned order dated13.8.2007 passed by Dy. LabourCommissioner indicates that theapplication of petitioner for referring theindustrial dispute to the Labour Court hasbeen rejected on the ground that thepetitioner could not prove hisemployment in the institution. Thus, theDy. Labour Commissioner-respondentno.1 has finally adjudicated therelationship of employer and employeebetween the petitioner and institution onmerit which was not within the provinceof Dy. Labour Commissioner working onbehalf of State Government. Whiledeciding the question as to whetherreference should be made or not, therespondent no.1 has acted illegally andimproperly. The relevant scheme of theIndustrial Disputes Act as disclosed bySection 12 is clear. When any industrialdispute exists or is apprehended, theconciliation officer may hold conciliationproceeding in the manner prescribed inSection 12. If the conciliation officer'sefforts to bring out a settlement of disputefailed then he makes a report underSection 12(4) and Section 12(5), providesinter alia that if on consideration of reportreferred to in Sub-section (4) theappropriate Government is satisfied thatthere is case for reference to the tribunal,it may make such reference. It howeveradds that where the appropriategovernment does not make such referenceit shall record and communicate to theparties concerned its reason there for. Butthe respondent no.1 refused to makereference without recording any reasoninstead thereof final conclusion on meritsof dispute has been communicated byrespondent no.1 through impugned order,thus he has acted beyond his jurisdictionin proceeding to consider the merit ofdispute while deciding whether thereference should be made or not.7. It is further contended thatalthough from the material placed beforethe respondent no.1, the petitioner hasproved relation of master and servant,employer and employee between him andthe institution and also proved theexistence of industrial dispute betweenhim and employer but respondent no.1has failed to consider the same andwithout recording any reason as to whythe petitioner could not establish therelationship of employer and employeebetween him and the institution andexistence of dispute, has communicatedmerely his decision through the impugnedorder that petitioner did not prove hisemployment in the institution. Suchfinding arrived at by the respondent no.1on disputed question of fact, was notwithin the province of respondentno.1/State Government, wherein thegovernment is not supposed to reach finalconclusion on merits of the case ondisputed question of fact which is withinprovisions of industrial tribunal or Labourcourt. While elaborating his arguments,learned counsel for the petitioner has

1 All] Ram Shiromani Yadav V. The Conciliation Officer and others 49submitted that while exercising the powerunder Section 10(1) of Industrial DisputesAct, the function of appropriategovernment is an administrative functionand not a judicial or quasi judicialfunction, and that in performing thisadministrative function the governmentcan not delve into the merits of thedispute and take upon itself thedetermination of the lis, which wouldcertainly be in excess of the powerconferred on it by Section 10 of the saidAct.8. Contrary to it, the submission oflearned counsel appearing for respondentsis that Section 10 of the Industrial DisputeAct confers discretion on the appropriateGovernment either to refer the dispute ornot to refer it for industrial adjudicationwherein it has to form opinion on factualbasis as to whether an industrial disputeexists or apprehended and in its opinion, itis expedient to refer the industrial disputeor not and while doing so the appropriategovernment is not precluded fromconsidering the prima facie merit of thedispute and refuse to refer the dispute tothe Labour court or Industrial Tribunalwhen it is found that the claim made bythe party is patently frivolous, or is clearlybelated, and likewise if the impact ofclaim on general relations between theemployer and employees in the region islikely to be adverse, the appropriateGovernment may take into account indeciding whether a reference should bemade or not, therefore, it cannot be saidthat examination of prima facie merits ofdispute is foreign to the inquiry which theappropriate Government is entitled tomake in dealing with a dispute underSection 10(1).9. Having considered the rivalsubmissions of learned counsel for theparties, the question which arises forconsideration of this court is that as towhether the government is precludedfrom considering the prima facie merit ofthe dispute and is precluded from refusingto refer the dispute under Section 10 ofIndustrial Disputes Act?10. This question has beenconsidered by Apex Court earlier atseveral occasions. In Bombay Union ofJournalists and others Vs. The State ofBombay and another, AIR 1964 S.C.1617. While dealing with the issue in para6 of the decision the Apex Court observedthat when the appropriate governmentconsiders the question as to whether areference should be made under Section12(5) it has to act under Section 10(1) ofthe Act which confers discretion on theappropriate government either to refer thedispute, or not to refer it, for industrialadjudication. In para-13 of the aforesaiddecision, it was also observed that a writof mandamus can be validly issued insuch a case if it is established that it wasthe duty and obligation of the respondentno.1 to refer for adjudication an industrialdispute. For ready reference the pertinentobservations made by Apex Court inaforesaid case in para 6 and 13 areextracted as under:"6. When the appropriateGovernment considers the question as towhether a reference should be madeunder Section 12(5), it has to act underSection 10(1) of the Act, and Section10(1) confers discretion on theappropriate Government either to referthe dispute, or not to refer it, forindustrial adjudication according as it isof the opinion that it is expedient to do so

50 INDIAN LAW REPORTS ALLAHABAD SERIES [2012or not. In other words, in dealing with anindustrial dispute in respect of which afailure report has been submitted underSection 12(4) the appropriateGovernment ultimately exercises itspower under Section 10(1), subject to thisthat Section 12(5) imposes an obligationon it to record reasons for not making thereference when the dispute has gonethrough conciliation and a failure reporthas been made under Section 12(4). Thisquestion has been considered by thisCourt in the case of the State of BombayV. K.P. Krishnan, (1961) 1 SCR227:(AIR 1960 SC 1223). The decision inthat case clearly shows that when theappropriate Government considers thequestion as to whether any industrialdispute should be referred foradjudication or not, it may consider,prima facie the merits of the dispute andtake into account other relevantconsiderations which would help it todecide whether making a reference wouldbe expedient or not. It is true that if thedispute in question raises questions oflaw, the appropriate Government shouldnot purport to reach a final decision onthe said questions of law, because thatwould normally lie within the jurisdictionof the Industrial Tribunal. Similarly, ondisputed questions of fact, the appropriateGovernment cannot purport to reach finalconclusions, for that again would be theprovince of the Industrial Tribunal. But itwould not be possible to accept the pleathat the appropriate Government isprecluded from considering even primafacie the merits of the dispute when itdecides the question as to whether itspower to make a reference should beexercised under Section 10(1) read withSection 12(5), or not. If the claim made ispatently frivolous, or is clearly belated,the appropriate Government may refuseto make a reference. Likewise, if theimpact of the claim on the generalrelations between the employer and theemployees in the region is likely to beadverse, the appropriate Government maytake that into account in deciding whethera reference should be made or not. Itmust, therefore be held that a prima facieexamination of the merits cannot be saidto be foreign to the enquiry which theappropriate Government is entitled tomake in dealing with a dispute underSection 10(1)".13 . . . . . .A writ of mandamus couldbe validly issued in such a case if it wasestablished that it was the duty and theobligation of respondent no.1 to refer foradjudication an industrial dispute wherethe employee contends that theretrenchment effected by the employercontravenes the provisions of Section 25-F (c). Can it be said that the appropriateGovernment is bound to refer anindustrial dispute even though one of thepoints raised in the dispute is in regard tothe contravention of a mandatoryprovision of the Act? In our opinion, theanswer to this question cannot be in theaffirmative. Even if the employerretrenches the workman contrary to theprovisions of Section 25-F (c), it does notfollow that a dispute resulting from suchretrenchment must necessarily be referredfor industrial adjudication. The breach ofSection 25-F is no doubt a serious matterand normally the appropriateGovernment would refer a dispute of thiskind for industrial adjudication; but theprovisions contained in Section 10(1)read with Section 12 (5) clearly show thateven where a breach of Section 25-F isalleged, the appropriate Government mayhave to consider the expediency of makinga reference and if after considering all the

1 All] Ram Shiromani Yadav V. The Conciliation Officer and others 51relevant facts, the appropriateGovernment comes to the conclusion thatit would be inexpedient to make thereference, it would be competent to it torefuse to make such a reference. We oughtto add that when we are discussing thislegal position, we are necessarilyassuming that the appropriateGovernment acts honestly and bona fide.If the appropriate Government refuses tomake a reference for irrelevantconsiderations, or on extraneous grounds,or acts mala fide, that, of course, wouldbe another matter; in such a case a partywould be entitled to move the High Courtfor a writ of mandamus."11. In M.P. Irrigation KaramchariSangh Vs. State of M.P. and another,(1985) 2 SCC 103, while dealing with thecontent and scope of Government'spowers to examine frivolousness andperversity of workman's demand and toreach to a prima facie conclusion againstmaking a reference in para 5 of thedecision the Apex Court observed asunder:"5. . . . . . . Therefore, whileconceding a very limited jurisdiction tothe State Government to examine patentfrivolousness of the demands, it is to beunderstood as a rule, that adjudication ofdemands made by workmen should be leftto the Tribunal to decide. Section 10permits appropriate Government todetermine whether dispute 'exists or isapprehended' and then refer it foradjudication on merits. The demarcatedfunctions are (1) reference, (2)adjudication. When a reference is rejectedon the specious plea that the Governmentcannot bear the additional burden, itconstitutes adjudication and therebyusurpation of the power of a quasijudicialTribunal by an administrativeauthority namely the appropriateGovernment.. . . .".12. In Ram Avtar Sharma andothers Vs. State of Haryana andanother, (1985) 3 SCC 189, whileconsidering the government powers tomake or refuse the reference, the ApexCourt observed that though thegovernment can examine thefrivolousness of the demand in order toreach to a prima facie conclusion, it is notcompetent to assume quasi judicialfunction of the tribunal by going intomerits of the demand to decide whether ornot to make reference. In para 5 and 7 ofthe decision the Apex Court observed asunder:"5. The first question to be posed iswhether while exercising the powerconferred by Section 10 to refer anindustrial dispute to a Tribunal foradjudication, the appropriate Governmentis discharging an administrative functionor a quasi-judicial function. This is nomore res integra. In State of Madras V.C.P. Sarathy, 1953 SCR 334, 346: AIR1953 SC 53: (1953) 1 LLJ 174: 4 FJR431, a Constitution Bench of this Courtobserved as under :But, it must be remembered that inmaking a reference under Section 10(1)the Government is doing anadministrative act and the fact that it hasto form an opinion as to the factualexistence of an industrial dispute as apreliminary step to the discharge of itsfunction does not make it any the lessadministrative in character. The Courtcannot, therefore, canvass the order ofreference closely to see if there was anymaterial before the Government to

52 INDIAN LAW REPORTS ALLAHABAD SERIES [2012support its conclusion, as if it was ajudicial or quasi-judicial determination.Explaining the ratio of the decisionin Sarathy case, in Western India MatchCo. Ltd. V. Western India Match Co.Workers Union, (1970) 3 SCR370:(1970) 1 SCC 225:(1970) 2 LLJ 256,it was observed as under :In the State of Madras V. C.P.Sarathy this Court held on construction ofSection 10(1) of the Central Act that thefunction of the appropriate Governmentthereunder is an administrative function.It was so held presumably because theGovernment cannot go into the merits ofthe dispute, its function being only to refersuch a disute for adjudication so that theindustrial relations between the employerand his employees may not continue toremain disturbed and the dispute may beresolved through a judicial process asspeedily as possible.After referring to the earlierdecisions on the subject in ShambhuNath Goyal Vs. Bank of Baroda,Jullunder, (1978) 2 SCR 793: (1978) 2SCC 353: 1978 SCC (L&S) 357, it washeld that "in making a reference underSection 10(1), the appropriateGovernment is doing an administrativeact and the fact that it has to form anopinion as to the factual existence of anindustrial dipuste as a preliminary step tothe discharge of its function does notmake it any the less administrative incharacter". Thus, there is a considerablebody of judicial opinion that whileexercising power of making a referenceunder Section 10(1), the appropriateGovernment performs an administrativeact and not a judicial or quasi-judicialact.7. Now if the Government performsan administrative act while either makingor refusing to make a reference underSection 10(1), it cannot delve into themerits of the dispute and take upon itselfthe determination of lis. That wouldcertainly be in excess of the powerconferred by Section 10. Section 10requires the appropriate Government tobe satisfied that an industrial disputeexists or is apprehended. This may permitthe appropriate Government to determineprima facie whether an industrial disputeexists or the claim is frivolous or bogus orput forth for extraneous and irrelevantreasons not for justice or industrial peaceand harmony. Every administrativedetermination must be based on groundsrelevant and germane to the exercise ofpower. If the administrative determinationis based on the irrelevant, extraneous orgrounds not germane to the exercise ofpower it is liable to be questioned inexercise of the power of judicial review.In State of Bombay V. K.P. Krishnan,(1961) 1 SCR 227, 243 : AIR 1960 SC1223 : (1960) 2 LLJ 592 : 19 FJR 61, itwas held that a writ of mandamus wouldlie against the Government if the orderpassed by it under Section 10(1) is basedor induced by reasons as given by theGovernment are extraneous, irrelevantand not germane to the determination. Insuch a situation the Court would bejustified in issuing a writ of mandamuseven in respect of an administrativeorder. May be, the Court may not issuewrit of mandamus, directing theGovernment to make a reference but theCourt can after examining the reasonsgiven by the appropriate Government forrefusing to make a reference come to aconclusion that they are irrelevant,extraneous or not germane to the

1 All] Ram Shiromani Yadav V. The Conciliation Officer and others 53determination and then can direct theGovernment to reconsider the matter.This legal position appears to be beyondthe pale of controversy."13. Again in Telco Convoy DriversMazdoor Sangh and another Vs. Stateof Bihar and others, (1989) 3 S.C.C.271, the Apex Court observed that whileconsidering the question of making areference under Section 10(1) thegovernment is entitled to form an opinionas to whether an industrial dispute "existsor is apprehended" but it is not entitled toadjudicate the dispute itself on merit. Theformation of opinion as to whetherindustrial dispute exists or apprehended isnot the same thing as to adjudicate thedispute itself on its merits. It was furtherobserved that when government refusal tomake reference is to be found unjustified,court can direct the government to make areference to appropriate tribunal. Thepertinent observation made by the ApexCourt in this regard contained in para11,15 and 16 of the decision are extractedas under:"11. It is true that in considering thequestion of making a reference underSection 10(1), the government is entitledto from an opinion as to whether anindustrial dispute "exists or isapprehended", as urged by Mr. ShantiBhushan. The formation of opinion as towhether an industrial dispute "exists or isapprehended" is not the same thing as toadjudicate the dispute itself on its merits.In the instant case, as already stated, thedispute is as to whether the convoydrivers are employees or workmen ofTELCO, that is to say, whether there isrelationship of employer and employeesbetween TELCO and the convoy drivers.In considering the question whether areference should be made or not, theDeputy Labour Commissioner and/ or thegovernment have held that the convoydrivers are not workmen and,accordingly, no reference can be made.Thus, the dispute has been decided by thegovernment which is, undoubtedly, notpermissible.15. We are, therefore, of the viewthat the State government, which is theappropriate government, was not justifiedin adjudicating the dispute, namely,whether the convoy drivers are workmenor employees of TELCO or not and,accordingly, the impugned orders of theDeputy Labour Commissioner acting onbehalf of the government and that of thegovernment itself cannot be sustained.16............In several instances thisCourt had to direct the government tomake a reference under Section10 (1)when the government had declined tomake such a reference and this Court wasof the view that such a reference shouldhave been made. See Sankari CementAlai Thozhilalar Munnetra Sangam Vs.Government of Tamil Nadu, (1983) 1SCC 304:1983 SCC (L&S) 139:(1983) aLab LJ 460; Ram Avtar Sharma V. Stateof Haryana, (1985) 3 SCC 189:1958SCC (L&S) 623:(1985) 3 SCR 686; M.P.Irrigation Karamchari Sangh V. State ofM.P., (1985) 2 SCC 103: 1985 SCC(L&S) 409 :(1985) 2 SCR 1019; NirmalSingh V. State of Punjab, 1984 SuppSCC 407 : 1985 SCC (L&S) 38 : (1984) 2Lab LJ 396".14. Similar view has also been takenby Apex Court in Dhanbad CollieryKaramchari Sangh Vs. Union of Indiaand others, 1991 Supp (2) S.C.C. 10.The pertinent observations made by the

54 INDIAN LAW REPORTS ALLAHABAD SERIES [2012Apex Court contained in para 2 and 3 ofthe decision are extracted as under:"2. The appellant Union raised adispute that the workmen employed in themines run and maintained by M/s BharatCoking Coal Ltd., Lodhra Area, Dhanbadwere engaged by a contractor withoutobtaining a licence and in fact theworkmen were under the directemployment of the management of M/sBharat Coking Coal Ltd. They claimedrelief for a declaration to that effect. Theworkmen approached the CentralGovernment for referring the dispute toIndustrial Court under Section 10 of theIndustrial Disputes Act, 1947. TheCentral Government by its order datedMay 5, 1989 refused to refer the disputeon the ground that Union had failed toestablish that the disputed workmen wereengaged in prohibited categories of workunder the Contract Labour (Regulationand Abolition) Act, 1970 and further thatthey were engaged by contractor and notby the management of the respondentCompany. The government further heldthat there appeared to be no employeremployeerelationship between themanagement of the respondent-companyand the workmen involved in the dispute.The appellant challenged thegovernment's order before the High Courtby means of writ petition but the samewas dismissed in limine. Hence thisappeal.3. After hearing learned counsel forthe parties and having regard to the factsand circumstances of the case, we are ofthe opinion that this appeal must succeed.The Central Government instead ofreferring the dispute for adjudication tothe appropriate Industrial Court underSection 10 of the Industrial Disputes Act,1947, it itself decided the dispute which isnot permissible under the law. We,accordingly, allow the appeal, set asidethe order of the High Court and of theCentral Government and direct theCentral Government to refer the disputefor adjudication to the appropriateIndustrial Court under Section 10 of theIndustrial Disputes Act, 1947. We furtherdirect the Central Government to makethe reference within three months."15. Again in Sharad Kumar Vs.Government of NCT of Delhi andothers, (2002) 4 S.C.C. 490, afterconsidering the entire case law on thepoint in para 31 of the decision the ApexCourt observed as under:"31. Testing the case in hand on thetouchstone of the principles laid down inthe decided cases, we have no hesitationto hold that the High Court was clearly inerror in confirming the order of rejectionof reference passed by the StateGovernment merely taking note of thedesignation of the post held by therespondent i.e. Area Sales Executive. Asnoted earlier determination of thisquestion depends on the types of dutiesassigned to or discharged by theemployee and not merely on thedesignation of the post held by him. Wedo not find that the State Government oreven the High Court has made anyattempt to go into the different types ofduties discharged by the appellant with aview to ascertain whether he came withinthe meaning of Section 2(s) of the Act.The State Government, as noted earlier,merely considered the designation of thepost held by him, which is extraneous tothe matters relevant for the purpose.From the appointment order dated21.4.1983/22.4.1983 in which are

1 All] Ram Shiromani Yadav V. The Conciliation Officer and others 55enumerated certain duties which theappellant may be required to discharge itcannot be held therefrom that he did notcome within the first portion of Section2(s) of the Act. We are of the view thatdetermination of the question requiresexamination of factual matters for whichmaterials including oral evidence willhave to be considered. In such a matterthe State Government could not arrogateon to itself the power to adjudicate on thequestion and hold that the respondent wasnot a workman within the meaning ofSection 2(s) of the Act, therebyterminating the proceedings prematurely.Such a matter should be decided by theIndustrial Tribunal or the Labour Courton the basis of the materials to be placedbefore it by the parties. Thus the rejectionorder passed by the State Government isclearly erroneous and the order passed bythe High Court maintaining the same isunsustainable."16. Thus, from the legal positionstated by Apex Court from time to time, itis clear that when the appropriategovernment considers the question as towhether a reference should be made forindustrial adjudication or not, it has toexercise its discretion conferred bySection 10 of the Act and while doing soit may consider prima facie merit of thedispute and take into account otherrelevant factors which would help it todecide whether making a reference wouldbe expedient or not. If the dispute inquestion raises questions of law, theappropriate government should notpurport to reach a final decision on thesaid questions of law, because that wouldnormally lie within the jurisdiction ofindustrial tribunal. Similarly on disputedquestions of fact, the appropriategovernment cannot purport to reach finalconclusions, for that again would be theprovince of the Industrial Tribunal. But itwould not be possible to accept the pleathat the appropriate Government isprecluded from considering even primafacie merits of the dispute when it decidesthe question as to whether its power tomake reference should be exercised underSection 10(1) read with Section 12(5), ornot. If the claim made is patentlyfrivolous, or is clearly belated, theappropriate Government may refuse tomake a reference. Likewise, if the impactof claim on the general relations betweenemployer and employees in the region islikely to be adverse, the appropriateGovernment may take into account indeciding whether a reference should bemade or not. It must, therefore be heldthat an examination of a prima faciemerits cannot be said to be foreign to theinquiry which the appropriateGovernment is entitled to make in dealingwith dispute under Section 10(1).However, when the Government decidesnot to make reference for industrialadjudication, it is under an obligation torecord its reason for not making suchreference.17. While exercising the powerconferred by Section 10 of the Act to referan industrial dispute to a tribunal foradjudication, the appropriate Governmentis discharging an administrative functionwherein it has to form an opinion as tofactual existence of an industrial disputeas a preliminary step to the discharge ofits function. If the Government performsan administrative function while eithermaking or refusing to make a referenceunder Section 10(1), it cannot delve intothe merits of the dispute and take uponitself the determination of lis. Section 10requires the appropriate Government to be

56 INDIAN LAW REPORTS ALLAHABAD SERIES [2012satisfied that an industrial dispute existsor is apprehended. Such exercise permitsthe appropriate Government to examineprima facie merit of the dispute aswhether an industrial dispute exists or theclaim is frivolous or bogus or put forth forextraneous and irrelevant reasons not forjustice or industrial peace or harmony.The formation of opinion as to whether anindustrial dispute exists or is apprehendedis not the same thing as to adjudicate thedispute itself on its merit. Theadjudication of dispute on its meritrequires examination of factual matters onthe basis of documentary and oralevidence, as such appropriateGovernment cannot finally decide thedispute which is within a province ofIndustrial Tribunal or Labour Court.18. Testing the case in hand on thetouchstone of the principles laid down inthe decided cases referred herein before,I have no hesitation to hold that theGovernment/respondent no.1 was clearlyin error in rejecting the application ofpetitioner for reference of dispute to theindustrial adjudication. As noted earlierthe State Government instead of referringthe dispute for adjudication to theappropriate industrial tribunal or Labourcourt under relevant provisions ofIndustrial Dispute Act, it itself decidedthe dispute holding that there appeared tobe no employer-employee relationshipbetween the management of respondents'institution and the petitioner-workmanand while doing so, in my opinion, theState Government itself decided thedispute finally which is not permissibleunder law. The determination of suchdispute finally depends uponexamination and assessment of variousoral and documentary evidence to beadduced by the parties before the Labourcourt or Industrial Tribunal, therefore, itcould not have been decided by theappropriate government while formingopinion about the existence of industrialdispute between the employer andemployee. If facts stated in theapplication moved by the petitionerbefore the appropriate government istaken to be correct, in my consideredopinion, in that eventuality there existsprima facie merit in respect ofrelationship of employer and employeebetween the institution and the petitionerand also there exists an industrial disputebetween them. Therefore, in such factsand circumstances of the case, theappropriate government was under legalobligation to refer the dispute forindustrial adjudication either before theappropriate industrial tribunal or labourcourt but it could not refuse to refer thesame as no reason has beencommunicated which is relevant forrefusing to refer the dispute for industrialadjudication.19. In instant case besides otherassertions since petitioner has statedbefore the respondent no.1 that hisservices were terminated on 4.3.2006without compliance of provisions ofIndustrial Dispute Act and since then aperiod of about six years have alreadypassed, therefore, it would not beexpedient in the interest of justice torelegate the matter before appropriategovernment for reconsideration of theissue for referring the dispute forindustrial adjudication to the appropriatetribunal or labour court, which will againtake some considerable time. In wake offacts and circumstances of the case,referred herein before, in my opinion, itis fit case where a writ of mandamusshould be issued to the respondent no.1

1 All] Gauri Shankar Gupta V. The State of U.P. and others 57to refer the dispute for industrialadjudication to the appropriate industrialtribunal or labour court forthwith.Accordingly, a writ of mandamus isissued directing the respondentno.1/appropriate government to refer thedispute raised by the petitioner forindustrial adjudication before theappropriate industrial tribunal or labourcourt forthwith on receipt of certifiedcopy of the order passed by this court.20. With the aforesaid observationand direction, writ petition succeeds andis allowed.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 18.01.2012BEFORETHE HON'BLE AMAR SARAN,J.THE HON'BLE RAMESH SINHA,J.Public Interest Litigation (PIL) No. - 3400 of 2012Gauri Shankar Gupta …PetitionerVersusThe State of U.P. Thru Secy. and others...RespondentsCounsel for the Petitioner:Sri A.P. TewariSri S.S. TripathiCounsel for the Respondent:C.S.C.Sri N.N. MishraConstitution of India, Article 226-PublicInterest Litigation-Petitioner seekingdirection-non eviction from Ponds, tankssituated over non-agricultural landnothingwhisper as to why thoseoccupied such public Pond could notindividually approach-before the Courtheld-PILon representative capacity-notmaintainableHeld: Para 5The petitioner has not been able toexplain as to why he has filed this broadbased PIL petition and why the persons,who are sought to be evicted from thesaid lands by declaring them to beponds, have not themselves challengedtheir eviction.Case law discussed:2001 (RD) 689; (2010) 3 SCC 402; Rishab DevJain Vs. State of UP and others, (Writ B No.57243 of 2011) decided on 20.10.2011(Delivered by Hon'ble Amar Saran,J.)1. Heard learned counsel for thepetitioner, Shri N.N. Mishra, learnedcounsel for respondent No. 5 and learnedStanding Counsel representing the State.2. This public interest litigation hasbeen filed by the petitioner, who claims tobe an advocate.3. The prayer in this writ petition isthat the lands in urban areas in UP havebeen shown as ponds even though the saidareas have been declared to be nonagriculturalareas.4. It was contended by the learnedcounsel for the petitioner that the cases ofthe persons who are tenure holders orother persons, who are occupying ponds,Pokharas and water channels etc. in nonagriculturalurban areas in districtGorakhpur should not be evicted from thesaid lands, which have been declared tobe non-agricultural lands and their caseswould not be covered by the decision ofthe Supreme Court in the case of HinchLal Tiwari Vs. Kamla Devi, 2001 (92)RD 689. Another prayer is for amandamus restraining the respondentsfrom evicting the recorded tenure holdersfrom the ponds, Pokharas and water

58 INDIAN LAW REPORTS ALLAHABAD SERIES [2012channels falling under the urban areas ofdistrict Gorakhpur.5. The petitioner has not been ableto explain as to why he has filed thisbroad based PIL petition and why thepersons, who are sought to be evictedfrom the said lands by declaring them tobe ponds, have not themselves challengedtheir eviction.6. In the case of State of UtranchalVs. Balwant Singh chaufal and others,(2010)3 SCC 402, it has been held thatPIL can be filed in representative capacityonly if the person concerned is unable toapproach the Courts. No averment hasbeen made that the persons who are beingsought to be evicted are unable toapproach the Courts.7. Further, we do not understand asto what public cause would be advancedif the ratio of Hinch Lal Tiwari's casewhich sought to improve the ecologicalbalance by ensuring that ponds etc. whichare inlet for rain water and whichfacilitate re-charge of water may becleared off obstructions, which have beencreated on it. If the vigour of the saidjudgement is reduced, we can only exceptmore ecological damage and a fallingwater table which is becoming a commonphenomena both in rural and urban areas.8. The petitioner has also referred toa judgement of learned Single Judge ofthis Court in Rishab Dev Jain Vs. Stateof UP and others, (Writ B No. 57243 of2011) decided on 20.10.2011 where in anindividual petition filed by the aggrievedperson, the learned Single Judge afterobserving that in the case before himseveral judicial interventions had takenplace declaring the rights of the petitionertherein and hence on the strength ofHinch Lal (Supra) case he could not beevicted therefrom without following theprocedure of law.9. The present petition, it may benoted, is not an individual petition filedby the aggrieved persons.10. In view of what has beenindicated herein above, we find no meritin this case. It is accordingly dismissed inlimine.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 19.01.2012BEFORETHE HON'BLE SUDHIR AGARWAL,J.Civil Misc. Writ Petition no. 3670 of 2012Km. SandhyaVersusState of U.P. & othersCounsel for the Petitioner:Sri Sanjay Kumar SrivastavaCounsel for the Respondents:C.S.C...Petitioner...RespondentsConstitution of India, Article 226-Compassionate Appointment can not beclaimed as alternative mode ofappointment-petitioner's father-died inharness on 08.12.2004-his mother wasoffered appointment on class 4 th post on29.09.2006-on refusal putting claim forappointment on class III post-acceptedon 31.07.2007-again moved applicationon 10.08.2009 claiming appointment ofthe petitioner as became major-purposeof compassionate appointment to giveimmediate relief to meet out the familyfrom distress-in case can manage tosurprise for these considerable periodswithoutaccepting appointment-can not

1 All] Km. Sandhya V. State of U.P. and others 59be an alternate appointment-petitiondismissed.Held: Para 20It is thus clear that rule ofcompassionate appointment has anobject to give relief against destitution.It is not a provision to provide alternateemployment or an appointmentcommensurate with the post held by thedeceased employee. It is not by way ofgiving similarly placed life to thedependents of the deceased. Whileconsidering the provision pertaining torelaxation under 1974 Rules, the veryobject of compassionate appointmentcannot be ignored.Case law discussed:1997 (11) SCC 390; 1999 (I) LLJ 539; AIR1998 SC 2230; AIR 2000 SC 2782; AIR 2004SC 4155; 1995 (6) SCC 436; (1996) 8 SCC 23;AIR 1998 SC 2612; JT 2002 (3) SC 485=2002(10) SCC 246; AIR 2005 SC 106; AIR 2006 SC2743; (2009) 13 SCC 122=JT 2009 (6) SC624; 2009 (6) SCC 481; 2007 (6) SCC 162;2011 (4) SCALE 308; 2011 (3) ADJ 91; NageshChandra Vs. Chief Engineer, Vivasthan GaWarg & Ors. decided on 7th January, 2011 inSpecial Appeal No.36 of 2011(Delivered by Hon'ble Sudhir Agarwal,J. )1. The petitioner has sought amandamus commanding the respondent toprovide compassionate appointment.2. It is admitted that petitioner'sfather, working as Assistant Teacher in SriShivdan Singh Inter College, Aligarh, diedon 8.12.2004 whereafter petitioner'smother applied for compassionateappointment on the post of Assistant Clerkin the College. Considering the availabilityof vacancy and qualification etc. ofpetitioner's mother, District Inspector ofSchools, Aligarh issued an order dated26.9.2006 appointing petitioner's mother asa Class IV employee but she did not joinand continued to insist upon offeringappointment on the post of Assistant Clerk.Subsequently, letter dated 13.8.2007 wasissued by District Inspector of Schools forabsorbing/appointing/accommodating thepetitioner on the post of Assistant Clerkw.e.f. 31.7.2007 in the above College butshe did not take any interest in joining thepost thereat by taking appropriate steps. Onthe contrary, on 10.8.2009, petitioner'smother sent a letter to the Management ofthe College that due to familycircumstances she is not able to join theservice and since her daughter i.e.petitioner has now attained majority andthis is being informed to the Management.Thereafter petitioner made an applicationfor compassionate appointment.3. Learned counsel for the petitionersubmitted that since no letter ofappointment was issued to the petitioner'smother, she did not join. In fact she wasnot allowed to join and there is no fault onher part and hence now she is entitled forcompassionate appointment.4. From the record it is admitted thatconsidering sudden hardship suffered bypetitioner's family, if any, due to the deathof her father, a letter was issued topetitioner's mother on 26.9.2006appointing her as a Class IV employee butshe did not join and insisted forappointment on a higher status post. Acompassionate appointment is not meantfor conferring status but to provide succourto the bereaved family which has sufferedloss due to sudden demise of sole breadearner. Once appointment letter was issuedand the legal heir of the deceasedemployee accept or failed to accept thesame, he/she cannot be allowed to claim anappointment subsequently on a higher post.This would be against the very objective of

60 INDIAN LAW REPORTS ALLAHABAD SERIES [2012the scheme of compassionate appointment.Moreover, petitioner's mother did not findany financial scarcity compelling to joinservice in 2006 when letter of appointmentwas issued, in my view, at this belatedstage claim of the petitioner forcompassionate appointment cannot beaccepted.5. In Managing Director, MMTCLtd., New Delhi and Anr. Vs. PramodaDei Alias Nayak 1997 (11) SCC 390 theCourt said:"As pointed out by this Court, theobject of compassionate appointment is toenable the penurious family of thedeceased employee to tied over the suddenfinancial crises and not to provideemployment and that mere death of anemployee does not entitle his family tocompassionate appointment."6. In S. Mohan Vs. Government ofTamil Nadu and Anr. 1999 (I) LLJ 539the Supreme Court said:"The object being to enable the familyto get over the financial crisis which itfaces at the time of the death of the solebreadwinner, the compassionateemployment cannot be claimed and offeredwhatever the lapse of time and after thecrisis is over."7. In Director of Education(Secondary) & Anr. Vs. PushpendraKumar & Ors. AIR 1998 SC 2230 theCourt said:"The object underlying a provision forgrant of compassionate employment is toenable the family of the deceased employeeto tide over the sudden crisis resulting dueto death of the bread earner which has leftthe family in penury and without anymeans of livelihood."8. In Sanjay Kumar Vs. The Stateof Bihar & Ors. AIR 2000 SC 2782 itwas held:"compassionate appointment isintended to enable the family of thedeceased employee to tide over suddencrisis resulting due to death of the breadearner who had left the family in penuryand without any means of livelihood"9. In Punjab Nation Bank & Ors.Vs. Ashwini Kumar Taneja AIR 2004SC 4155, the court said:"It is to be seen that the appointmenton compassionate ground is not a sourceof recruitment but merely an exception tothe requirement regarding appointmentsbeing made on open invitation ofapplication on merits. Basic intention isthat on the death of the employeeconcerned his family is not deprived of themeans of livelihood. The object is to enablethe family to get over sudden financialcrisis."10 An appointment on compassionatebasis claimed after a long time hasseriously been deprecated by Apex Courtin Union of India Vs. Bhagwan 1995 (6)SCC 436, Haryana State ElectricityBoard Vs. Naresh Tanwar, (1996) 8SCC 23. In the later case the Court said:"compassionate appointment cannotbe granted after a long lapse of reasonableperiod and the very purpose ofcompassionate appointment, as anexception to the general rule of openrecruitment, is intended to meet theimmediate financial problem being

1 All] Km. Sandhya V. State of U.P. and others 61suffered by the members of the family ofthe deceased employee. ..... the very objectof appointment of dependent of deceasedemployeewho died in harness is to relieveimmediate hardship and distress caused tothe family by sudden demise of the earningmember of the family and suchconsideration cannot be kept binding foryears."11. In State of U.P. & Ors. Vs.Paras Nath AIR 1998 SC 2612, the Courtsaid:"The purpose of providingemployment to a dependent of agovernment servant dying in harness inpreference to anybody else, is to mitigatethe hardship caused to the family of theemployee on account of his unexpecteddeath while still in service. To alleviate thedistress of the family, such appointmentsare permissible on compassionate groundsprovided there are Rules providing forsuch appointment. The purpose is toprovide immediate financial assistance tothe family of a deceased governmentservant. None of these considerations canoperate when the application is made aftera long period of time such as seventeenyears in the present case."12. In Hariyana State ElectricityBoard Vs. Krishna Devi JT 2002 (3) SC485 = 2002 (10) SCC 246 the Court said:"As the application for employment ofher son on compassionate ground wasmade by the respondent after eight years ofdeath of her husband, we are of theopinion that it was not to meet theimmediate financial need of the family ...."13. In National HydroelectricPower Corporation & Anr. Vs. NanakChand & Anr. AIR 2005 SC 106, theCourt said:"It is to be seen that the appointmenton compassionate ground is not a sourceof recruitment but merely an exception tothe requirement regarding appointmentsbeing made on open invitation ofapplication on merits. Basic intention isthat on the death of the employeeconcerned his family is not deprived of themeans of livelihood. The object is to enablethe family to get over sudden financialcrises."14. In State of Jammu & KashmirVs. Sajad Ahmed AIR 2006 SC 2743 theCourt said:"Normally, an employment inGovernment or other public sectors shouldbe open to all eligible candidates who cancome forward to apply and compete witheach other. It is in consonance with Article14 of the Constitution. On the basis ofcompetitive merits, an appointment shouldbe made to public office. This general ruleshould not be departed except wherecompelling circumstances demand, suchas, death of sole bread earner andlikelihood of the family suffering becauseof the set back. Once it is proved that inspite of death of bread earner, the familysurvived and substantial period is over,there is no necessity to say 'goodbye' tonormal rule of appointment and to showfavour to one at the cost of interests ofseveral others ignoring the mandate ofArticle 14 of the Constitution."15. Following several earlierauthorities, in M/s Eastern CoalfieldsLtd. Vs. Anil Badyakar and others,(2009) 13 SCC 122 = JT 2009 (6) SC 624the Court said:

62 INDIAN LAW REPORTS ALLAHABAD SERIES [2012"The principles indicated abovewould give a clear indication that thecompassionate appointment is not a vestedright which can be exercised at any time infuture. The compassionate employmentcannot be claimed and offered after alapse of time and after the crisis is over."16. In Santosh Kumar Dubey Vs.State of U.P. & Ors. 2009 (6) SCC 481the Apex Court had the occasion toconsider Rule 5 of U.P. Recruitment ofDependants of Government ServantsDying in harness Rules, 1974 (hereinafterreferred to as "1974 Rules") and said:"The very concept of giving acompassionate appointment is to tide overthe financial difficulties that is faced by thefamily of the deceased due to the death ofthe earning member of the family. There isimmediate loss of earning for which thefamily suffers financial hardship. Thebenefit is given so that the family can tideover such financial constraints. Therequest for appointment on compassionategrounds should be reasonable andproximate to the time of the death of thebread earner of the family, inasmuch asthe very purpose of giving such benefit isto make financial help available to thefamily to overcome sudden economic crisisoccurring in the family of the deceasedwho has died in harness. But this, however,cannot be another source of recruitment.This also cannot be treated as a bonanzaand also as a right to get an appointmentin Government service."17. The Court considered that fatherof appellant Santosh Kumar Dubeybecame untraceable in 1981 and for about18 years the family could survive andsuccessfully faced and over came thefinancial difficulties. In thesecircumstances it further held:"That being the position, in ourconsidered opinion, this is not a fit case forexercise of our jurisdiction. This is also nota case where any direction could be issuedfor giving the appellant a compassionateappointment as the prevalent rulesgoverning the subject do not permit us forissuing any such directions."18. In I.G. (Karmik) and Ors. v.Prahalad Mani Tripathi 2007 (6) SCC162 the Court said:"Public employment is considered tobe a wealth. It in terms of theconstitutional scheme cannot be given ondescent. When such an exception has beencarved out by this Court, the same must bestrictly complied with. Appointment oncompassionate ground is given only formeeting the immediate hardship which isfaced by the family by reason of the deathof the bread earner. When an appointmentis made on compassionate ground, itshould be kept confined only to thepurpose it seeks to achieve, the idea beingnot to provide for endless compassion."19. The importance of penury andindigence of the family of the deceasedemployee and need to provide immediateassistance for compassionate appointmenthas been considered by the Apex Court inUnion of India (UOI) & Anr. Vs. B.Kishore 2011(4) SCALE 308. This isrelevant to make the provisions forcompassionate appointment valid andconstitutional else the same would beviolative of Articles 14 and 16 of theConstitution of India. The Court said:

1 All] Madan V. State of U.P. and others 63"If the element of indigence and theneed to provide immediate assistance forrelief from financial deprivation is takenout from the scheme of compassionateappointments, it would turn out to bereservation in favour of the dependents ofan employee who died while in servicewhich would be directly in conflict withthe ideal of equality guaranteed underArticles 14 and 16 of the Constitution."20. It is thus clear that rule ofcompassionate appointment has an objectto give relief against destitution. It is not aprovision to provide alternateemployment or an appointmentcommensurate with the post held by thedeceased employee. It is not by way ofgiving similarly placed life to thedependents of the deceased. Whileconsidering the provision pertaining torelaxation under 1974 Rules, the veryobject of compassionate appointmentcannot be ignored. This is what has beenreiterated by a Division Bench of thisCourt in Smt. Madhulika Pathak Vs.State of U.P. & ors. 2011 (3) ADJ 91.The decision in Vivek Yadav (supra) hasbeen considered later on by anotherDivision Bench in Nagesh Chandra Vs.Chief Engineer, Vivasthan Ga Warg &Ors. decided on 7th January, 2011 inSpecial Appeal No.36 of 2011 and Courtsaid:"Though in the judgment it has beenheld that when the rules are prevailing forrelaxation for making the application, amember of the family, on attainingmajority, can file an application for dueconsideration but in the judgment itself ithas been held that the law relating tocompassionate appointment is no longerres integra. The right of compassionateappointment does not confer a right but itdoes give rise to the legitimateexpectation in a person covered by therules that his application should beconsidered, if otherwise he meets with therequirement."21. In the light of the exposition oflaw, as discussed above, I do not find anyreason to issue such a mandamus, assought by the petitioner in the present writpetition.22. The writ petition therefore lacksmerit. Dismissed.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 19.01.2012BEFORETHE HON'BLE AMAR SARAN,J.THE HON'BLE RAMESH SINHA,J.Public Interest Litigation (PIL) No. - 3782 of 2012Madan...PetitionerVersusState of U.P. Thru' Its Home Secy &others...RespondentsCounsel for the Petitioner:Sri Atul KumarCounsel for the Respondents:Sri M.S. Pipersania (S.C.)C.S.C.Constitution of India, Article 226-PublicInterest Litigation-claiming release fromclutches of the owner of brick kilninspiteof working from 18-22 hours notgetting any salary, the family membersdenied medicines and hospitalizationdistrictLegal Services directed to inquireand submit report-certain guide linesissued for proper implementation ofBounded Labour System Abolition Act.

64 INDIAN LAW REPORTS ALLAHABAD SERIES [2012(Delivered by Hon'ble Amar Saran,J. )1. We have heard learned counselfor the petitioner and Sri M.S. Pipersania,learned Standing Counsel for therespondents No. 1 and 2.2. This is another case where abunch of persons claiming themselves tobe bonded labourers have approached thisCourt in a PIL, seeking to be freed frombondage.3. We had occasion to explain thelaw on bonded labourers and how suchmatters and complaints are to be dealtwith in a detailed judgment and orderdated 5.1.12 in Habeas Corpus WritPetition No. 70403 of 2011 Sageer andothers Vs. State of U.P. and others4. The present petition has been filedby one Madan, who states that his familymembers and a few other persons (26 inall) have been detained at the brick kiln ofrespondent No. 3 Brahampal, in villageKheratana, Police Station Sarurpur,district Baghpat and are unfree to leavethe brick kiln or to work for any otherperson. In the petition as well as in therepresentation before the S.S.P. Baghpatdated 6.1.2012 it is stated, that thepetitioners are made to work for as longas 18-20 hours, without payment and nomedicine or hospitalization facility isprovided to ill children. Significantly, inparagraph 5, it has been stated that someblank papers were got signed from thepetitioners and with the aid of somecriminal elements they are being forced towork at Brahmpal's bhatta as bondedlabourers. They, however, deny havingvoluntarily filled up any bonds to workfor the brick kiln owner and pray to bereleased from his clutches.5. We think that although personslike the petitioners maybe working asbonded labourers in brick kilns, becauseof advances made to them, but these factsare not mentioned in the representationsand the petitions because usually wronglegal advice or gratuitous advice fromlocal barristers is tendered to such personsthat if they concede that they have takensome advance, they would be unfree toleave the brick kiln until they have paidoff their advance.6. Obviously, this advise flows froma complete misunderstanding of theprovisions of the Bonded Labour System(Abolition) Act, 1976 (in short theBonded Labour Act). Bonded labour isusually extracted as a result of a "bondeddebt," which is defined in section 2(d) ofthe Bonded Labour Act to mean anadvance given to a labourer and inconsideration of the said advance thebonded labourer is made to enter into thebonded labour system. The BondedLabour System is defined in section 2 (g),and means a system whereby the debtoror his heirs and dependants inconsideration of the advance have torender service to the creditors for aspecified or unspecified period withoutwages or for nominal wages, forfeitingtheir freedom to seek employmentelsewhere or to move about freely in theterritory of India or to freely sell theirlabour at market value. After theenactment of the Bonded Labour Act,under section 6, the liability to repay thebonded debt stands extinguished, andunder section 9, the creditor cannot acceptpayment against an extinguished debt,accepting which would invite a sentenceof up to three years imprisonment andfine.

1 All] Madan V. State of U.P. and others 657. Factually also in the present casewe find it hard to believe that thepetitioners claim that they were made towork at the brick kiln for no wageswithout having received some advance.Situations are also not inconceivable,where labourers in need of a substantialadvance for a marriage or because ofillness in their family agree to work for abrick kiln owner, and after theiremergency needs are met, in order toleave the employer and to avoid repayingthe advance they file a bonded labourcomplaint. But looking to the economiccondition of these poor persons, whoseclout is no match to the clout of theiremployer, who usually live in tents inopen sites without electricity or water andwithout medical and other facilities andeducation for their little children, suchfalse cases are likely to be exceptional.8. In accordance with the criteria setout in Sageer and others Vs. State of U.P(supra) for ascertaining whether a personis bonded or not, and the reliefs availableto bonded labourers or vulnerable landlessor resourceless persons the DistrictMagistrate and the district levelDeputy/Assistant Labour Commissionermay get an inquiry made for ascertainingwhether the labourers at Brahmpal's brickkiln were bonded or not, and whether theymay be provided any preventive relief orother socio-economic relief. We wouldalso like the District Legal ServicesAuthority (District Judge) Baghpat to getsuch an inquiry conducted by paralegalsor legal aid lawyers attached to the LegalServices Authority at the local level.9. The need for taking advances bylabourers arises because there is noeffective system, governmental or nongovernmentalfor providing adequatecredit without strings to such landless andresourceless persons. We therefore thinkthat if the economic conditions of suchpoor, landless, resourceless and persons,wherever they may be residing areimproved and credit from banks and othergovernment or fair non-governmentalagencies are made available to them tomeet the shortfalls in their daily andemergency needs, they are less likely tolook for advances and consequently theirrisk of becoming bonded to theiremployers would decline. The conditionsof such workers need to be improved bothin their home areas as also at the place ofdestination (as in the case of migrantlabourers), where they are working in theunorganized sector. The employers shouldalso be advised to increase wages and toimprove working conditions of thelabourers so that instead of trying to tiedown labourers by raising advances, theemployers succeed in obtaining labourersto work for them because of good wagesand more humane working conditions.10. Assistance at the place of originas well as at the place of destination of thebonded labour, would require theinvolvement not only of the DistrictMagistrate, and local labour department,but agencies which have a presence inboth the areas. These could mean the U.P.State Ministry of Social Welfare andWomen's and Child Development,Ministry of Labour and the State HumanRights Commission or the State LegalServices Authority, if the source anddestination of the labourer fall within thesame State, and the Ministry of SocialWelfare and Women's and ChildDevelopment in the home State of thepoor labourer, where he originates fromanother State, or the National HumanRights Commission, the Union Labour

66 INDIAN LAW REPORTS ALLAHABAD SERIES [2012Ministry, the National Legal ServicesAuthority, which have jurisdiction overboth the States.We, therefore:1.Direct the D.M. and S.S.P.Baghpat, and the local labour departmentto inquire into the matter and to give thebonded labourers appropriate reliefsincluding all the socio-economic benefitsto which they maybe entitled as laid downin Sageer and others vs. State of U.P(supra).2.We also direct the District Judge,Baghpat (District Legal ServicesAuthority) to immediately get the matterexamined, by the local Legal Servicesauthority with the aid of para legals orlegal aid panel or other lawyers fordeciding whether the petitioner and otherswere kept in bondage and the socioeconomicreliefs to which they areentitled.3.We would also like the PrincipalSecretary Social Welfare and Women andChild Development, U.P., the StateHuman Rights Commission, the NationalHuman Rights Commission, State LegalServices Authority, the PrincipalSecretary, Labour, U.P., Secretary,Labour, Government of India, NationalLegal Services Authority and State LegalServices Authority to oversee the matterand to give appropriate general directions,including enforcement of all labourrelated laws as well as socio-economicrelief in the present case as also in othercases, and for preventive reliefs to checkvulnerable persons from falling intobondage. The National Legal ServicesAuthority, the National Human RightsCommission and the Union Ministry ofLabour may also consider co-ordinatingthis matter, as also other bonded mattersrelating to bonded labour, and theprovision of socio-economic reliefs in thepresent case and other cases as directed inSageer and others Vs. State of U.P. andothers with the International LabourOrganization and the UNDP. All theaforesaid authorities may submitcompliance reports by the next listing.4.The copy of the present order alongwith earlier order dated 5.1.12 passed inHabeas Corpus Writ Petition No. 70403of 2011 in Sageer and others Vs. State ofU.P. and others may be forwarded to theD.M., Baghpat; S.S.P. Baghpat;Deputy/Assistant Labour Commissioner,Baghpat; District Judge, Baghpat;Registrar, National Human RightsCommission, New Delhi; Registrar, U.P.State Human Rights Commission,Lucknow; Member Secretary, NationalLegal Services Authority, New Delhi;Member Secretary, U.P. State LegalServices Authority, Lucknow; PrincipalSecretary, Social Welfare and Womenand Child Development, U.P., Lucknow;Principal Secretary, Labour,U.P.,Lucknow; Secretary, Labour,Government of India, New Delhi, within10 days by the Registry.5.The copy of the present order alongwith copies of the earlier order in Sageerand others Vs. State of U.P. and othersmay be given to the learned A.G.A.within 10 days.6.Issue notice to the respondent No.3 returnable within four weeks.7.The U.P. State Legal ServicesAuthority may also furnish this Courtwith a progress report regarding setting up

1 All] Bal Krishna Awasthi and another V. Managing Director, U.P.S.R.T.C. and others 67Legal Aid Clinics and engagingparalegals, and Legal Aid 0.79"lawyers aswas directed in the case of Sageer &others vs State of U.P. (supra) on 5.1.128.List on 21.2.2012. for submissionof further compliance reports.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 31.01.2012BEFORETHE HON'BLE SUDHIR AGARWAL,J.Civil Misc. Writ Petition no. 5272 of 2012Bal Krishna Awasthi & another...PetitionerVersusManaging Director, U.P.S.R.T.C. andothers...RespondentsCounsel for the Petitioner:Sri Venu GopalSri B.N. TiwariCounsel for the Respondent:Sri R.A. GaurU.P. State Roadways TransportCorporation Act, 1950-Section 45-Retirement Age Group “C” Employee-Notice to retire on 58 years-challengedon ground of G.O. Dated 20.12.11-bywhich Govt. directed for enhancement ofage from 58 to 60 years-heldmisconceived-meredirection forconsideration without confirmation byBoard of Director and approved by Govt.-accepting burden of financial expensessuchG.O. Can not over ride the statuteretirementat 58 years age-properpetitiondismissed.Held: Para 14Moreover, the Government order whichis sought to be relied by petitioners alsonowhere talks of any straightway grantof benefit of extension of age ofretirement to employees of publiccorporations. Para 2 of GovernmentOrder dated 20.12.2011 says thatrespective corporations shall examinetheir matter to find out whether they arefinancially capable of bearing the burdenlikely to be caused by extension of age ofretirement from 58 to 60 years. If theyfind that such a burden can be borne bythem, the matter shall be placed beforethe Board of Directors and in case theypass a resolution to this effect forextension of age of retirement from 58to 60 years, such proposal shall beforwarded to the Administrativedepartment of the concerned corporationfor its examination/ scrutiny andapproval. It is only after obtainingapproval of respective department of theconcerned corporation, order forextending age of retirement from 58 to60 years can be issued and nototherwise. It also says that its procedureshall be followed by every corporationseparately and extension of age shall bemade applicable only after approval ofGovernment for which no financialburden shall be borne by StateGovernment. Therefore, the Governmentorder dated 20.12.2011 by itself does nottalk of any suo motu extension of age ofretirement from 58 to 60 years butprovides a procedure to be followed byrespective individual corporation andafter following said procedure whenapproval of concerned department isobtained, only then requisite order canbe issued.Case law discussed:1992 (Suppl) 3 SCC 217; JT 2001 (8) SC 171;1998 (8) SCC 469; 1998 (8) SCC 154; AIR1936 PC 253; 2001 (4) SCC 9; 2002 (1) SCC633; 2005 (13) SCC 477; 2005(1) SCC 368;2008 (2) ESC 1220(Delivered by Hon'ble Sudhir Agarwal,J. )1. By means of impugned order,petitioners, who are admittedly Group 'C'employees, have been retired on attaining

68 INDIAN LAW REPORTS ALLAHABAD SERIES [2012the age of 58 years in accordance withRegulation 37 of U.P. State RoadTransport Corporation Employees (otherthan Officers) Service Regulations, 1981(hereinafter referred to as "1981Regulations").2. Learned counsel for thepetitioners submitted that underGovernment Order dated 20.12.2011 theState Government has taken a policydecision in extending the age ofretirement from 58 to 60 years and,therefore, petitioners are entitled to beretired at the age of 60 years and cannotbe made to retire at 58 years.3. The submission is thoroughlymisconceived. It is admitted that statutoryprovision has not been amended so far.Government order, being an executiveorder cannot override a statutoryprovision. It is well settled that wheneverRules or Regulations provide something,it cannot be overridden by an executiveorder. An executive order can be issuedand enforced only where the statutoryprovision is silent to fill in the gap but notto be supplemented. In Indra Sawhneyand others Vs. Union of India andothers, 1992 (Suppl) 3 SCC 217 theApex Court held that though the executiveorders can be issued to fill up the gaps inthe rules if the rules are silent on thesubject but the executive orders cannot beissued which are inconsistent with thestatutory rules already framed. InLaxman Dundappa Dhamanekar andanother Vs. Management of VishwaBharata Seva Smithi and another, JT2001 (8) SC 171 also the same view wastaken. In K. Kuppusamy and anotherVs. State of T.N. and others, 1998 (8)SCC 469 the Court said that statutoryrules cannot be overridden by executiveorders or executive practice and merelybecause the government has taken adecision to amend the rules does not meanthat the rule stood obligated. So long asthe rules are not amended in accordancewith the procedure prescribed under lawthe same would continue to apply andwould have to be observed in words andspirit. In Chandra Prakash MadhavraoDadwa and others Vs. Union of India andothers, 1998(8) SCC 154 also the ApexCourt expressed the same view holdingthat the executive orders cannot beconflicted with the statutory rules of1977.4. Moreover, a policy decision evenif taken by Government would not entitlean employee to enforce such policydecision ignoring the existing statutoryprovision inasmuch as the rights ofemployees are governed by existingstatutory provision and not what is likelyto be amended in future unless theamendment is made with retrospectiveeffect which is not the case here.5. The Regulations have beenframed by exercising powers underSection 45 of U.P. State Road TransportCorporation Act, 1950. It reads as under:"37. Retirement on attaining theage of superannuation.-An employee ofGroup "C" shall retire on attaining theage of 58 years and that of Group "D"shall retire on attaining the age of 60years:Provided that if the date ofretirement falls on or after the second dayof the month, the date of retirement shallbe the last day of the month."

1 All] Bal Krishna Awasthi and another V. Managing Director, U.P.S.R.T.C. and others 696. Admittedly it has not beenamended so far. The mere executivedecision conveyed by State Governmentthat in principle it is agreeable forextension of age of retirement ofemployees of public corporations from 58to 60 years by itself would not result in adeemed or automatic amendment in thestatutory regulations unless it is done inaccordance with procedure prescribedtherefor. The regulations can be amendedin the manner the same were framed andthere is no question of an automaticamendment of regulations. Atleast to thisextent even learned counsel for thepetitioners has not disputed the expositionof law. That being so when a particularprocedure is prescribed for amendment ofregulations and said procedure has notbeen followed so far, the existingregulations have to be implemented.7. The first principle applicableherein would be when a statute required athing to be done in a particular manner,then it should be done in that manneralone and not otherwise. The principlewas recognized in Nazir Ahmad Vs.King-Emperor AIR 1936 PC 253 and,thereafter it has been reiterated andfollowed consistently by the Apex Courtin a catena of judgements, which we donot propose to refer all but would like torefer a few recent one.8. In Dhananjaya Reddy Vs. Stateof Karnataka 2001 (4) SCC 9 in para 23of the judgment the Court held :"It is a settled principle of law thatwhere a power is given to do a certainthing in a certain manner, the thing mustbe done in that way or not at all."9. In Commissioner of IncomeTax, Mumbai Vs. Anjum M.H.Ghaswala 2002 (1) SCC 633, it was held:"It is a normal rule of constructionthat when a statute vests certain power inan authority to be exercised in aparticular manner then the said authorityhas to exercise it only in the mannerprovided in the statute itself."10. The judgments in Anjum M.H.Ghaswala (supra) and DhananjayaReddy (supra) laying down the aforesaidprinciple have been followed in CaptainSube Singh & others Vs. Lt. Governorof Delhi & others 2004 (6) SCC 440.11. In Competent Authority Vs.Barangore Jute Factory & others 2005(13) SCC 477, it was held :"It is settled law that where a statuterequires a particular act to be done in aparticular manner, the act has to be donein that manner alone. Every word of thestatute has to be given its due meaning."12. In State of Jharkhand &others Vs. Ambay Cements & another2005 (1) SCC 368 in para 26 of thejudgment, the Court held :"It is the cardinal rule ofinterpretation that where a statuteprovides that a particular thing should bedone, it should be done in the mannerprescribed and not in any other way."13. In effect a similar question wasconsidered by Division Bench of thisCourt [in which I was also a member withHon'ble S.R. Alam, J., (as His Lordshipthen was)] in Daya Shankar Singh Vs.

70 INDIAN LAW REPORTS ALLAHABAD SERIES [2012State of U.P. and others, 2008(2) ESC1220 and this Court has observed:"A modification, amendment etc.,therefore, is permissible by exercising thepower in the like manner and subject tolike sanction and conditions in which themain provision was made initially. Since,Staff Regulations were framed admittedlywith the previous sanction of the StateGovernment and by publication in theofficial Gazette, same can be amendedonly following the same procedure andnot otherwise. Therefore, theproposal/resolution passed by the Boardof Directors, UPSWC by no stretch ofimagination can be said to have the effectof either amending Regulation 12 of StaffRegulations or to bind UPSWC and itsemployees to be governed by suchresolution/proposal which areinconsistent with the existing provisionscontained in Staff Regulations."14. Moreover, the Government orderwhich is sought to be relied by petitionersalso nowhere talks of any straightwaygrant of benefit of extension of age ofretirement to employees of publiccorporations. Para 2 of Government Orderdated 20.12.2011 says that respectivecorporations shall examine their matter tofind out whether they are financiallycapable of bearing the burden likely to becaused by extension of age of retirementfrom 58 to 60 years. If they find that sucha burden can be borne by them, the mattershall be placed before the Board ofDirectors and in case they pass aresolution to this effect for extension ofage of retirement from 58 to 60 years,such proposal shall be forwarded to theAdministrative department of theconcerned corporation for itsexamination/ scrutiny and approval. It isonly after obtaining approval ofrespective department of the concernedcorporation, order for extending age ofretirement from 58 to 60 years can beissued and not otherwise. It also says thatits procedure shall be followed by everycorporation separately and extension ofage shall be made applicable only afterapproval of Government for which nofinancial burden shall be borne by StateGovernment. Therefore, the Governmentorder dated 20.12.2011 by itself does nottalk of any suo motu extension of age ofretirement from 58 to 60 years butprovides a procedure to be followed byrespective individual corporation and afterfollowing said procedure when approvalof concerned department is obtained, onlythen requisite order can be issued.15. As already said this very aspectwas also considered by this Court in DayaShankar Singh (supra) and in thepenaltimate paragraphs of the judgement,the Court said:"Now we come to the writ petitionpertaining to UPSAICL. There also, theRegulations though not statutory butbeing part of the conditions of service ofthe employees, it is not disputed by thepetitioners that the same are binding uponthe employees of UPSAICL. That beingso, unless the same are also amended inaccordance with the procedure prescribedtherein, it cannot be said that there is anydifferent condition of service providing ahigher age of superannuation contrary tothe existing Regulations entitling thepetitioners to continue in service till 60years of age. Regulation 26 specificallyprovides that the age of superannuationcannot be extended without priorapproval of the State Government.Therefore, in the absence of any such

1 All] Km. Gyanti V. State of U.P. & others 71approval under Regulation 26, the age ofsuperannuation continued to be 58 years,the petitioners are liable to retire onattaining the age of 58 years. Moreover,even under Regulation 4, beforeamending the Regulation, a procedurehas been prescribed which has to befollowed by UPSAICL and it is nobody'scase that the said procedure has beenfollowed having the effect of amendingRegulation 26 in any manner. In viewthereof, the petitioners, who areemployees of UPSAICL are also notentitled to continue beyond 58 yearsmerely on the basis of a resolution passedby the Board of Directors for increasingthe age of retirement from 58 to 60 years.However, it is made clear that incase, any employee has continued beyond58 years under interim order passed bythis Court and has been paid salary, itwould not be equitable to recover thesame from such employee and, therefore,respondent shall not make any recoveryfrom any of the petitioners, but it is alsomade clear simultaneously that for allother purposes, the petitioners shall bedeemed to have been retired on attainingthe age of 58 years and their continuance,if any, beyond 58 years pursuant to theinterim order of this Court would notconfer any benefit upon them."16. Since the impugned order ofretirement has been passed strictly inaccordance with statutory Regulationsexisting and operating on the date, thesame cannot be faulted, legally orotherwise, and it warrants no interference.17. The writ petition lacks merit.Dismissed.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 18.01.2012BEFORETHE HON'BLE RAN VIJAI SINGH,J. )Civil Misc. Writ Petition No. 6551 of 2008Km. GyantiVersusState of U.P. & othersCounsel for the Petitioner:Sri Ajay Kumar SrivastavaCounsel for the Respondents:C.S.C....Petitioner...RespondentsU.P. Recruitment of Dependants of Govt.Servants) Dying in Harness Rule, 1974-Rule-2 (b)-readwith Section-108 ofEvidenceAct-CompassionateAppointment-Petitioner's father workingas Police Constable-abducted duringduty hours-F.I.R. Lodged by S.I. On09.03.1998-claim for appointmentalthough processed but subsequently inview of G.O. 27.08.2007-refused-heldcaseof civil death more bonafide thannatural death-as the deceased familysuffers mental , physical agony apartfrom financial crisis-entitled forappointment.Held: Para 17In view of foregoing discussions, I am ofthe view that if a dependant of deceasedon account of civil death claimsappointment under the provisions of1974, he/she is entitled to be consideredunder the Rules and no distinction canbe drawn in between the civil death ordeath otherwise.Case law discussed:(1984) 2 SCC 50; 2002 (2) ESC 37; 2005 (1)ESC 807; 2005 (3) AWC 2724; 2009 (4) ESC2511

72 INDIAN LAW REPORTS ALLAHABAD SERIES [2012(Delivered by Hon'ble Ran Vijai Singh,J. )1. The petitioner, claiming herself tobe unmarried daughter of late RamJhalak, who was appointed as Constablein U.P. Civil Police, approached thisCourt under Article 226 of theConstitution of India for redressal of hergrievance with regard to thecompassionate appointment. It is stated inthe writ petition that the petitioner's fatherwas constable in Civil Police and he wasabducted while he was in the service.Consequently an F.I.R. was lodged by oneSub-Inspector namely Sri Chandra DevSingh, which was registered as CaseCrime No. 37/1998, under Section 364I.P.C on 9.3.1998. In the aforesaid case, afinal report was submitted to the effectthat his whereabouts was not known.2. It appears taking shelter ofSection 108 of Indian Evidence Act, thepetitioner filed an application forcompassionate appointment in the year2004 to be more specific 31.12.2004claiming civil death of her father. At onepoint of time, the department has initiatedproceedings for offering appointment oncompassionate ground but later on takingnote of the Government Order dated 9thDecember, 1998 and Circular of thePolice Headquarter dated 27th August,2007, the appointment was refused.3. A counter affidavit has been filedby the State respondents in which thefactum of lodging an F.I.R. under Section364 I.P.C. on 9.3.1998, the submission offinal report, the acceptance of the same bythe Court and the petitioner's applicationseeking appointment on compassionateappointment in view of the provisionscontained under Section 108 has not beendisputed. What has been stated in thecounter affidavit is that in view of theGovernment Order dated 9th December,1998 and the Circular of the PoliceHeadquarter dated 27th August, 2007, thedependent of the deceased on account ofpresumption of civil death are not entitledto get benefit of U.P. Recruitment ofDependents of Government ServantsDying in Harness Rules, 1974 (hereinafter referred to as Rules)4. A rejoinder affidavit has also beenfiled stating therein that the petitionerfalls in the ambit of the Rules of 1974 andthe Government Order/Circular issued bythe State Government or the PoliceHeadquarter are ultravires to the Rules of1974.5. I have heard learned counsel forthe petitioner and learned StandingCounsel.6. For appreciating the controversy,the various provisions contained in theRules are required to be looked into. Therule 2 (b) of the aforesaid Rules provides"deceased Government servant" means aGovernment servant who dies while inservice. " Sub-rule (c) of Rule 2 providesthe definition of family which shallinclude (i) wife or husband (ii) sons, and(iii) unmarried and widowed daughters.Rule 3 talks about the application of therules according to which these rules shallapply to recruitment of dependants of thedeceased Government servants to publicservices and posts in connection with theaffairs of State of Uttar Pradesh, exceptservices and posts which are within thepurview of the Uttar Pradesh PublicService Commission. Rule 4 talks aboutthe overriding effect of the rulesnotwithstanding anything to the contrarycontained in any rules, regulations or

1 All] Km. Gyanti V. State of U.P. & others 73orders in force at the commencement ofthe rules. Rule 5 of the aforesaid Ruleprovides recruitment of a member of thefamily of the deceased which isreproduced below :-In case, a government servant dies inharness after the commencement of theserules and the spouse of the deceasedgovernment servant is not alreadyemployed under the Central Governmentor a State Government or a Corporationowned or Controlled by the CentralGovernment or a State Government, onemember of his family who is not alreadyemployed under the Central Governmentor a State Government or a Corporationowned or controlled by the CentralGovernment or a State Government or aCorporation owned or controlled by theCentral Government or a StateGovernment 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) fulfils the educationalqualifications prescribed for the post (ii)is otherwise qualifier for governmentservice and (iii) makes the application foremployment within five years from thedate of the death of the governmentservant.Provided that where the StateGovernment is satisfied that the timeslimit fixed for making the application foremployment causes undue hardship in anyparticular case, it may dispense such orrelax the requirement as it may considernecessary for dealing with the case in ajust and equitable manner.(2) As far as possible, such anemployment should be given in the samedepartment in which the deceasedGovernment servant was employed priorto his death.7. From the bare reading of theaforesaid Rule, it transpires that if agovernment servant dies in harness, oneof his/her dependent of his family asgiven in Sub-Rule 2 (c) shall be entitled tobe considered for employment subject tocondition given in Rule 5.8. Here in this case, the appointmenthas not been offered to the petitioner forthe reason that in view of the Governmentorder dated 9th December, 1998 and theCircular dated 27th August, 2007 thedependents of those government servants,whose death is presumed to be civil death,under Section 108 of the Evidence Actwould not fall in the ambit of Rules of1974.For appreciation, Section 108 of theEvidence Act, 1872 is reproduced below:-S.108. Burden of proving thatperson is alive who has not been heardof for seven years :- Provided that whenthe question is whether a man is alive ordead, and it is proved that he has not beenheard of for seven years by those whowould naturally have hard of him if hehad been alive, the burden of proving thathe is alive is shifted to the person whoaffirms it.9. From going through the aforesaidRules, now it is clear in view of thelodging of an F.I.R. and filing of the finalreport, no information about hiswhereabout for more than seven years and

74 INDIAN LAW REPORTS ALLAHABAD SERIES [2012its acceptance by the Court, further thefather of the petitioner shall be treated tobe dead which in legal terminology wouldbe mentioned as civil death.The word 'Death' in The NewLexicon Webster's Dictionary of theEnglish Language has been defined asunder :-Death means 'the end of life' and'destruction'.The word "Death" has been definedin The law Lexicon the EncyclopaedicLaw Dictionary as below :"Death" has been mentioned as "theend or termination of life".The word "Death" as defined in TheConcise Oxford English Dictionary,means " the action or fact of dying orbeing killed," "the state of beingdead",and "the end of something" : thedeath of hopes".10. From the bare reading of themeaning of word 'death' it would transpirethat it means the end of life, terminationof life meaning thereby the consequenceof death is death of hopes of anythingfrom that bodily entity.11. In this rule, no exception hasbeen carved out with respect to naturaldeath, death otherwise or civil death. Theword used in the aforesaid rules do notrestrict that only on a particular type ofdeath, a person shall be offeredappointment. The death may be due toany reason, may be by illness, by anaccident, in a natural calamity or undergeneral law (the Evidence Act). TheGovernment Order and the Circular havetried to draw a line of distinction inbetween the civil death and the deathfalling under other categories. Now thequestion would be as to whether this lineof distinction is a legal line drawn on thebasis of some statutory basis or it ismerely an outcome of abrupt imaginationof the State authorities particularly in thecircumstances when the Governmentitself has issued a Government Order No.Sa-3-G-I- 88/ten-909-97 extending thebenefit for payment of post retiral duestaking note of Section 108 of theEvidence Act.12. For appreciating thiscontroversy, the language used in theRule 4 of the Rules would also berequired to be looked into, which isreproduced below :-Overriding effect of these rules :-These rules and any orders issuedthereunder shall, have effectnotwithstanding anything to the contrarycontained in any rules, regulations ororders in force at the commencement ofthese rules13. From the perusal of aforesaidRule, it would transpire that this rule willhave overriding effect notwithstandinganything to the contrary contained in anyrules, regulations or orders in force.14. It is not in dispute that this rulehas been framed under Article 309 of theConstitution of India, therefore anyGovernment Order which is in consistentwith the provisions of these rules will beof no avail.15. From the perusal of theGovernment Order which has beenbrought on record of the counter affidavit

1 All] Km. Gyanti V. State of U.P. & others 75it do not transpire that the saidGovernment Order has been issued whileinvoking power either under Article 162of the Constitution of India or under anyother statutory provision, therefore itcannot be said to be a statutoryGovernment Order and even if it be so,the rules framed under Article 309 willhave overriding effect over theGovernment Order dated 9th December,1998 and the Circular of the PoliceHeadquarter dated 27th August, 2007. Itis well settled that if there is any conflictin between the statutory rules and thegovernment order it is the rule which shallprevail over the Government order.16. The view taken by me findsupport from the judgment of the ApexCourt in Babaji Kondaji Garad Vs. NasikMerchants Coop. Bank Ltd. (1984) 2SCC 50.17. The matter may be examinedfrom another angle also the purpose offraming of the rules is to save out thefamily of the deceased employee from thefinancial crunch which has fallen upon thefamily after the death of an employee.The hardship which has fallen upon thefamily is to be mitigated at the earliest.The end of life or termination of lifeeither because of the natural death oraccidental death or death otherwise wouldresult into the recurring financial loss tothe family of the employee. It cannot besaid that the death within the meaning ofSection 108 in any way differentiable thanthe death otherwise where, whereabout ofan employee for more than seven years isnot known. In my considered opinion inthe case of civil death the consequenceswould be more serious as here the familyshall make its all endeavour to search outthe person who has been disassociatedfrom the family either because of hisabduction or otherwise and naturally thatwould involve the finance and if after thecontinuance efforts of seven years thepersons availability is not known, thefamily would not only suffer financialloss but otherwise also there would bemental distress and agony. Therefore alsothe distinction drawn by the Stategovernment is contrary to the object ofthe rules.18. In view of foregoing discussions,I am of the view that if a dependant ofdeceased on account of civil death claimsappointment under the provisions of 1974,he/she is entitled to be considered underthe Rules and no distinction can be drawnin between the civil death or deathotherwise.19. This Court has also taken thesame view in the case of Sima Devi Vs.Senior Superintendent of Police, Jhansiand others, 2002 (2) ESC 37, AjayKumar Shukla Vs. State of U.P. andothers, 2005 (1) ESC 807, Sanjay KumarSingh Vs. State of U.P. and others, 2005(3) AWC 2724 and Amit Sharma Vs.State of U.P. and others, 2009 (4) ESC2511.20. In the result, the writ petitionsucceeds and is allowed. The GovernmentOrder dated 9th December, 1998 and theCircular of the Police Headquarter dated27th August, 2007 are hereby quashed.The D.I.G. Karmic Police Headquarter,Allahabad is directed to take anappropriate decision and consider thepetitioner's case for appointment oncompassionate ground within a period oftwo months from the date of receipt ofcertified copy of the order of this Court.---------

76 INDIAN LAW REPORTS ALLAHABAD SERIES [2012ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 10.01.2012BEFORETHE HON'BLE ARUN TANDON,J.Civil Misc. Writ Petition No. 8301 of 1987Smt.Akila & othersVersusNisar Ahmad & othersCounsel for the Petitioner:Sri Virendra SinghSri B. DayalSri Vishnu SahaiCounsel for the Respondents:Sri Harish ChandraSri A.K.JaiswalS.C....Petitioner...RespondentsSmall Cause Courts Act, Section 25-Revision-dismissedwithoutconsidering-questionwhetherpossession by agent or servant ispossession of owner or possession astenant -Trail Court without evidencewrongly decided-held-committedpatent illegality-revision to return onits original number-direction to decidethis issue within time bound periodgiven.Held: Para 12In view of the law laid down by theSupreme Court in the case of MahabirPrasad Jain (supra), the order passedby the revisional authority cannot belegally sustained. The revisional courtis duty bound to examine as towhether in the facts of the case theplaintiff has been able to establish thathe was the tenant of the premises inquestion or not.Case law discussed:1999 (37) ALR 742(Delivered by Hon'ble Arun Tandon,J. )1. Small Causes Suit No. 14 of1982 was filed by the plaintiffrespondentunder Section 6 of theSpecific Relief Act for his possessionbeing restored over the property inquestion. The suit was contested by thepresent petitioner.2. It was admitted to the parties thatthe disputed property was owned by oneSri Abdul Rashid, the father of thepresent petitioner and further that AbdulRashid had since shifted to Pakistan.3. According to the petitioner shewas tenant of the premises and illegallydispossessed, therefore the suit. Thedefendant in turn claimed title over theproperty on the basis of the gift executedby her father.4. The Judge Small Causes framed7 issues for determination includingissue no. 6; as to whether the plaintiffwas the tenant of the premises or not.After evidence was led by the parties, thetrial court answered the issue, withregard the plaintiff being tenant of thepremises as he had established hispossession and his being illegallydispossessed, in favour of the plaintiff.The trial court further held that thedefendant has failed to establish the giftdeed. Accordingly, the suit was decreedvide order dated 22.08.1983.5. The plaintiff filed the revisionunder Section 25 of the Small CausesCourt's Act, 1987. The revision has alsobeen dismissed under order dated08.04.1987. The findings recorded by thecourt below have been found to be basedon appreciation of evidence, which need

1 All] Smt.Akila & others V. Nisar Ahmad. & others 77not be upset in revisional proceedingsunder Section 25 of the Small CausesCourt's Act.6. Challenging the order so passedcounsel for the petitioner submitted thatthe Supreme Court of India in the case ofMahabir Prasad Jain vs. Ganga Singh,reported in 1999(37) ALR 742 has laiddown that the possession of a servant oran agent will not in itself give apresumption of tenancy and that thepossession of a servant/agent is on behalfof the master and therefore a suit onbehalf of agent/servant under Section 6of the Specific Relief Act would not bemaintainable. It is contended that in thefacts of the case despite a specific issuebeing framed by the trial court qua theplaintiff being a tenant of the premises atthe rate of Rs. 5/- per month, noconclusive finding has been recorded onthe said issue, although issue no. 6 hasbeen answered in favour of the plaintiff.He, therefore, submits that the ordersimpugned are illegal.7. According to the counsel for thepetitioner before the revisional court ithad specifically been contended that theplaintiff was not the tenant and thereforemere possession would not entitle him toa decree under Section 6 of the SpecificRelief Act. The revisional court, evennoticing the said plea, only on the basisof possession his dismissed the appealand maintained the decree withoutrecording any conclusive opinion as towhether the plaintiff was tenant of thepremises or not.8. It is submitted that the revisionalcourt has misdirected itself in recording afinding with regard to the right of theplaintiff to claim possession of the newhouse, which has been constructed inplace of old house, without adverting tobasic issue as to whether the plaintiff hasbeen able to establish that he was tenantof the premises in question and thereforeentitled to maintain the suit underSection 6.9. I have heard learned counsel forthe parties and have examined therecords.10. The Supreme Court of India inthe case of Mahabir Prasad Jain (supra)has specifically held that mere exclusivepossession itself will not give anypresumption of tenancy and further that asuit by an agent or by the servant underSection 6 against the master would notbe maintainable.11. What logically follows is that acategorical finding had to be arrived atby the courts below as to whether in thefacts of the case the plaintiff had beenable to establish that he was the tenant ofthe premises in question. Merepossession will not lead to a presumptionof tenancy. The revisional court hasmisdirected itself in coming to aconclusion that merely because theplaintiff has been able to establish hisexclusive possession, he is deemed to bethe tenant of the premises.12. In view of the law laid down bythe Supreme Court in the case ofMahabir Prasad Jain (supra), the orderpassed by the revisional authority cannotbe legally sustained. The revisional courtis duty bound to examine as to whetherin the facts of the case the plaintiff hasbeen able to establish that he was thetenant of the premises in question or not.

78 INDIAN LAW REPORTS ALLAHABAD SERIES [201213. Since said aspect of the matterhas completely been ignored by therevisional authority, the order passed bythe revisional court dated 08.04.1987 ishereby set aside.14. Revision no. 122 of 1983 isrestored to its original number. Let thesame be decided after affordingopportunity of hearing to the partiesconcerned by means of a reasoned order,preferably within six months from thedate a certified copy of this order is filedbefore the revisional court, specificallyin light of the judgment of the SupremeCourt in the case of Mahabir PrasadJain (supra).15. Revision is allowed subject tothe observations made.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 19.01.2012BEFORETHE HON'BLE RAN VIJAI SINGH,J.Civil Misc. Writ Petition No. 8587 of 2008Pramod KumarVersusState of U.P. and othersCounsel for the Petitioner:Sri Arvind YadavSri Mithilesh Kumar TiwariCounsel for the Respondents:C.S.C....Petitioner...RespondentsU.P. Recruitment to Services(Determination of Date of Birth) Rules ,1974-Rule 2-Petitioner's selectioncanceled-on ground in declaration form-Date of Birth shown as 05.07.1986-during verification from college Date ofBirth found 02.08.1977-order passedwithout affording opportunity-originalcertificate produced with specific pleathat there are two persons of similarname-one Sharma, the other one Yadavpetitioneris Yadav by caste-eventually afit case for enquiry-order impugnedentail civil consequences-can not bepassed without taking recourse of theprinciple of Natural Justice.Held: Para 11It is not the case of respondent that HighSchool certificate issued to the petitionerhas either been cancelled or annulled bythe Board or any other competent court.Therefore, I am of the view that as longas High School certificate issued in theyear 2005 is there, the respondents werenot justified to cancel the selection ofthe petitioner on the assumption that hehas passed High School in the year 1992,particularly in the circumstances wherethe petitioner has come with specificcase as stated in paragraph 2 of thesupplementary rejoinder affidavit thatthere were two persons of the samename i.e. Promod Kumar of the sameparentage one belonging to Sharma andanother Yadav by caste. The petitionerbelongs to Yadav by caste. In thateventuality also this was a case forinquiry and had the petitioner was everoffered an opportunity of hearing beforepassing the impugned order, this aspectof the matter ought to have beenexplained and considered beforereaching the conclusion that thepetitioner has played prayed fraud. I findthat the impugned order has vice ofprinciple of natural justice and it is wellsettled law that an order which involvescivil consequences must be just, fair,reasonable, unarbitrary and in confirmitywith the principles of natural justice.Case law discussed:1952 SCR 284; AIR 1952 SC 75:1952 Crl.L.J.510; (1967) 2 SCR 625; AIR 1967 SC 1269;(1967) 2 LLJ 266; (1978) 1 SCC 405; (1978) 1SCC 248; 1993 SCC 259; 2005 (6) SCC 321;(2007) 6 SCC 668; 2008 (3) ESC 433 (SC)

1 All] Pramod Kumar V. State of U.P. and another 79(Delivered by Hon'ble Ran Vijai Singh,J.)1. The petitioner, through this writpetition has prayed for issuing a writ ofcertiorari quashing the order dated25.09.2007 passed by Superintendent ofPolice Baghpat by which he hascancelled the selection of the petitioneras recruit constable.2. From the perusal of theimpugned order, it transpires that theselection has been cancelled on theground that the petitioner has shown hisdate of birth while entering into theservice as 05.07.1986, which later on,after verification from the college wasfound as 02.08.1977 and therefore, inview of the declaration made to the effectthat if during the verification any falsedeclaration is found, the service shall beterminated without any notice.3. The aforesaid order has beenchallenged on the ground that beforepassing the said order, no opportunity ofhearing was given to the petitioner andhad the opportunity was given, thepetitioner would have been able toexplain the situation. The petitioner isstill pressing that his real date of birth is05.07.1986 and not 02.08.1977.4. A counter affidavit has been filedin which it is stated that the petitionernamely Pramod Kumar S/o Sri AmarSingh has passed High School somewhere in between 1990-1992 from SriKisan Vidyapeeth Inter College Dalipur,Auraiya and passed Intermediateexamination in the year 1998 fromRastriya Inter College Udarkot and againin the year 2005 has passed the HighSchool examination after reducing thedate of birth from Sant M.S.MadhyamikVidyalaya, Phool Sahai Nagar (BarauniKalan) District Auraiya which fact hasbeen revealed during the verification.5. I have heard learned counsel forthe petitioner and learned StandingCounsel.6. The petitioner has brought onrecord the High School certificate.According to him, he has passed HighSchool examination in the year 2005with Roll No. 1318375 and there the dateof birth is recorded as 05.07.1986. Thepetitioner has entered into the service onthe basis of High School certificate. Itappears that some complaint has beenmade and on that basis an exparte inquirywas conducted by the Superintendent ofPolice and on the basis of aforesaidexparte inquiry report, petitioner'sservice has been terminated. It is not indispute when the services of thepetitioner was terminated, he washolding a post under the government andwas government servant, as such the dateof birth of the government servant is tobe determined on the basis of the UttarPradesh Recruitment to ServicesDetermination of Date of Birth Rules,1974 (herein after referred to as 1974Rule).7. For better appreciation therelevant Rule 2 of the 1974 Rule asamended by first amendment in the year1980 is reproduced below by splitting itinto three parts.(a) The date of birth of aGovernment servant as recorded in thecertificate of his having passed the HighSchool or equivalent examination at thetime of his entry into the Governmentservice.

80 INDIAN LAW REPORTS ALLAHABAD SERIES [2012(b) Where a Government servant hasnot passed any such examination asaforesaid or has passed such examinationafter joining the service, the date of birthor the age recorded in his service book atthe time of his entry into the Governmentservice shall be deemed to be hiscorrect date of birth or age, as the casemay be, for all purposes in relation tohis service, including eligibility forpromotion,superannuation,premature retirement or retirementbenefits and,(c ) No application or representationshall be entertained for correction ofsuch date or age in any circumstanceswhatsoever.8. The aforesaid rules provide thatfor determination of the date of birth ifan employee entered into the governmentservice after passing high schoolexamination then the date of birth asrecorded in the High School certificateshall be deemed to be correct and if hehas entered into the service beforepassing the High School examinationthen the date of birth recorded in theservice book shall be deemed to becorrect. The deeming provisions is alegal friction provided under theaforesaid rules, meaning thereby even ifthe same is not the actual one even thenin view of legal friction that will bedeemed to be correct.9. Here it is not in dispute that thepetitioner has entered into service afterpassing High School, therefore, for thepurpose of determination of date of birth,the date of birth as recorded in theservice book shall be treated to becorrect for all purposes unless that iscancelled or annulled either by the Boardor by the competent court.10. Here in the present case on acomplaint of private individual the HighSchool certificate which is the sheetanchor of the petitioner's case has beenignored on the ground that the petitionerhas earlier passed High SchoolExamination and he has played fraud notonly on the department but also on theBoard.11. Suffice it to say, where anyaction is taken on the basis of fraud thenin that eventuality mere allegations offraud is not sufficient for taking actionagainst a person unless it is pleaded andproved. I am of the view that once theauthorities have come to the conclusionthat the petitioner has second timeappeared in the High SchoolExamination with a view to get reducehis date of birth and passed High Schoolin the year 2005 then certainly it was acase of fraud but for that it was to besomewhere pleaded and proved either byway of lodging criminal proceeding orthrough disciplinary proceeding underthe Rules governing the petitionerservice. It is not the case of respondentthat High School certificate issued to thepetitioner has either been cancelled orannulled by the Board or any othercompetent court. Therefore, I am of theview that as long as High Schoolcertificate issued in the year 2005 isthere, the respondents were not justifiedto cancel the selection of the petitioneron the assumption that he has passedHigh School in the year 1992,particularly in the circumstances wherethe petitioner has come with specificcase as stated in paragraph 2 of thesupplementary rejoinder affidavit that

1 All] Pramod Kumar V. State of U.P. and another 81there were two persons of the same namei.e. Promod Kumar of the same parentageone belonging to Sharma and anotherYadav by caste. The petitioner belongs toYadav by caste. In that eventuality alsothis was a case for inquiry and had thepetitioner was ever offered anopportunity of hearing before passing theimpugned order, this aspect of the matterought to have been explained andconsidered before reaching theconclusion that the petitioner has playedprayed fraud. I find that the impugnedorder has vice of principle of naturaljustice and it is well settled law that anorder which involves civil consequencesmust be just, fair, reasonable, unarbitraryand in confirmity with the principles ofnatural justice. The main aim of theprinciple of natural justice is to securejustice or to put it negatively to preventmiscarriage of the justice.The Apex Court in the case of Stateof W.B. v. Anwar Ali Sarkar, 1952SCR 284; AIR 1952 SC 75: 1952Crl.L.J. 510; per majority, a sevenjudge Bench held that the rule ofprocedure laid down by law comes asmuch within the purview of Article 14 ofthe Constitution.In State of Orissa v Dr. (Miss)Binapani Dei, (1967) 2 SCR 625; AIR1967 SC 1269'; (1967) 2 LLJ 266. It isobserved that even an administrativeorder which involves civilconsequences must be madeconsistently with the rules of naturaljustice. The person concerned must beinformed of the case, the evidence insupport thereof supplied and must begiven a fair opportunity to meet the casebefore an adverse decision is taken.Since no such opportunity was given itwas held that superannuation was inviolation of principles of natural justice.In Mohinder Singh Gill v. ChiefElection Commissioner, (1978) 1 SCC405; the Constitution Bench held that'civil consequences' covers infraction ofnot merely property or personal right butof civil liberties, material deprivationsand non- pecuniary damages. In itscomprehensive connotation everythingthat affects a citizen in his civil lifeinflicts a civil consequence.In Maneka Gandhi Vs. Union ofIndia(1978)1 SCC 248; another Benchof seven judges held that the substantiveand procedural laws and action takenunder them will have to pass the testunder article 14. The test of reasons andjustice cannot be abstract. They cannotbe divorced from the needs of the nation.The tests have to be pragmatic otherwisethey would cease to be reasonable. Theprocedure prescribed must be just,fair and reasonable even though thereis no specific provision in a statute orrules made thereunder for showingcause against action proposed to betaken against an individual, whichaffects the right of that individual. Theduty to give reasonable opportunity tobe heard will be implied from thenature of the function to be performedby the authority whichhas the powerto take punitive or damaging action.Even executive authorities which takeadministrative action involving anydeprivation of or restriction on inherentfundamental rights of citizens, must takecare to see that justice is not only donebut manifestly appears to be done. Theyhave a duty to proceed in a way which isfree from even the appearance ofarbitrariness, unreasonableness or

82 INDIAN LAW REPORTS ALLAHABAD SERIES [2012unfairness. They have to act in a mannerwhich is patently impartial and meets therequirement of natural justice.The law must therefore be nowtaken to be well settled that procedureprescribed for depriving a person oflivelihood must meet the challenge ofArticle 14 and such law would be liableto be tested on the anvil of Article 14 andthe procedure prescribed by a statute orstatutory rule or rules or orders affectingthe civil right or result in civilconsequences would have to answer therequirement of Article 14. So it must beright, just and fair and not arbitrary,fanciful or oppressive. There can be nodistinction between a quasi-judicialfunction and an administrative functionfor the purpose of principles of naturaljustice. The aim of both administrativeinquiry as well as the quasi judicialinquiry is to arrive at a just decision andif a rule or natural justice is calculated tosecure justice or to put in negatively, toprevent miscarriage of justice, it isdifficult to see why it should beapplicable only to quasi- judicial inquiryand not to administrative inquiry. It mustlogically apply to both.Therefore, fair play in actionrequires that the procedure adopted mustbe just, fair and reasonable. The mannerof exercise of the power and its impacton the rights of the person affectedwould be in conformity with theprinciples of natural justice. Article 21clubs life with liberty, dignity of personwith means of livelihood without whichthe glorious content of dignity of personwould be reduced to animal existence.When it is interpreted that the colour andcontent of procedure established by lawmust be in conformity with the minimumfairness and processual justice, it wouldrelieve legislative callousness despisingopportunity of being heard and fairopportunities of defence. Article 14 has apervasive processual potency andversatile quality, equalitarian in its souland allergic to discriminatory dictates.Equality is the antithesis of arbitrariness.It is thereby, conclusively held by thisCourt that the principles of naturaljustice are part of Article 14 and theprocedure prescribed by law must bejust, fair and reasonable.12. The Apex Court in the case ofD.K.Yadav Vs. J.M.A. Industries Ltd.Reported in 1993,SCC 259 has made thefollowing observations:The cardinal point that has to beborne in mind, in every case, is whetherthe person concerned should have areasonable opportunity of presenting hiscase and the authority should act fairly,justly, reasonably and impartially. It isnot so much to act judicially but is to actfairly, namely, the procedure adoptedmust be just, fair and reasonable in theparticular circumstances of the case. Inother words application of the principlesof natural justice that no man should becondemned unheard intends to preventthe authority from acting arbitrarilyeffecting the rights of the concernedperson.It is fundamental rule of law that nodecision must be taken which will affectthe right of any person without firstbeing informed of the case and givinghim/her an opportunity of puttingforward his/her case. An order involvingcivil consequences must be madeconsistently with the rules of naturaljustice.

1 All] Badka and others V. District Magistrate Bahraich and others 8313. Same view has been reiteratedin the cases of Canara Bank Vs. V.K.Awasthy, 2005 (6) SCC 321;Bidhannagar (Salt Lake) WelfareAssn. Vs. Central Valuation Boardand others, (2007) 6 SCC 668; andDevdutt Vs. Union of India and others,2008 (3) ESC 433 (SC). The basic ideaof observing the principles of naturaljustice is to secure justice or to put itnegatively to prevent miscarriage ofjustice. The aforesaid decisions still holdfield and have been followed innumerous cases, decided thereafter,which need not to be detailed here.14. In view of the foregoingdiscussions the writ petition succeedsand is allowed The impugned order dated25.09.2007 passed by Superintendent ofPolice Baghpat is hereby quashed. Therespondents are directed to reinstate thepetitioner forthwith in service. It is alsoprovided that this order will not precludethe respondents to pass fresh order inaccordance with law. It is also clarifiedthat the petitioner shall be entitled onlycurrent salary and the payment of backwages will depend on the fate of theinquiry, if any. In case the department donot hold any inquiry the petitioner shallbe entitled only 50% of the back wages.It is further provided the final decision inthis regard be taken by the departmentexpeditiously preferably within sixmonths from the date of receipt ofcertified copy of the order of this Court.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: LUCKNOW 19.01.2012BEFORETHE HON'BLE DEVI PRASAD SINGH,J.THE HON'BLE S.C. CHAURASIA,J.MISC. BENCH No. - 8925 of 2011Badka and others...PetitionerVersusDistrict Magistrate Bahraich and others...RespondentCounsel for the Petitioner:Mohd. NafeesSri V.P.NagaurCounsel for the Respondents:C.S.C.Sri D.R.MisraConstitution of India, Article 226-nonsupply of essential commodities to BPLcard holder-only reason disclosed oncertain irregularity committed by dealersupplycould not be made-shocking stateof affairs-general Mandamus issued-thesecretary to issue guide lines circular-allconcern authorities at the time ofpassing suspension-cancellation ordersimultaneously alternative arrangementfor un-interrupted distribution-andallotment order must be passed.Held: Para 10Let the Chief Secretary of the State ofU.P. issue appropriate order or circularkeeping in view the aforesaidobservations to safeguard the interest ofB.P.L. card holders and other personsbelonging to below poverty line forcontinuance supply of essentialcommodities during the pendency ofenquiry against the fair price shop dealeror in the event of stoppage of supply ofessential commodities by the fair priceshop dealers.

84 INDIAN LAW REPORTS ALLAHABAD SERIES [2012(Delivered by Hon'ble Devi Prasad Singh,J. )1. Heard learned counsel for theparties and perused the record.2. Inspite of this Court's order dated09.09.2011, no counter affidavit has beenfiled by learned Standing Counsel.Keeping in view the material available onrecord, we proceed to decide the writpetition finally at the admission stage withthe consent of parties.3. The petitioners are villagersbelonging to lower cadre of society,possessing B.P.L. Cards. Their grievanceis that they are not being extended thebenefit in term of Government Ordersavailable to the B.P.L. card holders.According to Sri V.P. Nagaur, learnedcounsel for the petitioners, the fair priceshop dealer located in the locality of thepetitioners, is not providing the essentialcommodities to the petitioners' family.Hence, the family members of thepetitioners are suffering with greathardship.4. On the other hand, learnedStanding Counsel, as per instructionreceived, submits that the enquiry washeld and fair price shop dealer has beenfound to be indulged in corrupt practiceand appropriate action is likely to betaken against him. What action, theGovernment took, against the fair priceshop dealer, is not concerned of thepetitioners, but they are concerned withfew kg. of rice, wheat and sugar for whichthey are entitled on account of B.P.L.card.5. In case, some enquiry is pending,then the District Magistrate/Sub-Divisional Magistrate concerned shouldhave made alternative arrangement forsupply of uninterrupted supply of theessential commodities to the petitionersand other similarly situated B.P.L. cardholders.6. Right to life is a fundamentalright and it is bounden duty of the StateGovernment to ensure that the persons ofthe lower cadre of the society are beingprovided necessary essential commoditiesin accordance to rules. The entitlement ofthe petitioners or other B.P.L. cardholders could not be withheld by thedistrict authorities merely because certainenquiry is pending against the fair priceshop dealer. The District Magistrateconcerned should have taken appropriatesteps during the course of pendency ofenquiry to ensure that the essentialcommodities are being supplied to thecitizens or the B.P.L. card holders andother persons of the lower cadre of thesociety whose livelihood is based onsupply of food grains and essentialcommodities through fair price shopslicenced by the Government.7. In the present case, it appears thatafter receipt of complaint, the Sub-Divisional Magistrate, Kaiserganj,District-Bahraich, has initiated an enquiryagainst the fair price shop dealer, but, hasforgotten his responsibility to make somealternative arrangement for supply of theessential commodities to the B.P.L. cardholders and others belonging to below thepoverty line during the pendency of theenquiry.8. In the aforesaid situation, it shallalways be appropriate for the DistrictMagistrates to ensure that the alternativearrangement must be made forcontinuous supply of essential

1 All] Badka and others V. District Magistrate Bahraich and others 85commodities in accordance to rules.Whenever, fair price shop is suspended orlicense is cancelled, simultaneousalternative arrangement should be madefor continuance supply of essentialcommodities not only to B.P.L. cardholders but, also to other citizens who arepassing life below the poverty line.9. Reply given by learned StandingCounsel on the basis of instructionsreceived that the petitioners are not beingsupplied essential commodities because ofaction taken against the fair price shopdealer, is not satisfactory. After receipt ofcomplaint, simultaneous decision shouldhave been taken to make alternativearrangement. We may take note of thefact that almost every day the writpetitions are being filed in this Court bythe B.P.L. card holders and other personsfalling below the poverty line for supplyof essential commodities on one or othergrounds. The supply of essentialcommodities are being stopped because ofaction taken against the fair price shopdealer. It is unfortunate and disturbingthat the persons who are passing lifebelow the poverty line and are thefoundational section of society inconstituting Government through theirvaluable votes and anyhow aremaintaining their family members havebeen compelled to approach this Court onaccount of inaction on the part of theauthorities, to make a prayer for supply offood grains by the fair price shop dealer.The State Government must look into thematter and appropriate order or directionmay be issued providing necessarysafeguard to the persons belonging tobelow poverty line/B.P.L. card holders foruninterrupted supply of food grains andother essential commodities, during thependency of the enquiry/suspension oflicense of the fair price shop dealers.Alternative arrangement must be madeimmediately and order should be passedon the same date when the license of thefair price shop is suspended, revoked orfor any reason its supply is stopped.10. Let the Chief Secretary of theState of U.P. issue appropriate order orcircular keeping in view the aforesaidobservations to safeguard the interest ofB.P.L. card holders and other personsbelonging to below poverty line forcontinuance supply of essentialcommodities during the pendency ofenquiry against the fair price shop dealeror in the event of stoppage of supply ofessential commodities by the fair priceshop dealers.11. The copy of the present ordershall be sent to the State Government aswell as to the Principal Secretary, Foodand Civil Supply by Registry forthwith.Let the compliance report of this order besubmitted by the State Government withinone month. The case shall be listedimmediately after one month formonitoring.. Learned Standing Counselshall also communicate the order passedtoday immediately to the StateGovernment.12. The writ petition is allowedaccordingly.13. The certified copy of the presentorder shall also be sent by Registry to theDistrict Magistrate, Bahraich, who shalltake immediate action keeping in view theaforesaid observation for supply ofessential commodities to the petitionersand other similarly situated persons.---------

86 INDIAN LAW REPORTS ALLAHABAD SERIES [2012ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 19.01.2012BEFORETHE HON'BLE VINEET SARAN,J.THE HON'BLE ASHOK PAL SINGH,J.Civil Misc. Writ Petition No. 32716 of 2011Smt. Asha SharmaVersusState of U.P. and othersCounsel for the Petitioner:Sri Ramesh Chand TiwariSri P.S. BaghelSri R.C. DwivediCounsel for the Respondents:C.S.C....Petitioner...RespondentsConstitution of India,Article 226-Allotment of Fair Price Shop license-oncompassionate ground-rejected onground-when cancellation order gotfinality in the life time of dealer-noquestion of compassionate allotmentsmisconceived-whencancellation orderaffecting 22 other persons includinghusband of petitioner restoredautomatically-was no occasion forchallenging the same-admittedly till thedate of death her husband run the shopallotmenton compassionate ground inview of G.O. 17.08.2002 can not bedenied.(Delivered by Hon'ble Vineet Saran,J. )1. The brief facts of the case are thathusband of the petitioner Late BhupendraSharma who was a fair price dealer wasappointed on 20.9.1997 along with 22other persons who were also aggrieved bythe same order. Then by order dated2.7.1998 the appointment of the petitioneras well as the other 22 persons had beencancelled. Challenging the same, one ofsuch persons whose appointment hadbeen cancelled filed a writ petition beforeLucknow Bench of this Court being WritPetition No.2105(MB) of 1998 in whichan interim order was granted. Pursuantthereto the respondent authorities restoredthe fair price shop of the husband of thepetitioner Late Bhupendra Sharma also.Husband of the petitioner continued to runthe shop till his death on 1.10.2010. Afterthe death of her husband, the petitionerfiled an application on 14.10.2010 forappointment of the fair price shop dealerin place of her husband on compassionateground, in terms of the Government Orderdated 17.8.2002 which provides for suchappointment to the dependents of thedeceased fair price shop dealers onfulfillment of the conditions mentioned inthe said Government Order. The saidapplication of the petitioner had beenrejected by order dated 28.4.2011 passedby the District Supply Officer, Agra. By asubsequent order dated 19.5.2011 passedby the District Supply Officer, Agra, thepetitioner has been given liberty to file afresh application for grant of fair priceshop dealer on the basis of merits on thevacancy created on the death of husbandof the petitioner. Challenging theaforesaid orders dated 28.4.2011 and19.5.2011 passed by the District SupplyOfficer, this writ petition has been filed.2. We have heard Sri R.C.Tiwari,learned counsel for the petitioner as wellas learned standing counsel appearing forthe petitioner. Pleadings between theparties have been exchanged and withconsent of learned counsel for the partiesthis petition is being disposed of at theadmission stage.3. The ground on which theapplication for grant of fair price shop

1 All] Lala Ram and others V. State of U.P. and another 87dealership on compassionate ground hasbeen rejected is that after cancellation ofthe fair price shop of husband of thepetitioner on 2.7.1998 he had not filedany writ petition and as such even thoughthe fair price shop of the husband of thepetitioner was restored, he would not beentitled to the benefit of continuance ofsuch dealership and consequently thebenefit of the Government Order dated17.8.2002 could not be available to thepetitioner.4. The respondents do not deny thatthe petitioner is a dependent of thedeceased fair price shop dealer. Merelybecause after the suspension of the fairprice shop of husband of the petitioner herhusband had not filed the writ petition, thepetitioner cannot be denied the benefit ofthe Government Order dated 17.8.2002specially when the respondent authoritieshad themselves restored the dealership ofthe husband of the petitioner. Thecontention of the petitioner has force thather husband had no occasion to approachthe High Court when his dealership hadalready been restored. It is admitted thatthe authorities themselves had withdrawnthe order of suspension and restored theshop of husband of the petitioner,meaning thereby that the dealership of thehusband of the petitioner continued till hisdeath on 1.10.2010. The petitioner hadthereafter on 14.10.2010 applied for thefair price dealership on compassionateground in terms of the Government Orderdated 17.8.2002 which should have beenconsidered on merits instead of havingbeen rejected on technical grounds.5. In view of the aforesaid, we allowthis writ petition and quash the ordersdated 28.4.2010 and 19.5.2010 passed bythe District Supply Officer. Therespondents are directed to consider theapplication of the petitioner dated14.10.2011 in terms of the GovernmentOrder dated 17.8.2002 and in the light ofthe observations made herein above, asexpeditiously as possible, preferablywithin two months from the date of filingof a certified copy of this order beforerespondent no.3.6. No order as to cost.---------ORIGINAL JURISDICTIONCRIMINAL SIDEDATED: ALLAHABAD 09.01.2012BEFORETHE HON'BLE SURENDRA SINGH,J.Criminal Misc. Application No. 33210 of 2011Lala Ram and others ...PetitionerVersusState of U.P. and another ...RespondentsCounsel for the Petitioner:Sri Vikram D. ChauhanSri Anil Kumar TiwariCounsel for the Respondents:Govt. AdvocateCode of Criminal Procedure-Section-210-trail of two different cases with differentaccused persons-against same incidentoneby taking cognizance oninvestigation under Section 173-theother one by issuing process oncompliant case-can not be consolidatedbut can be decided simultaneously onbasis of evidence adduced separatelyheld-impugnedsummoning orderjustified-needsno interference.Held: Para 13In the facts and circumstances of thisparticular case and the view expressedby the Hon'ble Apex Court in the cases

88 INDIAN LAW REPORTS ALLAHABAD SERIES [2012mentioned hereinabove, I am of the viewthat since complaint presents a differentpicture altogether and the prosecutioncase has set out in the complaint is atcomplete variance with that in the policechallan, proper course to adopt is todirect that two cases should be triedtogether by the appropriate court butnot consolidated i.e. the evidence shouldbe recorded separately in both the casesone after the other except to the incidentthat the witnesses for the prosecutionwho are common to both the cases beexamined in one case and their evidencebe read as evidence in the other.Case law discussed:2011 (2) CCSC 817 SC; 1985 SCC (crl.) 93;1981 SCC (Crl.) 438(Delivered by Hon'ble Surendra Singh,J. )1 The applicants by way of filingthis application under section 482 Cr.P.C.have sought to quash the impugned orderdated 06.07.2011 passed in case no.1167/2010, Brij Lal vs. Lala Ram andothers, under sections 302, 201 and 120BIPC passed by Chief Judicial Magistrate,Shahjahanpur.2. Shorn of unnecessary details, thefact leading to the filing of thisapplication, in brief, are:3. On 18.02.2010 the opposite partyno.2 Brij Lal lodged the first informationreport at police station Mirzapur, DistrictShahjahanpur under section 304A IPC inregard to the offence alleged to havecommitted by applicant no.1 Lala Ram on17.02.2010 at 12.00 in the mid night whenwedding ceremony was alleged to begoing on the applicant no.1 is said to havetaken out his revolver and fired whichincidently hit the son of opposite partyno.2 Megh Pal as a result of which son ofopposite party no.2 died.4. The opposite party no.2 on11.03.2010 moved an application undersection 156(3) Cr.P.C. for the issuance ofdirection to the police concerned toregister the offence under sections 302,201, 120B IPC before the Chief JudicialMagistrate, Shahjahanpur but the samewas dismissed for want of prosecution byorder dated 11.08.2010. In the meantimethe prosecuting agency submitted thecharge sheet dated 17.03.2010 undersection 304 IPC and section 27 of ArmsAct against accused Lala Ram applicantno.1 in respect of first information reportlodged against him at crime no. 62/2010.The cognizance was also taken by thelearned Magistrate vide order dated24.04.2010. The opposite party no.2 BrijPal thereafter instituted a complaint dated07.04.2010 before the Chief JudicialMagistrate, Shahjahanpur in respect of thesame incident dated 17.02.2010 againstfour persons on materially different,contradictory and mutually exclusiveversion what was alleged in the FIR.5. The statement of the complainantBrij Pal, opposite party no.2 as well asDhermendra and one Satendra wererecorded under sections 200, 202 Cr.P.C.respectively by the court below in theabove mentioned complaint case. In themeantime, the applicant no.1 Lala Ramwas released on bail by this Hon'ble Courtby order dated 26.05.2010 under section304 IPC. The Chief Judicial Magistratehaving considered the allegationcontained in the complaint as well asstatements of the witnesses recordedunder sections 200 and 202 Cr.P.C. tookcognizance and issued process against theapplicants under section 302, 201, 120BIPC. The order dated 06.07.2011 taking ofcognizance and summoning the applicantsis the subject matter of challenge before

1 All] Lala Ram and others V. State of U.P. and another 89this Court in the present application undersection 482 Cr.P.C.6. It is submitted by the learnedcounsel for the applicants that learnedMagistrate while passing the impugnedorder dated 06.07.2011 has completelyfailed to apply his judicial mind to thematerials before him and issued process inan arbitrary and routine manner. It wasfurther submitted that under the law theduty imposed on the magistrate concernedto record his opinion on the basis of thefacts and material on record showing thesufficiency of grounds for proceedingagainst the applicants.7. It is submitted that section 210(2)Cr.P.C. makes it clear that if themagistrate takes cognizance of an offenceon a report filed by the investigatingofficer under section 173 Cr.P.C. againstany person, who is also an accused in acomplaint case, the magistrate shallinquire into or try the two cases together,as if both the case had been instituted on apolice report. It was further alleged thatsub-section 3 of section 210 Cr.P.C. wasnot attracted to the facts of this case sinceit deals with a procedure where, if thepolice report did not relate to any accusedin the complaint case or the magistrate didnot take cognizance of any offence on thepolice report he would proceed with theinquiry or trial, which might have beenstayed by him under sub-section (1) inaccordance with the provisions of thecode. According to the counsel for theapplicants both the cases have to beclubbed and consolidated and theevidence recorded in one be read asevidence in other case.8. Per contra, learned AGA hasopposed this application and submittedthat the fact situation does not attract theprovisions contemplated in section 210Cr.P.C. Since the accused are different inthe two separate proceedings and thesituation has, in fact, arisen whereprejudice in all possibility is likely to becaused in a single trial. Hence this is acase where two trials should be heldsimultaneously but not as single trial. Thefacts of the case also warrant that thetrials should be conducted by the samepresiding officer in order to avoid aconflict of decisions.9. Taking note of the submissionsmade by counsel for the parties andhaving perused the material placed onrecord, I am of the view that since theversion in the police challan case and thecomplaint case were in conflict and thenumber of accused and prosecutionwitnesses were also different the trial ofthe two cases should not be held together.Both the cases cannot be clubbed andconsolidated, particularly when theprosecution version in the police challancase and the complaint case are materiallydifferent and the accused persons are alsonot the same.10. Section 210 Cr.P.C. providesthat procedure to be followed when thereis a complaint case and policeinvestigation in respect of the sameoffence. Sub-section (1) of section 210Cr.P.C. provides that when in a caseinstituted otherwise than on a policereport namely a complaint case themagistrate is informed during the courseof inquiry or trial that a investigation bythe police is in progress in relation to theoffence which is the subject matter ofinquiry or trial held by him the magistrateis required to stay the proceeding of suchinquiry or trial and to call for report on

90 INDIAN LAW REPORTS ALLAHABAD SERIES [2012the matter from the police officerconducting the investigation. Sub-section(2) provides that if a report is made by theinvestigating officer under section 173Cr.P.C. and on such report cognizance ofany offence is taken by the magistrateagainst any person, who is an accused in acomplaint case the magistrate shallinquire into or try the two cases togetheras if both the cases had been instituted ona police report. Sub-section (3) furtherprovides that if police report does notrelate to any accused in the complaintcase or if the magistrate does not takecognizance of any offence on a policereport he shall proceed with the inquiry ortrial which was stayed by him inaccordance with the provisions of thecode. Thus in view of section 210 Cr.P.C.both the cases arising out of the policereport and private complaint can be triedtogether provide the fact and cases are notmaterially different, by a magistrate whenthe cognizance of an offence in respect ofan accused in a complaint case as well asin the police investigation such a person isalready made an accused then only themagistrate may inquire into or try togetherthe complaint case and the case arisingout of the police report as both the caseswere instituted on a police report, but inthe present case the situation is differentas the prosecution version in the policechallan case and the complaint case werematerially different and the number ofaccused and prosecution witnesses werealso different the trial of the two casescannot be consolidated and held together.Therefore the version in the complaintcase and the police report are totally sincematerially different though arising out ofthe same incident cannot be consolidatedor clubbed together and the provisions ofsub-section (2) of section 210 Cr.P.C.would not come into play.11. In my view, this is a case wherethe two trials should be heldsimultaneously but not as a single trial bythe appropriate court. This view has beenhighlighted in the recent pronouncementof the Hon'ble Apex Court in the case ofPal @ Palla vs. State of U.P., 2011 (2)CCSC 817 SC and in the case ofHarjinder Singh vs. State of Punjab andothers, 1985 SCC (crl.) 93, it wasobserved by the Hon'ble Apex Court inthe case mentioned hereinabove thatclubbing and consolidating the cases oneon a police challan and the other on acomplaint if the prosecution version in thetwo cases are materially different,contradictory and mutually exclusive,then both the cases should not beconsolidated but should be tried togetherwith the evidence in the two cases beingrecorded separately so that both the casescould be disposed of simultaneously. Itwas further observed that in such anunusual situation and facts of the case thetrial court is required to hear the two casestogether though separately and takeevidence separately except in respect ofall the witnesses who would not affecteither by the provision of Article 20(2) ofthe Constitution or section 300 Cr.P.C.12. The Hon'ble Apex Court in thecase of Kewal Krishan, 1981 SCC(Crl.)438 had dealt with a similar situation asthe present, where two cases exclusivelytriable by the court of sessions oneinstituted on a police report under section173 Cr.P.C. and the other on a criminalcomplaint arose out of the sametransaction. The Hon'ble Apex Courtobserved that to obviate the risk of twocourts coming to conflicting findings itwas desirable that the two cases should betried separately but by the same court.

1 All] Smt. Geeta Varshney V. Allabahad Bank Thru' M.D. H.O. Calcutta and others 9113. In the facts and circumstances ofthis particular case and the viewexpressed by the Hon'ble Apex Court inthe cases mentioned hereinabove, I am ofthe view that since complaint presents adifferent picture altogether and theprosecution case has set out in thecomplaint is at complete variance withthat in the police challan, proper course toadopt is to direct that two cases should betried together by the appropriate court butnot consolidated i.e. the evidence shouldbe recorded separately in both the casesone after the other except to the incidentthat the witnesses for the prosecution whoare common to both the cases beexamined in one case and their evidencebe read as evidence in the other.14. In view of the matter, theimpugned order dated 06.07.2011 passedby the learned Magistrate issuing processand summoning the applicants undersections 302, 201, 120B IPC is well inconformity in law and does not sufferfrom any material illegality or irregularityand therefore does not warrant anyinterference in this application.15. This application is finallydisposed of with the observationmentioned hereinabove.16. Let a copy of this order be sendto the Chief Judicial Magistrate,Shahjahanpur for its communication andnecessary compliance.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 24.01.2012BEFORETHE HON'BLE RAKESH TIWARI,J.THE HON'BLE DINESH GUPTA,J.Civil Misc. Writ Petition No. 33410 of 2002Smt. Geeta Varshney ...PetitionerVersusAllabahad Bank Thru' M.D. H.O. Calcuttaand others...RespondentsCounsel for he Petitioner:Sri G.S. SrivastavaSri Sharad KumarSri V.P. VarshneyCounsel for the Respondents:Sri Himanshu TiwariC.S.C.Allahabad Bank Employees (Pension)Regulation 1993-Regulation-3-FamilyPension Scheme introducedw.e.f.06.09.1994-husband of petitionerdied on 09.07.1991in accident-after 20years continuous services-petitionerapplied for pension on 27.11.1997-rejected on ground of delay-and notapplied in prescribed format within 120days-admittedly such format or schemenever supplied by Bank-held-entitled forfamily pension in view of Smt. ShushilaRai case.Held: Para 17In the present case also the facts aresimilar to the above case and even on abetter footing. If the argument of theBank is also accepted that no applicationwas moved by the petitioner as allegedin the writ petition on 16.11.1995 or inDecember, 1995, moving of anapplication along with form on27.11.1997 is not denied. In the case ofSmt. Sushila Rai (supra) the applicationwas moved on 16.06.1998 after lapse of

92 INDIAN LAW REPORTS ALLAHABAD SERIES [2012almost three years while in the presentcase it was moved on 27.11.1997 andthe only ground taken by therespondents also is of delay in movingthe aforesaid application and also of notcomplying the conditions given therein.The petitioner has also stated that shewas not supplied with the copy of thesaid scheme inspite of the clearinstructions of the Bank. It is also notthe case of the Bank that the petitionerwas supplied with the said scheme or thesaid scheme was sent at her permanentaddress. The Bank has also not taken anyother ground to reject the claim of thepetitioner. Therefore, the case of thepetitioner is fully covered by the decisionin the case of Smt. Sushila Rai (supra).Case law discussed:(2007) 3 UPLBEC (Sum) 110; (2003) 1UPLBEC 247; (2003) 2 UPLBEC 1474(Delivered by Hon’ble Dinesh Gupta, J)1. The instant writ petition has beenfiled for a writ of certiorari quashing theorder dated 12.05.2002 passed byrespondent no. 4 as also a writ ofmandamus commanding the respondents todecide, fix and pay the monthly familypension and also pay the arrears of pensionalong with 18% interest from 18.7.1991.2. The facts in brief are that thehusband of the petitioner late SharadChandra Varshney was appointed as clerkin the Allahabad Bank (hereinafter referredto as 'Bank') on a permanent post on21.05.1971 and later on he was promotedas Branch Manager and worked on the saidpost till 19.07.1991when unfortunately hemet with an accident and died; that afterthe death of the husband of the petitionerthe Bank appointed the petitioner oncompassionate ground on the post ofClerk-cum-Cashier and she is still in theservice of the Bank; that prior to 1993,there was no provision for pension to theemployees of the Bank and after greatpursuation the Allahabad Bank PensionScheme was announced under thesettlement with the employees union andthe Bank to provide benefit of pension tothe employees; that the said scheme wasnamed as 'Allahabad Bank Employees(Pension) Regulation, 1993' (hereinafterreferred to as 'Pension Regulation') whichwas circulated amongst the branch officesby instruction circular no.3904 dated06.09.1994 inviting option on theprescribed form; that the husband of thepetitioner served continuously for morethan 20 years and as such under theprovisions of the Pension Regulation, thepetitioner being widow of the deceasedemployee, is entitled for the familypension; that Regulation 3 providedeligibility criteria for the employeeswilling to exercise the option; that theaforesaid scheme was not applicable topetitioner's husband and the petitioner wasnot eligible for getting family pension asher husband had admittedly expired beforethe stipulated date of 01.11.1993; that inthe year 1994-95 a new pension schemewas introduced which is applicable to thepetitioner. In the new pension schemeknown as 'Allahabad Bank (Employees)Pension Regulation, 1995 ' (hereinafterreferred to as '1995 Pension Regulations') acomprehensive scheme was formulatedwidening the scope for exercising option ofpension by the employees concerned or byhis widow in the event of the death of theemployee. The petitioner quoted theprovisions of Regulation 7 of 1995 PensionRegulations which are reproduced below:-" 7. Where in the service of the Bankduring any time on or after the Ist day ofJanuary 1986 and had died while inservice on or before the 31st day ofOctober, 1993 or had retired on or before

1 All] Smt. Geeta Varshney V. Allabahad Bank Thru' M.D. H.O. Calcutta and others 93the 31st day of October 1993 but diedbefore the notified date in which case theirfamily shall be entitled to the pension orthe family pension as the case may beunder these regulations, if the family of thedeceased:(a) exercises an option in writingwithin one hundred twenty days from thenotified date to become member of thefund; and(b) refunds within sixty days of theexpiry of the said period of one hundredand twenty days specified in clause 'a'above the entire amount of the Bank'scontribution to the provident fund andinterest accrued thereon together with afurther simple interest at the rate of six percent per annum from the date of settlementof the provident fund account till the dateof refund of the aforesaid amount to theBank.Chapter V Regulation No.3434.Payment of pension or familypension in respect of employees whoretired or died between 1.1.1986 to31.10.1993:-'1' - Employees who have retired fromthe service of the Bank between the Ist dayof January, 1986 and the 31st day ofOctober, 1993 shall be eligible for pensionwith effect from the Ist day of November,1993.'2'- The family of a deceasedemployee governed by the provisionscontained in sub regulation 7 ofRegulation 3 shall be eligible for familypension with effect from the Ist day ofNovember, 1993."3. The petitioner further submittedthat the husband of the petitioner had diedon 19.07.1991 i.e. between 1.1.1986 and31.10.1993 , as such the petitioner isentitled for family pension w.e.f. 1.11.1993under the provisions of PensionRegulation, 1995; that the petitioner afterthe death of her husband submitted anapplication and the form for pension dulyfilled on 28.11.1994 and also made severalrepresentations but she was not given thefamily pension; that when the new PensionRegulation, 1995 was enforced thepetitioner, apart from her earlier option,again submitted her option being widow ofthe deceased employee but the Bank didnot consider her case; that the Bank onthird occasion on 27.11.1997 got filledanother form of the family pension withthe assurance that she will get the familypension after completion of all theformalities; that the petitioner made severalrepresentations and reminders, but theBank authorities deliberately did not settlethe family pension of the petitioner and thepetitioner was left with no option but tofile Civil Misc. Writ Petition No.14881 of2001 before this court and the said writpetition was finally disposed of vide orderdated 20.04.2001 directing the respondentsto decide the representation of thepetitioner; that when the respondentsinspite of the order of the court, did notdecide her representation she moved aContempt Petition against the respondentand when the notices were issued andserved on the respondents in the contemptpetition, without applying their mind andwithout giving an opportunity of hearing,the respondents illegally decided therepresentation of the petitioner rejectingthe same vide order dated 12.05.2002.4. The respondents filed counteraffidavit and stated that the Bank had taken

94 INDIAN LAW REPORTS ALLAHABAD SERIES [2012sympathetic view after death of thepetitioner's husband and she was appointedas Clerk-cum-Cashier on compassionateground and further her dues of providentfund and gratuity were also released; thatunder the settlement between theEmployees' Union and the Bank and toprovide benefit of pension to the intendingemployees who were agreeable to exercisetheir option in place of contributory fundsystem a new Pension Regulation wasformulated and the same was circulatedamongst the branch offices of the Bankinviting option on the prescribed format forthe different categories of intendingemployees; that it is vehemently deniedthat the respondents had not given saidcircular to the petitioner or otheremployees.5. The submission made by therespondents in paragraph 7 of the counteraffidavit are quoted below:-" 7(a) That the said PensionRegulation, 1993 vide its Regulation 3provided eligibility criteria for theemployees concerned willing to exercisethe option and stipulated that theRegulation shall apply to-(I) Employees who joined service ofthe Bank on or after 1st. November, 1993.;(II) Employees in service of the bankas on 31st October, 1993 and who exercisean option in writing in response to thebank's notice to this effect to becomemembers of the pension scheme and tocease to be members of the ContributoryProvident Fund scheme with effect from1st November, 1993 and irrevocablyauthorize the bank or the trustee of thecontributory provident fund to transfer theentire contribution of the bank along withentire interest accrued thereon to thecredit of pension fund to be created for thispurpose.(III) By way of special dispensation tothe employee who retired on or after 1stJanuary 1986 but before 1st November,1993 provided that such employees applyfor it and on the format prescribed by thebank and refund by the date decided by thebank, the bank's entire contribution to theprovident fund including interest receivedwith further simple interest at the rate of 6per cent per annum from the date ofwithdrawal of the provident fund amounttill the date of refund.7(b). That in view of the eligibilitycriteria stipulated in Regulation 1993 andas stated herein above in paragraph 7 (a),the family pension format on which thepetitioner purportedly made arepresentation to the respondent bank wasirrelevant to the context since petitionerwas not eligible for getting family pensionin terms of the aforesaid eligibility criteriainasmuch as the husband of the petitioneradmittedly expired before the stipulateddate of 1st November, 1993 as well as hewas not retired on or after 1st January,1986 so in no way he could be consideredto be eligible for pension under any of theeligibility criteria of the said scheme, at thesame time the scope of the "specialdispensation" to the employee is also notapplicable to his case as he was not retiredon or after 1986, rather he died in the year1991."6. It is further contended by therespondents that in the year 1994-95 acomprehensive pension regulationapplicable to all the nationalized banks wasformulated widening the scope forexercising option for pension by the

1 All] Smt. Geeta Varshney V. Allabahad Bank Thru' M.D. H.O. Calcutta and others 95employees concerned or by his widow inthe event of death of the employees; thatamongst other Regulation 3(7) of thePension Regulations is relevant for thepurposes of the present controversy and thepetitioner's case is covered as it providedthat it shall apply to all employees whowere in the service of the bank on or beforethe 31st day of October, 1993. Subparagraph (a) of Regulation 3(7) providedfor exercising an option in writing withinone hundred and twenty days from thenotified date to become a member of theFund and sub paragraph (b) thereofprovided for refund within sixty days onthe expiry of the said period of onehundred and twenty days the entire amountof the Bank's contribution to the ProvidentFund and interest accrued thereon togetherwith a further simple interest at the rate ofsix per cent per annum from the date ofsettlement of the Provident Fund accounttill the date of refund of the aforesaidamount to the Bank.7. The contention of the respondentsas made in sub paragraphs 4, 5, 6 and 7 ofparagraph 8 of the counter affidavit arequoted below:-"4. That thus option has to beexercised within 120 days from the notifieddate i.e. 29.09.1995 to become a memberof the fund viz. 27.01.1996 and furtherrefund of the entire amount of the Bank'scontribution to the Provident Fund was tobe made within sixty days of the expiry ofthe said period of one hundred twenty dayswith interest accrued thereon together witha further simple interest at the rate of sixper cent per annum from the date ofsettlement of the Provident Fund accounttill the date of refund of the aforesaidamount to the Bank.5. That the said mandatory conditionof the Regulation 3(7) was not compliedwith by the petitioner, inasmuch as neitherthe option was made before 27.1.1996 northe entire amount of the Bank'scontribution to the Provident Fund wasrefunded by her.6. That it is also relevant to mentionhere that "Allahabad Bank (Employees)Pension Regulations 1995" was framed inthe exercise of the power conferred byclause (f) of sub section (2) of Section 19 ofthe Banking Companies Act No.5 of 1970.It has thus statutory force and its effectscould not be diluted nor amendment couldbe made to it for bringing those personswho have not complied with the mandatoryprovisions given therein and not giventheir option within the time provided interms of Regulations.7. That the aforesaid "AllahabadBank (Employees) Pension Regulations,1995" was duly circularized by therespondent bank vide its instructioncircular no.4318 dated 16.11.1995amongst all branches and offices; thepetitioner at the relevant point of time wasposted at Maharajganj branch, Aligarh ofthe respondent bank and despite havingfull knowledge of the said circular thepetitioner did not submit her option beingthe widow of late Sharad ChandraVarshney for the family pension within thetime provided in terms of Regulation i.e.27.1.1996."8. The respondents further contendedthat from the aforesaid propositions, it isvery much clear that the petitioner is notentitled for family pension underRegulation 1995 because she had notcomplied with the mandatory provisions ofthe said Regulations; that she submitted

96 INDIAN LAW REPORTS ALLAHABAD SERIES [2012her option in the last week of December,1995 and that the petitioner has set up anew case by making an allegation that shehad submitted her option for familypension in the last week of December,1995 which is patently false.9. The petitioner filed rejoinderaffidavit denying the allegations made inthe counter affidavit and reiterating herstand taken in the writ petition.10. We have heard learned counselfor the parties.11. Learned counsel for the petitionersubmits that the respondents whileconsidering the case of the petitionerrejecting her claim on the ground thatRegulations, 1993 are not applicable to thepetitioner and she is not eligible for thepension. It is not the case of the petitionerthat her case is covered under PensionScheme, 1993 and on the contrary her caseis fully covered by 1995 PensionRegulations; that while considering theapplicability of Regulations 1995 therespondents recorded a finding that thepetitioner did not submit application forfamily pension by the stipulated cut offdate i.e. 27.1.1996 and as such the requestfor family pension vide application dated27.11.1997 could not be considered, whichis against the law and the facts; that whiledeciding the representation the respondentsdid not consider the earlier applicationdated 16.11.1995 submitted by thepetitioner deliberately ignoring the fact thatthe said application was submitted withinthe stipulated time and as such the orderpassed by the respondents rejecting therepresentation of the petitioner is illegaland without jurisdiction; that therespondents had not disputed the fact thatthe petitioner would have been entitled tothe benefit for grant of family pensionunder 1995 Pension Regulations had herapplication been filed within the stipulatedtime and the only ground for rejecting herrepresentation is that the application wasmoved only after expire of 120 days fromthe date commencement of the pensionscheme; that the respondents have failed toconsider that the petitioner is the widow ofa deceased employee who expired on dutyin an accident and she had also earliergiven an application and filled theproforma on 16.11.1995; that the circularissued by the Bank on 16.11.1995 whereinit has been provided that the concernedBranch Manager of the Bank would beobliged to send a copy of the Regulations,1995 to each retired employee or familymember of the deceased employee wasnever sent to the petitioner at her addressand the petitioner has been deprived fromopting for family pension though she hadgiven undertaking for refund of GPFcontribution with interest to the Bank andthat in cases of other employees the Bankhad informed them the calculated amountof GPF contribution, but the petitioner wasnot given any such information by theBank.12. Learned counsel for the petitionerhas relied on Smt. Sushila Rai vs.Regional Manager, Allahabad Bank &others (2007) 3 UPLBEC (Sum) 110,S.K.Mastan Bee Vs. General Manager,South Central Railway & another (2003)1 UPLBEC 247 and Triloki Nath YadavVs. Allahabad Bank and others (2003) 2UPLBEC 1474.13. Learned counsel for therespondents submits that the petitioner hadnot applied on the prescribed format withinthe stipulated period of 120 days under the1995 Pension Regulations and the

1 All] Smt. Geeta Varshney V. Allabahad Bank Thru' M.D. H.O. Calcutta and others 97allegation of filing an application dated16,11,1995 in December, 1995 is incorrectand as such the Bank has rightly rejectedher representation; that the petitioner is inservice of the Bank as a Cashier-cum-Clerk and she was fully aware of the newpension scheme and she failed to submitthe application in the prescribed formatwithin the stipulated time and as such sheis not entitled to family pension and thatthe petitioner has also failed to undertaketo refund the GPF contribution to theBank.14. We are unable to accept thecontention raised by the learned counselfor the respondents and we find force inthe contention raised by learned counselfor the petitioner.15. It is not disputed that thepetitioner's case is fully covered under thenew pension scheme which was introducedin the year 1995 (1995 PensionRegulations). The only ground of rejectionof claim of the petitioner was delay infiling the application in the prescribedformat. The respondents have vehementlydenied the receipt of the application of thepetitioner in December, 1995. However,there is no denial that an application wasgot filled by the Bank on 27.11.1997. Thestatement made by the petitioner inparagraph 11 of the writ petition was notdenied by the Bank and on the contrary itwas admitted to the extent that theapplication was given, however the bankhad not given any assurance that she willget the family pension.16. The decision in the case of Smt.Sushila Rai (supra) has considered theeffect of delay in moving the applicationby an employee. The facts of this case arevery much similar to the facts of thepresent case. In that case the husband ofthe petitioner Smt. Sushila Rai died inharness on 26.01.1994. The Bank came outwith a scheme (1995 Pension Regulations)which came into force on 29.09.1995,beside other things, it provided for grant offamily pension one of the conditionswhereof was that only such employeeswould be entitled to the benefit of the 1995Regulations who had been in service of theBank on or before 01.01.1986 and the lastdate for opting such scheme was 120 daysfrom the date of enforcement of the 1995Pension Regulations. The widow of theemployee applied under the saidRegulations on 16.06.1998 for grant offamily pension and the respondent bankrefused to grant the said benefit on theground that the application was not filledwithin the stipulated period of 120 days.After hearing counsel for both the partiesthe court observed as under:-"Having heard learned counsel forthe parties and on perusal of the recordand considering the facts andcircumstances of this case, in my view, thepetitioner would be entitled to the grant offamily pension under the Regulations of1995 on the basis of her application filedon 16.6.1998. The submission of SriTewari that individual intimation was notrequired to be given, would not beacceptable. There was no direction by theIndian Banks' Association vide its letterdated 21.11.1995 for not intimating theindividual retired employees or familymembers of the deceased employees. In thesaid letter, it had only been stated that theindividual Banks need not notify the samethrough press. As such the Bank wasobliged to carry out the requirement ofintimation by the Bank in terms of thecircular dated 16.11.1995.

98 INDIAN LAW REPORTS ALLAHABAD SERIES [2012In the case of Jai Singh B. Chauhan(supra), the Supreme Court was dealingwith the case of a serving employee whodid not opt for the pension scheme withinthe stipulated period of 120 days and hadthereafter made representation only on4.5.1998 with a request to be coveredunder the pension scheme and that too noton the requisite form. When the same wasrejected by the Bank, the employee filed awrit petition, which was dismissed andultimately the Apex Court also dismissedthe claim of the employee on the groundthat the publication of the scheme in theofficial gazette would be construed assufficient notice to the employee of theBank. The case of a serving employeeopting for pension scheme in the year1998, when the scheme had been issued in1995 which provided for giving of optionwithin 120 days, would be distinct fromthat of a widow of a deceased employee.The circular dated 16.11.1995, as hadbeen issued by the respondent-Bank, wasneither placed before the Apex Court norwas it applicable, as the claimant therewas a serving employee. By the circulardated 16.11.1995, the Bank itself requiredthe issuance of notice to each retiredemployee or family members of thedeceased employee, which was admittedlynot sent to the petitioner in this particularcase. Such requirement must have beenfound necessary by the respondent-Bankas a retired employee or family membersof the deceased employees could not behaving information of the schemepromulgated by the Bank. On thecontrary, as publicity of the scheme wasgiven in the bank offices, there was nosuch requirement of individual intimationto the serving employees, as they wouldhave, in any case, come to know of thescheme of the bank in the normal course.In such view of the matter, the ratio of thedecision in Jai Singh B. Chauhan's casewould not be applicable to the facts of thepresent case.In the case of S.K. Mastan Bee(supra), the Apex Court was dealing withthe case of grant of family pension to thewidow of a retired employee. In the saidcase also, the claim of the widow wasrejected by the employer on the ground ofdelay. In such facts, the Apex Courtdirected payment of the entire arrears ofpension within three months and allowedthe writ petition with costs of Rs. 10,000/-.While allowing the writ petition, the ApexCourt made the following observations:-"6. We notice that the appellant'shusband was working as a Gangman whodied while in service. It is on record thatthe appellant is an illiterate who at thattime did not know of her legal right andhad no access to any information as toher right to family pension and to enforceher such right. On the death of thehusband of the appellant, it wasobligatory for her husband's employee,viz., railways, in this case to havecomputed the family pension payable tothe appellant and offered the same to herwithout her having to make a claim orwithout driving her to a litigation. Thevery denial of her right to family pensionas held by the learned Single Judge aswell as the Division Bench is anerroneous decision on the part of therailways and in fact amounting to aviolation of the guarantee assured to theappellant under Article 21 of theConstitution. The factum of theappellant's lack of resource to approachby the legal forum timely is not disputedby the railways. Question then arises onfacts and circumstances of this case, theAppellate Bench was justified in

1 All] Smt. Geeta Varshney V. Allabahad Bank Thru' M.D. H.O. Calcutta and others 99restricting the past arrears of pension to aperiod much subsequent to the death ofappellant's husband on which date shehad legally become entitled to the grant ofpension? In this case as noticed by usherein above, the learned Single Judgehad rejected the contention of delay putforth by the railways and taking note ofthe appellant's right to pension and thedenial of the same by the railwaysillegally considered it appropriate togrant the pension with retrospective effectfrom the date on which it became due toher. The Division Bench also whileagreeing with the learned Single Judgeobserved that the delay in approachingthe railways by the appellant for the grantof family pension was not fatal inspite ofthe same it restricted the payment offamily pension from a date on which theappellant issued a local notice to therailways i.e. on 1.4.1992. We think on thefacts of this case inasmuch as it was anobligation of the railways to havecomputed the family pension and offeredthe same to the widow of its employee assoon as it became due to her and also inview of the fact her husband was only aGangman in the railways who might nothave left behind sufficient resources forthe appellant to agitate her rights andalso in view of the fact that the appellantis an illiterate. The learned Single Judge,in our opinion, was justified in grantingthe relief to the appellant from the datefrom which it became due to her, that isthe date of the death of her husband.Consequently, we are of theconsidered opinion that the DivisionBench fell in error in restricting thatperiod to a date subsequent to 1.4.1992."(emphasis supplied)In the present case also, theentitlement of the petitioner for grant offamily pension is not denied by therespondent-Bank. The sole reason forrefusing such benefit to the petitioner isbecause of delay on behalf of thepetitioner in making such applicationopting for the pension scheme. This Courtis of the clear view that in terms of theirown circular dated 16.11.1995, it wasobligatory on the part of the respondent-Bank to inform the retired employees orfamily members of the deceasedemployees, of the pension scheme at theirlast known permanent address. In theabsence of the respondent-Bank havingfulfilled such obligation, in my view, therespondent-Bank cannot refuse to grantthe benefit of the pension scheme to thepetitioner merely on the ground of delay.In equity as well as under law, thepetitioner would be entitled to the benefitof the family pension scheme under theRegulations of 1995.For the foregoing reasons, this writpetition is allowed and it is directed thatthe respondents shall give the petitionerthe benefit of the family pension under theAllahabad Bank (Employees') PensionRegulations, 1995 on the basis of theapplication filed by the petitioner on16.6.1998. The arrears of pension shallbe computed by the respondent-Bankwithin three months from the date of filingof a certified copy of this order before therespondent no. 1, the Regional Manager,Allahabad Bank, Regional Office,Mohaddipur, Gorakhpur and the entirearrears shall be paid to the petitionerwithin one month thereafter. Thepetitioner shall also be entitled topayment of future family pensionregularly month by month. In case ofdefault in making the payments within the

100 INDIAN LAW REPORTS ALLAHABAD SERIES [2012aforesaid time schedule, the petitionerwould be entitled to 9% interest from thedate she is found entitled to such payment,till actual payment. It is made clear that ifthe payment is made within the stipulatedtime, the respondent-Bank shall not beliable to pay any interest. No order as tocosts."17. In the present case also the factsare similar to the above case and even ona better footing. If the argument of theBank is also accepted that no applicationwas moved by the petitioner as alleged inthe writ petition on 16.11.1995 or inDecember, 1995, moving of anapplication along with form on27.11.1997 is not denied. In the case ofSmt. Sushila Rai (supra) the applicationwas moved on 16.06.1998 after lapse ofalmost three years while in the presentcase it was moved on 27.11.1997 and theonly ground taken by the respondents alsois of delay in moving the aforesaidapplication and also of not complying theconditions given therein. The petitionerhas also stated that she was not suppliedwith the copy of the said scheme inspiteof the clear instructions of the Bank. It isalso not the case of the Bank that thepetitioner was supplied with the saidscheme or the said scheme was sent at herpermanent address. The Bank has also nottaken any other ground to reject the claimof the petitioner. Therefore, the case ofthe petitioner is fully covered by thedecision in the case of Smt. Sushila Rai(supra).18. In view of the above discussions,the writ petition succeeds and is allowed.The order dated 12.05.2002 passed byrespondent no.4 (Annexure-7 to the writpetition) is quashed. It is directed that therespondent shall give benefit of familypension to the petitioner under theAllahabad Bank (Employees) PensionRegulation, 1995 on the basis theapplication filed by her on 27.11.1997.19. No order as to costs.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 03.01.2012BEFORETHE HON'BLE RAN VIJAI SINGH,J.Civil Misc. Writ Petition No. 37206 of 2000Prem SinghVersusXIIth Adj,Agra & othersCounsel for the Petitioner:Sri Ranjit SaxenaSri Anupam Kulshreshtha,Sri H.N.SinghSri R.S.KushwahaSri R.S.KulshreshthaSri S.K.KulshreshthSmt. Anita TripathiSri Sharat Chandra UpadhyayCounsel for the Respondents:Sri Pradeep kumarSri R. KumarC.S.C....Petitioner...RespondentsCode of Civil Procedure-Order 41 Rule-19-Application to re-admit and condonedelay in filing such application-rejectedon ground after transfer of appeal thecounsel put appearance-can not beallowed to say absence knowledge-heldwhencounsel made endorsement thathis client not responding -court belownot justified in drawing inference ofknowledge-word-sufficient cause-to beapplied meaningful manner to sub servesthe end of justice and not to close thedoor of justice-direction issued to decide

1 All] Prem SIngh V. XIIth Adj,Agra & others 101the appeal itself on its merit within timebound period.Held: Para 20On the cost of repetition, it may beobserved that once the court has issuednotice to the appellant, then withoutthere being any prima facie satisfactionwith regard to service of notice, thecourt should not have proceeded on theassumption that the counsel is appearingwhen the counsel himself endorsed thathis client is not responding. Coupled withthe fact that the counsel who wasappearing in suit has subsequently beenchanged while filing appeal in the HighCourt, taking that into consideration, Ifind that there was sufficientexplanation to condone the delay infiling the restoration application.Otherwise also, if the court below was ofthe opinion that there was no sufficientexplanation to condone the delay and torestore the appeal to its original number,in that eventuality, the court belowought to have examined the matter witha view to see the purpose ofestablishment of courts, which certainlyare established to impart the substantialjustice to parties. While considering thematter of condonation of delay, the meritof the case was also to be taken intoconsideration.Case law discussed:A.I.R. 1987 SC 1353; JT 2000 (5) 389; 1978ARC 496; First Appeal From Order No. 2023 of2010 (Ram Garib and another Vs Ram PrasadMishra), decided on 11.02.2011; 2011 (8) ADJ511(Delivered by Hon'ble Ran Vijai Singh,J. )1. This writ petition has been filedfor issuing writ of certiorari quashing theorder dated 20.07.2000, passed by XIIthAdditional District Judge, Agra in Misc.Case No. 82 of 1990 (Prem Singh Vs.Roshan Singh), by which the petitioner'sapplication, filed under Section 5 ofLimitation Act, for condoning the delay,in filing application under Order XLI,Rule 19 of the Code of Civil Procedure(hereinafter referred to as CPC), has beenrejected.2. The facts giving rise to this caseare that it appears that an agreement wasentered in between the petitioner and therespondent No. 3 for execution of saledeed of 1/3rd share in disputed plot No.208, measuring about 1 bigha 4 biswa,Khasra No. 209, area 6 bigha 1 biswa 10biswansi, total 7 bigha 7 biswa 10biswansi for consideration ofRs.35,000.00, out of which Rs.10,000.00was alleged to have been paid as anearnest money. However, the sale deedwas not executed, in the time, stipulatedin the agreement, therefore, thedefendant-respondent No. 3 had filedOriginal Suit No. 328 of 1988 forSpecific Performance of Contract toexecute the sale deed. The suit wasdecreed on 20.07.1990.3. Aggrieved by the aforesaidjudgment, the defendant-petitioner filedappeal before this Court. Thereafter,because of change of pecuniaryjurisdiction, the aforesaid appeal wastransferred before the court below. Aftertransfer on 30.08.1996, a notice wasissued by the court below to theappellant, fixing 31.10.1996. On31.10.1996, it appears, another date wasfixed. The appellant did not appear andthe case was adjourned for 15.02.1998.Thereafter, it was again adjourned for29.03.1998. On 29.03.1998, the counsel,who was appearing in the suit, wasinformed by the court concerned toappear in the court. Pursuant thereto, heappeared before the court below andmade an endorsement on the order-sheet

102 INDIAN LAW REPORTS ALLAHABAD SERIES [2012that appellant is not responding, hencenotice be issued to the appellant.4. The court below, taking theservice of notice on the appellantsufficient through counsel, on08.07.1997 dismissed the appeal for wantof prosecution.5. It appears that an application wasfiled by the appellant thereafter, underOrder XLI, Rule 19 CPC, to re-admit theappeal along with an application forcondonation of delay. In the applicationit was stated that, at no point of time, thepetitioner/appellant was informed aboutthe transfer of the appeal before the courtbelow and the date fixed in the matter,and he came to know about the sameonly on 09.04.1999 when he had taken acopy of khatauni from the Lekhpal. It isalso stated that since 09.04.1999 to14.04.1999 the appellant was busy infiling objection in execution case of thesuit property, therefore could not file theaforesaid application.6. The lower appellate court, takingnote of the fact that the service of noticewas sufficient as the counsel had alreadyappeared, rejected the application forcondonation of delay. The learnedcounsel for the petitioner while assailingthis order has contended that once thenotice was issued to the appellant, aspecific report ought to have been therethat the notice issued by the court wasserved on the appellant. He has alsodrawn attention of the Court towards theprovisions contained in Order III, Rule 4(3) (b) CPC. In the submission of thelearned counsel for the petitioner, theservice of notice upon the counsel whowas appearing before the court below inthe suit proceeding was not sufficient, asthe appeal was filed before the HighCourt through different counsel, meaningthereby, the earlier Vakalatnamaexecuted in favour of the counselappearing in the suit proceeding has beenterminated. He has also submitted thatthere may not be sufficient explanationfor condoning the delay in filing theapplication under Order XLI, Rule 19,but on that count, the application shouldnot have been rejected.7. Refuting the submissions of thelearned counsel for the petitioner, ShriPradeep Kumar, learned counselappearing for respondent has submittedthat the provisions contained under OrderIII, Rule 4 (c) are mandatory in nature,and unless the vakalatnama i.e.authorisation to appear in the case isspecifically withdrawn or some order ispassed by the Court to that effect, thatwill continue and mere engagement ofanother counsel will not mean that theearlier counsel has been disengaged. Hehas also submitted that the petitioner hascontested the execution matter and filedobjection there and the objection wasrejected, and ultimately, the sale deedwas executed in favour of therespondent-plaintiff on 07.11.1998through court, and the plaintiffrespondenthas been in possessionthroughout thereafter. In the submissionof the learned counsel for therespondents, the writ petition lacks meritand deserves to be dismissed.8. I have heard Shri H.N. Singh,Ms. Anita Tripathi, Shri Sharat ChandraUpadhyay, learned counsel for thepetitioner and Shri Pradeep Kumar,learned counsel appearing for contestingrespondents and perused the record.

1 All] Prem SIngh V. XIIth Adj,Agra & others 1039. From the perusal of theimpugned order it transpires that thecourt below has proceeded on theassumption that the appellant was havingknowledge of the pendency of the appealand participated in the proceeding anddeliberately not made the submission onmerit. While coming to this conclusion,learned Judge has recorded that noticewas issued to the appellant in the appealas well as in the execution proceeding,but he has not chosen to appear in theappeal. The Court found that the serviceof notice was sufficient as the counselwho had appeared in the suit proceedingwas informed and he appeared before thecourt.10. Shri H.N. Singh, learnedcounsel appearing for the petitioner hasinvited attention of the Court towardssub-rule (3) (b) of Rule 4 of Order IIIC.P.C. which reads as under:-"O. III, R. 4 (3) (b) as authorisingservice on the pleader of any notice ordocument issued by any Court other thanthe Court for which the pleader wasengaged, except where such service wasexpressly agreed to by the client in thedocument referred to in sub-rule (1)."11. In the submission of the learnedcounsel for the petitioner, from perusalof the aforesaid rule, it transpires that theknowledge of the suit proceeding willonly be material when the proceedinghas commenced in that very court. In hissubmission, after the decree in the suit,the petitioner/defendant has filed anappeal before High Court and there adifferent counsel was engaged. Theappeal was admitted and interim orderwas also granted, therefore, by anystretch of imagination, it cannot be saidthat the earlier counsel, who wasprosecuting the suit proceeding, shallcontinue even after transfer of the appealfrom High Court to the court below. Inhis submission, after engagement ofanother counsel in the High Court, theauthorisation/power given in the suitproceeding by the defendant-petitionerwould cease to operate and it cannotrevive automatically unless freshauthorisation is given by the appellant.12. Shri Pradeep Kumar, learnedcounsel appearing for respondent hassubmitted that as soon as the appeal hasbeen transferred to the court below, theappeal pending before the court belowwill be treated as continuation of the suitproceeding in view of sub-section (2) (c)of Rule 4 of Order III, and therefore, thecounsel who has put in appearance in thesuit proceeding shall continue to be thecounsel on behalf of the defendant.13. The argument advanced by thelearned counsel for the petitioner appearsto be misconceived for the reason that ifthe sub-rule (2) and sub-rule (3) (b) ofRule 4, Order III C.P.C. is read together,it would transpire that appointment of thepleader shall be deemed to be in forceuntil determined with leave of the Courtby writing signed by the client orpleader, as case may be, and filed inCourt, or until the client or the pleaderdies or until all the proceedings indispute are ended so far as regards theclient. Sub-rule (2) (c) of Rule 4 providesthat the authorisation will continue inappeal from any decree or order in thesuit. The sub-rule (3) (b) providesnothing in sub-rule (2) shall be construedas authorising service on the pleader ofany notice or document issued by anyCourt other than the Court for which

104 INDIAN LAW REPORTS ALLAHABAD SERIES [2012pleader was engaged, except where suchservice was specially agreed to by theclient in the document referred to in subrule(1).14. Here, in this case, although theappeal was filed before the High Court,and later on transferred before the courtbelow, but at no point of time, the clienthas withdrawn the authorisation or theCourt has determined such authorisation,and here the proceeding after transferwas going on before the court below andthere was a valid engagement of thecounsel in the suit. Therefore, in view ofthe legal proposition that the appeal isthe continuation of the suit proceeding,the authorisation of the counsel shall betreated to be valid one. The only questionremains as to whether on the specificstatement of the counsel that he has noinstructions and client is not respondingin the matter, was it proper on the part ofthe court below to proceed with thematter in absence of the counsel,particularly, under the circumstanceswhen the file was taken away and matterwas brought before the High Court.15. From perusal of the impugnedorder, it transpires that the notice wasalso issued to the appellant, but it has notbeen recorded by the learned judgedeciding the application that that noticewas ever served upon the appellant, andthis could also not be pointed out by thelearned counsel appearing for therespondent that the notice issued by thecourt below was served personally on thedefendant-petitioner.16. On the contrary, a documenthas been shown, which has been broughton record through supplementaryaffidavit with report of the processserver, which reads as under:-"Jheku thfn- 4-12-96 dks xzke clbZ vkxjk tkdj izseflag dks ryk'k fd;k ugh feys ekStwnk O;fDr;ksa ustqckuh crk;k 'kknh esa x;s gq;s gSA vkus dk dksbZirk ugh pyk vr% ,d fdrk uksfVl muds edkuls yxk fn;kA xokgh fdlh us ugh nhA fjiksVZ ogYQ lgh gSAg0 xksfoUn flagvk-rk-4-12-96^^17. From the perusal of report ofthe process server, it transpires that thenotice was not served personally and thesame was pasted on the door of thepetitioner/appellant as he was notavailable there. It also transpires thatwhile this pasting was done, nobody haswitnessed it. In such circumstances, I amof the view that in absence of anyconcrete proof, for recording thesatisfaction of the court, with regard tothe service of notice on thepetitioner/appellant, the court belowshould not to have proceeded with thematter, and the only course open was toissue a fresh notice to the appellant andnot to proceed on the assumption that,the counsel had knowledge, and in spiteof the positive assertion of the learnedcounsel (who appeared before the court)that the appellant was not responding.18. So far as the knowledge of thepetitioner with regard to the filing of theapplication under Order XLI, Rule 19 isconcerned, it was filed on 24th April,1999 with the positive assertion that thedefendant had acquired knowledge of theaforesaid order only on 09.04.1999, andafter coming to know he had also filed

1 All] Prem SIngh V. XIIth Adj,Agra & others 105objection on 26.04.1999 in the executioncase. The court below has taken the viewthat the application filed by the appellantwas highly barred by time and there wasno proper explanation for not filing theapplication well within time. The courthad also proceeded with the assumptionthat in spite of the knowledge of theproceeding, the restoration applicationwas not filed.19. From the perusal of the record,it transpires that there is no material onthe record to establish this fact that thepetitioner has got knowledge about theorder of the dismissal of the appeal priorto 09.04.1999. The court below hasproceeded only on the assumption thatsince the petitioner has filed objection inthe execution case and his counsel hasalso appeared in execution as well as inappeal proceedings, therefore, it wasvery well in the knowledge of thepetitioner and he ought to have filed therecall application promptly without anydelay.20. On the cost of repetition, it maybe observed that once the court hasissued notice to the appellant, thenwithout there being any prima faciesatisfaction with regard to service ofnotice, the court should not haveproceeded on the assumption that thecounsel is appearing when the counselhimself endorsed that his client is notresponding. Coupled with the fact thatthe counsel who was appearing in suithas subsequently been changed whilefiling appeal in the High Court, takingthat into consideration, I find that therewas sufficient explanation to condone thedelay in filing the restoration application.Otherwise also, if the court below was ofthe opinion that there was no sufficientexplanation to condone the delay and torestore the appeal to its original number,in that eventuality, the court below oughtto have examined the matter with a viewto see the purpose of establishment ofcourts, which certainly are established toimpart the substantial justice to parties.While considering the matter ofcondonation of delay, the merit of thecase was also to be taken intoconsideration.21. In Collector, Land Acquisition,Anantnag & Anr. Vs. Mst. Katiji &Ors., A.I.R. 1987 SC 1353, the ApexCourt, while dealing with the expression'sufficient cause', for the purposes ofcondonation of delay, has observed asunder:-The expression "sufficient cause"employed by the legislature is adequatelyelastic to enable the Courts to apply thelaw in a meaningful manner whichsubserves the ends of justice, that beingthe life-purpose for the existence of theinstitution of Courts. It must be graspedthat judiciary is respected not on accountof its power to legalise injustice ontechnical grounds, but because it iscapable for removing injustice and isexpected to do so.22. Further, in the case of State ofBihar & Ors. Vs. Kameshwar PrasadSingh & Anr., JT 2000 (5) 389, the ApexCourt, while dealing with the word'sufficient cause', has observed as under:-"Para 12......... The expression'sufficient cause' should, therefore, beconsidered with pragmatism in justiceorientedprocess approach rather than thetechnical detention of sufficient case forexplaining every day's delay. The factors

106 INDIAN LAW REPORTS ALLAHABAD SERIES [2012which are peculiar to and characteristicof the functioning of pragmatic approachin justice-oriented process. The courtshould decide the matters on meritsunless the case is hopelessly withoutmerit. No separate standards todetermine the cause laid by the State visa-visprivate litigant could be laid toprove strict standards of sufficientcause."23. Further in the case of RamjiDass & Ors. Vs. Mohan Singh, 1978ARC 496, the Apex Court has held, "weare inclined to the view that, as far aspossible, Courts' discretion should beexercised in favour of hearing and not toshut out hearing."24. A Division Bench of this Courtin First Appeal From Order No. 2023 of2010 (Ram Garib and another Vs RamPrasad Mishra), decided on 11.02.2011,while dealing with the appeal filedagainst an order of rejection ofapplication under Order IX, Rule 13C.P.C. has also taken the same view andset aside the ex parte decree.25. While dealing with anapplication filed under Section 5 of theIndian Limitation Act, this Court in thecase of Hindalco Industries Limited Vs.Brijesh Kumar Agarwal & Anr., 2011(8) ADJ 511, has observed that the courtshould decide the cases on merit insteadof scuttling the process of justice ontechnicalities. Taking note of that, I findthat the order passed by the court belowis contrary to the settled provisions oflaw, and there was sufficient cause tocondone the delay.quashed. The writ petition succeeds andis allowed. I would also like to allow therestoration application as well andrestore the appeal to its original number.Of course, the inconvenience caused tothe plaintiff-petitioner is to becompensated, and for that, I impose acost of Rs.5000.00 on the petitionerwhich is to be paid to the defendantrespondentthrough his counsel, ordirectly. The lower appellate court isdirected to decide the appeal on merits, ifpossible, within a period of one yearfrom the date of receipt of certified copyof the order of this Court along withreceipt of payment of cost to theplaintiff/opposite party, without grantingany unnecessary adjournments to thelearned counsel for the parties.27. Shri Pradeep Kumar, learnedcounsel appearing for respondent hassubmitted that since the sale deed hasalready been executed and the applicantis in possession, therefore, the allowingof this appeal may affect his possession.I am of the view that nothing would turnby allowing of the restoration, unless theappeal is allowed and decree, passed bythe court below, is set aside, everything,which has been done by the executingcourt, that shall continue.28. It may be clarified that I havenot addressed myself on the merits of thecase and the learned court below shallproceed with the appeal independentlywithout being influenced by any of theobservations made by me in thisjudgment.---------26. In view of that, the impugnedorder dated 20.07.2000 is hereby

1 All] Munish Kumar Sharma and another V. State of U.P. and others 107ORIGINAL JURISDICTIONCIVIL SIDEDATED; ALLAHABAD 19.01.2012BEFORETHE HON'BLE RAN VIJAI SINGH,J.Civil Misc Writ Petition No. 45303 of 2006Munish Kumar Sharma and another...PetitionerVersusState Of U.P. and others ...RespondentsCounsel for the Petitioner:Sri Prabhakar SinhaSri Swarn Kumar SrivastavaSri Kamal Kumar SinghSri Indra Raj SinghCounsel for the Respondents:C.S.C.Constitution of India, Article 226-salary-Bifurcation of Pay Scale by G.O.16.03.1998-Quashed-became finalsubsequentG.O. Dated 03.06.2000-againbifurication in garb of 5 th PayCommission-automatically becamelifeless-held-petitioner entitled for everyconsequential benefits of salary from thedate of his substantive appointmentwithinspecified period.Held: Para 16 and 17It is also notable that it is not the standof the state government that against theorder dated 22.11.2001 quashing theorder dated 16.3.1998 bifurcating thecadre, the State government has takenlegal recourse by way of filing specialappeal or special leave to appealmeaning thereby the said order hasbecome final.Taking note of that, the writ petitionsucceeds and is allowed and writ ofmandamus is issued directing therespondent no. 1 to ensure the paymentof salary to the petitioner in the scale of950-1500 with further revision of thisscale in view of the subsequent report ofPay Commission. The entire exercise hasto be done within a period of fourmonths from the date of receipt ofcertified copy of the order of this Court(Delivered by Hon'ble Ran Vijai Singh,J. )1. Initially this writ petition wasfiled with by the two petitioners out ofwhich petitioner no. 1 has passed away on23.1.2010. The abatement application hasbeen allowed and the writ petition standsabated so far as it relates to the petitionerno.1.2. This writ petition has been filedwith the following prayers:-(a) Issue a writ order or direction inthe nature of mandamus commanding therespondent no. 3 to grant revised payscale to the petitioner Rs. 3050-75-3950-80-4590.(b) Issue a writ order or direction inthe nature of mandamus commanding therespondents to pay arrears of revised payscale.(c) Issue any other writ, order ordirection as this Hon'ble Court may deemfit and proper under the circumstances ofthe case.(d) Award the cost of the petition tothe petitioner.3. The petitioner was working ondaily wage basis with the respondentssince 1980 and on 1st November, 1984 hewas made member of the work chargeestablishment and thereafter his serviceswere regularised on the post ofAmin/Surveyor vide order dated 20th

108 INDIAN LAW REPORTS ALLAHABAD SERIES [2012January, 1998 passed by SuperintendentEngineer, Public Work Department,Rampur Division, Rampur in the scale ofRs. 950 to 1500.4. It appears after Fifth PayCommission report, the salaries of theState government employees were revisedwith effect from 1.1.1996 and it isthereafter a government order dated16.3.1998 was issued by the Stategovernment bifurcating the cadre of ClassIII employees in two categories, one inthe scale of Rs.825 to Rs.1200 andanother Rs.950 to Rs.1500. On revision ofpay scale of 950-1500 changed Rs.3050to 4590 whereas pay scale of Rs.825 toRs.1200 was changed from Rs.2750 toRs.4400. The post of amin has beencategorised under the scale of Rs.825-Rs.1200. In pursuance of the aforesaidgovernment order, the salary of thepetitioner was reduced vide order dated3.6.2000.5. Learned counsel for the petitionersubmits that the validity of thegovernment order dated 16.3.1998 waschallenged through various writ petitionsand those writ petitions were allowedafter quashing the Government Orderdated 16.3.1998, copy of one such orderhas been brought on record of this writpetition as Annexure 5. It is contended bylearned counsel for the petitioner thatonce the government order which was thebasis for bifurcating the cadre of Class IIIemployees and reducing their pay scalewas quashed by this Court, the orderdated 3.6.2000 has automatically come toan end. He has also submitted that in thisregard, various representations have beenfiled before the competent authority butno decision has been taken thereon.Hence the petitioner has filed present writpetition.6. In the submissions of learnedcounsel for the petitioner, the action of theState government is violative of Article14 of the Constitution of India as thegovernment cannot discriminate its ownemployees working in the same cadre. Inhis further submissions, the stand taken inthe counter affidavit that the petitioner hasnot challenged the order dated 3.6.2000by which the salary was reduced thereforeno relief can be granted to the petitioner,is unsustainable in the eye of law.7. Refuting the submission oflearned counsel for the petitioner, learnedStanding Counsel has submitted that thiswrit petition has been filed in the year2006 much after the order dated 3.6.2000in persuance whereof his salary wasrefixed, therefore it ought to have beenchallenged by the petitioner while filingthe present writ petition. In hissubmissions, without challenging theorder dated 3.6.2000 by which the salaryof the petitioner was reduced, no reliefcan be granted to the petitioner unless theorder dated 3.6.2000 is quashed by thisCourt.8. I have heard Sri Indra Raj Singh,learned counsel for the petitioner andlearned Standing Counsel for the Staterespondents and considered theirsubmissions after perusing the record.9. The controversy in this case is toconsider, the effect of bifurcation of thecadre, after the Fifth Pay Commission andthe consequential order of StateGovernment dated 16.3.1998. It is not indispute that the petitioner was appointedin substantive capacity against the post of

1 All] Munish Kumar Sharma and another V. State of U.P. and others 109amin/surveyor and in the year 1998 andhis salary was paid in scale of 950-1500.However after the revision of pay scalewith effect from 1.1.1996, the Stategovernment bifurcated the cadre of ClassIII employee in two scales Rs.950 -Rs.1500 and Rs.825- Rs.1200 throughgovernment order dated 16.3.1998, whichlater on has been quashed by this Court on22.11.2001 passed in Writ Petition No.34315 of 1999. The order dated 3.6.2000admittedly was passed in consequence ofthe order dated 16.3.1998.10. The meaning of word 'quash' inThe New Lexicon Webster's DictionaryEncyclopedic Edition has been given asunder :-Quash means to annual and to putdown.11. In Concise Oxford EnglishDictionary, Indian Edition the meaningof word quash has been defined as under:-Quash means reject as not validand suppress.12. Looking into the meaning of word'quash' it is apparent that the order dated16.3.1998 has been annulled/putdown/declared as invalid by this Court.Meaning thereby whatever its existence wasprior to its quashing has now becomeineffective and infact disappeared.Therefore, any order passed on theineffective/annulled, order has becomemeaningless and has died to its automaticdeath.13. The matter may be examined fromanother angle also. The Pay Commissionhas submitted its report with regard to therevision of the pay scale of the particularcategories of the employees consideringtheir conditions of service and needs forrevision of pay scale, therefore after thesubmission of Pay Commission report, itwas not open to the State government tobifurcate the cadre, which submitted itsreport after considering the necessary majorfor revision of salary. Needless to say thatalthough the report of the Pay Commissionis not binding upon the State Governmentbut once it has been accepted then it was tobe given effect in full swing and not tobifurcate the cadre, which in fact wouldamount the circumventing of the reportadversely affecting the right of a particularcategory of employees.14. I am of the view that once thebasis of bifurcation of cadre and refixationsalary i.e. the government order 6.3.1998was quashed by this Court, the leg of the16.3.2000 has broken and it fallen down onearth and has died to its automatic death asthe life of government order dated 6.3.2000was the order dated 16.3.1998. Thereforethe stand of State government that since thepetitioner has not challenged the order dated6.3.2000 therefore he cannot be givenbenefit of quashing of the order dated16.3.1998 become unsustainable in the eyeof law.15. The matter may be examined fromanother angle also. The State government isthe biggest employment generating agencyand it has got number of category ofemployees who are getting their salariesfrom the State exchequer in lieu theirperformance of duty and if any governmentorder applicable to the employees becomessubject matter of challenge before the Courtof law and the Court quashes the same, inthat eventuality, the pious duty of the Stategovernment is to treat all the

110 INDIAN LAW REPORTS ALLAHABAD SERIES [2012employees/incumbent on equal footingwithout there being any discrimination.Otherwise it will lead to dissatisfactionamongst the employees and inspire thelitigation and it is none else except the StateExchequer which will be burdened to meetout litigation expense, apart the engagementof its officers in contesting the litigation.The State government being modleemployer is expected to act fairly withoutany discrimination. Further it should notpromote the litigation and drag itsemployees in litigation unless it is verynecessary and the payment is going to bemade contrary to the rules, no chanceshould be given to employee to knock thedoor of Courts.16. It is also notable that it is not thestand of the state government that againstthe order dated 22.11.2001 quashing theorder dated 16.3.1998 bifurcating the cadre,the State government has taken legalrecourse by way of filing special appeal orspecial leave to appeal meaning thereby thesaid order has become final.17. Taking note of that, the writpetition succeeds and is allowed and writ ofmandamus is issued directing therespondent no. 1 to ensure the payment ofsalary to the petitioner in the scale of 950-1500 with further revision of this scale inview of the subsequent report of PayCommission. The entire exercise has to bedone within a period of four months fromthe date of receipt of certified copy of theorder of this Court18. Needless to say that the petitionershall be paid salary from the date of hisentitlement subject to his working in thedepartment.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 20.01.2012BEFORETHE HON'BLE ASHOK BHUSHAN,J.THE HON'BLE MRS. SUNITA AGARWAL,J.Civil Misc. Writ Petition No. 65428 of 2006Harijinder SinghVersusState of U.P. and othersCounsel for the Petitioner:Sri U.K. PurwarSri Pramod Kumar SrivastavaSri Abhishek MisraSri Ravindra KumarSri Manoj SaxenaSri Vishnu SahaiSri B.DayalCounsel for the Respondents:Sri A.P. SrivastavaSri Vivek SaranSri Ashish Kumar SinghSri Ajay Kumar SinghSri A.S. RanaSri M.K. GuptaC.S.C....Petitioner...RespondentsLand Acquisition Act-Section-48-LandAcquired for housing Scheme by AwasVikasParishad-compensationdetermined-symbolic possession taken-.reference proceeding for enhancementgoing on-adjoining plot exemptedrepresentationby petition rejected-heldnotproper-direction to consider anddecide representation for exemptionwithin time bound consideration-till thenstay in terms of SLP to continue.Held: Para 32 and 33In view of the law as laid down by theApex Court as above, the respondentsare obliged to consider the claim of landholders for exemption uniformly on a

1 All] Harijinder Singh V. State of U.P. and others 111rational policy and the respondentscannot take decision regardingexemption of land from acquisitionarbitrarily and discriminately.In view of the fact that all relevantmaterials including proceedings of theBoard have not been brought on therecord by the respondents, it is notpossible for this Court to examine suchdecision and to decide the claim of thepetitioner, hence it is in the interest ofjustice that the Board be directed toconsider the claim of the petitioner forexemption of Plot No.368/1 from thehousing scheme.Case law discussed:2010 (3) SCC 621; A.I.R. 1975 SC 1767(Delivered by Hon'ble Ashok Bhushan, J.)1. Heard Sri Pramod KumarSrivastava, learned counsel for thepetitioner, Sri A.P. Srivastava, learnedcounsel appearing for respondents No.2, 3and 4, Sri M.K. Gupta, assisted by SriAshish Kumar Singh for respondent No.5and learned Standing Counsel.2. Counter affidavit and twosupplementary counter affidavits have beenfiled by the U.P. Avas Evam Vikas Parishadto which rejoinder affidavit andsupplementary rejoinder affidavits have alsobeen filed by the petitioner. With theconsent of learned counsel for the parties,the writ petition is being finally disposed of.3. Brief facts of the case, as emergefrom pleadings of the parties, are; anotification dated 26th June, 1982 underSection 28 of the U.P. Avas Vikas ParishadAdhiniyam, 1965 (hereinafter referred to asthe 1965 Act) was issued notifying variousplots which were proposed to be acquiredfor a housing scheme including PlotNo.368/1 situate in village Prahlad Garhi,district Ghaziabad. Objections against theproposed acquisition were filed by varioustenure holders. The Niyojan Samiti of theU.P.Avas Evam Vikas Parishad held itsmeetings on 6th, 7th and 8th of April, 1993and considered various objections. TheNiyojan Samiti recommended forexempting portion of various plotsincluding certain plots, which were in thevicinity of Plot No.368/1, namely, Plot No.373 area 0.02 acres, Plot No.374 area 0.03acre, Plot No.375 area 0.02 acres and PlotNo.368 area 0.09 acre. A notice underSection 32(1) of the 1965 Act was issued on28th February, 1987. The award wasdeclared on 27th February, 1989 andpossession of certain plots were claimed tobe taken by the U.P. Avas Evam VikasParishad (hereinafter referred to as theBoard) on 8th August, 1989. Plot No.368/1was owned by petitioner's father afterwhose death name of petitioner's mother hasbeen recorded in the revenue record.Petitioner's father late Swarn Singh filed awrit petition being Writ Petition No.17057of 1987 challenging the acquisition of PlotNo.368/1 which writ petition was dismissedby this Court vide judgment and order dated8th September, 1988. In the years 1992,1994 and 1995, the Board took decisions toexempt plots belonging to Daya Nand andothers which was noted in the letter dated10th February, 1995 issued by the PrabhariAdhikari (Bhumi) of the Board. Thepetitioner's father died in the year 1991.Petitioner's mother made a reference forenhancement of the compensation beingLand Acquisition Reference Case No.64 of2000, which is said to be pending.Petitioner's mother made an application on16th February, 2005 addressed to theChairman of the Board praying that PlotNo.368/1 be exempted from acquisition. Itwas stated in the application that the land ofagriculturists of adjoining area has alreadybeen exempted by the Board. Copy of the

112 INDIAN LAW REPORTS ALLAHABAD SERIES [2012letter dated 10th February, 1995 wasenclosed along with the application dated16th February, 2005. The petitioner filed awrit petition being Writ Petition No.71083of 2005 which writ petition was disposed ofon 18th November, 2005 directing theChairman of the Board to decide therepresentation dated 16th February, 2005 inaccordance with law within a period of fourmonths and for a period of four monthsparties were directed to maintain status quo.After the order of this Court dated 18thNovember, 2005 a contempt petition beingContempt Petition No.1867 of 2006 wasfiled by the petitioner stating that in spite ofthe judgment and order dated 18thNovember, 2005, no decision has yet beentaken. The contempt petition was disposedof on 4th May, 2006 directing the Chairmanto decide the claim and intimate thepetitioner the order so passed. TheChairman of the Board by letter dated 26thJune, 2006 forwarded the decision dated13th March, 2006 issued by the HousingCommissioner by which order petitioner'srepresentation dated 16th February, 1995was rejected. The petitioner filed this writpetition in this Court on 28th November,2006 praying for following relief:-"It is, therefore most respectfullyprayed that this Hon'ble Court maygraciously be pleased to allow this writpetition and to issue a writ, order ordirection:-(a)- in the nature of certiorariquashing the order dated 13.3.2006 and26.6.2006 passed by the respondent no.3and communicated by the respondent no.2respectively [Annexure 8 to the writpetition].(b)- in the nature of mandamusdirecting the respondents to exempt the PlotNo.368/I situated in village Prahlad Garhi,District Ghaziabad on payment of suchcharges as have been levied againstsimilarly situated persons.(B-1) to declare the notice dated26.6.1982 under Section 28 and noticedated 19.2.1982 under Section 32 of the Actas illegal and inoperative.(B-2) a writ order or direction in thenature of certiorari quash the auction saleheld in favour of respondent No.5."4. The Board subsequent to filing ofthe writ petition proceeded to hold auctionsale of the plots which were acquired whichauction was fixed for 15th December, 2007.The petitioner filed a writ petition beingWrit Petition No.61270 of 2007 (HarijinderSingh vs. State of U.P. and others)challenging the advertisement published bythe Board for settlement of the land inquestion by way of auction. The said writpetition was dismissed on 12th December,2007 by a Division Bench of this Courtnoticing the fact that since petitioner'searlier writ petition challenging the orderrejecting the application for exemption ofthe land is still pending in which no interimorder has been granted, it is open for thepetitioner to seek interim protection as hemay be advised in the pending writ petition.The petitioner filed Special Leave to Appeal(Civil) No.24761 of 2007 against thejudgment and order dated 12th December,2007 which was disposed of by the ApexCourt on 9th November, 2009. It is useful toquote the order of the Apex Court dated 9thNovember, 2009 which is as under:-"According to the impugned judgmentpetitioner herein had approached theAllahabad High Court by filing writ petitionNo.65428 of 2006 challenging the order of

1 All] Harijinder Singh V. State of U.P. and others 113the State Government rejecting hisapplication for exemption of the land fromacquisition, which is pending.We request the Division Bench of theHigh Court to take up the pending writpetition and decide the matter by 31stDecember, 2009. We make it clear that theHigh Court will decide the said writ petitionuninfluenced by the observations made inthe impugned judgment. We further clarifythat till the hearing and final disposal of thesaid writ petition No. 65428/06,proceedings concerning sale confirmationin the connected matter shall not proceed.of."The special leave petition is disposed5. An impleadment application wasfiled by the petitioner to implead respondentNo.5 in whose favour one of thecommercial plots was auctioned whichimpleadment application was allowed bythis Court on 8th March, 2010. This writpetition was placed before this Bench, theBench presided over by one of us (JusticeAshok Bhushan) under nomination ofHon'ble the Chief Justice dated 27th July,2011 and thereafter the matter has beenheard and is being decided.6. Learned counsel for the petitioner,challenging the order dated 13th March,2006 passed by the Housing Commissioner,contended that this Court vide its judgmentand order dated 18th November, 2005directed the Chairman of the Board todecide the representation but therepresentation has been rejected by theHousing Commissioner which order is notin accordance with the order of this Courtand is liable to be set-aside on this groundalone. He further contended that over PlotNo.368/1 there was abadi of the petitionerand although plots adjoining to PlotNo.368/1 have been exempted by the Boardbut the petitioner's representation has beenrejected. It is submitted that Plot Nos. 373,374, 375 and 368 were exempted, whichwere adjoining plots, but petitioner's prayerfor exemption has been refused, which isdiscriminatory, arbitrary and violative ofArticle 14 of the Constitution of India. It issubmitted that petitioner is still inpossession of Plot No.368/1 and thepossession was never taken from thepetitioner. The petitioner is running abusiness of "Thinner" in the plot in questionand the petitioner is entitled for exemptionof the plot as similar relief has already beengranted to adjoining plot holders. Thepetitioner has placed reliance on a judgmentof the Apex Court in the case of Hari Ramand another vs. State of Haryana andothers reported in 2010(3) SCC 621. Thelearned counsel for the petitioner furthersubmits that actual possession has not beentaken from the petitioners at any point oftime and the petitioner continues inpossession. It is further submitted that as perthe law laid down by the Apex Court in thecase of Balwant Narayan Bhagde vs. M.D.Bhagwat and others reported in A.I.R.1975 SC 1767, the actual physicalpossession was required to be taken whichhas never been taken and petitionercontinues in possession.7. Learned counsel for the Board,refuting the submissions of learned counselfor the petitioner, contended that portion ofpetitioner's plot measuring 364.16 squaremeters has already been exempted by theNiyojan Samiti, hence the petitioner's casefor exemption has already been consideredand partly allowed and there is no occasionto consider the prayer of the petitioner anyfurther for exemption. It is submitted that inadjoining plots to the petitioner's plot only

114 INDIAN LAW REPORTS ALLAHABAD SERIES [2012small area on which abadi was existing, hasbeen exempted, hence the petitioner cannotclaim discrimination. It is submitted thatpetitioner's plot is situate on 100 feet wideroad and is a valuable plot for commercialutility of the Board, hence decision has beentaken not to exempt the petitioner's plotfrom the scheme. It is further submitted thatChairman under the 1965 Act has nojurisdiction or authority to decide suchrepresentations. Petitioner's mother hasalready filed a Land Acquisition ReferenceNo.64 of 2000 for enhancement ofcompensation and a notice dated 7thDecember, 2004 was served on thepetitioner's mother for demolition ofunauthorised constructions raised over theland of the Board which notice waschallenged by the petitioner's mother bymeans of a writ petition being Writ PetitionNo.3055 of 2005 which was dismissed on24th January, 2005 with the observation thatpetitioner of that writ petition may fileobjection against the show cause notice.The Housing Commissioner has consideredthe representation of the petitioner andpassed an order on 13th March, 2006 andthe land of the petitioner was not consideredfit for exemption. Referring to the report ofthe Niyojan Samiti dated 9th November,1993, it is stated that no exemption wasgranted to the petitioner's land. Theexemption of land was granted by theNiyojan Samiti in favour of other tenureholders i.e. adjoining neighbourers of thepetitioner. The writ petition filed by thepetitioner's father being Writ Petition No.17057 of 1987 having been dismissed on8th September, 1988, the acquisitionproceedings have become final.8. Sri M.K. Gupta, learned counselappearing for respondent No.5, submittedthat the land in question was earmarked forcommunity centre. The Board has fulljurisdiction and authority to auction theplots in favour of respondent No.5 whichincludes plot of the petitioner as well asother tenure holders. He further objected thelocus of the petitioner to file this writpetition. He submits that the land inquestion, according to petitioner's case, wasrecorded in the name of petitioner's mother,hence the petitioner has no locus tochallenge the order passed by the HousingCommissioner on the representationsubmitted by the petitioner's mother.9. Learned counsel for the petitioner,in rejoinder, reiterated his submissions. It isfurther contended that authority competenthaving not decided the representation, theorder dated 13th March, 2006 deserves tobe set-aside. It is submitted that the Board inits counter affidavit has not raised anyobjection regarding locus of the petitioner tofile the writ petition, hence it is not open forthe respondent No.5, who has not even filedany counter affidavit, to raise any objectionregarding locus that too at the time ofhearing. It is further submitted thatpetitioner's mother is an old lady who hasauthorised the petitioner to take all legalproceedings. Along with the briefarguments submitted on behalf of thepetitioner a xerox copy of the special powerof attorney dated 13th November, 2005 byMrs. Gurdev Kaur has been enclosed. It isfurther submitted by learned counsel for thepetitioner that earlier petition filed by thepetitioner being Writ Petition No.71083 of2005 having been disposed of by this Courtdirecting for deciding the representationdated 16th February, 2005, it is not open forthe respondents, at this stage, to raise anyobjection regarding locus of the petitioner.10. We have considered thesubmissions of learned counsel for theparties and have perused the record.

1 All] Harijinder Singh V. State of U.P. and others 11511. Before we proceed to consider therespective submissions of learned counselfor the parties, it is necessary to firstconsider the objection raised by learnedcounsel for respondent No.5 regarding locusof the petitioner to file this writ petition.12. In the writ petition although acounter affidavit and two supplementarycounter affidavits have been filed by theBoard but in none of the affidavits anyobjection regarding locus of the petitionerhas been taken, rather in the supplementarycounter affidavit dated 3rd September, 2011sworn by Sri S.K. Srivastava, ExecutiveEngineer of the Board it has beenmentioned in paragraph 4 that GobernSingh was the original owner of the landand after his death property came in thename of Swarn Singh. Paragraph 4 of thesupplementary counter affidavit dated 3rdSeptember, 2011 is as under:-"4. That it would not be out of place tomention here that Govern Singh wasoriginal owner of the land Khasra No.368and after his death the property came in thename of his son Swarn Singyh, and thepetitioner inherited the property after thedeath of Swarn Singh. The objection filedfor exemption of the land was dulyconsidered by the Niyojan Samiti and364.16 sq. mtrs land from Khasra No.368was already exempted."13. From the above stand taken by theBoard, it is clear that the Board never raisedany objection regarding locus of thepetitioner to file this writ petition, rather theright of the petitioner has been accepted inthe land. The Board having not raised anyobjection regarding locus of the petitioner,we do not deem it fit to entertain theobjection raised by respondent No.5 whoclaims to be subsequent auction purchaser.14. The petitioner although in the writpetition has prayed that notice dated 26thJune, 1982 issued under Section 28 of the1965 Act and notice issued under Section32 of the 1965 Act be declared illegal, voidand inoperative, the said prayer is liable tobe rejected in view of the fact thatpetitioner's father had earlier filed WritPetition No.17057 of 1987 challenging theacquisition proceedings which writ petitionwas dismissed by this Court on 8thSeptember, 1988. The said fact has beenstated by the petitioner himself in paragraph6 of the writ petition. Thus challenge to theacquisition raised by the petitioner's fatherhaving already been rejected, the prayer ofthe petitioner challenging the aforesaidnotices cannot be accepted.15. The first submission of learnedcounsel for the petitioner is that the orderimpugned dated 13th March, 2006 passedby the Housing Commissioner deserves tobe quashed on the ground that this Courthad directed the Chairman of the Board toconsider the representation by its judgmentand order dated 18th November, 2005 andthe Chairman having not decided the issue,the decision by the Housing Commissioneris meaningless.16. Sri A.P. Srivastava, learnedcounsel for the Board, in reply to the abovesubmission, contended that Chairman of theBoard has no authority or jurisdiction todecide any claim for exemption and theHousing Commissioner being an authorityto take decision regarding scheme hasrightly rejected the representation. SriSrivastava, however, could not explain as towhen this Court directed the Chairman ofthe Board to decide representation, howcome the Housing Commissioner decidedthe representation.

116 INDIAN LAW REPORTS ALLAHABAD SERIES [201217. It is useful to look into thedirection of this Court dated 18thNovember, 2005, which was to thefollowing effect:-"Heard learned counsel for the parties.In the facts and circumstances of thecase, the respondent no.2 is directed todecide the representation dated 16.2.2005(Annexure 5 to the writ petition) inaccordance with law within a period of 4months from the date of filing of a certifiedcopy of this order.For a period of 4 months from today,parties shall maintain status-quo.With these directions, the writ petitionis disposed of."18. The provisions of the 1965 Act,which are relevant in this context, arenecessary to be looked into. Under Section3 of the 1965 Act, the State Government isempowered to establish a Board by gazettenotification which is a body corporate.Section 3(5) provides for constitution of theBoard. Section 3(5), as existed at the timewhen this Court passed the order dated 18thNovember, 2005, was as follows:-"3. Constitution of the Board.- (1) .....(2) ..........(5)The Board shall consist of anAdhyaksha, who shall ordinarily be a nonofficial,appointed by the State Government,and the following members:(a) six non-official members,appointed by the State Government, ofwhom one shall be the Mayor of aMunicipal Corporation and two shall bemembers of the State Legislature, one fromeach House thereof;(b) the Secretary, FinanceDepartment, Government of Uttar Pradesh,ex-officio;(c)the Secretary, Housing Department,Government of Uttar Pradesh, ex-officio;(d)the Secretary, Local Self-Government Department, Government ofUttar Pradesh, ex-officio, unless he hasbeen appointed as Secretary, HousingDepartment;(e) the Chief Engineer, Town andVillage Planning Department, UttarPradesh, ex-officio;(f) the Chief Engineer, Local SelfGovernment Engineering Department,Uttar Pradesh, ex-officio; and(g) the Housing Commissioner, exofficio,unless he has been appointed asAdhyaksha."19. It is relevant to note that Section3(5) of the 1965 Act was amended by U.P.Act No.11 of 2007 and again by U.P. ActNo.7 of 2010. By U.P. Act No.11 of 2007,the sub-section (5) of Section 3 wassubstituted as follows:-"3. Constitution of the Board.- (1) .....(2) ..........(5) The Board shall consist of ,-

1 All] Harijinder Singh V. State of U.P. and others 117(a) the Principal Secretary/Secretaryto the Government of Uttar Pradesh inHousing and Urban Planning Department -Adhyaksha ex officio;(b) three Upadhyakshas who shall bethe non-official members appointed by theState Government;(c) the Principal Secretary/Secretaryto the Government of Uttar Pradesh in theFinance Department - ex officio member;(d) The Principal Secretary/Secretaryto the Government of Uttar Pradesh in theUrban Development Department - ex officiomember;(e) the Principal Secretary/Secretaryto the Government of Uttar Pradesh in theBureau of Public Enterprises Department -ex officio member;(f) the Chief Town and CountryPlanner Uttar Pradesh - ex officio member;(g) the Director, Central BuildingResearch Institute, Roorkee - ex-officiomember;(h) the Housing Commissioner, UttarPradesh Awas Evam Vikas Parishad - exofficio member;(i) the Chief Engineer, Uttar PradeshAwas Evam Vikas Parishad - ex officiomember;(j) the Finance Controller, UttarPradesh Awas Evam Vikas Parishad - exofficio member;(k) the Chief Architect Planner, UttarPradesh Awas Evam Vikas Parishad - exofficio member."20. Again by U.P. Act No.7 of 2010in sub-section (5) of Section 3 of the 1965Act, following clauses were substituted:-"(a) The Minister, Housing and UrbanPlanning Department, Uttar Pradesh -Adhyaksha-exofficio;(a-1) The Principal Secretary,Secretary to the Government of UttarPradesh in Housing and Urban PlanningDepartment- Karyakari Adhyaksha/Sadasyaex-ffocio."21. Section 15 of the 1965 Actprovides for functions of the Board. Clause(a) to Clause (p) of Section 15(1)specifically enumerate functions of theBoard. It is relevant to refer Clause (o),which is to the following effect:-"(o) to fulfil any other obligationimposed by or under this Act or any otherlaw for the time being in force; and"22. Section 18 of the 1965 Actprovides for types of housing andimprovement schemes. Section 28 providesfor notice of housing and improvementschemes. Section 30 provides for objectionsagainst the scheme. Section 31 provides forabandonment, modification or sanction ofscheme and Section 32 provides forcommencement of scheme. Section 33provides for alteration of scheme aftercommencement. Sections 31, 32 and 33 ofthe 1965 Act, are quoted below:-"31. Abandonment, modification orsanction of scheme.- (1) After consideringthe objections, if any, received in pursuanceof the foregoing provisions and after givingan opportunity of being heard to theobjectors, the Board may, so for as may be,within six months from the date of receipt of

118 INDIAN LAW REPORTS ALLAHABAD SERIES [2012the last such objection, either abandon thescheme, or, if the estimated cost of thescheme does not exceed twenty lakhs ofrupees, sanction it with or withoutmodifications, and if the estimated cost ofthe scheme exceeds twenty lakhs of rupees,submit it to the State Government forsanction with such modifications, if any, asthe Board may suggest.(2) The State Government any sanctionwith or without modifications, or refuse tosanction, or return for reconsideration, anyscheme submitted to it under sub-section(1).(3) If a scheme returned forreconsideration under sub-section (2) ismodified by the Board it shall berepublished in accordance with Section 28-(a) if the modification affects theboundaries of the area comprised in thescheme or involves acquisition of any landor building not previously proposed to beacquired; or(b) if the modification is in the opinionof the Board of sufficient importance torequire republication,and on such republication theprocedure prescribed in Sections 29 and 30shall, so for as may be applicable, befollowed as if the republication were anoriginal publication under Section 28.32. Commencement of scheme.- (1)Whenever the Board or the StateGovernment sanctions a housing orimprovement scheme, it shall be notified inthe Gazette.(2) The notification under sub-section(1) in respect of any scheme shall beconclusive evidence that the scheme hasbeen duly framed and sanctioned.(3) Any person who, or a localauthority which had filed objections underSection 30, aggrieved by the decision of theBoard sanctioning a housing orimprovement scheme may, within thirtydays from the date of the notification undersub-section (1), appeal to the StateGovernment whose decisions thereon shallbe final.(4) If the State Government cancels oralter the scheme as a result of an appealfiled under sub-section (3), the conciliationor alteration shall be notified in the Gazette.(5) The scheme shall come into force-(a) if sanctioned by the StateGovernment, on the date the notificationunder sub-section (1);(b) if sanctioned by the Board-(i) where no appeal is preferred undersub-section (3), on the expiry of thirty daysfrom the date of the notification under subsection(1), and(ii) where an appeal is preferred andthe scheme is on appeal maintained with orwithout alteration, on the date of thedecision of the appeals and where moreappeals than one are preferred, on the dateof the decision of the appeal last decided.33. Alteration of scheme aftercommencement.- (1) At any time after ahousing or improvement scheme has comeinto force and before it has been fullyexecuted, the Board may for reasons to berecorded alter or cancel it:

1 All] Harijinder Singh V. State of U.P. and others 119Provided that-(a) if any alteration is likely toincrease the estimated cost of executing ascheme by more than ten percent or if anyaltered scheme is estimated to cost morethan twenty lakhs of rupees, the alterationshall not be made without the previoussanction of the Government;(b) before making any alteration whichinvolves acquisition, otherwise than byagreement, of building not proposed to beacquired in the original scheme, or owingto which any land not previously liableunder the scheme to payment of bettermentfee becomes liable to such payment, theBoard shall serve a notice, in such form, onsuch persons or classes of persons and insuch manner, as may be prescribed, ofclasses of persons and in such manner, asmay be prescribed, of the proposedalteration, and consider the objections, ifany, received in pursuance of the noticewithin thirty days from the service of thenotice or within such further time as theBoard may, for sufficient cause, allow, andgive an opportunity of being heard to theobjectors;(c) no scheme estimated to cost overtwenty lakhs of rupees shall be altered orcancelled without the previous sanction ofthe State Government.(2) any alteration or cancellation of ascheme under sub-section(1) shall benotified in the Gazatte and have effect fromthe date of such notification, so however,that any such modification shall be withoutprejudice to the validity of anythingpreviously done under the original scheme."23. Section 49 of the 1965 Actempowers the State Government to call forthe records of the Board and to modify orannul any scheme. Section 55 provides forpower to acquire land. Under Section 55any land or any interest therein required bythe Board for any of the purposes of theAct, may be acquired under the provisionsof the Land Acquisition Act, 1984 asamended in its application to Uttar Pradesh,which for this purpose shall be subject tothe modifications specified in the Scheduleof the 1965 Act.24. From the scheme of the 1965 Act,as noticed above, it is clear that after thescheme has commenced, it can be altered bythe Board subject to conditions mentionedtherein. The State Government has beenspecifically conferred with the power to callfor and examine the records of the Boardrelating to any housing or improvementscheme which is proposed to be or has beenframed by the Board or which is beingexecuted by it and modify, annul or remitfor reconsideration to the Board. Thus afterthe commencement of the scheme, it is onlythe Board and the State Government whichhave been statutorily empowered to amendor modify any scheme.25. In the present case the notificationunder Section 32 has already been issued on28th February, 1987 from which date thescheme has commenced. Thus therepresentation dated 16th February, 2005submitted for exemption of Plot No.368/1could have only been considered by theBoard. This Court on 18th November, 2008directed the Chairman of the Board toconsider the representation dated 16thFebruary, 2005. The order has to mean thatthe Chairman was to take appropriate stepsfor consideration and the appropriate stepsfor consideration of the scheme can be noother than placing the matter forconsideration of the Board as per Section 33

120 INDIAN LAW REPORTS ALLAHABAD SERIES [2012of the 1965 Act. It is true that Chairmanhimself could not have taken any decisionregarding exemption of the land since nosuch power is vested in the Chairman underthe scheme of the1965 Act. It is useful tonote that direction issued by this Court tothe respondent No.2, who was theChairman, was to the following effect:-"The respondent No.2 is directed todecide representation dated 16th February,2005 (Annexure-5 to the writ petition) inaccordance with law...."26. The aforesaid order has to meanthat Chairman was to take steps that therepresentation be decided in accordancewith law. The decision on the representationin accordance with law has to be decisionon the representation by the Board.27. In the present case, the orderimpugned has been passed by the HousingCommissioner, who under the scheme ofthe 1965 Act, has no jurisdiction to exemptany land from the scheme after itscommencement under Section 32. Althoughthere is provision for delegation of powerunder Section 12 of the 1965 Act by theBoard but there is nothing on the record tocome to a conclusion that HousingCommissioner was delegated the power bythe Board to exempt any land from itsscheme which has already commenced. Weare thus fully satisfied that HousingCommissioner had no jurisdiction to decidethe representation for exemption of PlotNo.368/1 and the order rejecting therepresentation deserves to be set-aside onthis ground alone.28. The submission, which has beenpressed by the learned counsel for thepetitioner is that although the land of tenureholders adjoining to the petitioner's landhave been exempted from acquisition butpetitioner's land has not been exempted,which is discriminatory and arbitrary. Inthis context it is necessary to refer to thematerials brought on the record and thepleadings made on behalf of the Board. Inthe order of the Housing Commissionerdated 13th March, 2006 reference to theproceedings of the Board dated 19thNovember, 1994, 10th February, 1995 and17th June, 2005 have been made in whichproceedings decisions regarding exemptionof land were taken but the said proceedingshave not been brought on the record. In thesupplementary affidavit dated 26th July,2010 filed by the petitioner reference hasbeen made to the letter dated 26thNovember, 1997 issued by the ExecutiveEngineer of the Board addressed to DayaNand and Soraj and others of villagePrahlad Garhi. In the said letter it has beenmentioned that land of Plots No.360, 361,366, 364, 365, 369, 370, 373, 374, 375, 376,380, 381, 383, 384 and 386M, total area 13bigha, 13 biswa and 5 biswansi have beenexempted by resolution dated 1.10.1992.Reply to the supplementary affidavit hasbeen filed by filing supplementary counteraffidavit sworn by Nagesh Chandra,Executive Engineer of the Board dated 26thSeptember, 2010 in which issuance of theletter dated 26th November, 1997 andexemption of the land as mentioned thereinhas not been denied. It has been stated thatplots shown in yellow colour in the mapsubmitted by the petitioner had beenexempted by the Niyojan Samiti itself onhearing of the objections of the land holdersand since the petitioner's land wasconsidered important for the Board, thesame was not exempted. It has further beenstated that possession of the land was takenby possession memo which was filed alongwith the supplementary counter affidavit.The plots, which were exempted from the

1 All] Harijinder Singh V. State of U.P. and others 121acquisition as was contained in the letterdated 26th November, 1997 were alladjoining plots to the petitioner's plot andalthough it is pleaded in the supplementarycounter affidavit that exemption wasgranted by the Niyojan Samiti itself but aperusal of the plot numbers as mentioned inthe letter dated 26th November, 1997 andperusal of the plot numbers as mentioned inthe proceedings of the Niyojan Samiti,which held its meeting on 6th, 7th and 8thof April, 1983, indicate that certain plots,which are mentioned in the letter dated 26thNovember, 1997, were not mentioned in theproceedings of the Niyojan Samiti andfurther the area of the plots, which wereexempted in the proceedings of the NiyojanSamiti, copy of which has been brought onthe record along with the supplementarycounter affidavit of the Board dated 13thSeptember, 2011, defers from the areamentioned in the letter dated 26thNovember, 1997. Further Plot Nos.366,364, 369 and 370 were not mentioned in thereport of the Niyojan Samiti although thesame were mentioned in letter dated 26thNovember, 1997 and area of the aforesaidplots also defers. For example, in PlotNo.360 only an area of 0.03 acre wasexempted by the Niyojan Samiti whereas inthe aforesaid letter the area mentioned is 10biswa, which is much more than the areamentioned in the report of the NiyojanSamiti. One of the dates of the proceedingsof the Board has been mentioned as 1stOctober, 1992 in the letter dated 26thNovember, 1997 which proceedings havealso not been brought on the record.29. From the pleadings and thematerials brought on the record, it is clearthat after the commencement of the schemeunder Board's resolution certain other plotswere exempted which were in the vicinityof the petitioner's plot. In the counteraffidavits and the supplementary counteraffidavits relevant details and proceedingsregarding exemption of the land subsequentto commencement of the scheme have notbeen brought on the record nor relevantfacts have been clearly pleaded. Thepetitioner in paragraph 11 of the writpetition referring to the order dated 10thFebruary, 1995 has specifically pleaded thatin the year 1995 the respondents haveexempted the adjoining plots of similarlysituated persons, namely, Daya Nand andothers from acquisition. The saidsubmissions have been replied in thecounter affidavit filed by the Board inparagraph 17 in which only this much hasbeen stated that exemption was granted bythe Niyojan Samiti. There is no categoricalstatement in the counter affidavit and thesupplementary counter affidavits that noexemption was granted aftercommencement of the scheme whereas thematerials brought on the record clearlyindicate that Board also has taken decisionfor exemption of land subsequent tocommencement of the scheme.30. In view of the above facts, it isnecessary that petitioner's case forexemption of Plot No.368/1 be consideredby the Board afresh and the Board afterconsidering the petitioner's claim may takeappropriate decision.31. The judgment in Hari Ram's case(supra) relied by the learned counsel for thepetitioner supports the submission of thepetitioner that the StateGovernment/competent authority cannotdiscriminatingly exempt land of certaintenure holders and refuse exemption toothers. It is useful to quote paragraph 24 ofthe said judgment which is to the followingeffect:-

122 INDIAN LAW REPORTS ALLAHABAD SERIES [2012"24. As a matter of fact, lands of morethan 40 landowners out of the sameacquisition proceedings have been releasedby the State Government under Section 48of the Act. Some of the release orders havebeen passed in respect of landowners whohad not challenged the acquisitionproceedings and some of them hadchallenged the acquisition proceedingsbefore the High Court and whose caseswere not recommended by Joint InspectionCommittee for withdrawal from acquisitionand whose writ petitions were dismissed.Some of these landowners had only vacantplots of land and there was no constructionat all. In most of these cases, the award hasbeen passed and, thereafter, the StateGovernment has withdrawn fromacquisition. It is not the case of therespondents that withdrawal fromacquisition in favour of such landownershas been in violation of any statutoryprovision or contrary to law. It is also nottheir case that the release of land fromacquisition in favour of such landownerswas wrong action on their part or it wasdone due to some mistake or a result offraud or corrupt motive. There is nothing toeven remotely suggest that the personswhose lands have been released havederived the benefit illegally. As noticedabove, prior to October 26, 2007, the StateGovernment did not have uniform policyconcerning withdrawal from acquisition. Asregards the guidelines provided in the letterdated June 26, 1991, this Court has alreadyheld that classification on the basis ofnature of construction cannot be validlymade and such policy is not based onintelligible differentia and a rational basis.What appears from the available material isthat for release of the lands under thesubject acquisition, no policy has beenadhered to. This leads to an irresistibleconclusion that no firm policy with regardto release of land from acquisition existed.It is true that any action or order contraryto law does not confer any right upon anyperson for similar treatment. It is equallytrue that a landowner whose land has beenacquired for public purpose by followingthe prescribed procedure cannot claim as amatter of right for release of his/her landfrom acquisition but where the StateGovernment exercises its power underSection 48 of the Act for withdrawal fromacquisition in respect of a particular land,the landowners who are similarly situatedhave right of similar treatment by the StateGovernment. Equality of citizens' rights isone of the fundamental pillars on whichedifice of rule of law rests. All actions of theState have to be fair and for legitimatereasons. The Government has obligation ofacting with substantial fairness andconsistency in considering therepresentations of the landowners forwithdrawal from acquisition whose landshave been acquired under the sameacquisition proceedings. The StateGovernment cannot pick and choose somelandowners and release their land fromacquisition and deny the same benefit toother landowners by creating artificialdistinction. Passing different orders inexercise of its power under Section 48 of theAct in respect of persons similarly situatedrelating to same acquisition proceedingsand for same public purpose is definitelyviolative of Article 14 of the Constitutionand must be held to be discriminatory.More so, it is not even the case of therespondents that release of land fromacquisition in favour of various landowners,as noticed above, was in violation of anystatutory provision or actuated with ulteriormotive or done due to some mistake orcontrary to any public interest. As a matterof fact, vide order dated August 19, 2008,this Court gave an opportunity to the State

1 All] Harijinder Singh V. State of U.P. and others 123Government to consider the representationsof the appellants for release of their landand pass appropriate order but the StateGovernment considered theirrepresentations in light of the policy datedOctober 26, 2007 ignoring and overlookingthe fact that for none of the landownerswhose lands have been released fromacquisition, the policy dated October 26,2007 was applied. The State Governmenthas sought to set up make believe groundsto justify its action that developmentplanning has been kept into considerationand that the appellants have been offereddeveloped plots of double the area ofconstruction while the fact of the matter isthat in some cases where the plots werevacant and had no construction, the entireplot has been released from acquisition andalso the cases where one room or tworooms construction was existing, the wholeof plot has been released. While releasingland of more than 40 landowners havingplots of size from 150 sq. yards to 1500 sq.yards, if development plan did not getmaterially disturbed in the opinion of theState Government, the same opinion musthold good for the appellants' lands as well.It is unfair on the part of the StateGovernment in not consideringrepresentations of the appellants byapplying the same standards which wereapplied to other landowners whilewithdrawing from acquisition of their landunder the same acquisition proceedings. Ifthis Court does not correct the wrong actionof the State Government, it may leavecitizens with the belief that what counts forthe citizens is right contacts with rightpersons in the State Government and thatjudicial proceedings are not efficacious.The action of State Government in treatingthe present appellants differently althoughthey are situated similar to the landownerswhose lands have been released can not becountenanced and has to be declared bad inlaw."32. In view of the law as laid down bythe Apex Court as above, the respondentsare obliged to consider the claim of landholders for exemption uniformly on arational policy and the respondents cannottake decision regarding exemption of landfrom acquisition arbitrarily anddiscriminately.33. In view of the fact that all relevantmaterials including proceedings of theBoard have not been brought on the recordby the respondents, it is not possible for thisCourt to examine such decision and todecide the claim of the petitioner, hence it isin the interest of justice that the Board bedirected to consider the claim of thepetitioner for exemption of Plot No.368/1from the housing scheme.34. In view of the aforesaid, thePrincipal Secretary/Secretary to theGovernment of Uttar Pradesh in theHousing and Urban Planning Department isdirected to take appropriate steps so that theBoard may consider the claim of thepetitioner for exemption of land assubmitted by letter dated 16th February,2005 (Annexure-5 to the writ petition).Looking to the fact that sufficient time haselapsed, we direct that the aforesaid exercisemay be completed expeditiously preferablywithin a period of four months from thedate a certified copy of this order isproduced before the Principal Secretary.With regard to auction of plot in questionand other plots in favour of respondentNo.5, the protection as granted by the ApexCourt vide its order dated 9th November,2009 shall continue till the decision is takenby the Board and the said auction shallabide by the decision of the Board so taken.

124 INDIAN LAW REPORTS ALLAHABAD SERIES [201235. The writ petition is disposed ofaccordingly.36. Parties shall bear their own costs.---------ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 05.01.2012BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI,J.Civil Misc. Writ Petition No. 74746 of 2011Jai RamVersusD.D.C. and othersCounsel for the Petitioner:Sri M.D. MisraCounsel for the Respondents:C.S.C.Sri A.P. TewariSri S.S. Tripathi...Petitioner...RespondentsU.P. Consolidation of holding Act-Section48-D.D.C. While entertaining revisionwithoutconsidering plausibleexplanation about 36 yearsunreasonable delay-and remandingmatter before S.O.C.-ignoring the aspectthat record of C.O. already weeded outorderof remand-held-unsustainable.Held: Para 7Having heard learned counsel for theparties, the first issue is in relation to thedelay of 36 years being explained byrespondent No.2. The Deputy Director ofConsolidation, in my opinion, could nothave proceeded to remit the matterbefore the Settlement OfficerConsolidation to decide the case onmerits without recording a clear findingas to what was the justification forcondoning the delay of 36 years. Thiswas not a routine matter and the issue ofdelay could not have been dealt withcasually treating it to be irrelevant on aprima facie inference of a theory ofalleged fraud. Fraud has to beestablished on record, and without anyfirm finding on cogent material orignoring relevant material like theGoswara on record, the Deputy Directorought not to have passed an order ofremand. An enquiry could have beenmade about the proceedings before theAssistant Consolidation Officer. Thishaving not been done, the orderimpugned falls within the disrepute ofsurmises and conjectures. In theabsence of any such finding having beenrecorded by the Deputy Director ofConsolidation, the order of remandcannot be passed in order to fill up thegaps and the lacuna in the explanation,which according to the petitioner, wasvery much evident in the delaycondonation application preferred beforethe Settlement Officer Consolidation.(Delivered by Hon'ble A.P. Sahi,J. )1. Heard Sri M.D. Misra, learnedcounsel for the petitioner, Sri A.P. Tewarifor respondent No.2 and the learnedStanding Counsel for respondent No.1.2. Learned counsel for respondentssubmit that since the issues involved arepurely legal, therefore, they do notpropose to file any counter-affidavit atthis stage and the matter be disposed offinally on the basis of the documentsalready on record with the consent of theparties. Accordingly, the matter is beingdisposed of finally at this stage.3. A supplementary-affidavit hasbeen filed bringing on record certainaverments including the pedigree bywhich the parties are governed. Kamta,son of Govind, was the recorded tenureholder. The petitioner - Jairam is the

1 All] Jai Ram V. D.D.C. and others 125grand son of Ram Patti, sister of Govind.The claim of Jairam is to the effect thatthe said property came to be settledbetween the petitioner and Late Kamtaduring consolidation operations under anorder of the Assistant ConsolidationOfficer dated 20.11.1969. The village wasde-notified under Section 52 sometimes inthe year 1976, after the death of Kamta in1975. The name of the petitionercontinued to be recorded thereafter andthe petitioner claims continuouscultivatory possession over the land indispute since then.4. After 36 years, a time-barredappeal came to be filed by the respondent- Radhey Shyam and another appeal cameto be filed by one of the sons of Kamta,Jawahar. These two appeals weredismissed by the Settlement OfficerConsolidation vide order dated25.11.2005. One of the appellantsJawahar did not prefer any revisionagainst the said order. It is only therespondent No.2 - Radhey Shyam, whopreferred a revision, which has beenallowed on 15.11.2011 giving rise to thepresent petition.5. Sri M.D. Misra submits that thereis no valid explanation for the delay of 36years and the Deputy Director ofConsolidation, without adverting himselfto the aforesaid issue in correctperspective and condoning the delay infiling of the appeal, has proceeded toremand the matter to the SettlementOfficer Consolidation after recordingfindings on the merits of the claim ofRespondent No.2. He submits that thistwo fold approach of the Deputy Directorof Consolidation is erroneous and ignoresall relevant issues relating to the existenceof the order of the Assistant ConsolidationOfficer dated 20.11.1979. He submits thatthe file relating to the order of theAssistant Consolidation Officer did existfor which reliance is being placed on theextract of a Goswara, copy whereof isAnnexure-1 to the writ petition, whichindicates that the said file has beenweeded out in the year 1977. Sri Misrasubmits that no appropriate finding hasbeen recorded by the Deputy Director ofConsolidation before passing the remandorder and further the Deputy Director ofConsolidation has entered into the meritsof the order of the Assistant ConsolidationOfficer by making comments in order tocreate an impression by drawing aninference of fraud without there being anyevidence to that effect. He, therefore,submits that on both the counts, the orderof Deputy Director of Consolidation iserroneous.6. Sri Tewari, on the other hand,submits that as a matter of fact the orderof the Assistant Consolidation Officer ifat all in existence is an order withoutjurisdiction and is an outcome of a fakeproceeding. For this, the Deputy Directorof Consolidation has recorded findingsindicating that the order of the AssistantConsolidation Officer suffers fromprocedural defects as well and theendorsement does not bear the date or theappropriate verification in relation to thesaid order. He, therefore, contends thatDeputy Director of Consolidation wasjustified in remanding the matter to theSettlement Officer Consolidation fordecision afresh.7. Having heard learned counsel forthe parties, the first issue is in relation tothe delay of 36 years being explained byrespondent No.2. The Deputy Director ofConsolidation, in my opinion, could not

126 INDIAN LAW REPORTS ALLAHABAD SERIES [2012have proceeded to remit the matter beforethe Settlement Officer Consolidation todecide the case on merits withoutrecording a clear finding as to what wasthe justification for condoning the delayof 36 years. This was not a routine matterand the issue of delay could not have beendealt with casually treating it to beirrelevant on a prima facie inference of atheory of alleged fraud. Fraud has to beestablished on record, and without anyfirm finding on cogent material orignoring relevant material like theGoswara on record, the Deputy Directorought not to have passed an order ofremand. An enquiry could have beenmade about the proceedings before theAssistant Consolidation Officer. Thishaving not been done, the order impugnedfalls within the disrepute of surmises andconjectures. In the absence of any suchfinding having been recorded by theDeputy Director of Consolidation, theorder of remand cannot be passed in orderto fill up the gaps and the lacuna in theexplanation, which according to thepetitioner, was very much evident in thedelay condonation application preferredbefore the Settlement OfficerConsolidation.the District Deputy Director ofConsolidation/ Collector, Gorakhpur, tohimself decide the matter in the light ofthe observations made herein above asexpeditiously as possible preferablywithin a period of 3 months from the dateof production of a certified copy of thisorder before him.---------8. Secondly, even on merits themanner in which the finding has beenrecorded by the Deputy Director ofConsolidation, there remains hardly anyscope for the Settlement OfficerConsolidation to comment otherwise andin my view the said order of remand,therefore, suffers from gross infirmities.Accordingly, the order dated 15.11.2011is unsustainable.9. The writ petition is, therefore,allowed and the order dated 15.11.2011 ishereby quashed. The matter is remitted to