Indian Law Report - Allahabad Series - Apr2009

8/13/2019 Indian Law Report - Allahabad Series - Apr2009

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250 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Heard Sri Nirvikar Gupta, Advocateassisted by Sri C.B. Dubey, learnedcounsel appearing on behalf of theappellant and Sri P.S. Baghel, learnedcounsel appearing on behalf of respondentnos. 6 to 13.

6. Learned counsel for the appellantsubmitted that once the election processhas been started, this court should notinterfere. He submitted that after theelection being held it is always open tochallenge the election on various groundsincluding the issue relating to thefinalisation of the voter list at the time ofapproval by the Regional LevelCommitted and thus, the impugned order

passed by the learned Single Judge isliable to be set aside. He further submitted

that the election process has been startedin pursuance of the direction given by thisCourt; the voter list has been preparedafter due consideration; after verificationof their identity through their affidavitsand other documents. Whether voter listfinalized by the Authorized Controllerwas correct or not is a disputed questionof fact which cannot be looked into bythis court in writ jurisdiction under Article226 of the Constitution of India and canonly be looked into by the Court of fact;

after the election being held, respondentswill have every right to challenge theentire election before the Regional LevelCommittee on the ground of allegedirregularities in the preparation of thevoter list.

7. In support of his contention, herelied upon the decisions of this Court thecase of Basant Prasad Srivastava andothers Versus State of U.P. and other reported in (1993) 2 UPLBEC, 1333,

Committee of Management, Sri RadhaKrishna Sanskrit Mahavidyalaya and

others Versus Deputy Director ofEducation reported in (1950-91) 4AlEC, 155, R.P. Singh Baghel VersusCity Magistrate/Election Officerreported in 1998 (32) ALR 453,Committee of Management of SriPrachar Vidhyapeeth Vchattar

Madhyamik Vidyalayalaya, SamatharEtawah and another Versus DistrictInspector of School, Etawah reportedin (1995) 1 UPLBEC, 51, Committee ofManagement, Pt. Jawahar Lal (2)Krishak Inter College Mahuabari, LarRoad, Deoria and others Versus DeputyDirector of Education and othersreported in (1996) 2 UPLBEC 1245,Tribhuwan Prasad at Present ManagerCommittee of Management, KeshavRam Arya Adarsh Balika Higher

Secondary School, Azamgarh VersusDeputy Director of Education 1 st , VIIthRegion, Gorakhpur and othersreported in (1996) 1 ESC (All), 449 andCommittee of ManagementBrahmarshri Sri Ram Krishna InterCollege, District Mau and anotherVersus Inspector of Schools, Mau andothers reported in (1999) 1 UPLBEC,461.

8. Sri P.S. Baghel, learned counsel

appearing on behalf of the respondentsubmitted that the preparation of the voterlist was patently illegal. He submitted thatin compliance of the order dated02.05.2008 and order dated 22.05.2008

passed by the District Inspector ofSchools the election programme wasdeclared on 24.05.2008 by the PrabandhSanchalak on the basis of electoral collegeof 46 life members and one foundermember and the date of election was fixedon 14.06.2008. He submitted that the said

electoral programme was challenged bytwo persons, namely, Sri Gulab Dhar


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1 All] Gulab Dhar Pandey V. State of U.P. and others 251

Pandey (present appellant) and Sri LallanDubey by means of Civil Misc. WritPetition No. 26346 of 2008 and this Courthas not granted interim order and it wasdirected that the result of the electionshall abide by the decision in writ

petition. The said writ petition is still

pending before this Court. He submittedthat prior to the election a notice was

published on 29.05.2008 in the dailynewspaper "Amar Ujala". In the saidnotice the members were directed todeposit their photographs, certificate ofdate of birth, duly attested by second classGazetted Officer before the Principal

piror to 05.06.2008. In pursuance of thesaid notice, the petitioners have depositedall the required documents and affidavitsetc on 05.06.2008. On 04.06.2008 a

notice was published in the newspaperthat all the life members of the collegeshould reach the office of the AuthorizedController on 06.06.2008 at 11.00 A.M.i.e. within two days of the publication ofthe notice. When the petitioners reachedthe office of the Authorized Controllerwithout looking into the paper of the

petitioners, the election dated 14.06.2008was postponed by the AuthorizedController for which a notice was

published in the daily newspaper "Amar

Ujala" on 08.06.2008 regarding the postponement of the election. Thereafter,on 25.10.2008 the Authorized Controllerwritten a letter to one Sri RajeshwarPrasad Singh, which was received by SriRajeshwar Prasad Singh on 29.10.2008directing him to inform all the 35members at his own level that they shouldreach the office of the AuthorizedController on 31.10.2008 along with theirdomicile certificate, age certificate andidentity certificate issued by the Election

Commission or India. He submitted thatin such short notice, it was not possible

for the members who were residingoutside Mirzapur to appear. Further, on29.10.2008 a public notice was issued toall the members of the General Bodywhich was published in local newspaperof Mirzapur "Hindustan" where themembers of General Body were informed

to appear before him on 31.10.2008. Hefurther submitted that in response to theaforesaid notice, Rajeshwar Prasad Singhcould inform only 17 members who werelocal members and they filed affidavitsregarding their membership along withtheir domicile certificate, identity card,certificate of date of birth etc on31.10.2008 before the AuthorizedController. The Authorized Controllerwithout issuing any notice to the othermembers on wholly non-existent ground

has accepted only 10 members andrejected the claim of all the 35 memberswho have been found to be genuinemembers by District Inspector of Schools

by her order dated 02.05.2008 and25.05.2008. The Authorized Controllerhas also rejected the membership of 17

persons who were present on 31.10.2008.The Prabandh Sanchalak passed the orderdated 15.11.2008 wherein only 10members have been found genuinemembers. The order dated 05.11.2008

passed by the Prabandh Sanchalak iswithout jurisdiction inasmuch he hastraveled beyond his jurisdiction. Theorder of the Authorized Controller has

been passed in flagrant violation of principle of natural justice and he has notgiven notice to all 35 members.

9. Having heard the learned counselfor the parties, we have gone through theimpugned order passed by the learnedSingle Judge, other documents annexed

along with the writ petition and have


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given due consideration to the rivalsubmissions.

10. Admittedly, the AuthorizedController was appointed in the year,1981 and since then the ejection was notheld. It was desirable that Committee of

Management be formed to run theinstitution in accordance with the Schemeof Administration and therefore, havingregard to this fact, this court vide orderdated 1 st October, 2007 has directed theDistrict Inspector of Schools, Mirzapur tohold the election of Committee ofManagement of the institution as perapproved Scheme of Administrationwithin a period of two months from thedate of presentation of certified copy ofthe order. It appears that for one reason or

the other, the election could not be held asdirected by this Court.

11. Finally, the final list of themembers was approved and published bythe Authorized Controller and with the

proper permission of the DistrictInspector of Schools, Mirzapur and

published in the newspaper "Amar Ujalaand "Dainik Hindustan" on 27.11.2008and 28.11.2008 respectively. As per the

programme of election, nomination was to

be started from 10.12.2008, scrutiny ofthe nomination was to be made on10.12.2008, the withdrawal of thenomination to be made on 10.12.2008 andin the case of contest, the date of votingwas fixed on 12.12.2008.

12. In the case of Basant PrasadSrivastava and another Versus State ofU.P. and another (supra) , the FullBench of this Court held as follows:

"When once the election processstarts, it must come to its logical

conclusion. Once it comes to its logicalconclusion by declaration of result ofthe election the aggrieved person maychallenge the election by filing electionpetition or civil suit in accordance withlaw. In such a proceeding the electionmay not be set aside if the alleged

illegality or irregularity has notmaterially affected the result of theelection. Approach to Court atintermediate stages in the election isbound to result in an office eitherremaining vacant or being occupied bya person whose entitlement to hold theoffice has ceased. Neither is a happysituation. It is, therefore, desirable thatthe election process should end as earlyas possible and the declaration of resultshould not be deferred through

repeated interim orders passed fromtime to time."

13. In the case of Committee ofManagement, Sri Radha KrishnaSanskrit Mahavidyalaya and othersVersus Deputy Director of Education,Gorakhpur and others (supra) , theDivision Bench of this Court held asfollows:

There are large number of

educational institution as and thefunctioning of such institutions arecontrolled and managed by aCommittee of Management. SuchCommittee is constituted under therules, regulations or certainAdministrative schemes. The term ofsuch Committee of Management islimited by time. The election processinter alia involves the determination ofthe members who can vote andparticipate in the election, nomination,

preparation and publication ofprogramme, scrutiny and declaration


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1 All] Gulab Dhar Pandey V. State of U.P. and others 253

of result. In case, at the intermediatestage of the election process the HighCourt entertains petitions under Article226 of the Constitution it will furtherdelay the election process. Secondly, thedisputed question of fact as to who arethe members and other related matters

cannot be decided in the writ jurisdiction. A person who has anygrievance can take recourse to theremedy provided under the Statute,Rules or Regulations or by filing suit inthe competent Court of law."

14. In the case of Committee ofManagement, Pt. Jawahar Lal KrishakInter College Mahuabari, Lar Road,Deoria and others Versus DeputyDirector of Education and others

(supra) , learned Single Judge of thisCourt held as follows:

The question of validity of theelection is dependant upon severalfactors including the validity andgenuineness of the members inasmuchthe election held with the help ofinvalid and take members cannot besaid to be valid election. Therefore, inany case, when the question arises as towhether the members who participated

in the election were or were not themembers of the general body, theDeputy Director of Education is underobligation to decide the said questionbefore recording any finding on thequestion of validity of the election. Thevalidity of election is to be determinedin accordance with the provisions ofScheme of Administration."

15. In the case of TribhuwanPrasad at Present Manager Committee

of Management, Keshav Ram AryaAdarsh Balika Higher Secondary

School, Azamgarh Versus DeputyDirector of Education 1 st , VIIth Region,Gorakhpur and others (supra) , learnedSingle Judge of this Court held as follow:

"List of members given by D.I.O.S.was made basis by authorized

controller, concluded election of officebearer of Committee of ManagementRepresentation of contesting oppositeparties about in correctness of list ofmembers regarding exclusion of certainpersons from becoming members not tobe entertained once election processhad already started- Held, D.I.O.S. Not

justified in passing orders duringprocess of election. D.I.O.S. directed topass appropriate orders about approvalor disapproval of Committee of

Management elected in the electionconducted by authorised controller.

The O.P. Pramod Gandhi or anyother person, if aggrieved by theelection held by the authorisedcontroller, may seek such other legalremedy before the appropriate civilcourt for adjudication, about thevalidity of members of the Committeeof Management, if so advised. Neitherthe D.I.O.S. nor the High Court underArticle 226 of the Constitution is

supposed to enter into the controversyabout the genuineness, correctness andvalidity of list of members."

16. This Court has consistently heldthat once the election process has beenstarted this court should not interfere. Ifany party has any grievance about thefinalization of the voter list or about thevoter list, it is always open to such personto challenge the same in the appropriate

proceeding, namely, under the statute,

Rules or Regulations or by filing suit inthe Competent Court of law. Therefore,


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we are of the view that after thedeclaration of the election programme,interference by this Court is whollyunjustified. After the order dated02.05.2008 passed by the Ex. DistrictInspector of Schools the issue relating tovoter list had not become final. The order

of the District Inspector of Schools wassubject to further scrutiny and verificationand in pursuance thereof, the process ofverification was started by the AuthorizedController. Such further proceeding hasnot been challenged by the petitioners-respondents rather petitioners-respondentssubmitted before the AuthorizedController for the purpose of verification.Therefore, it cannot be said that processstarted for the finalization of the voter listafter 02.05.2008 was not justified.

However, it is always open to the petitioners-respondents to challenge thevoter list after the election in anappropriate proceeding, referred hereinabove.

17. In the result, Special Appeal isallowed. The impugned order dated 08 th December, 2008 passed by the learnedSingle Judge is set aside and Writ Petition

No.63078 of 2008. Rajeshwar PrasadSingh and others Versus State of U.P. and

others stand dismissed. The AuthorizedController is directed to issue election programme from the date from where theelection process has been stayed within a

period of two weeks by all means andhold the election on the basis of impugnedvoter list within a period of two months

by all means. There shall be no order as tocosts.

---------

APPELLATE JURISDICTIONCIVIL SIDE

DATED: ALLAHABAD 27.01.2009

BEFORETHE HONBLE H.L. GOKHALE, C.J.

THE HONBLE DILIP GUPTA, J.

Special Appeal (Defective) No. 115 of2006

State of U.P and anotherAppellants/Respondents

VersusShailendra Kumar Singh Respondents

Counsel for the Appellants:Sri Dr. Y.K. SrivastavaSri C.B. YadavS.C.

Counsel for the Respondent:Sri Rahul Sripat

Dying in Harness Rules 1974-compossionate appointment-part timeTube well operator-working for 2 every day-can not be treated as regularemployee-direction for compassionateappointment given by learned SingleJudge ignoring Division Bench decision-not sustainable.

Held: Para 8

The burden of proof that therespondents father was in a regularemployment was on the respondent. Inthe facts as stated, we are of the viewthat he has not discharged that burden.This apart the learned Single Judge hasnot considered the above Division Bench

judgment which clearly discusses thelaw on this point. It is perhaps due to thefact that since the earlier judgment isnot reported, the same has not beenreferred to by the learned Single Judge.Now the same has been pointed out tous and we have noted the facts. In ourview, the learned Single Judge has erredin granting the benefits to the


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1 All] State of U.P. and another V. Shailendra Kumar Singh 255

respondent arising out of the dying-in-harness rules of 1974.Case law discussed:Writ Petition No. 51-469 of 2005, Special

Appeal No. 117 of 2000

(Delivered by Hon'ble H.L. Gokhale, CJ)

1. Heard Dr. Y.K. Srivastava,learned Standing Counsel in support ofthis appeal. Mr. Rahul Sripat appears forthe respondent.

2. The appellant-State seeks tochallenge the order passed by the learnedSingle Judge whereby the learned SingleJudge has allowed the writ petition filed

by the respondent herein by an orderdated 9.11.2005. The respondent hadsought employment on compassionateground on the footing that his father wasin a regular employment of the State.

3. There is no dispute that the fatherof the respondent was working as a Tube-Well Operator. The only question iswhether his employment was part timeemployment or regular employment. Thelearened Single Judge relied upon a

judgment passed in writ petition of VijayKumar Yadav vs. State of U.P. andothers (Writ Petition No. 51-469 of2005) decided on 25.7.2005. The learnedSingle Judge has quoted from that orderwherein it has been held that since the

petitioners father was continuouslyworking for more than three years, heshould be deemed to have worked in aregular vacancy and therefore, would bedeemed to be treated as Governmentservant. On the same analogy, the learnedSingle Judge has given the benefit to therespondent herein since it was claimedthat his father had worked for about 10

years when he died in harness on21.12.1998.

4. The State has challenged this judgment and order and has relied upon aDivision Bench judgment in the case ofStat of U.P. and anoter vs. Smt. PhoolaDevi passed in Special Appeal No. 117of 2000 decided on 14.7.2000. It issubmitted by Dr. Srivastava, learned

Standing Counsel for the State of U.P.that this judgment was not considered bythe learned Single Judge. He points outthat the Division Bench in Special Appeal

No. 117 of 2000 examined the relevantrules and also noted that part time Tube-well Operators were to be called as

NALKOOP SAHAYAKS in pursuance ofGovernment Order issued on 20.2.1992.The respondent is calling himself as anAssistant Tube-well Operator, which is atranslation of from NALKOOP

SAHAYAK. The relevant GovernmentOrder in terms says that all these

NALKOOP SAHAYAKS are supposed towork for part time and service conditionswill be as given in Annexure-2 thereto.This scheme lays down that their working

period will be just about 2 hours andthey will be free for their own businessafter above working hours though theywill be available in the village concerned.It was, accordingly, held that the writ

petitioner would not claim compassionate

appointment on the ground that she waswidow of a part time Tube-well Operatorwho died in harness.

5. It is submitted by Dr. Srivastava,learned Standing Counsel that therespondents father was not in a regularemployment and therefore, could not getany benefit of the rule providingemployment to a person under dying inharness scheme.

6. Mr. Rahul Sripat, learned counselfor the respondent, on the other hand,


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1 All] Registrar, Chhatrapati Shahuji Maharaj University, Kanpur V. Vinay Gupta & another 257

Respondent no.1 being not possessed ofthe minimum eligible qualificationprescribed, the denial of admission tohim by the University is justified. Noprinciple of promissory estoppel can bepressed by the respondent no.1 insupport of his admission.Case law discussed:

(2004) 4 SCC 513, (1999) 7 SCC 120 .

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Neeraj Tiwari, learnedcounsel for the appellant, Sri S.K.Srivastava, learned counsel for respondentno.1 and learned Standing Counsel forrespondent no.2.

2. Learned counsel for the partiesagree that this special appeal be decided

at this stage, without calling for anyfurther affidavits.

3. This is an special appeal againstthe judgement and order of the Hon'bleSingle Judge dated 11 th November, 2008,whereby the writ petition filed byrespondent no.1, Vinay Gupta has beenallowed.

4. Brief facts necessary forappreciating the issues raised in the

special appeal are as follows:

5. The appellant University published a notice for admission to LL.Bthree years degree course. The respondentno.1 applied in pursuance thereof and was

permitted to appear in the entrance test, inwhich out of nearly 4,000 students hesecured 35 th position. However, he wasnot granted admission by the Universityon the ground that he did not have 45%marks at the graduation level. The denial

of admission was challenged by therespondent no.1 in the aforesaid writ

petition, the writ petition has beenallowed by the Hon'ble Single Judge.

6. The Hon'ble Single Judge underthe impugned judgment has held that thecircular of Bar Council of India dated 19 th September, 1997 has been misinterpreted

by the University. The petitionerrespondent no.1 cannot be deniedadmission after declaration of the resultsof Entrance Test, as he had not concealedor misrepresented any fact at the time offiling of the admission form or at anyother stage. It has further been observedthat in case the petitioner did not haverequired minimum percentage atgraduation level, it was for the Universityto reject the admission form of the

petitioner at the threshold.

7. Sri Neeraj Tiwari, learned counselfor the appellant-University allenging the

judgment and order of the Hon'ble SingleJudge contended that there is no disputeto the minimum requirements provided bythe Bar Council of India vide circulardated 19 th September 1997. He submitsthat under said circular if there is anentrance test, the minimum percentage ofmarks to have been achieved by thecandidate appearing in the Entrance Test

at the graduation level should be 40%. Ifthere is no entrance test, the pass percentage at the Graduation Level should be 45 % for LL.B. Admission. Learnedcounsel for the appellant submits thatthere is no dispute that entrance test has

been held for admission to LL.B. ThreeYears degree Course by the University.The University had decided that even forcandidates undergoing the entrance test,those who have obtained at least 45%marks at the graduation level would alone

be eligible for being considered foradmission.


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8. Learned counsel for the appellantsubmits that such prescription of highermarks does not violate any of the

provision of the circular of the BarCouncil of India and is legally

permissible. In support thereof, he has placed reliance upon the judgment of the

Hon'ble Supreme Court in the case ofState of Tamil Nadu & Anr. vs. S.V.Bratheep (Minor) & Ors ., reported in(2004) 4 SCC 513 .

9. Learned counsel for respondentno.1 opposing the contention raised on

behalf of the University submits thatrequirement of at least 45% marks at thegraduation level by the University for

being eligible for being considered foradmission to LL.B. Three years degree

course is contrary to the circular issued bythe Bar Council of India. He submits thatthe circular issued by the Bar Council ofIndia is binding upon all the Universitiesso far as law courses are concerned. Heclarifies that the petitioner-respondentno.1 had not concealed or misrepresentedany fact at the time of filling of theadmission form. The University ought tohave rejected the form itself, if the

petitioner was not eligible and should nothave permitted the respondent no.1 to

appear in the entrance test. Having permitted the respondent no.1 toundertake the entrance test, the Universitycannot deny admission on the plea thatrespondent no.1 does not fulfil the

prescribed qualification.

10. We have considered thesubmissions made by the learned counselfor the parties and have gone through therecords.

11. There is no dispute that the BarCouncil of India vide circular dated 19 th September, 1997 has provided as follows:

"If there is entrance test, the percentage should be 40 but if there is noentrance test the percentage should be 45

for LL.B. Admission."

The marks obtained by therespondent no.1 at graduation level areadmittedly less than 45%.

12. The issue which is up forconsideration is as to whether when anentrance test is conducted for admissionto LL.B. Three Years Degree Course, therequired percentage at the graduationlevel as per the Bar Council of India's

Circular should be 40% or, whetheradditional condition of having 45% marksin graduate level examination can beintroduced by the University, and whethersuch additional prescription by theUniversity would contravene the

provisions of the circular of the BarCouncil of India.

13. The statement of the learnedcounsel for the appellant that such

prescription of an additional qualification

by the University is legally justified iswell founded and squarely answered bythe Hon'ble Supreme Court as detailed

below.

14. The question as to whether theState Authorities who are conductingadmission to Post Graduate MedicalCourses can prescribe any qualification inaddition to those laid down by theMedical Council of India came up forconsideration before the Constitutional

Bench of the Hon'ble Supreme Court ofIndia in the case of Dr. Preeti Srivastava


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& anr. vs. State of M.P. & Ors . reportedin (1999) 7 SCC 120 . The Hon'bleSupreme Court in the said case held thatalthough the Medical Council has powerto lay the minimum qualification withregard to admission to various courses but

prescription in addition thereto by the

State Government will not be illegal. TheState Government was held entitled to laydown any additional or requisitequalification in the said case.

15. Following was laid down by theHon'ble Supreme Court in the case of Dr.Preeti Srivastava (Supra) specially in

paragraphs-45 and 46:

"45 . In Ambesh Kumar (Dr) v. Principal, L.L.R.M. Medical College a

State order prescribed 55% as minimummarks for admission to postgraduatemedical courses. The Court consideredthe question whether the State can imposequalifications in addition to those laiddown by the Medical Council of India andthe regulations framed by the CentralGovernment. The Court said that anyadditional or further qualifications whichthe State may lay down would not becontrary to Entry 66 of List I sinceadditional qualifications are not in

conflict with the Central regulations butare designed to further the objective ofthe Central regulations which are to

promote proper standards . The Courtsaid: (SCC p. 552, para 26)

"The State Government by layingdown the eligibility qualification namelythe obtaining of certain minimum marksin the MBBS Examination by thecandidates has not in any way encroachedupon the regulations made under the

Indian Medical Council Act nor does itinfringe the Central power provided in

Entry 66 in List I of the Seventh Scheduleto the Constitution. The order merely

provides an additional eligibilityqualification. "

None of these judgements lays downthat any reduction in the eligibilitycriteria would not impinge on the

standards covered by Entry 66 of List I. All these qualifications --- qualificationsin addition to judgements dealt withadditional what was prescribed by theCentral regulations or statutes.

46 Of course, once theminimum standards are laid down by theauthority having the power to do so, any

further qualifications laid down by theState which will lead to the selection ofbetter students cannot be challenged onthe ground that it is contrary to what has

been laid down by the authorityconcerned. But, the action of the State isvalid because it does not adverselyimpinge on the standards prescribed bythe appropriate authority .....

It would be worthwhile to reproduce paragraph-9 of the judgment of theHon'ble Supreme Court relied upon by thelearned counsel for the appellant in thecase of State of Tamil Nadu & Anr.(Supra) , which reads as follows:

"9. Entry 25 of List III and Entry 66of List I have to be read together and itcannot be read in such a manner as to

form an exclusivity in the matter ofadmission but if certain prescription of

standards have been made pursuant to Entry 66 of List I, then those standardswill prevail over the standards fixed bythe State in exercise of powers under

Entry 25 of List III insofar as theyadversely affect the standards laid down

by the Union of India or any otherauthority functioning under it. Therefore,


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what is to be seen in the present case iswhether the prescription of the standardsmade by the State Government is in anyway adverse to, or lower than, the

standards fixed by AICTE. It is no doubttrue that AICTE prescribed two modes ofadmission--one is merely dependent on

the qualifying examination and the other,dependent upon the marks obtained at thecommon entrance test. The appellant inthe present case prescribed thequalification of having secured certain

percentage of marks in the related subjects which is higher than theminimum in the Qualifying examination inorder to be eligible for admission. Ifhigher minimum is prescribed by the StateGovernment than what had been

prescribed by AICTE, can it be said that it

is in any manner adverse to the standards fixed by AICTE or reduces the standard fixed by it? In our opinion, it does not. Onthe other hand, if we proceed on the basisthat the norms fixed by AICTE wouldallow admission only on the basis of themarks obtained in the qualif0ngexamination, the additional test madeapplicable is the common entrance test bythe State Government. If we proceed totake the standard fixed by AICTE to bethe common entrance test then the

prescription made by the StateGovernment of having obtained certainmarks higher than the minimum in thequalifying examination in order to beeligible to participate in the commonentrance test is in addition to the commonentrance test. In either even, the streams

proposed by AICTE are not belittled inany manner. The manner in which the

High Court has proceeded is that whathas been prescribed by AICTE isinexorable and that that minimum alone

should be taken into consideration and noother standard could be fixed even the

higher as stated by this Court in Dr. Preeti Srivastava case. It is no doubt true,as noticed by this Court in Adhiyamancase that there may be situations when alarge number of seats may fall vacant onaccount of the higher standards fixed. The

standards fixed should always be realistic

which are attainable and are within thereach of the candidates. It cannot be saidthat the prescriptions by the StateGovernment in addition to those of A/CTEin the present case are such which are notattainable to which are not within thereach of the candidates who seekadmission for engineering colleges. It isnot a very high percentage of marks thathas been prescribed as minimum of 60%downwards, but definitely higher than themere pass marks. Excellence in higher

education is always insisted upon by a series of decisions of this Court including Dr. Preeti Srivastava case. If higherminimum marks have been prescribed, itwould certainly add to the excellence inthe matter of admission of the students inhigher education.

16. The aforesaid judgement reliedupon by the learned counsel for theappellant specifically answers the issuewhich has been raised in the present

special appeal. In the case of State ofTamil Nadu (Supra) the Hon'bleSupreme Court examined the standard

prescribed by AICTE with regard to theexamination and eligibility criteria forappearing in the common entrance test. In

paragraph-9 of the judgement as quotedabove, it has been laid down by theHon'ble Supreme Court that for thecommon entrance test, the standard fixed

by the State Government of havingobtained certain marks higher than the

minimum by the AICTE are legally justified.


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17. In view of the ration laid down by the Hon'ble Supreme Court in abovetwo cases, it is clear that the prescriptions

by the University of having at least 45%marks in the qualifying examination i.e.graduation course is an additionalqualification which is fully supported by

the ratio of the judgement of the Hon'bleSupreme Court in the case of Dr. PreetiSrivastava (Supra) and State of TamilNadu (Supra) .

18. Learned counsel for therespondent no.1 submits that once theUniversity has issued an Admit Card to acandidate, it cannot reject the candidatureof such candidate at a later stage. Insupport thereof he has placed relianceupon the judgement of the Hon'ble

Supreme Court in the case of Shri Krishanvs. The Kurukshetra University,Kurukshetra reported in AIR 1976 SC376, paragraph-7.

19. The judgement relied upon bythe learned counsel for respondent no.1 iswith reference to a different set ofcircumstances. In that case candidate wasgranted admission and thereafter he wasalso permitted to undertake the firstcourse and then to take the examination of

Part-I of LL.B. Course in April, 1972,subsequently the University cancelled hiscandidature. The Hon'ble Supreme Courtin these facts held that if the Universityacquiesced to the infirmities whichexisted at the time of admission andallowed the appellant to undertake thecourse and then to appear in Part Iexamination in April, 1972, then withreference to the University Statute, theUniversity had no power to withdraw thecandidature of the appellant. In the

present case, the University has notgranted admission to the respondent no.1

in LL.B. Three years Degree Course andhe has been denied such admission on theground that respondent no.1 does notfulfil the minimum eligibilities as detailedin brochure published by the University atthe threshold of admission.

20. Learned counsel for theappellant has also referred to the brochurewhich has been annexed as AnnexureC.A.-1 to the writ petition specifically

paragraph 10 read with paragraph 19under the heading of "Aharta Sambandhi

Niyam". It contains a specific conditionthat for permitting a candidate to appearin the entrance examination, the minimumeligibility is of having passed qualifying'examination with 45%. The Universityhas not admitted the respondent no.1 in

the LL.B. Three Years Degree Course, because of lack of the said eligibility. The principle of promissory estoppel cannot be pressed by the learned counsel for therespondent no.1 for evading therequirements so prescribed. It is not thecase of respondent no.1 that he has beengranted admission in LL.B. Three YearsDegree Course and he is not being

permitted to appear in Part-I examinationafter he has completed his first yearcourse.

21. We may also refer to the other judgment, reliance whereof has made bythe respondent no.1 i.e. the judgement ofthe Hon'ble Supreme Court in the case ofDolly Chhanda vs. Chairman, JEE andOrs. reported in 2004 (10) SBR 424.

22. The Hon'ble Supreme Court inthe said case itself has laid down that thegeneral rule is that while applying for anycourse of study or a post, a person must

possess the eligibility qualification on thelast date fixed for such purpose and that


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there can be no relaxation. The judgmentrelied upon by the learned counsel forrespondent no.1 whereby the Hon'bleSupreme Court held that every infractionof the rule relating to submission of proofneed not necessarily result in rejection ofcandidature. The said case is clearly

distinguishable in the facts of the presentcase and does not help the respondentno.1.

23. Respondent no.1 being not possessed of the minimum eligiblequalification prescribed, the denial ofadmission to him by the University is

justified. No principle of promissoryestoppel can be pressed by the respondentno.1 in support of his admission.

24. Therefore, the judgment andorder of the Hon'ble Single Judge dated11 th November, 2008 cannot be legallysustained and is hereby set aside,:

25. The present special appeal isallowed. The writ petition filed byrespondent no.1 is dismissed. No order is

passed as to costs.---------

APPELLATE JURISDICTIONCRIMINAL SIDE


BEFORETHE HONBLE VINOD PRASAD, J.

Criminal Misc. Application No. 2975 of2009

Ramji Shukla ...ApplicantVersus

State of U.P. and anotherOpposite Parties

Counsel for the Applicant:Sri Beni Madhav PandeySri K.K. Mishra

Counsel for the Opposite Parties: A.G.A.

Code of Criminal Procedure-Section 210-complaint dismissed by Magistrate onground for same occurrence FIR lodged-police submitted charge sheet-complaintfor same offence-not maintainable-held-illegal-charge filed for allegation ofmurder of his son-without allegation ofrash and negligence-direction issued toproceed with complaint on merit.

Held: Para 8

In above view, C.J.M., Allahabadcommitted a manifest error of law indismissing the complaint of the applicantunder Section 203 Cr.P.C. for the reasonthat the police has submitted the chargesheet in respect of the same incident.Happening of the same incident is notmaterial for applicability of Section 210Cr.P.C. for conducting a single trial. Whatis important is that the offence alleged isthe same. Consequently rejection ofcomplaint by C.J.M., Allahabad bypassing the impugned order is whollyillegal and cannot be sustained in law.The charge which was leveled by theapplicant in his complaint were that ofcausing murder of his son by repeatedlycrushing him under the vehicle. The saidcharge of murder is an independentcharge of causing death but not by rashand negligence act.

(Delivered by Honble Vinod Prasad, J.)

1. Heard learned counsel for theapplicant and the learned A.G.A.

2. The applicant complainant RamjiShukla has approached this Court with the

prayer to quash the impugned order dated3.10.2008 passed by C,J.M., Allahabad incomplaint case no. 23676/2008 (RamjiVs. Sonu Agrawal), under Sections 279,

304-A, 427 I.P.C., P.S. Naini, DistrictAllahabad.


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1 All] Ramji Shukla V. State of U.P. and another 263

3. A perusal of the complaintinstituted by the applicant, vide annexure

No. 1 to this application, before C,J.M.,Allahabad, registered as complaint Case

NO. 23676/2008 (Ramji Vs. SonuAgrawal), indicates that the allegationsleveled were that of causing murder of

son of applicant Shivanshu aged about 16years by crushing him under vehicle no.UP 70 AV 2700.

4. It transpires that when thecomplaint was filed on 14.8.2008, C.J.M.,Allahabad was apprise of the fact that inrespect .pf the said incident, a FIR videcrime no. 371 of 2008, under sections279, 304 A, 427 I.P.C. was alreadyregistered which is pending investigation.C.J.M., Allahabad, therefore, stopped the

proceedings of the complaint case andcalled for a report from the police whoreported that crime was investigated and acharge sheet had already been submittedagainst the accused persons on 20.7.2008for offences mentioned.

5. After receiving the police reportin respect of filing of charge sheet,C.J.M., Allahabad dismissed thecomplaint of the applicant under Section203 Cr.P.C. for the reason that the police

has submitted the charge sheet in theabove noted offences of causing death byrash and negligence act punishable underSections 304, 379, 427 I.P.C.

6. The controversy involved in thiscase revolves around the applicability ofSection 210 Cr.P.C. For a clearunderstanding Section 210 Cr.P.C. isreproduced herein below:

"(1) When in a case instituted

otherwise than on a police report(hereinafter referred to as a complaint

case), it is made to appear to the Magistrate, during the course of theinquiry or trial held by him, that aninvestigation by the police is in progressin relation to the offence which is the

subject-matter of the inquiry or trial heldby him, the Magistrate shall stay the

proceedings of such inquiry or trial andcall for a report on the matter from the

police officer conducting theinvestigation.

(2) If a report is made by theinvestigating police officer under section173 and on such report cognizance of anyoffence is taken by the Magistrate againstany person who is an accused in thecomplaint case, the Magistrate shallinquire into or try together the complaintcase and the case arising out of police

report as if both the cases were institutedon a police report.

(3) If the police report does notrelate to any accused in the complaintcase or if the Magistrate does not takecognizance of any offence on the policereport, he shall proceed with the inquiryor trial, which was stayed by him, inaccordance with the provisions of thisCode.

7. Above phraseology of Section

210 Cr.P.C. indicate that what is sine quonon for applicability of the said Section iscommission of the same offence. If theoffence is different, then Section 210Cr.P.C. does not have any application atall for clubbing the prosecution. Thisaspect is clear from conjoint reading ofSections 210 (1) and 210 (3) Cr.P.C.

8. In above view, C.J.M., Allahabadcommitted a manifest error of law indismissing the complaint of the applicant

under Section 203 Cr.P.C. for the reasonthat the police has submitted the charge


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sheet in respect of the same incident.Happening of the same incident is notmaterial for applicability of Section 210Cr.P.C. for conducting a single trial. Whatis important is that the offence alleged isthe same. Consequently rejection ofcomplaint by C.J.M., Allahabad by

passing the impugned order is whollyillegal and cannot be sustained in law.The charge which was leveled by theapplicant in his complaint were that ofcausing murder of his son by repeatedlycrushing him under the vehicle. The saidcharge of murder is an independentcharge of causing death but not by rashand negligence act.

9. In view of what I have observedabove, the impugned order dated

3.10.2008 passed by C.J.M., Allahabadcannot be sustained at all and is hereby setaside. C.J.M., Allahabad cannot besustained at all and is hereby set aside.C.J.M., Allahabad is directed to proceedwith the complaint case instituted by theapplicant in accordance with law as thecharge sheet submitted against theaccused persons by the police is in respectof different offences all together.

With the aforesaid directions, this

application is allowed.---------ORIGINAL JURISDICTION

CIVIL SIDEDATED: ALLAHABAD 18.02.2009

BEFORETHE HONBLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 14225 of 2003

Shahid Ahmad Khan PetitionerVersus

Deputy Labour Commissioner, AgraRegion, Agra and another Respondents

Counsel for the Petitioner:Ms. Biushra MaryanSri K.P. AgarwalSuman SirohiSumati Rani Gupta

Counsel for the Respondents:

Sri Dhruva NarayanS.C.

Industrial Dispute Act 1947-Section 10(1)-petitioner working as salesrepresentative in Pvt. Company aftertermination approached before LabourCommissioner-who refused to refer thedispute as petitioner is not for workman-held-it is for the court or Tribunaland to conciliation officer who works asrepresentative of Govt.-who exceeded to

jurisdiction-order can not be sustained.Held: Para 9 & 10

In a similar matter in TELCO ConvoyDrivers Mazdoor Sangh & Anr. Vs. Stateof Bihar & Ors., 1989 (3) SCC 271, theSupreme Court held that the dispute, asto whether the persons raising thedispute, are the workmen or not, thesame could not be decided by theGovernment in exercise of itsadministrative function under Section 10(1) of the Industrial Disputes Act. Thesaid judgment is squarely applicable tothe present facts and circumstances ofthe case.

The Court is of the opinion that the StateGovernment exceeded its jurisdictionand has attempted to usurp the power ofthe Tribunal by adjudicating a disputewhich power was not vested with thegovernment.Case law discussed:1985 (51) FLR 71, 2002 (4) SCC 490, 2005 (2)UPLBEC 1181, 1970 (20) FLR 297, 1953 SCR834, 1978 (36) FLR 195, 1989 (3) SCC 271

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Ms. Bushra Maryan, thelearned counsel for the petitioner and Shri


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1 All] Shahid Ahmad Khan V. Dy. Labour Commissioner Agra Region, Agra and another 265

Dhruva Narayan, the learned SeniorCounsel appearing for respondent no. 2.

2. It is alleged that the petitioner wasworking as a sales representative in theindustrial establishment of respondent no.2, which is a pharmaceutical company

and that, the provisions of SalesPromotion Employees (Condition ofService) Act, 1976 was applicable to the

petitioner. It is alleged that the services ofthe petitioner was terminated by an orderdated 26 th of October, 2002 and the

petitioner, being aggrieved, raised aconciliation proceeding under theIndustrial Disputes Act. It is alleged thatthere was a failure in the conciliation

proceedings and the Deputy LabourCommissioner, after considering the

matter, issued an order dated 13th

March,2003, declining to refer the dispute foradjudication under Section 4-K of theU.P. Industrial Disputes Act on theground that it was not expedient to referthe dispute for adjudication. The reasonfor declining to refer the dispute was thatthe petitioner does not come under thecategory of the definition of the word"workman" as defined under the U.P.Industrial Disputes Act. The petitioner,

being aggrieved by the order of the

Deputy Labour Commissioner, has filedthe present writ petition.

3. The learned counsel for the petitioner submitted that the DeputyLabour Commissioner, which is thedelegated authority of the StateGovernment, has committed a manifesterror in declining to refer the dispute, andthat the authority had no power or

jurisdiction to decide the question as towhether the petitioner was a workman or

not under the U.P. Industrial Disputes Actand that the power to decide this question

only remains with the Labour Court or theIndustrial Tribunal. The learned counselsubmitted that the State Government or itsdelegated authority was vested with the

power only to a limited area, namely, asto whether an industrial dispute existed orwas apprehended between the parties. The

question, whether the petitioner was aworkman or a sales promotion employee,was not within the domain of the StateGovernment to consider or decide thismatter.

4. In support of her submission, thelearned counsel placed reliance upon adecision of the Supreme Court in RamAvtar Sharma & Ors. Vs. State ofHaryana and Anr., 1985 (51) FLR 71and in the case of Sharad Kumar Vs.

Government of NCT of Delhi , 2002 (4)SCC 490. The learned counsel also placedreliance upon a decision of this Court inRadhey Shyam Mishra Vs. State ofU.P. & Ors. , 2005 (2) UPLBEC 1181.

5. On the other hand, the learnedcounsel for the respondent submitted thatthe State Government was justified inrefusing to refer the dispute on the groundthat the petitioner was not a workman andthat the authority had satisfied itself

subjectively on the basis of the materialevidence, that was brought before it, tocome to a conclusion that it was notexpedient to refer the dispute foradjudication. The learned counselsubmitted that since the petitioner was nota workman under the Industrial DisputesAct, no reference could be made foradjudication under Section 4-K of theU.P. Industrial Disputes Act.

6. In Western India Match

Company Ltd. Vs Western India MatchCo. Workers Union & Ors. , 1970 (20)


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FLR 297, the Supreme Court, followingthe ratio of the decision in State ofMadras Vs. C.P. Sarathy, 1953 SCR834, held that the State Government onlyissues an administrative order whileexercising its powers. The Supreme Courtheld that the Government could not go

into the merits of the dispute and that itsfunctioning was only to refer a dispute foradjudication so that the industrialrelations between the employer and itsemployees may not continue to remaindisturbed, and that the dispute, if any, isresolved through a judicial process asspeedily as possible. This decision wasconsidered by the Supreme Court again inShambu Nath Goyal Vs. Bank ofBaroda, Jullundur, 1978 (36) FLR 195,in which it was held that a reference under

Section 10 of the Industrial Disputes Actwas an administrative act of thegovernment, on the basis of an opinionformed by the Government as to thefactual existence of an industrial dispute.

7. In Ram Avtar Sharma (Supra),the Supreme Court again reiterated thatthe Government only performs anadministrative act while making orrefusing to make a reference underSection 10 of the Industrial Disputes Act,

and that it cannot delve into the merits ofthe dispute or take upon itself thedetermination of the lis between the

parties. The Supreme Court held that theappropriate Government could only referwhen a dispute existed or wasapprehended, and for that purpose, theState Government was permitted todetermine, prima facie, whether anindustrial dispute existed or that the claimwas frivolous or bogus. Similar view wasagain reiterated by the Supreme Court in

Sharad Kumar's case (Supra).

8. In the light of the aforesaiddecisions, it is necessary to examine thereason given by the authority to ascertainas to whether the reasons given wasgermane to the issue or not. From a

perusal of the impugned order, it is clearthat the State Government has declined to

raise the dispute on the ground that the petitioner was not a workman under theIndustrial Disputes Act. In my opinion,the reasons given by the authoritytantamount to an adjudication, which isimpermissible. Adjudication is thefunction of the Tribunal or the LabourCourt, and the State Government or itsdelegated authority cannot remit to itselfthat function, which is exclusively vestedwith the Industrial Tribunal or the LabourCourt. Consequently, the State

Government was not competent to holdthat the petitioner was not a workmanwithin the meaning as defined under theU.P. Industrial Disputes Act. Such amatter could only be adjudicated ordecided by the Tribunal or the LabourCourt on the basis of the material placed

before it by the parties.

9. In a similar matter in TELCOConvoy Drivers Mazdoor Sangh &Anr. Vs. State of Bihar & Ors. , 1989 (3)

SCC 271, the Supreme Court held that thedispute, as to whether the persons raisingthe dispute, are the workmen or not, thesame could not be decided by theGovernment in exercise of itsadministrative function under Section 10(1) of the Industrial Disputes Act. Thesaid judgment is squarely applicable tothe present facts and circumstances of thecase.

10. The Court is of the opinion that

the State Government exceeded its jurisdiction and has attempted to usurp the


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1 All] Bhrigu Nath Pandey V. State of U.P. and others 267

power of the Tribunal by adjudicating adispute which power was not vested withthe government.

11. In view of the aforesaid, theimpugned order, passed by the DeputyLabour Commissioner, declining to refer

the dispute cannot be sustained and isquashed. The writ petition is allowed. Thematter is again remitted to the authorityconcerned to exercise its powers and referthe dispute for adjudication if theindustrial dispute exists or isapprehended. The order shall be passed

by the authority within eight weeks fromthe date of the production of a certifiedcopy of this order.

---------ORIGINAL JURISDICTION




Bhrigu Nath Pandey PetitionerVersus

State of Uttar Pradesh and othersRespondents

Counsel for the Petitioner:Sri Salil Kumar Rai

Counsel for the Respondents:Sri S.B. PandeyS.C.

Constitution of India-Art. 226-cancellation of bid-for fisheries Rights-on ground of inadequate amount-bidaccepted-petitioner deposited amount-before cancellation notice orshow cause not required.

Held: Para 8

In view of the aforesaid, the impugnedorder cancelling the auction does notsuffer from any error of law. In fact, theSupreme Court in the case of Ram andShyam Company (Supra) held that theGovernment was entitled to reject thehighest bid if it found that the priceoffered was inadequate. The Supreme

Court, further held, that after rejectingthe offer, it was obligatory upon theGovernment to act fairly, and that at anyrate, it should not act arbitrarily.Case law discussed:(1985) 3 SCC 267, 2004 (97) RD 675

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Shri Salil Kumar Rai, thelearned counsel for the petitioner and thelearned Standing Counsel appearing forthe respondents.

2. An advertisement dated 5th ofSeptember, 2005 was issued by theDeputy District Magistrate, Sahjanwa,District Gorakhpur, in which it wasnotified that an auction would be held on14th of September, 2005 for grant offisheries' rights in various villages, whichincluded Village Bikora, Post Bikora,Tehsil Sahjanwa, District Gorakhpurhaving an area of 0.713 hectares. It isalleged that the petitioner participated in

the said auction and his bid ofRs.12,500.00 was the highest, and, at thefall of the hammer, deposited a sum ofRs.3,125.00, being 1/4th of the bidamount. Before the auction could befinalised, the Deputy District Magistrate,

by an order dated 27th of September,2005, cancelled the auction, on the groundthat the bid was inadequate, and directedthat a fresh auction should be held. The

petitioner, being aggrieved by the re-auction and the rejection of his bid, has

filed the present writ petition.


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3. At the time of the filing of thewrit petition, it was urged by the

petitioner that there was no irregularity inthe publication of the auction and that the

petitioner made an offer of Rs.75,000.00instead of Rs.12,500.00. On that basis, theCourt, by an interim order dated 23rd of

December, 2005, stayed the re-auction tillthe next date of listing, provided the

petitioner deposited a further sum ofRs.19,000.00 before the Tehsildar to

prove his bona fides. The learned counselfor the petitioner submitted that pursuantto the interim order, the petitioner haddeposited the amount of Rs.19,000.00.

4. The learned counsel for the petitioner submitted that there was noirregularity in the publication of the

auction, and consequently, the auctioncould not have been cancelled on the soleground that the consideration wasinadequate. The learned counsel furthersubmitted, that assuming withoutadmitting, that the auction could becancelled on account of inadequacy of theconsideration, in that event, beforecancelling, the petitioner should have

been given an opportunity to revise his bid. Further, the learned counselsubmitted that the impugned order

cancelling the auction was violative of the principles of natural justice, and that, anopportunity of hearing was required to begiven, which was also contemplated and

provided under Rule 115-S of the U.P.Zamindari Abolition and Land ReformsRules, 1952. In support of his submission,the learned counsel has placed relianceupon a decision of the Supreme Court inRam and Shyam Company Vs. State ofHaryana & Ors., (1985) 3 SCC 267,wherein the learned counsel placed

emphasis upon the observation made bythe Supreme Court in paragraphs 13 and

18 of its judgment, which provided that anopportunity ought to have been given tothe petitioner to improve his bid when his

bid was rejected on the ground that it didnot represent the adequate marketconsideration.

5. Having heard the learned counselfor the petitioner and having perused thecounter affidavit filed by the State, theCourt is of the opinion that thesubmissions raised by the learned counselfor the petitioner is patently misconceivedand bereft of merit. The judgment cited bythe learned counsel is not applicable tothe present facts and circumstances of thecase. In Ram and Shyam Company(supra), the Supreme Court found that the

petitioner's bid was the highest but was

rejected on the ground that anothercompetitor arbitrarily gave an enhanced

bid subsequently. It was, in that light, thatthe Supreme Court held that anopportunity of hearing should have been

provided to the petitioner to enhance his bid, but, this is not the case in the presentscenario.

6. In the present case, the bid has been cancelled by the State authorities onthe ground that the bid was inadequate.

No doubt, detailed reasons have not beengiven in the impugned order, but thecounter affidavit reveals the ground forcancellation of the auction. The State hascome out with the stand that the HighCourt had delivered a judgment inBabban Vs. State of U.P. through thePrincipal Secretary, RevenueDepartment & Ors., decided on 6 th October, 2004, reported in 2004 (97) RD675, in which the Court had directed thatthe fisheries' lease in future should be

granted at the minimum rate ofRs.10,000.00 per hectare per year. This


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1 All] Bhrigu Nath Pandey V. State of U.P. and others 269

judgment was delivered prior to theadvertisement issued in the present case.Since the direction of the Court wasviolated, the advertisement itself becameincorrect. The reasoning given by theauthority in the impugned order wascorrect, namely, that the bid was

inadequate, though detailed reasons werenot given, but that became immaterial,since a direction of the Court was notfollowed by the authorities.

7. Admittedly, the area of the pondis less than a hectare and a fisheries' rightfor 10 years' was required to be auctioned.Consequently, the bid given by the

petitioner to the tune of Rs.12,500.00 wasgrossly inadequate.

8. In view of the aforesaid, theimpugned order cancelling the auctiondoes not suffer from any error of law. Infact, the Supreme Court in the case ofRam and Shyam Company (Supra) heldthat the Government was entitled to rejectthe highest bid if it found that the priceoffered was inadequate. The SupremeCourt, further held, that after rejecting theoffer, it was obligatory upon theGovernment to act fairly, and that at anyrate, it should not act arbitrarily.

9. In the present case, the authoritieshave cancelled the auction on the groundthat the price bid was grossly inadequateand has directed that a fresh auctionshould be held. No illegality orarbitrariness has been committed by theState authorities in directing re-auctioningof the fisheries' right.

10. In so far as the provisions ofRule 115-S of the U.P.Z.A. & L.R. Rules

is concerned, this Court finds that theinitiation of the auction though the

advertisement itself was incorrect andagainst the directions of the High Courtgiven in the judgment of Babban (Supra).Consequently, the stage of Rule 115-Shad not as yet started.

11. The learned counsel for the

petitioner in the end submitted that he waswilling to pay a price of Rs.75,000.00 forthe fisheries' rights and that his bona fideshas been tested since he has deposited1/4th of the amount as per interim orderof the Court. In my view, the mere factthat the petitioner has deposited someamount pursuant to an interim order of theCourt only prima facie proves his bonafides, but this, by itself, could not entitlethe petitioner to get the fisheries' right,especially when other bidders are not

before the Court to match the priceoffered by the petitioner. The law is veryclear, namely, that the fisheries' right hasto be settled by auction. An offer given bythe petitioner before the Court does not

become a public auction, especially whenother bidders are not before the Court.The Court had entertained the writ

petition by directing the petitioner todeposit the amount as an interim measureto show his bona fides. By entertainingthe writ petition, the Court did not mean

that a fisheries' right would eventually begranted. Now, the version of the State is before the Court and, one finds the reasonfor the cancellation of the bid which wasdone in terms of the directions of theCourt in the case of Babban (supra).

12. In view of the aforesaid, thisCourt does not find any error in theimpugned order. The writ petition failsand is dismissed. It is however clarifiedthat the amount so deposited by the

petitioner pursuant to the fall of thehammer and pursuant to the interim order


24/76


of the Court, shall be refunded to the petitioner within four weeks from the dateof moving such an application along witha certified copy of this order.



BEFORETHE HONBLE S.K. JAIN, J.

Civil Misc. Habeas Corpus Writ PetitionNo. 52691 of 2008

Kanak Khandelwal and anotherPetitioners

VersusState of U.P. and others Respondents

Counsel for the Petitioners:Sri Pankaj Kumar Shukla

Counsel for the Respondents:Sri Anil Kumar PandeySri J.K. Chakraverty

A.G.A.

Constitutions of India Art. 226-HabeasCorpus Writ-Custody of minor child-bygrand father-minor living happily withNana Nani getting education in EnglishSchool-minor son the only eye witness ofthe murder of his mother-Father alreadyin jail-welfare of minor parampunt-consideration-custody of such minor cannot be handed over to the grand father.

Held: Para 8

From the facts and circumstances of thecase, it appears that petitioner no. 1 isthe only witness of murder of hismother, which is alleged to have beencommitted by the father of petitioner no.1. He has already deposed under section164 Cr.P.C. against his father and on thebasis of his statement the father ofpetitioner no. 1 has been detained incustody. If the child is handed over to his

grand father i.e. the father of RaviKhandelwal, the possibility that theevidence in the case shall be destroyedcannot be over ruled. It has also bornout from the facts and circumstances ofthe case that the child has not beenillegally detained and he is happily livingwith his Nana and Nani. I do not find it

fit to hand over the custody of the childto petitioner no. 2, the grand father ofpetitioner no. 1.

(Delivered by Honble S.K. Jain, J.)

1. Petitioners Kanak Khandelwal(minor) and Shyam Sundar Khandelwalfiled this Habeas Corpus Writ Petition forissuance of a writ order or direction in thenature of mandamus directing therespondents to produce the corpus of

petitioner no. 1 Kanak Khandelwal who isin illegal custody of respondent no. 2 to 7.

2. Present petition has been preferred on the ground that the daughterof Suresh Chand Khandelwal, respondentno. 2 was married with Ravi Khandelwalson of petitioner no. 2 on 4.3.03. After themarriage Ravi Khandelwal and daughterof Suresh Chand Khandelwal livedhappily and petitioner no. 1 KanakKhandelwal was born out of the wedlockon 2.3.2004. Petitioner no. 2 admitted

petitioner no. 1 in Euro Kids Play SchoolRadhapuram, National Highway 2,Mathura, Kanak is still studying. It isalleged that in the night of 20/21-6-2008some unknown persons had committedmurder of the mother petitioner no. 1Kanak. Ravi Khandel, the father of

petitioner no. 1, lodged a F.I.R. at P.S.Highway, District Mathura about theoccurrence, which was registered as casecrime no. 268 of 2008 against unknown

persons. After the occurrence, the Mediahad taken interview of respondent no. 2 to7, who stated before the Media that they


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1 All] Kanak Khandelwal and another V. State of U.P. and others 271

had no complaint against the husband andhis family members. They have nevertortured the daughter of respondent no. 2,who was married to Ravi Khandelwal. Itis further alleged that the wife of RaviKhandelwal was cremated with themutual consent of the parties. Respondent

no. 2, his wife Smt. Shyam LataKhandelwal respondent no. 3, PawanKhandelwal respondent no. 4 son ofrespondent no. 2, Rachna Khandelwalwife of Pawan Khandelwal respondent no.5, Pankaj Khandelwal son of SureshKhandelwal respondent no. 6 and SonuKhandelwal respondent no. 7 forciblytook away petitioner no. 1 aftercremation. Petitioner no. 2 being realgrand father of petitioner no. 1 is entitledto the custody of petitioner no. 1. Notices

were issued to the respondents to produce petitioner no. 1 before this court on16.2.09.

3. Counter affidavit has been filed.As per the counter affidavit the case of therespondents is that daughter of respondentno. 2 was married to Ravi Khandelwal on4.3.03. Ravi Khandelwal tortured his wifefor demand of cash and car etc. Duringinvestigation statement of petitioner no. 1was recorded in the case registered on the

basis of the report lodged by RaviKhandelwal regarding murder of his wife.Petitioner no. 1 in his statement undersection 164 Cr.P.C. has specifically statedthat on the day of occurrence. RaviKhandelwal accompanied by one boycame to the house. The boyaccompanying Ravi Khandelwal tied thehands of petitioner no. 1 with a Chunni,locked the gate of the house and his fathercommitted the murder of his mother bythrottling. It has further been contended

that petitioner no. 1 is living with his Nana and Nani as per his own free will.

Ravi Khandelwal is confined in jail in themurder of his wife, the mother of

petitioner no. 1.

4. Statement of petitioner no. 1Kanak was recorded before this court,who has deposed that he is living with his

Nana and Nani and receiving education inAdarsh Vidya Mandir. He was notforcibly taken by his Nana and Nani. Hewants to stay with them. He further statedthat if he goes with his Dada and Dadi,they would kill him in the manner theykilled his mother.

5. Learned counsel for the petitionerhas contended that petitioner no. 1 isunder the influence of his Nana and Nani.Petitioner no. 2 is real grand father who

has retired from the Bank services and ifthe child is left in his company, he wouldhappily go with petitioner no. 2.However, at the time of hearing petitionerno. 2 was not present in court. A requestwas made that the child be put in someHotel at Allahabad, so that petitioner no.2 may come and meet him on the nextdate of hearing.

6. Per contra learned counsel for therespondents pleaded that it is clear from

the facts and circumstances of the casethat petitioner no. 1 is only the witness ofthe murder of his own mother. As per hisstatement the murder was committed byhis father. He is happily living with his

Nana and Nani and his receivingeducation. If the custody of child ishanded over to petitioner no. 2 who isfather of the accused Ravi Khandelwal,the accused of the murder of his wife, theevidence in the can be destroyed either byeliminating the child or by tutoring him.

There is nothing on record to suggest that


26/76


petitioner no. 1 is in illegal custody of therespondents.

7. I have given my thoughtfulconsideration to the submissions made bythe learned counsel for the parties.

8. From the facts and circumstancesof the case, it appears that petitioner no. 1is the only witness of murder of hismother, which is alleged to have beencommitted by the father of petitioner no.1. He has already deposed under section164 Cr.P.C. against his father and on the

basis of his statement the father of petitioner no. 1 has been detained incustody. If the child is handed over to hisgrand father i.e. the father of RaviKhandelwal, the possibility that the

evidence in the case shall be destroyedcannot be over ruled. It has also born outfrom the facts and circumstances of thecase that the child has not been illegallydetained and he is happily living with his

Nana and Nani. I do not find it fit to handover the custody of the child to petitionerno. 2, the grand father of petitioner no. 1.

9. The writ petition is devoid ofmerit and is liable to be dismissed.

10. The petition is dismissedaccordingly.---------

ORIGINAL JURISDICTIONCIVIL SIDE




State of U.P. and anotherPetitionersVersus

Ram Chandra Ram and anotherRespondents

Counsel for the Petitioners:Sri Ajay KumarSri Amit SthalekarS.C.

Counsel for the Respondents:Sri Dhananjay Kumar Rai

U.P. Retirement Benefit Rules 1961-Section 2 (c)-readwith civil Servicesclassification Regulation-Regulation368-work charge employer appointed in1968 Regularised on 31.12.93 retired on31.08.01-gratuity w.e.f. Regulation-tillthe date of retirement given but theinitial date of appointment not included-authorised controller found entitled theperiod of initial appointment in workcharge establishment be counted-held-the status of work charge employee agovt. employee holding substantive post-provisions of payment of gratuity Act notapplicable-order passed by authorizedcontroller without jurisdiction-Howeverthe employee may approach before thestate authority for redressal ofgrievances-gratuity if payable w.e.f.1968 to till the retirement-same be givenwithin 2 month.

Held: Para 6

A perusal of the aforesaid definition ofthe word employee clearly indicates thatemployee in an establishment, factory,etc. will not include a person who holds apost under a State Government and is


27/76

1 All] State of U.P. and another V. Ram Chandra Ram and another 273

governed by any Act or by any Ruleswhich provides for the payment ofgratuity. The amount of gratuity underthe Act is determined under Section 7and only a person who is eligible forpayment of gratuity can file such anapplication. Section 4 of the Actcontemplates that gratuity shall be

payable to an employee on terminationof his employment. A conjoint reading ofSection 4 read with Section 7 of the said

Act coupled with the definition clause ofthe word "employee" as defined inSection 2 (e) will make it absolutelyclear that a Government employee whois governed by separate Act and Rulesrelating to payment of gratuity is notentitled to file an application under thePayment of Gratuity Act. Consequently,the impugned order passed by thecontrolling authority cannot be sustainedand is quashed. The writ petition is

allowed. Any amount deposited by thepetitioner, before the controllingauthority, is liable to be refunded to thepetitioner.

(Delivered by Honble Tarun Agarwala, J.)

1. Heard Sri S.S. Sharma, thelearned standing counsel for the petitionerand Sri Dhananjai Kumar Rai, the learnedcounsel for the respondents.

2. The petitioner has challenged theorders dated 15.2.2005 and 27.6.2005

passed by the controlling authority underthe Payment of Gratuity Act, 1972. Thefacts as culled out from the record is, thatrespondent No.1 was appointed as a workcharged employee in the petitioner'sestablishment on 1.9.1968 and hisservices was regularized w.e.f.31.12.1993. The petitioner retired fromthe service on 31.8.2001 and at that time,an amount of Rs.17, 160/- was paid asgratuity, taking the period of service from31.12.1993 till the date of his retirementdated 31.8.2001. The respondent No.1,

being aggrieved by the non-inclusion ofthe period from 1968 to 1993, i.e., the

period when he had started working as awork charged employee, filed anapplication, for computation of thegratuity, before the controlling authorityunder the Payment of Gratuity Act. The

controlling authority, after considering thematter, passed an order dated 15.2.2005holding that, the period from 1.9.1968 to31.12.1993 was also to be included as

period spent in service while computingthe gratuity and, accordingly directed the

petitioner to pay the balance amount ofRs.57,412/- along with interest @ 10%

p.a. The petitioner, being aggrieved, hasfiled a review application which was alsorejected by an order dated 27.6.2005. The

petitioner thereafter has filed the present

writ petition.

3. A preliminary objection wasraised that the petitioner has an alternativeremedy of filing an appeal under Section7(7) of the Act. No doubt the petitionerhas a remedy of filing an appeal butconsidering the facts and thecircumstances of the case that has been

brought on record coupled with the factthat the writ petition was entertained inthe year 2005, this Court is of the opinion,

that it is a fit case where the Court shouldexercise the writ jurisdiction under Article226 of the Constitution of India since theCourt finds that the question with regardto the applicability of the Act is involvedin the present writ petition and whichgoes to the root of the matter.

4. According to the petitioner, therespondent No.1 is an employee of theState Government and therefore, thePayment of Gratuity Act 1992 is not

applicable and that U.P. RetirementBenefit Rules, 1961 is applicable which


28/76


has been framed in exercise of the powersconferred under Article 309 of theConstitution of India.

5. According to the petitioner therespondent No.1 is an employee of theState Government and holds a substantive

post as per Regulation 368 of the CivilService Regulations and consequently, theU.P. Government Benefit Rules, 1961

becomes applicable upon the respondent No.1 and gratuity is required to be paid as per the said Rules. Section 2(e) of thePayment of Gratuity Act defines asunder:-

"(e) "employee" means any person(other than an apprentice) employed onwages, in any establishment, factory,

mine, oilfield, plantation, port, railwaycompany or shop to do any skilled, semi-

skilled, or unskilled, manual, supervisory,technical or clerical work, whether theterms of such employment are express orimplied, [and whether or not such personis employed in a managerial oradministrative capacity, but does notinclude any such person who holds a postunder the Central Government or a StateGovernment and is governed by any other

Act or by an rules providing for payment

of gratuity]."

6. A perusal of the aforesaiddefinition of the word employee clearlyindicates that employee in anestablishment, factory, etc. will notinclude a person who holds a post under aState Government and is governed by anyAct or by any Rules which provides forthe payment of gratuity. The amount ofgratuity under the Act is determined underSection 7 and only a person who is

eligible for payment of gratuity can filesuch an application. Section 4 of the Act

contemplates that gratuity shall be payable to an employee on termination ofhis employment. A conjoint reading ofSection 4 read with Section 7 of the saidAct coupled with the definition clause ofthe word "employee" as defined inSection 2(e) will make it absolutely clear

that a Government employee who isgoverned by separate Act and Rulesrelating to payment of gratuity is notentitled to file an application under thePayment of Gratuity Act. Consequently,the impugned order passed by thecontrolling authority cannot be sustainedand is quashed. The writ petition isallowed. Any amount deposited by the

petitioner, before the controllingauthority, is liable to be refunded to the

petitioner.

7. The matter does not end here.According to the respondent, he is liableto be paid gratuity on the basis of the

period of service which he had put infrom 1968 till the date of his retirement in2001. On the other hand, the petitionershave calculated the gratuity from the datewhen the respondent was treated as aregular employee. No reason has beengiven by the employers as to why the

period from 1968 to 1993 has not been

included under Rule 3(8) of the U.P.Government Benefit Rules 1961.Consequently, it would be open to therespondent No.1 to move an appropriateapplication for payment of the remainingamount of gratuity before the employersconcerned. If such an application is filed,the employers will consider hisapplication and pass a fresh order withintwo months from the date of the

production of a certified copy of thisorder. If respondent No.1 is entitled for

payment of gratuity, taking his servicefrom 1968 onwards till his date of


29/76

1 All] Roop Chandra V. State of U.P. and others 275

retirement, the arrears would becalculated and paid within two monthsthereafter.



BEFORETHE HONBLE RAJES KUMAR, J.


Roop Chandra PetitionerVersus

State of U.P. and others Respondents

Counsel for the Petitioner:Sri Awadh Narain Rai

Counsel for the Respondents:S.C.

Constitution of India-Art. 226-Pensionand gratuity-petitioner working as class4 th employee in Intermediate Collegerunning under grant in-aid-retired on31.10.05-G.O. dated 19.4.2006 for thefirst time provides benefit of gratuityand pension to the non teaching staff-denied on the ground of retirement dateprior to the enforcement of provision--mis-conceived-petitioner held entitledfor benefit of G.O. 19.4.06-direction for

payment of post retired benefit with15% interest given.

Held: Para 12

From the above proposition of law laiddown by the Apex Court and this Court itis clear that the benefit of theGovernment Order dated 19.4.2006cannot be denied to the employees whoretired prior to 19.4.2006 and suchbenefits are also available to them,including the petitioner. The notificationis always read prospectively unless it is

made retrospective. The GovernmentOrder dated 19.4.2006 has been further

clarified by the Government Order dated23.11.2007 which says that the benefit isavailable w.e.f. 19.4.2006. In this viewof the matter, the petitioner is entitledfor the benefit of the Government Orderdated 19.4.2006 w.e.f. 19.4.2006 andprior to that.Case law discussed:

1983 (1) SCC-305, 1998 (2) UPL.BEC-1525,2001 (4) ESC-1589, 2004 (3) ESC-1690, 2002(1) ESC-136

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

1. By means of present petition, the petitioner is seeking a direction to therespondents to grant gratuity and otherretiral benefits.

2. The petitioner was appointed asClass IV employee on 7.8.1971 by acompetent authority in a institution namedas Mahamana Malviya Inter CollegeKhekhada, District Aligarh impartingsecondary education and is under grant-in-aid by the State Government. The

provision for payment of salary of 1971 isapplicable. The petitioner attained the ageof superannuation at the age of 58 yearson 31.10.2005. Admittedly, when the

petitioner retired he was not entitled forgratuity and other retiral benefits. TheState Government by the GovernmentOrder dated 19.4.2006 provided the

benefits of gratuity and other retiral benefits to the non-teaching Class I Vemployees. The petitioner claimed the

benefit of gratuity and post retiral benefitson the basis of the Government Orderdated 19.4.2006 and accordingly filed arepresentation in this regard. Therepresentation has not been decided. The

petitioner has filed the present writ petition.

3. The respondent has filed thecounter affidavit stating therein that the


30/76


petitioner is not entitled for the gratuityand other retiral benefits as he has retired

prior to 19.4.2006 and under theGovernment Order dated 19.4.2006 onlythose non-teaching staffs are entitled forthe benefit of the gratuity and post retiral

benefits, who retires after 19.4.2006. This

position has been clarified by theGovernment Order dated 23.11.2007.

4. Learned counsel for the petitionersubmitted that the Government orderdated 19.4.2006 is applicable to thoseemployees also who have retired prior to19.4.2006. Thus, the petitioner is entitledfor the benefit of gratuity and other postretiral benefits under the GovernmentOrder dated 19.4.2006. In support of thecontention he relied upon the decision of

the Apex Court in the case of D.S.Nakara and others Vs. Union of Indiareported in 1983 (1) SCC-305, Dhanrajand others Vs. State of Jammu andKashmir and others, reported in 1998(2) UPL.BEC-1525, Shanti Devi (Smt.)Vs. State of U.P., reported in 2001 (4)ESC-1589 and Mohan Lal Sharma andetc. Vs. State of Rajasthan and another,reported in 2004 (3) ESC-1690 .

5. Learned Standing Counsel states

that the petitioner is not entitled for thegratuity and post retiral benefits as theGovernment Order dated 19.4.2006 was

prospective and the benefit of post retiral benefits and gratuity is available only tothose who retired after 19.4.2006. Inalternative he submitted that if theGovernment Order dated 19.4.2006 ismade applicable to those who retired

before 19.4.2006, the retired employeeswould be entitled for the benefit onlyw.e.f. 19.4.2006 and not prior to that,

which is also clear from the GovernmentOrder dated 23.11.2007.

6. Heard learned counsel for the parties.

7. I have given my anxiousconsideration to the rival submissions andalso perused the relevant GovernmentOrders. The Government Order dated

19.4.2006 and a subsequent clarificatoryGovernment Order dated 23.11.2007 readas follows:

la[;k&1221 @15&8&06&3003 15@04

iz s"kd],p0,y0xqIrk]foks"k lfpo]m0iz0 'kkluA

lsok esa]fk{kk funskd ek0]m0iz0] y[kuA

fk{kk 8 vuqHkkx y[ku% fnukad%19 viz Sy]2006

fo"k;% vkkldh; lgk;rk izkIr ek/;fed fo|ky;ks a esa dk;Zjr fk{k.ksRrj deZpkfj;ks a dks 60 o"kZ dh vf/ko"kZrk vk; ij xz sP;qVh o vU; lsok uSo`fRrd ykHk vuqeU; fd, tkus fo"k;dA

egksn;]mi;qZDr fo"k;d funskd ds i=kad&isaku

2@2167 @2005 &2006 fnukad 29 uoEcj2005 ds

lanHkZ esa eq>s vkils ;g dgus dk funs Zak gqvk gS fd iznsk ds vkkldh; lgk;rk iz kIr ek/;fed fo|ky;ksa esa 'kklu }kjkvuqeksfnr inks a ij fof/kor fu;qDr gksdj dk;Zjrlh/[email protected] leLr fk{k.ksRrj deZpkfj;ksa dks 58 o"kZ dhvf/ko"kZrk vk;q ij ls ok fuo`Rr gksus ds le; iw oZ ls vuqeU;fodYi pquus dh lqfo/kk lekIr djrs gq, mUgs a 60 o"kZ dhvf/ko"kZrk vk;q ij xz sP;qVh o vU; lsok uSo`fRrd ykHvuqeU; fd, tkus dh Jh jkT;iky egksn; lg"kZ Lohd`friznku djrs gSaA

2& bl laca/k esa iw oZ es a fuxZr leLr 'kkluknsk mDrlhek rd lakksf/kr le>s tk;s axs rFkk mudh 'ks"k 'krs Za ;Fkkorjgs axhA


31/76

1 All] Roop Chandra V. State of U.P. and others 277

3& m0iz0 b.VjehfM,V ,twdsku ,sDr ds laxr fu;eksa vko;d lakks/ku dh dk;Zokgh 'kkluknsk ds fuxZr gksus ds vf/kdre rhu ekg dh vof/k es a lqfufpr dj yh tk;sxhA

4& ;s vknsk foRr foHkkx ds vkkldh;la0&;w0vks0@bZ&1@1045 @nl&2006 fnukad 18&4&06 esa izkIr mudh lgefr ls tkjh fd, tk jgs gSaA

Hkonh;],p0,y0xqIrk]foks"k lfpoA

lsok fuo`Rr fk{k.ksRrj deZpkfj;ks a dks fdl frfFk ls ykHk ns;la[;k&2242 @15-8-07-3003 15/04

izs"kd],Q0,u0 iz/kkula;qDr lfpo]mRrj iznsk 'kkluA

lsok es a]fk{kk funskd ek0 m0iz0fk{kk isaku&2 vuqHkkx]bykgkckn@y[kuA

fk{kk 8 vuqHkkx y[ku% fnukad%23 uoEcj]2007

fo"k;%&ek/;fed fo|ky;ks a es a dk;Zjr fk{k.ksRr deZpkfj;ks a dks60 o"kZ dh vf/ko"kZrk vk;q ij xzsP;qVh o vU; lsokfuo`fRrdykHk vuqeU; fd, tkus gsrq dV&vkQ MsV fu/kkZfjr fd,tkus ds lEcU/k es aA

egksn;]mi;q ZDr fo"k;d vkids i=kad isaku&2/2351/2007-

08 fn0 08-10-07 ds lanHkZ es a eq>s ;g dgus dk funs Zk

gqvk gS fd izuxr izdj.k es a fuxZr 'kkluknskla[;k&21/15-8-2006-3003 15/04 fnukad 19-4-2006 mlh frfFk ls ykxw @izHkkoh] gS] ftl frfFk ls mDr'kkluknsk fuxZr gqvk gSA bl izdkj 'kkluknsk fnukad19-4-2006 }kjk vuqeU; ykHk Hkh 'kkluknsk fuxZr gksus ds fnukad ls gh ns; gSA

Hkonh;],p0,u0 iz/kkula;qDr lfpoA

8. In the case of Shanti Devi (Smt.)Versus State of U.P. and others (Supra) the family pension was provided videGovernment Order dated 24.2.1989 w.e.f.1.1.1989. The family pension was denied

to the petitioner Shanti Devi on theground that her husband who was theClass IV employee in the State aidedJunior High School died on 20.11.1987i.e. before 1.1.1989. This Court followingthe decision in the Writ Petition No.34835 of 1995 Mahmooda Begum and

Writ Petition No. 23609 of 1995 Smt.Akhtari Begum Vs. Director ofEducation held that the petitioner wasentitled for the benefit of family pensionin view of the Government Order w.e.f.1.1.1989. Similar view has also beentaken by another learned single Judge inthe case of Rajmuni Devi VersusDistrict Inspector of Schools, Ghazipurand others, reported in 2002 (1) ESC-136. In this case also the benefit of family

pension was denied on the ground that

husband of the petitioner who was theemployee died on 31.8.1987 prior to1.1.1989. Learned single Judge has heldthat denial of family pension to the

petitioner on the aforesaid ground isillegal following the decision of the ApexCourt in the case of D.S. Nakara Vs.Union of India (Supra).

9. In the case of Dhan Raj andothers Vs. State of Jammu & Kashmirand others (Supra), the question was

whether the drivers and conductors ofJammu & Kashmir State Road TransportCorporation who retired prior to 9 th June,1981 were entitled for the benefit of the

pension under the Government Orderdated 3.10.1986 granting pension w.e.f.9th June, 1981. The Apex Court held thatthe drivers and conductors of Jammu &Kashmir State Road TransportCorporation who retired prior to 9 th June,1981 are also entitled for the benefit ofthe pension under the Government Order

dated 3.10.1986 in as much as denial ofthe pension to those drivers amounts to


32/76


discrimination and violative of Article 14.Relying the decision of ConstitutionBench

Indian Law Report - Allahabad Series - Apr2009

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