1 All. Millennium Institute of Technology 7674 (M/S) 15 Vs ... · 1 All. Millennium Institute of...

1 All. Millennium Institute of Technology 7674 (M/S) 15 Vs. State of U.P. & Ors. 129

APPELLATE JURISDICTIONCIVIL SIDE

DATED: LUCKNOW 08.01.2016

BEFORETHE HON'BLE AMRESHWAR PRATAP

SAHI, J.THE HON'BLE ATTAU RAHMAN MASOODI, J.

Special Appeal No. 2 of 2016

Millennium Institute of Technology(M/S) 15 ...Appellant

VersusState of U.P. & Ors. ...Respondents

Counsel for the Appellant:H.S. Jain, Ranjana Agnihotri

Counsel for the Respondents:C.S.C.

Constitution of India, Art.-226-WritPetition-maintainability-by institution-seeking enforcement of scholarshipscheme to SC/ST/OBC of institution-dismissed by Learned Single Judge forwant of locus-but failed to appreciatethe prayer for disbursement ofscholarship to those students gettingeducation-denial on ground of locus-amounts to denial of benefit of schemeitself-calls for interference-accordinglyorder by Single Judge set-a-side-petitionstand allowed with necessary direction.

Held: Para-9 & 10In the present case before the learnedSingle Judge the appellants havecategorically stated that they have notassailed the scheme, according to whichthe students are eligible for scholarshipand have also not prayed for directdisbursement of the scholarship in theaccounts of the institution but what theappellant had prayed for in the writpetition is for extending the benefit ofscheme to the respective students whoare being imparted education throughthe appellant institution. Once the prayeris made for disbursement of the

scholarship as per the terms of thescheme, to doubt the locus of theappellant in such a situation, wouldamount to defeating the very object ofthe policy of the State Government,according to which the studentsbelonging to reserved category classesare entitled to avail the benefit ofscholarship through various institutionsrecognized by the State.

10. in our considered opinion, thejudgement passed by the learned SingleJudge, in the facts and circumstances ofthe present case, calls for interferenceand the same is hereby set aside.

(Delivered by Hon'ble A.R. Masoodi, J.)

1. Heard the learned counsel for theappellant and learned Standing Counsel,who has accepted notice on behalf of therespondents.

2. This special appeal is directedagainst the judgement passed by the learnedSingle Judge in Writ Petition No. 7674(MS) of 2015, whereby the writ petitionfiled by the appellant institution has beendismissed as not maintainable on the groundthat the scheme of scholarship beinglaunched for the benefit of the students doesnot culminate into any justiciable interest ofthe appellant institution for maintaining awrit petition under Article 226 of theConstitution of India.

3. The judgement rendered by thelearned Single Judge has been assailedprimarily on the ground that the presentcase filed by the appellants was squarelycovered by the pronouncement of aDivision Bench judgement passed by thisCourt in Special Appeal No. 581 of 2014and connected matters on 23.2.2015,which has already been upheld by theapex court in SLP (C) No. 14419 of 2015.

130 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The contention in a nut shell is tothe effect that 34 students are beingimparted education by the appellantinstitution who are in the category ofSC/ST/OBC/General to whomscholarship is payable but their formscould not be forwarded to the departmenton account of some technical fault of theserver through e-process.

5. A similar dispute had alsopreviously come up for considerationbefore the learned Single Judge of thisCourt, which was allowed in terms ofjudgement dated 3.7.2014 passed in abunch of writ petitions, leading case beingWrit Petition No. 632 (MS) of 2014. Thejudgement passed by the learned SingleJudge was assailed in a bunch of specialappeals, leading case being SpecialAppeal (Def.) No. 581 of 2014 and theappeals filed by the State Governmentagainst the said judgement weredismissed. The Division Bench whiledeciding the appeals made certainobservations in respect of the stand takenby the State Government. The relevantportion of the Division Bench judgementfor ready reference is extracted below:

"In the given set of facts and lookingto the purpose of the Scheme, the learnedSingle Judge cannot be faulted in taking aview befitting the nature of the beneficialScheme.

So far as the suggestion that itremains a budget specific scheme andliabilities of one financial year are notcarried forward is concerned, we areclearly of the view that once the StateGovernment has declared such natureScheme, it cannot be allowed to suggestany want of budget or finances to deprivethe bonafide eligible candidates of theirlegitimate expectations. Noteworthy it is

that under the Scheme, the eligiblecandidates are the persons belonging toScheduled Castes and Scheduled Tribeswho are permanent or original residentsof the State of U.P. More significantly,under the Scheme, an eligible candidate isprovided financial support for entire ofhis course of study. In other words, thesupport under the Scheme is not limited toone particular financial year only but isof recurring nature during the course ofstudies of the candidate concerned. Thelearned counsel for the appellants hasrepeatedly referred to the expression"limited financial resources" as occurringin clause 11 (iv) of the Scheme. We areunable to appreciate as to how such anexpression could result in denial of thefinancial support to an eligible candidateonly for some delay in submission ofonline application form. Looking to thevery nature and purpose of the Scheme,the time limit as provided in the scheduleof procedure for submission and dealingwith the applications cannot be said to bethat of such an inflexible nature that itmay not admit even of reasonablerelaxation in desirable cases.

We may observe that genuineness ofthe claim as made by the petitionerinstitutions or the petitioner candidateshad not been the question raised beforethe learned Single Judge. In the given setof facts and circumstances, it appears justand appropriate to endorse the view takenby the learned Single Judge withnecessary observations which permits theappellants to process the applications inaccordance with law and to carry outnecessary scrutiny as regards bonafideand eligibility of the institutions andcandidates concerned.

Accordingly and in view of the above,these appeals are dismissed and the order aspassed by the learned Single Judge is

1 All. Millennium Institute of Technology 7674 (M/S) 15 Vs. State of U.P. & Ors. 131

affirmed. However, in the interest of justice,we do make it clear that dismissal of theseappeals shall have the result of approval ofthe directions of the learned Single Judge foracceptance of the applications within timegranted and with the qualification that nofurther enlargement of time would begranted. Further in the interest of justice, it isprovided that if the applications have beensubmitted within the stipulated time, thesame would be entertained and processed inaccordance with law and in such processing,it would, of course, be open for theappellants to carry out scrutiny, ifconsidered necessary, as regards bona fideand eligibility of the institution and of thecandidate concerned; but the entire process,including actual payment in desirable cases,shall be completed by the appellantsexpeditiously, and in any case within 60 daysfrom the date of receipt of the certified copyof this order."

6. Learned Standing Counsel does notdispute the bona fides of the students andclaim of the appellants being similar to thatwhich was decided by this Court in terms ofthe Division Bench judgement referred toabove. It is also not the case of the StateGovernment that the students, in respect ofwhom the disbursement of scholarship isclaimed in the bank accounts of students,who are recipients of the same benefitduring previous sessions, is a question ofdoubt or the bona fides of the institution forlaying such a claim is otherwise faultyexcept for the reason that there is delay inforwarding the form due to technicalreasons. In such a situation, it is difficult toaccept that the institution, which ultimatelyimparts education to a special category ofstudents for whom the scheme is applicableand who are admitted in the institution bygiving necessary relaxation, may not have alocus to file the present writ petition

particularly when the students are alreadycompleting their studies and may claimrequisite certificates either from theinstitution or the body competent to grantsuch certificates, which may remainwithheld for non-payment of requisite feeby the students to the appellant college.

7. Once the bona fides of thestudents are not a subject matter of doubtand the students are entitled to thescholarship, as claimed, and are under anobligation to make payment of necessaryfee to the appellant institution, it isdifficult to hold that the institution doesnot have any justiciable interest torepresent the cause on behalf of thestudents who are being educated.

8. The learned Single Judge, whiledealing with the matter, has not consideredthis aspect of the matter and has, rather,proceeded on the premise of anotherDivision Bench judgement passed by thisCourt in Writ-C No. 56695 of 2014. Thejudgement passed by the Division bench inthe aforesaid writ petition appears to be inrespect of some distant education programand the issue involved in that writ petitionchallenging the very scheme of disbursementof scholarship in the bank accounts of thestudents, does not appear to be an issuesimilar to the one dealt with by the DivisionBench in the judgement dated 23.3.2015passed in Special Appeal No. 581 of 2014against which the SLP has also beendismissed by the apex court. Once thestudents are regularly studying and theirdetails are forwarded to the StateGovernment for necessary verification, theredoes not seem to be any good reason for theState not to include the claim of the studentswho are represented by the appellant. Thestudents in whose accounts the necessaryscholarship in terms of the scheme is to be


disbursed by the State Government are not tobe compelled to litigate for bona fide claims. Itis true that every student has to apply as perthe time schedule prescribed in the scheme butin a situation where the necessary forms havebeen submitted but all the details could not beforwarded to the State authorities timely dueto some technical reason beyond the control ofthe students, any such objections pressed bythe State Government before the learnedSingle Judge ought not to have weighed overand above the object of the scheme which theState Government is under a bounden duty toimplement.

9. There is yet another feature ofdistinction in the case set up before us ascompared to the Division Bench judgementdated 11.12.2014. In the present case beforethe learned Single Judge the appellants havecategorically stated that they have notassailed the scheme, according to which thestudents are eligible for scholarship andhave also not prayed for direct disbursementof the scholarship in the accounts of theinstitution but what the appellant had prayedfor in the writ petition is for extending thebenefit of scheme to the respective studentswho are being imparted education throughthe appellant institution. Once the prayer ismade for disbursement of the scholarship asper the terms of the scheme, to doubt thelocus of the appellant in such a situation,would amount to defeating the very objectof the policy of the State Government,according to which the students belongingto reserved category classes are entitled toavail the benefit of scholarship throughvarious institutions recognized by the State.

10. In our considered opinion, thejudgement passed by the learned SingleJudge, in the facts and circumstances ofthe present case, calls for interference andthe same is hereby set aside.

11. The respondents are directed toextend the benefit of scholarship schemeto the students whose details have beenforwarded by the appellant institutioneven if the students have failed to submitall the necessary details before the cut-offdate, however, it shall be open to the Stateauthorities to verify the bona fides of allsuch students. The claims of all theeligible students shall be included in theprocess for actual payment and the entireprocess shall be completed expeditiouslyand not later than a period of two monthsfrom the date of receipt of a certified copyof this order by the competent authority.

12. The special appeal thus, standsallowed with no order as to cost.

-------APPELLATE JURISDICTION

CIVIL SIDEDATED: ALLAHABAD 14.01.2016

BEFORETHE HON'BLE DR. DHANANJAYA YESHWANT

CHANDRACHUD, C.J.THE HON'BLE YASHWANT VARMA, J.


Shri Sumati Nath Jain ...AppellantVersus

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

Counsel for the Appellant:Aishwarya Pratap Singh


Constitution of India, Art.-226-WritPetition-against the order by DistrictMagistrate-fixing liability of additionalstamp duty-in utter violation of Principleof Natural Justice-Learned Single Judgedismissed the petition on ground ofalternative remedy to appeal underSection 56 of Stamp Act-held-Learned

1 All. Shri Sumati Nath Jain Vs. State of U.P. & Anr. 133

Single Judge committed apparent error-petition-held-maintainable.

Held: Para-8We are, with respect, of the firm opinionthat the learned Single Judge has yetagain fallen in error in dismissing thewrit petition and relegating the appellantto the alternative remedy.

(B)Stamp Act 1899-Section 47-A-demandof additional duty-plot in question stillrecorded agricultural land-with agriculturaluse-Sub Registrar's report can be basis-onassumption of future use-moreover plotsituated in flood area constructions alreadyprohibited-ignoring same demand ofadditional stamp duty-held-not proper.

Held: Para-22The response filed before the secondrespondent clearly asserted that theproperty in question fell within the floodplain area of the Hindon river. The orderof the NGT, NOIDA Master Plan as wellas the Government Order clearlyrestrained all residential activities in thisarea. There was therefore no basis forthe Sub Registrar or for that matter thesecond Respondent presuming that theproperty was liable to be treated as forresidential purposes and taxed atresidential rates. For this additionalreason also we find that the proceedingsinitiated against the appellant and theorder impugned in the writ petition arerendered unsustainable.

Case Law discussed:(2008) 4 SCC 720; (2011) 14 SCC 160; (2010)13 SCC 427

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

1. Aggrieved by the judgment andorder rendered by the learned SingleJudge on 21 December 2015, dismissing awrit petition and relegating him to thealternative remedy, the original petitioneris in appeal before us.

2. The writ petition challenged anorder dated 26 October 2015 passed by thesecond respondent in purported exercise ofpowers conferred under Sections 47-A and33 of the Indian Stamp Act 18991. The orderimpugned held the petitioner-appellant liableto pay additional stamp duty of Rs.7,14,650/-and penalty of Rs.1,78,663/-, thus totalingRs.8,93,313/-. The order imposing additionalstamp duty is on an instrument executed infavor of the appellant on 26 September 2011,being a sale deed in respect of Khasra No.786 admeasuring 0.7160 hectares. Thisinstrument, upon presentation in the office ofthe Sub Registrar, Gautam Budh Nagar andon payment of stamp duty of Rs. 1,07,600/-had been duly registered and returned to theappellant.

3. From the material brought onrecord of the writ petition, it appears thata copy of the instrument in question fellfor scrutiny before the Sub Registrar,Gautambudh Nagar who on 7 December2012 put up a note for consideration ofthe second respondent asserting thereinthat the instrument was in respect of aproperty, which had been valued atagricultural rates. In the opinion of theSub Registrar, the property comprised inthe instrument was liable to be taxed @Rs. 6,500/- per square meter being thecircle rate prescribed by the secondrespondent for residential properties.Consequently, the Sub Registrar opinedthat the instrument should be subjected toadditional stamp of Rs.7,14,650/-. Takingnote of the aforesaid report, the secondrespondent assumed jurisdiction andissued a notice dated 30 August 2012informing the appellant that proceedingsin respect of the adequacy of stamp dutypaid on the instrument in question werepending before him and that prima facie itappears that the appellant has evaded


stamp duty to the extent of Rs.7,14,650/-.This notice accordingly called upon theappellant to participate and show causewhy additional stamp duty together withpenalty be not imposed upon him. Theappellant filed his response in theproceedings on 28 December 2012.During the pendency of the proceedings,he is stated to have gifted the propertycomprised in the instrument to his wifeSmt. Vijaya Jain on 17 December 2012.

4. During the course of theproceedings before the secondrespondent, an order came to be passed on23 October 2013 calling upon the SubRegistrar to conduct a fresh siteinspection of the property and submit anactual status report. Pursuant to theaforesaid order, the Sub Registrar is statedto have submitted a report dated 16November 2013 recording therein that theproperty in question appeared to havebeen put to use as farm land. The secondrespondent upon a consideration of thematerial before him has proceeded to holdthat the land in question falls in thevicinity of the Greater NOIDA industrialdevelopment area where land is largelybeing used for residential and commercialpurposes. He proceeded to hold thatbearing in mind the area of the property, itwas not possible to be utilized foragricultural purposes and that theappellant himself owned no premises inthe vicinity of the land in question, whichmay lend credence to the contention thatthe property was to be utilized foragricultural purposes only. On aconsideration of the aforesaid facts, thesecond respondent accepted the initialreport submitted by the Sub Registrar on7 December 2012 and proceeded to passthe order which was impugned in the writpetition.

5. To complete the narration of facts itbecomes apposite to note that during thependency of proceedings before the secondrespondent, the appellant on 17 December2012 gifted the property to his wife Smt.Vijaya Jain. This gift deed too wassubjected to proceedings under Section 47-A of the Act by the second respondent. Smt.Vijaya Jain was also foisted with a demandof additional stamp duty. The order passedby the second respondent against Smt.Vijaya Jain, was subjected to challenge in awrit petition which too came to bedismissed by the learned Single Judge onthe ground that she had an equallyefficacious remedy of filing an appeal underSection 56. The judgment rendered by thelearned Single Judge on that occasion fellfor consideration before a Division Benchof the Court in a special appeal2 whichultimately came to be allowed by judgmentand order dated 1 September 2015. Thejudgment of the Division Bench, we maynote formed part of the record of the writproceedings from which the present SpecialAppeal emanates.

6. Dealing with the correctness ofthe view taken by the learned SingleJudge in relegating the appellant thereinto pursue the alternative remedy, thisCourt in Smt Vijaya Jain found that theproceedings taken against her were liableto be set aside not just on account ofviolation of the principles of naturaljustice but also on the ground of the samehaving been initiated and continued inbreach of the procedure prescribed underthe Act and the orders passed by thesecond respondent suffering from nonapplication of mind and the law as laiddown by this Court.

7. On the issue of alternativeremedy, the Division Bench in Smt


Vijaya Jain noticed the law as enunciatedby the Supreme Court in Government ofAndhra Pradesh and others Vs. Smt. P.Laxmi Devi3 and Har Devi Asnani Vs.State of Rajasthan4, and held as under:-

" The existence of an alternativestatutory remedy as has been consistentlyheld by the Courts is not a rule ofinflexible character nor is it an inviolablecondition. The Courts vested with thepower and jurisdiction under Article 226of the Constitution of India have alwaysviewed this rule as a self imposedrestriction rather than a rule which is to beblindly adhered to and which brooks of noexception. Some of the well settledexceptions to the rule of a petitioner beingrelegated to an alternative remedy arewhere the principles of natural justicehave been violated or where orders aremade without jurisdiction."

"The law as authoritatively laid downby the Supreme Court in theaforementioned two judgments clearlyestablishes that a petitioner before theHigh Court is not liable to be relegated tothe alternative remedy as a matter of rule.If in the facts of a particular case it isestablished that the principles of naturaljustice have been violated or that theorder has been rendered withoutjurisdiction or if it is disclosed to theCourt that grave injustice has been causedto the petitioner and it is found that hisrelegation to the alternative remedy wouldperpetuate injustice and cause prejudice, itis always open to this Court to exercise itsprerogative constitutional powers and toissue an appropriate writ striking at theoffending action. This principle standsextended in light of the abovementionedprecedents to a case where the petitioneris foisted with an exorbitant and arbitrarydemand in which case his relegation to

the alternative remedy would not bejustified."

8. We are, with respect, of the firmopinion that the learned Single Judge hasyet again fallen in error in dismissing thewrit petition and relegating the appellantto the alternative remedy.

9. In the facts of the present case, wemay note that the initial stamp duty whichstood paid on the instrument by theappellant was Rs. 1,07,600/-. The order ofthe second respondent held the appellantliable to pay additional stamp duty as wellas penalty totaling Rs.8,93,313/-. This wemay note represents an increase of eighttimes over the initial stamp duty which waspaid on the instrument. This was, therefore,clearly one of the exceptional situationswhich were envisaged by the SupremeCourt in Smt. P. Laxmi Devi and Har DeviAsnani as instances where the petitionerwas not liable to be relegated to thealternative remedy of an appeal or arevision under Section 56 of the Act.

10. We further find that theproceedings taken against the appellantwere clearly without jurisdiction,violative of the procedure prescribedunder the Act and there existed nojustification in the second respondentinvoking the powers conferred by sections47A or 33 of the Act. We proceed to setforth our reasons for arriving at the aboveconclusions hereinafter.

11. Pausing here we deem itappropriate to first briefly notice theobjections which were taken by theappellant before the second respondent.

12. Referring to the deed inquestion, it was pointed out that the land


was recorded as agricultural and thepurpose disclosed in the sale deed also heldit out to be for agricultural purposes. Theappellant had contended that there was nomaterial before the second respondent toassume that the land was residential on thedate of execution of the instrument or topresume that it would be put to residentialuse in the future. The appellant then placedreliance upon the master plan of NOIDA,orders passed by the National GreenTribunal (NGT) as also upon theGovernment Orders issued by the State, allof which restrained construction activities inflood plain areas. It was submitted beforethe second respondent that the land was inthe flood plain area of the Hindon river andtherefore in light of the various injunctionsoperating thereupon, the property couldnever be put to residential use. Theseobjections stood reiterated in the writpetition preferred by the appellant. Dealingwith the order of the National GreenTribunal [NGT] the appellant stated: -

"17. That the National GreenTribunal passed an order dated20.05.2013 in O.A. No. 89/2013 wherebyit was held that: -

"---It is an admitted position in lawthat construction upon flood plain area isprohibited. It not only affect the naturalflow of the river but even causesenvironment problems besides raising riskto human life and property."

---Similar order and injunction shalloperate in regard to river Hindon as well."

13. Referring to the GovernmentOrder dated 16 March 2010, it was stated:-

"The learned Tribunal also reliedupon the notification dated 16.03.2010

issued by the Chief Secretary of UttarPradesh to all the Authorities includingthe police in the State of Uttar Pradesh toensure that no constructions whatsoever israised on the flood plain zone andwhichever constructions have been raisedshould be removed. The relevant extractof the said notification state as under:-

"1. Clear depiction of flood plainzones along rivers as flood affected areasin the Master Plans and to prevent anyconstructions in these areas, these areasshould be reserved as Green. It should beensured to ban all kinds of constructionsin flood plain zones under the ZoningRegulations of the concerned cities.

2. No NOC will be granted, underthe RBO Act, U.P. Urban Planning &Development Act 1973 and IndustrialDevelopment Act 1973, to any kind ofconstruction inside the flood plain zoneand nor will be the lay-out plans of suchconstructions be approved. To stop suchkind of illegal constructions, effectiveaction would be taken under theprovisions of the above acts....."

14. We accordingly proceed to dealwith the issue of jurisdiction exercised bythe respondents under the following broadheads.

VALIDITY OF THE NOTICEDATED 30 AUGUST 2012

15. A plain reading of the noticeindicates that the second respondent hadaccepted the report of the Sub Registrarand already formed an opinion that theinstrument was liable to be taxed withadditional stamp duty. There was noopportunity provided to the appellant toshow cause why the second respondentmay not assume jurisdiction under section


47A of the Act as mandated under Rule 7of the U.P. Stamp (Valuation of PropertyRules) 1997. The appellant was neitherapprised of the basis nor provided thematerial upon which the Collector formedthe opinion that the property comprised inthe instrument was undervalued or thatadditional stamp duty was payablethereon. Dealing with this aspect of thematter the Division Bench in Smt VijayaJain held: -

"From the provisions extractedabove, it is apparent that the Collectorproceeds under sub section (3) of Section47-A read with rule 7 when he has reasonto believe that the market value of theproperty comprised in the instrument hasnot been truly set forth and that in theopinion of the Collector, circumstancesexist warranting him to undertake theenquiry contemplated under rule 7. Whatwe however find from the notice dated 09September 2013 is that the Collector hasproceeded to record, albeit prima facie,that the instrument in question has beeninsufficiently stamped to the extent ofRs.8,89,000/-. The notice apart fromreferring to a note dated 20 May 2013,received from the Assistant InspectorGeneral of Registration neither carries nordiscloses any basis upon which theCollector came to the prima facieconclusion that the appellant was liable topay Rs. 8,89,000/ as deficit stamp duty. Inour opinion a notice of this nature mustnecessarily disclose to the personconcerned the basis and the reasons uponwhich the Collector has come to form anopinion that the market value of theproperty has not been truly set forth. Inthe absence of a disclosure of evenrudimentary details on the basis of whichthe Collector came to form this opinion,the person concerned has no inkling of the

case that he has to meet. A notice in orderto be legally valid and be in compliancewith the principles of natural justice mustnecessarily disclose, though not in greatdetail, the case and the basis on whichaction is proposed to be taken against theperson concerned. Not only this and as isevident from a bare reading of rule 7, atthe stage of issuance of notice, theCollector has to proceed on the basis ofmaterial which may tend to indicate thatthe market value of the property has notbeen truly and faithfully disclosed in theinstrument. The stage of computation ofmarket value comes only after theprovisions of sub rules (2) (3) and (4) ofrule 7 come into play. At the stage ofissuance of notices, the Collector callsupon the person concerned to show cause"as to why the market value of theproperty.... be not determined by him.....

In the facts of the present case, wefind that the Collector had alreadyprejudged the issue by recording that theappellant had paid deficit stamp duty tothe extent of Rs.8,89,000/-."

16. It is apparent that the notice onthe basis of which proceedings wereinitiated against the appellant sufferedfrom the same fundamental flaws anddefects as were noticed by the Bench inSmt. Vijaya Jain. We may also note thatthe requirements of a valid show causenotice were lucidly explained by theSupreme Court in Oryx Fisheries (P) Ltd.Vs. Union of India5 in the followingterms: -

"27. It is no doubt true that at thestage of show cause, the person proceededagainst must be told the charges againsthim so that he can take his defense andprove his innocence. It is obvious that atthat stage the authority issuing the charge-


sheet, cannot, instead of telling him thecharges, confront him with definiteconclusions of his alleged guilt. If that isdone, as has been done in this instantcase, the entire proceeding initiated by theshow cause notice gets vitiated byunfairness and bias and the subsequentproceedings become an idle ceremony.

31. It is of course true that the showcause notice cannot be readhypertechnically and it is well settled thatit is to be read reasonably. But one thingis clear that while reading a show causenotice the person who is subject to it mustget an impression that he will get aneffective opportunity to rebut theallegations contained in the show causenotice and prove his innocence. If on areasonable reading of a show cause noticea person of ordinary prudence gets thefeeling that his reply to the show causenotice will be an empty ceremony and hewill merely knock his head against theimpregnable wall of prejudged opinion,such a show cause notice does notcommence a fair procedure..."

17. We find in the facts of thepresent case that not only was there acomplete non disclosure of the relevantmaterial to which the appellant couldrespond to establish his innocence, thenotice itself was couched in tenor andlanguage which would have led anyperson to face the specter of what theSupreme Court described as the"impregnable wall of prejudged opinion".

INVOCATION OF SECTION 47A

18. Section 47A (3) as a plainreading of the provision would indicatecomes into operation if the Collector hasbefore him material which may lead himto believe that the market value of the

property comprised in an instrument hasnot been truthfully disclosed. In thepresent case the Collector proceeded inthe matter solely on the basis of the reportof the Sub Registrar dated 7 February2012. This report doubted the valuation ofthe property on the ground that in the areaabutting it, various residential houses hadcome up and that Greater NOIDA hadbecome a development hub. Bearing inmind the location of the plot and its likelyuse, the Sub Registrar opined, it would beinappropriate to value the property atagricultural rates. We find that the verybedrock upon which the opinion of theSub Registrar based his report was faultyand could not have consequently formedthe basis for further action under section47A (3).

19. We may note that on the date ofexecution of the instrument the land wasadmittedly recorded as agricultural. Infact the Khasra of the property remainedunchanged throughout and continued torepresent the land as recorded foragricultural purposes. The respondentswere in our opinion wholly unjustified ininitiating proceedings based on anunsubstantiated assumption that theproperty in future was likely to be put tonon-agricultural use.

20. The perceived or presumed useto which a buyer may put the property inthe future can never be the basis foradjudging its value or determining thestamp duty payable. The Act, we maynote is a fiscal statute. The taxable eventwith which it concerns itself is theexecution of an instrument which ischargeable to duty. The levy under thestatute gets attracted the moment aninstrument is executed. Thesepropositions clearly flow from a plain


reading of the definition of the words"chargeable", "executed" and "instrument"as carried in the Act. In the case of aninstrument which creates rights in respect ofproperty and upon which duty is payable onthe market value of the property comprisedtherein, since the tax liability gets fastenedimmediately upon execution it mustnecessarily be quantified on the date ofexecution. The levy of tax or its quantumcannot be left to depend upon hypotheticalor imponderable facets or factors. The valueof the property comprised in an instrumenthas to be adjudged bearing in mind itscharacter and potentiality as on the date ofexecution of the instrument. For all theaforesaid reasons we fail to find theexistence of the essential jurisdictional factswhich may have warranted the invocationof the powers conferred by section 47A (3).We are therefore of the firm opinion that theinitiation of proceedings as well as theimpugned order based upon a presumedfuture use of the property for residentialpurposes was wholly without jurisdictionand clearly unsustainable. Dealing with thisaspect of the matter and after noticing theconsistent line of precedent on the subjectthe Division Bench in Smt Vijaya Jainobserved: -

"This Court on more than oneoccasion has held that the market value ofthe land is not liable to be determinedwith reference to the use to which a buyerintends to put it in future. The marketvalue of the property is to be determinedwith reference to its character on the dateof execution of the instrument and itspotentiality as on that date.

xxx xxx xxxThe above principles of law

enunciated in the aforementionedjudgments have been consistentlyfollowed by this Court. We however find

that the order of the Collector relies uponno evidence which would supportimposition of residential rates on aproperty which was stated to beagricultural on the date of execution ofthe instrument. "

ADDITIONAL REASON

21. We find that the proceedingstaken against the appellant were evenotherwise liable to be quashed outright.The reason which compels us to arrive atthe above conclusion is this.

22. The response filed before thesecond respondent clearly asserted that theproperty in question fell within the floodplain area of the Hindon river. The order ofthe NGT, NOIDA Master Plan as well as theGovernment Order clearly restrained allresidential activities in this area. There wastherefore no basis for the Sub Registrar or forthat matter the second Respondentpresuming that the property was liable to betreated as for residential purposes and taxedat residential rates. For this additional reasonalso we find that the proceedings initiatedagainst the appellant and the order impugnedin the writ petition are renderedunsustainable.

23. For all the aforesaid reasons wefind merit in the instant appeal. We are ofthe opinion that the learned Single Judgeclearly erred in dismissing the writpetition and relegating the appellant topursue the alternative remedy.

24. We accordingly allow thespecial appeal and set aside the judgmentand order of the learned Single Judgedated 21 December 2015. Weconsequently also allow the writ petitionand quash the order of the second


respondent dated 26 October 2015 and allproceedings taken against the appellant.



BEFORETHE HON'BLE SURYA PRAKASH

KESARWANI, J.

First Appeal from Order No. 165 of 2016

National Insurance Company Ltd. AppellantVersus

Ashish Kumar Patel & Ors. Respondents

Counsel for the Appellant:Manish Kumar Nigam

Counsel for the Respondents:--

Motor Vehicle Act 1988-173-appeal againstaward by Tribunal-on ground-where invehicle in excess passengers traveling-without valid driving license-insurancecompany not responsible-held-Tribunalfastened liability upon the appellant-up toextent of authorized capacity-can not beinterfered-appeal dismissed.

Held: Para-8So far as the submission of the learnedcounsel for the appellant disputing theliability of the Insurance Company to paythe awarded amount is concerned, I findthat it is wholly undisputed that authorizedseating capacity of the offending vehiclewas six while passengers travelling in thevehicle were 17 but the InsuranceCompany can escape its liability to paycompensation with respect to theauthorized number of passengers travellingin the offending vehicle. That apart, in theimpugned award, the appellant-InsuranceCompany has been granted right ofrecovery from the owner of the vehicle ofthe awards over and above the awards ofsix persons i.e. the awards which may begiven in respect of the persons over and

above the authorized sitting capacity of theoffending vehicle.

Case Law discussed:TAC 2014 (3) SC 29; JT 2011 (3) SC 149; JT2004 (1) SC 15:2004 (2) SCC 1; JT 2007 (10)SC 209:2007 (7) SCC 445.

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

1. Heard Shri Manish KumarNigam, learned counsel for the appellant.

2. This appeal has been filedchallenging the award dated 14.10.2015 inM.A.C.P. No.145 of 2013 passed by theMotor Accident Claims Tribunal/AdditionalDistrict Judge, Court No.1, Chandauliawarding a sum of Rs.74,150/- to theclaimant-respondent on account of seriousinjuries on 5.10.2013 in an accident causedby the vehicle (Magic) bearing RegistrationNo.UP-45 T-1563 in which the injured andsome other passengers were travelling.

3. Learned counsel for the appellantsubmits that the authorized seating capacityof the offending vehicle was 6 while 17passengers were travelling and, therefore,the Tribunal has committed a manifest errorof law in fixing the liability of the InsuranceCompany to pay compensation instead ofthe liability of the owner of the vehicle inquestion. He submits that driver of theoffending vehicle was not having a validdriving licence. Hence in view of thedecision of the Hon'ble Supreme Court inthe case of United Indian Insurance Co. Ltd.vs. Sujata Arora and others, TAC 2014 (3)SC 29, the appellant has no liability to paythe awarded amount.

4. I have carefully considered thesubmission of the learned counsel for theappellant.

1 All. National Insurance Company Ltd. Vs. Ashish Kumar Patel & Ors. 141

5. Briefly stated the facts of thepresent case are that on 5.10.2013 theclaimant-respondent was travelling in avehicle (Magic) bearing Registration No.UP45 T-1563. Several other passengerswere also travelling in the said vehicle,which caused an accident at about 11.30P.M. in which the claimant-respondentinjured. An F.I.R was lodged at about4.00 A.M. on the next date i.e. 6.10.2013.Thus, the F.I.R was lodged after fewhours of the accident. The claim petitionwas filed by the claimants-respondents,who are successors of the deceased.

6. In the impugned award, theTribunal has considered oral as well asdocumentary evidence and recorded afinding of fact with regard to theoccurrence of the accident asaforementioned in which the aforesaidclaimant-respondent received seriousinjuries. It also recorded the finding of factthat the offending vehicle was coveredwith valid documents including theInsurance Policy and the driver of thevehicle was having a valid driving licence.The Tribunal also considered thecontention of the appellant as being raisedbefore this Court as aforenoted but rejectedthe said contention relying upon thejudgment of Hon'ble Supreme Court in thecase of United India Insurance Co. Ltd. vs.K.M. Poonam & others, JT 2011 (3) SC149. The Tribunal computed award ofRs.74,150/-. The quantum of award is notdisputed before this Court but the disputeis only with regard to the liability of theInsurance Company to pay compensation.The case of the appellant InsuranceCompany is that the Insurance Company isnot liable to pay compensation under thefacts and circumstances of the case andinstead the owner of the offending vehicleis liable to pay the awarded amount.

7. In the case of United IndianInsurance Co. Ltd. vs. Sujata Arora andothers (supra), heavily relied by thelearned counsel for the appellant; it washeld that where the Tribunal has recordeda finding that the vehicle, at the relevantpoint of time; was not being driven by theperson holding a valid driving licence,then, it amounts to violation of terms andconditions of insurance policy and noliability can be fastened on the InsuranceCompany. In the impugned award, theTribunal has recorded a finding of factthat the driving licence of the driver of theoffending vehicle was filed in evidence,which established that driving licence waseffective from 12.4.2012 to 11.2.2014while the date of accident was 5.10.2013,and thus, as on the date and time of theaccident, the driving licence of the driverof the offending vehicle was valid andeffective and no evidence contrary to itcould be filed by the appellant-InsuranceCompany. Thus, the judgmenet relied bythe learned counsel for the appellant doesnot support the case of the appellant onthe facts of the present case.

8. So far as the submission of thelearned counsel for the appellantdisputing the liability of the InsuranceCompany to pay the awarded amount isconcerned, I find that it is whollyundisputed that authorized seatingcapacity of the offending vehicle was sixwhile passengers travelling in the vehiclewere 17 but the Insurance Company canescape its liability to pay compensationwith respect to the authorized number ofpassengers travelling in the offendingvehicle. That apart, in the impugnedaward, the appellant-Insurance Companyhas been granted right of recovery fromthe owner of the vehicle of the awardsover and above the awards of six persons


i.e. the awards which may be given inrespect of the persons over and above theauthorized sitting capacity of theoffending vehicle.

9. The view taken by the Tribunal inthe impugned award is well supported bythe law laid down by Hon'ble SupremeCourt in the case of United IndiaInsurance Co. Ltd. vs. K.M. Poonam &others (supra) in which it has been held asunder:

20. The law as regards the liabilityof insurers towards third parties killed orinjured in accidents involving differenttypes of motor vehicles, has beencrystallized in the several decisions of thiscourt referred to hereinabove. The kind ofthird party risk that we are concernedwith in this case involves purportedbreach of the conditions contained in theinsurance agreement executed by andbetween the insurer and the insured.

21. From the decision in BaljitKaur's1 case (supra), which was lateralso articulated in Anjana Shyam's2 case(supra) what emerges is that a policy ofinsurance, in order to be valid, wouldhave to comply with the requirements ofChapter XI of the Motor Vehicles Act,1988, which deals with insurance ofmotor vehicles against third party risks.Section 146 of the Act stipulates that noperson shall use, except as a passenger,or cause or allow any other person to use,a motor vehicle in a public place, unlessthere is a valid policy of insurance inrelation to the use of the vehiclecomplying with the requirements of thesaid Chapter. Section 147 of the Act is anextension of the provisions of Section 146and sets out the requirements of policiesand the limit of their liability. Section 147

(1) (a) provides that a policy of insurancemust be issued by a person who is anauthorized insurer. Section 147 (1) (b)provides that a policy of insurance mustbe a policy which insures the person orclass of persons specified in the policy tothe extent specified in sub-section (2).Sub-section (2) of Section 147 indicatesthat subject to the proviso to sub-section(1) which excludes the liability of theinsurer in certain specific cases, a policyof insurance referred to therein mustcover any liability incurred in respect ofany accident, inter alia, for the amount ofliability incurred.

22. However, in order to fix theliability of the insurer, the provisions ofSection 147 have to be read with Section149 of the Act which deals with the dutyof the insurer to satisfy judgments andawards against persons insured in respectof third party risks. Although, on behalf ofthe Insurance Company it has beensought to be contended that no third partyrisks were involved in the accident andthat the persons travelling in the ill-fatedvehicle were gratuitous passengers, theInsurance Company cannot get awayfrom the fact that the vehicle was insuredfor carrying six persons and the liabilityof the Insurance Company was to paycompensation to the extent of at least sixof the occupants of the vehicle, includingthe driver.

23. Sub-section (1) of Section 149 ofthe Motor Vehicles Act, 1988, makes itamply clear that once a certificate ofinsurance is issued under sub-section (3)of Section 147, then notwithstanding thatthe insurer may be entitled to avoid orcancel the policy, it shall pay to theperson entitled to the benefit of the decreeany sum not exceeding the sum assured,payable thereunder, as if he was thejudgment debtor, in respect of the

1 All. National Insurance Company Ltd. Vs. Ashish Kumar Patel & Ors. 143

liability, together with any amountpayable in respect of costs and any sumpayable in respect of interest on that sumby virtue of any enactment relating tointerest on judgments. Sub-section (2),however, places a fetter on the payment ofany sum by the insurer under sub-section(1) in respect of any judgment or awardunless, the insurer had notice of theproceedings in which the said judgmentor award is given and an insurer to whomsuch notice is given shall be entitled to bemade a party thereto and to defend theaction on the grounds enumerated thereininvolving a breach of a specifiedcondition of the policy.

24. The liability of the insurer,therefore, is confined to the number ofpersons covered by the insurance policyand not beyond the same. In other words,as in the present case, since the insurancepolicy of the owner of the vehicle coveredsix occupants of the vehicle in question,including the driver, the liability of theinsurer would be confined to six personsonly, notwithstanding the larger numberof persons carried in the vehicle. Suchexcess number of persons would have tobe treated as third parties, but since nopremium had been paid in the policy forthem, the insurer would not be liable tomake payment of the compensationamount as far as they are concerned.However, the liability of the InsuranceCompany to make payment even inrespect of persons not covered by theinsurance policy continues under theprovisions of sub-section (1) of Section149 of the Act, as it would be entitled torecover the same if it could prove that oneof the conditions of the policy had beenbreached by the owner of the vehicle. Inthe instant case, any of the personstravelling in the vehicle in excess of the

permitted number of six passengers,though entitled to be compensated by theowner of the vehicle, would still beentitled to receive the compensationamount from the insurer, who could thenrecover it from the insured owner of thevehicle.

25. As mentioned hereinbefore, in theinstant case, the insurance policy takenout by the owner of the vehicle was inrespect of six passengers, including thedriver, travelling in the vehicle inquestion. The liability for payment of theother passengers in excess of sixpassengers would be that of the owner ofthe vehicle who would be required tocompensate the injured or the family ofthe deceased to the extent ofcompensation awarded by the Tribunal.

(Emphasis supplied by me)

26. Having arrived at the conclusionthat the liability of the Insurance Companyto pay compensation was limited to sixpersons travelling inside the vehicle onlyand that the liability to pay the others wasthat of the owner, we, in this case, are facedwith the same problem as had surfaced inAnjana Shyam's case (supra). The numberof persons to be compensated being inexcess of the number of persons who couldvalidly be carried in the vehicle, thequestion which arises is one ofapportionment of the amounts to be paid.Since there can be no pick and choosemethod to identify the five passengers,excluding the driver, in respect of whomcompensation would be payable by theInsurance Company, to meet the ends ofjustice we may apply the procedure adoptedin Baljit Kaur's case (supra) and direct thatthe Insurance Company should deposit thetotal amount of compensation awarded toall the claimants and the amounts sodeposited be disbursed to the claimants in


respect to their claims, with liberty to theInsurance Company to recover the amountspaid by it over and above the compensationamounts payable in respect of the personscovered by the Insurance Policy from theowner of the vehicle, as was directed inBaljit Kaur's case.

27. In other words, the AppellantInsurance Company shall deposit with theTribunal the total amount of the amountsawarded in favour of the awardees withintwo months from the date of this order andthe same is to be utilized to satisfy the claimsof those claimants not covered by theInsurance Policy along with the persons socovered. The Insurance Company will beentitled to recover the amounts paid by it, inexcess of its liability, from the owner of thevehicle, by putting the decree into execution.For the aforesaid purpose, the total amountof the six Awards which are the highest shallbe construed as the liability of the InsuranceCompany. After deducting the said amountfrom the total amount of all the Awardsdeposited in terms of this order, theInsurance Company will be entitled torecover the balance amount from the ownerof the vehicle as if it is an amount decreed bythe Tribunal in favour of the InsuranceCompany. The Insurance Company will notbe required to file a separate suit in thisregard in order to recover the amounts paidin excess of its liability from the owner of thevehicle.

10. In view of the above discussions,I do not find any merit in this appeal.Consequently, the appeal fails and ishereby dismissed.

11. The amount deposited beforethis Court shall be remitted to theTribunal concerned for adjustment.

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APPELLATE JURISDICTIONCRIMINAL SIDE


BEFORETHE HON'BLE SURENDRA VIKRAM SINGH

RATHORE, J.THE HON'BLE PRATYUSH KUMAR, J.

Criminal Appeal No. 261 of 2014and Criminal Appeal No. 262 of 2014

Ashfaque ...AppellantVersus

State of U.P. ...Respondents

Counsel for the Appellant:Rajbaksh Singh

Counsel for the Respondents:Govt. Advocate

(A)Criminal Appeal-against convictionoffence under Section 489-B IPC lifeimprisonment-with fine Rs. 25000/- and489-C IPC, 7 years Respondent -1 withfine Rs. 7000/-on ground for same offencetwice punishment not permissible-argument that mere possession ofcounterfeit currency-can not be termed asaccused-held-since denial the charges-noexplanation about possession of suchcurrency given-appellant failed dischargetheir burden of proof-as per Section 106 ofevidence act inference drawn by TrailCourt-proper-findings warrant nointerference-but when major punishmentof life imprisonment’s there-minorpunishment u/s 489-uncalled for -set-a-side.

Held: Para-26Since the appellants had preferred toplead total denial,they had not cared toexplain as to why such currency noteswere in their possession thoughaccording to provisions contained inSection 106 of the Evidence Act theburden was on them to explain it. Theirfailure to do so raises an adverseinference against them and for such

1 All. Ashfaque Vs. State of U.P. 145

inference we conclude that theirpossession was not mere consciouspossession, they meant either to use thecounterfeit currency notes or transportthem.

(B)Criminal Appeal-offence under Section489-B conviction of life imprisonment withfine of Rs. 25000/- considering young ageof appellant-having no previous criminalhistory-punishment of life imprisonmentheld-too much harsh-reduced to 10 years-reasons discussed.

Held: Para-30The appellants were connected withinternational criminals or with terroristorganizations. To this extent we find thereasoning of the learned trial Judge iserroneous. Appellant Ashfaque was agedabout 25 years and appellant Jaikam wasaged about 28 years, keeping in viewtheir age we think that in the presentmatter imprisonment for life is veryharsh sentence because it means theappellants will remain confined in jail tillthe end of their natural lives that too onthe basis of conjectures and surmises. Itis their first conviction, their age alsopersuades us to reduce their sentence.

Case Law discussed:[1995 Supreme Court Cases (Crl) 222]; [1995CRI.L.J. 2659 (Supreme Court), 2659]; [2005(1) Supreme Court Cases 237]; [2001 (9)Supreme Court Cases 642]; [1979 (4)Supreme Court Cases 723]; AIR 2000 SC1691; 1999 Cri.L.J. 942; 1962 (2) Cri. L.J. 765.

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

1. Both the appeals arise out of thesame judgment and order dated10.02.2014 passed in Sessions Trial No.16 of 2013 [State Vs. Ashfaque andanother], they have been heard togetherand are disposed of by a common order.

2. In the aforesaid appeals theappellants Ashfaque and Jaikam havebeen convicted and sentenced as under:

U/s 489-B IPC : Life Imprisonmentwith fine of Rs.25,000/- each : In default ofpayment of fine two years RI.

U/s 489-C IPC : Five years RI withfine of Rs.7,000/- each

: In default ofpayment of fine six months' RI.

3. In the present case facts of theprosecution case may be summarized asunder:

That on 26.09.2012 at 8.25 PM atGRP Faizabad on the basis of recoverymemo, chick FIR was scribed, case crimeno. 63 of 2012, under Sections 489-B &489-C IPC was registered and requisiteentry was made in the report of thegeneral diary. According to the recoverymemo, SI Brijesh Kumar Singh, the thenStation Officer, was on patrol duty atRailway Station, Faizabad along with apolice party to prevent the commission ofany crime, make search for criminals andunwanted elements and objectionalarticles. Thus received the informationfrom the informer that two personscarrying counterfeit currency notes hadcome to the station and they were tryingto pass off the counterfeit currency notes.When the police party lead by himreached near second class waiting room,in the passenger hall near ticket bookingwindow, they saw two persons sitting on acement slab and on the pointing out of theinformer when those persons were spokento, they ran towards west side, at about5.05 PM they were arrested and disclosedtheir names as Ashfaque and Jaikam.Both resident of District Bharatpur(Rajsthan). They confessed that they hadcounterfeit currency notes which theywere bringing from Farrkka (WestBengal) to Gurgaon (Haryana) by


Farrakka Express. When they came toknow that ahead checking was made, theydeboarded there and were trying to passoff fake currency notes. When asked, nopassenger consented to be a witness, theywith due formality searched the accusedpersons, during search they recoveredseven bundles of fake currency notesamounting to Rs.3,50,000/- wrapped in acloth sheet from a plastic bag held byAshfaque. Thereafter details of thosenotes were noted down. From the searchof co-accused Jaikam from his right handone cloth bag was taken and searched andfrom there fake currency notes ofRs.3,00,000/- were found wrapped in aLungi. Details of these notes were alsonoted down. Recovery memo wasprepared. Arrested persons along withseized property were deposited in thepolice station and the said case crimenumber was registered.

4. During the investigation theseized currency notes were sent forexamination to Currency Printing Press,Nasik (Maharashtra), where the noteswere found counterfeit. Afterinvestigation charge-sheet was submitted.

5. The appellants were charged bythe Court of Session, under Sections 489(Kha) and 389 (Ga) IPC. The appellantsdenied the charges and claimed to betried.

6. In order to prove the charges onbehalf of the prosecution in documentaryevidence, besides other papers RecoveryMemo Ext. Ka-1, Memo Ext. Ka-2, Ka-3,FIR Ext. Ka-4, Copy of Report Ext. Ka-5,Report Ext Ka-6 and Site Plan & CurrencyNote Press Report Ext. Ka-8, Ka-9 & Ka-10were filed. In the oral evidence five witnesseswere examined. Thereafter statements of the

appellants were recorded under Section 313CrPC wherein they denied the facts stated bythe prosecution witnesses. According to them,they were falsely implicated due to enmity.According to appellant-Ashfaque on26.09.2012 by Marudhar Express he wasgoing to Varanasi, at Railway Station,Faizabad GRP personnel de-boarded him,they took his ticket and Rs.30,000/- cash andlocked him in the lockup. After many requestshe was released but when he demandedmoney back the Station Officer got annoyedand framed him in the present matter.According to appellant Jaikam, he was alsogoing in the same manner and he was falselyimplicated in the present case. The onlyvariation in his statement is that from himRs.25,000/- were taken.

7. After hearing the arguments thelearned trial Judge convicted theappellants and sentenced them as above.

8. We have heard Sri Raj BakshSingh, learned counsel for the appellantsand Ms. Ruhi Siddiqui, learned A.G.A.for the State and perused the record.

9. On behalf of the appellants it hasbeen submitted that learned trial Judgehas wrongly believed the prosecutioncase, no recovery was made from thepossession of the appellants. Noindependent witness has been examinedon behalf of the prosecution. He furthersubmits that according to the prosecutionversion only fake currency notes wererecovered from the possession of theappellants, their use has not been evenalleged by the prosecution. Theconviction of the appellants under Section489-B IPC is itself bad in law.

10. On behalf of the State thesearguments have been repelled.


11. Before entering into the meritsof the appeal, we would like to recall theobservation made by the Apex Court inthe case of Ishvarbhai Fuljibhai Patni Vs.State of Gujarat [1995 Supreme CourtCases (Crl) 222] whereby duties of theappellate court have been outlined. Para-4of the judgment reads as under:

"4. Since, the High Court was dealingwith the appeal in exercise of its appellatejurisdiction, against conviction and sentenceof life imprisonment, it was required toconsider and discuss the evidence and dealwith the arguments raised at the bar. Letalone, any discussion of the evidence, we donot find that the High Court even cared tonotice the evidence led in the case. None ofthe arguments of the learned counsel for theappellant have been noticed, much lessconsidered and discussed. The judgment iscryptic and we are at loss to understand asto what prevailed with the High Court touphold the conviction and sentence of theappellant. On a plain requirement of justice,the High Court while dealing with a firstappeal against conviction and sentence isexpected to, howsoever briefly dependingupon the facts of the case, consider anddiscuss the evidence and deal with thesubmissions raised at the bar. If it fails to doso, it apparently fails in the discharge of oneof its essential jurisdiction under itsappellate powers. In view of the infirmitiespointed out by us, the judgment underappeal cannot be sustained."

12. In the case of Lal Mandi,Appellant v. State of West Bengal,Respondent [1995 CRI.L.J.2659(Supreme Court), 2659], the Apex Courtin para-5 of the report has given thecaution to the High Court reminding itsduty in the matter of hearing of appealagainst conviction. It would be gainful to

reproduce the observation made in para-5of the report, extracted below:

"5. To say the least, the approach ofthe High Court is totally fallacious. In anappeal against conviction, the AppellateCourt has the duty to itself appreciate theevidence on the record and if two viewsare possible on the appraisal of theevidence, the benefit of reasonable doubthas to be given to an accused. It is notcorrect to suggest that the "AppellateCourt cannot legally interfere with" theorder of conviction where the trial courthas found the evidence as reliable and thatit cannot substitute the findings of theSessions Judge by its own, if it arrives at adifferent conclusion on reassessment ofthe evidence. The observation made inTota Singh's case, which was an appealagainst acquittal, have beenmisunderstood and mechanically applied.Though, the powers of an appellate court,while dealing with an appeal againstacquittal and an appeal against convictionare equally wide but the considerationswhich weigh with it while dealing with anappeal against an order of acquittal and inan appeal against conviction are distinctand separate. The presumption ofinnocence of accused which getsstrengthened on his acquittal is notavailable on his conviction. An appellatecourt may give every reasonable weight tothe conclusions arrived at by the trialcourt but it must be remembered that anappellate court is duty bound, in the sameway as the trial court, to test the evidenceextrinsically as well as intrinsically and toconsider as thoroughly as the trial court,all the circumstances available on therecord so as to arrive at an independentfinding regarding guilt or innocence of theconvict. An Appellate Court fails in thedischarge of one of its essential duties, if


it fails to itself appreciate the evidence onthe record and arrive at an independentfinding based on the appraisal of suchevidence."

13. Recovery Officer Brijesh KumarSingh P.W.1 has supported theprosecution version and proved therecovery memo Ext. Ka-1. He hasidentified the case property includingplastic bag, cloth bag, cloth sheet andLungi, material Exts. 1 to 5 (four articleswrongly exhibited as five). He has alsoidentified bundles of fake currency notesrecovered by him.

14. Sub Inspector Rajendra PrasadMisra, P.W.2 was a member of the forcelead by Sri Brijesh Kumar Singh P.W.1 atthe relevant date and time. He alsosupported the prosecution version.

15. Head Constable Ram BujhawanChaudhary P.W.3 is the scribe of chickFIR. He has proved chick FIR Ext. Ka-4and other police papers.

16. Sub-Inspector Sudhakar PandeyP.W.4 is the IInd Investigating Officer,who gave details of the steps taken by himin the course of investigation. He hasproved the charge-sheet Ext. Ka-7.

17. Sub Inspector Hari ShankarPrajapati P.W.5 is the Ist InvestigatingOfficer, who gave details of steps takenby him during the course of investigationand proved the site plan Ext. Ka-8.

18. In the statement of BrijeshKumar Singh P.W.1 and Sub InspectorRajendra Prasad Misra P.W.2, certaindiscrepancies have been pointed out onbehalf of the appellants. It is admitted factthat no two police personnel can perceive,

retain in memory and describe the sameactually in the same language whateverthey had perceived together. Consideringthis human factor we think the indicateddiscrepancies cannot be made basis toreject the prosecution evidence.

19. Both these witnesses have signedthe recovery memo, their departure forpatrolling stood corroborated by the reportof the general diary, their presence at therelevant place, time and date cannot bedoubted upon. During cross-examination nomajor contradiction had occurred. Merelyon the basis of non examination ofindependent witness we cannot reject thetestimonies of these two witnesses. Moreso, when reason for not taking independentwitness have been mentioned in therecovery memo, we find that learned trialJudge has rightly believed them.

20. From the report of the CurrencyPrinting Press, Nasik (Maharashtra) Ext.Ka-5, it also stands proved that therecovered currency notes werecounterfeit. From the evidence of thesetwo witnesses recovery of these fakenotes from the possession of theappellants also stands proved, thus, wenotice that conviction of the appellantsunder Section 489-C IPC has been rightlymade by the learned trial Judge.

21. On behalf of the appellants theirconviction and sentence under Section489-B IPC has been challenged on thebasis that mere possession would not beenough to convict them under Section489-B IPC. On behalf of the appellants insupport of this argument following caseshave been referred.

1. K. Hasim Vs. State of Tamil Nadu[2005(1) Supreme Court Cases 237]. In


paras 48 and 49 of the report differencebetween the ingredients constitutingoffence punishable under Sections 489-B& 489-C IPC have been enumerated. Wecan refer these two paras gainfully for ourconsideration, they read as under:

"48.Similarly Section 489 B relates tousing as genuine forged or counterfeitedcurrency notes or bank notes. The object ofLegislature in enacting this section is to stopthe circulation of forged notes by punishingall persons who knowing or having reasonto believe the same to be forged do any actwhich could lead to their circulation.

49.Section 489C deals withpossession of forged or counterfeitcurrency notes or bank notes. It makespossession of forged and counterfeitedcurrency notes or bank notes punishable."

2. Umashanker Vs. State ofChhattisgarh [2001 (9) Supreme CourtCases 642]. In support of his argumentlearned counsel for the appellants hasplaced reliance on para 7 of the report,which reads as under:

"7. Sections 489-A to 489-E dealwith various economic offences in respectof forged or counterfeit currency-note orbank-notes. The object of Legislature inenacting these provisions is not only toprotect the economy of the country butalso to provide adequate protection tocurrency-notes and bank-notes. Thecurrency-notes are, in spite of growingaccustomedness to the credit cardssystem, still the backbone of thecommercial transactions by multitudes inour country. But these provisions are notmeant to punish unwary possessors orusers."

3. M. Mammutti Vs. State ofKarnataka [1979 (4) Supreme Court

Cases 723]. This case has been referred insupport of the argument that theappellants were not specifically askedabout their knowledge whether recoveredcurrency notes were fake or not.

22. The learned AdditionalGovernment Advocate has submittedthat possession of fake currency notes ofRs.3,50,000/- by appellant Ashfaque andRs.3,00,000/- by appellant Jaikam is initself an evidence that they were carryingthe fake notes to use them as genuine. Hehas further submitted that failure of theappellants to explain such huge recoveryfrom their possession is also an evidencethat the appellants had mens rea to use fakecurrency notes as genuine.

23. In support of his argument,learned Additional Government Advocatehas referred the provisions contained inSections 106 and 114(h) of the EvidenceAct. Before proceeding further we wouldlike to reproduce the provisions containedin Sections 106 and 114(h) of theEvidence Act, they read as under:

Section 106 - When any fact isespecially within the knowledge of anyperson, the burden of proving that fact isupon him.

Section 114. The Court may presumethe existence of any fact which it thinkslikely to have happened, regard being hadto the common course of natural events,human conduct and public and privatebusiness, in their relation to the facts ofthe particular case.

The court may presume-----114(h)-that if a man refuses to

answer a question: which he is notcompelled to answer by law, the answer,if given, would be unfavourable to him."


24. To elaborate the thrust of theargument advanced by the learnedAdditional Government Advocate is thatit was for the appellants to explain howthey come in possession of counterfeitcurrency notes and they had noknowledge that those are counterfeitnotes.

25. The case law referred by thelearned counsel for the appellants is of nohelp to the appellants because here thequestion is whether conviction of theappellants in addition to Section 489-CIPC in Section 489-B IPC is legal or not ?None of the cases referred by him throwsany light on this point as against that wefind that the evidence of recovery ofcounterfeit currency notes from theappellants is relevant and admissible inthis reference also. Simple discovery ofcounterfeit notes from the appellants doesnot stand proved from the evidence ofrecovery but also their knowledge andtheir state of mind that is knowledgeabout fake currency is also establishedfrom that evidence. On this point our viewstand fortified by the explanation given bythe Apex Court in the case of State ofMaharashtra Vs. Damu Gopi Nath Shindeand others [AIR 2000 SC 1691] whereinApex Court has observed as under:

"36. The basic idea embedded inSection 27 of the Evidence Act is thedoctrine of confirmation by subsequentevents. The doctrine is founded on theprinciple that if any fact is discovered in asearch made on the strength of anyinformation obtained from a prisoner,such a discovery is a guarantee that theinformation supplied by the prisoner istrue. The information might beconfessional or non-inculpatory in nature,but if it results in discovery of a fact it

becomes a reliable information. Hence thelegislature permitted such information tobe used as evidence by restricting theadmissible portion to the minimum. It isnow well settled that recovery of anobject is not discovery of a fact asenvisaged in the section. The decision ofthe Privy Council in Pulukuri Kottaya v.Emperor AIR 1947 PC 67 is the mostquoted authority for supporting theinterpretation that the "fact discovered"envisaged in the section embraces theplace from which the object wasproduced, the knowledge of the accusedas to it, but the information given mustrelate distinctly to that effect.

37. No doubt, the informationpermitted to be admitted in evidence isconfined to that portion of the informationwhich "distinctly relates to the factthereby discovered". But the informationto get admissibility need not be sotruncated as to make it insensible orincomprehensible. The extent ofinformation admitted should be consistentwith understandability. In this case, thefact discovered by PW 44 is that A-3Mukinda Thorat had carried the deadbody of Dipak to the spot on themotorcycle.

38. How did the particularinformation led to the discovery of thefact? No doubt, recovery of dead body ofDipak from the same canal wasantecedent to the information which PW44 obtained. If nothing more wasrecovered pursuant to and subsequent toobtaining the information from theaccused, there would not have been anydiscovery of any fact at all. But when thebroken glass piece was recovered fromthat spot and that piece was found to bepart of the tail lamp of the motorcycle ofA-2 Guruji, it can safely be held that theInvestigating Officer discovered the fact


that A-2 Guruji had carried the dead bodyon that particular motorcycle up to thespot.

39.In view of the said discovery ofthe fact, we are inclined to hold that theinformation supplied by A-2 Guruji thatthe dead body of Dipak was carried on themotorcycle up to the particular spot isadmissible in evidence. That information,therefore, proves the prosecution case tothe abovementioned extent."

26. After dealing with this whether theappellants had possessed the necessary mensrea, the second aspect is whether recovery oflarge number of counterfeit currency notesare sufficient to establish that theirpossession amounts to an offence punishableunder Section 489-B IPC. This sectionprohibits use of or trafficking with thecounterfeit currency notes. Since theappellants had preferred to plead totaldenial,they had not cared to explain as towhy such currency notes were in theirpossession though according to provisionscontained in Section 106 of the Evidence Actthe burden was on them to explain it. Theirfailure to do so raises an adverse inferenceagainst them and for such inference weconclude that their possession was not mereconscious possession, they meant either touse the counterfeit currency notes ortransport them. In the case of Rayab JusabSama Vs. State of Gujarat [1999 Cri. L. J.942] the Division Bench of Gujarat HighCourt has held the possession of largenumber of fake currency notes to be a case ofactive transportation of such notes. Theobservation made by the Division Bench inthat case also substantiates the view formedby us. Para-10 of the report reads as under:

10.The learned counsel for theappellant contended that the prosecutionhad failed to prove the offence under S.489-B of the Indian Penal Code even if it

is held that the offence of possession thefake currency notes under S.489-C isproved. This submission is whollyerroneous because the evidence clearlyestablishes that the appellant was foundcarrying 250 fake currency notes on apublic road in the city of Bhuj concealedin a Thela beneath cloth pieces as allegedin the charge. He was, therefore,transporting the said currency notes at thetime when he was apprehended withthem. Therefore, this is not a case of meredormant possession, but, it is a case ofactive transportation of the currencynotes, which would fall within theexpression 'traffics in such currencynotes.' Section 489-B of the Indian PenalCode clearly contemplates the caseswhere the counterfeit currency notes arereceived from any other person as also thecases where a person traffics in suchcurrency notes knowing or having reasonto believe the same to be forged orcounterfeit. In our opinion, theseingredients of the offence under S.489-Bare clearly established against theappellant. He was not only carrying 250counterfeit currency notes on 9.4.1996 buthe had concealed 101 other suchcounterfeit currency notes which he laterdiscovered before the Panchas on12.4.1996. It is, therefore, clearlyestablished that the appellant wastrafficking in these counterfeit currencynotes which he had received from somesource. The appellant is, therefore, rightlyheld guilty of the offences under Ss. 489-B and 489-C of the Indian Penal Code bythe trial Court and we are in completeagreement with the reasoning adopted bythe trial Court for reaching its conclusionson this count. We are not concerned inthis appeal, as noted above, with theoffences under the Passport Act for whichthe accused was acquitted."


27. In view of above we come to theconclusion that the arguments tochallenge the conviction of the appellantsunder Section 489-B IPC also fail andcharge against the appellants underSection 489-B IPC stands proved beyondreasonable doubt.

28. Here we would like to see andexplain that though we are in agreementwith the findings recorded by the learnedtrial Judge that the possession andtrafficking of the counterfeit currencynotes against the present appellants areestablished beyond doubt and they havebeen rightly convicted under Sections489-B & 489-C IPC but from thisjuncture we disagree with the learned trialJudge that both the appellants should havebeen punished on both counts. Theoffence punishable under Section 489-BIPC is a major offence and offencepunishable under Section 489-C IPC is aminor offence. When a person isconvicted and sentenced under Section489-B IPC his conviction under Section489-C IPC has been held to be notwarranted in law. A person cannot bepunished twice for the same offence.After convicting the appellants thelearned trial Judge should have punishedthe appellants only for one offence i.e.major offence. In a similar case JusticeK.S. Hegde (as His Lordship then was)speaking for the Division Bench ofMysore High Court, has observed in para33 of the report that if a person has beenconvicted under Section 489-B IPC, hisconviction under Section 489-C IPCbecomes redundant vide V. Govindrajaluand others Vs. State of Mysore 1962 (2)Cri. L. J. 765].

29. In view of above we come to theconclusion that we would like to affirm

the conviction of the appellants underSection 489-B and 489-C IPC but wewould like to set aside the sentenceawarded to the appellants under Section489-C IPC.

30. The appellants have beenawarded imprisonment for life underSection 489-B IPC. It is true that theoffence punishable under Section 489-BIPC is punishable with imprisonment forlife or with imprisonment for a termwhich may extend to ten years. In thisway, imprisonment for life is themaximum sentence which could beawarded under Section 489-B IPC. Nowwe have to see whether learned trial Judgehas rightly exercised his discretion whilesentencing the appellants, we haveperused the reasons recorded by him toaward maximum sentence. The learnedtrial Judge has noticed that trafficking incounterfeit currency notes jeopardize theeconomic condition of the country, itindicates that the appellants hadconnection with international criminalsand terrorist organizations. When we haveperused the whole of the record but wecould not find any material which showsthat the appellants were connected withinternational criminals or with terroristorganizations. To this extent we find thereasoning of the learned trial Judge iserroneous. Appellant Ashfaque was agedabout 25 years and appellant Jaikam wasaged about 28 years, keeping in view theirage we think that in the present matterimprisonment for life is very harshsentence because it means the appellantswill remain confined in jail till the end oftheir natural lives that too on the basis ofconjectures and surmises. It is their firstconviction, their age also persuades us toreduce their sentence, the Hon'ble ApexCourt in the case of Samir Mustafabhai

1 All. Santosh Kumar Upadhyay Vs. State of U.P. & Ors. 153

Bajariya vs. State of Gujarat decided on26.04.2013 has reduced the rigorouspunishment awarded under Section 489-BIPC from 8 years to almost 4 years but inthe present case a large number of fakecurrency notes have been recovered, insuch situation, we think instead ofimprisonment for life, imprisonment often years RI would serve the ends ofjustice. To this extent appeals deserve tobe allowed.

31. Accordingly, both the appeals arepartly allowed. The conviction of theappellants under Sections 489-B & 489-CIPC is affirmed and their sentences awardedunder Section 489-C are set aside. Sentenceof imprisonment for life awarded underSection 489-B IPC are altered to undergorigorous imprisonment of ten years.

32. To the aforesaid extent theimpugned judgment and orders of the trialcourt dated dated 10.02.2014 passed inSessions Trial No. 16 of 2013 [State Vs.Ashfaque and another] are modified.

33. Office is directed to certify thisorder to the court concerned forthwith forcompliance and to send back the lowercourt record.

-------ORIGINAL JURISDICTION


BEFORETHE HON'BLE V.K. SHUKLA, J.

THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Writ-A No. 370 of 2016

Santosh Kumar Upadhyay ...PetitionerVersus

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

Counsel for the Petitioner:

Rakesh Kumar Tiwari

Counsel for the Respondents:C.S.C., Nisheeth Yadav

The Uttar Pradesh Public Services(Reservation for physically handicapped,dependent of freedom fighters & Ex-servicemen)(Amendment Act 2015Section-2)-enforced w.e.f. 07.04.2015-keeping in view of judgment dated26.08.2014 by Hon'ble High Court-petitionerappeared as General candidate-declaredsuccessful in preliminary examination as wellas in written examination in pursuance ofadvertisement dated 28.01.2015-U.P.Combined State/Upper SubordinateExamination (General/Specialrecruitment) 2015-dependent of freedomfighters certificate issued on 21.04.2015-during process of examination claimed 2% reservation under freedom of fighter'squota-held-”yes”-deny the benefit of beingdescendant of freedom fighter havinglineage through married daughter-can notbe approved-necessary direction fortreating dependent of freedom fighter-issued.

Held: Para-18Consequently, in the present case also,keeping in view the peculiar facts of caseas is clearly reflected here that adeclaration has been made by this Courton 26.8.2014 and by ignoring the sameadvertisement in question has beenissued and, thereafter, amendment inquestion has been made that has beenheld to be clarificatory in nature, theneven if that at the point of time whenpreliminary examination has been held,petitioner has proceeded to fill up theform as general category candidate as atthe said point of time even thoughjudgment in the case of Isha Tyagi(supra) has been there, respectivecertificates were not being issued to theincumbents by the authorities concernedand certificates in question have beenissued only after amending act has beenintroduced, in view of this, to deny thebenefit of being Descendant of Freedom


Fighters having his/her lineage throughmarried daughter cannot be approved ofby us.

(Delivered by Hon'ble V.K. Shukla, J.)

1. Santosh Kumar Upadhyay isbefore this Court for following reliefs;

I. Issue a writ, order or direction in thenature of mandamus commanding anddirecting the respondents to provide the benefitof two percent (2%) reservation quota andweightage of the dependants of the freedomfighter to the petitioner in the selectionprocedure of U.P. Combined State/UpperSubordinate Examination (General/SpecialRecruitment) 2015 so that justice be done.

II. Issue a writ, order or direction ofin the nature of mandamus commandingand directing the respondent concerned todecide the representation/applicationdated 30.5.2015 pending till now beforethe respondent no. 2, within a span oflimited time period as prescribed andfixed by this Hon'ble Court.

III. Issue any other suitable writ,order or direction which this Hon'bleCourt may deem fit and proper in thecircumstances of the case.

IV. Award the cost of writ petition infavour of the petitioner.

2. Brief background of the case, as isemanating in the present case, is thatpetitioner claims that he is grandson(daughter's son) of the freedom fighter LateSri Badri Narayan Upadhyaya s/o LateDukharan Upadhyaya r/o Village Kodha,Pargana Ghisua, Tehsil Machlishahar,District Jaunpur and petitioner has come upwith the case that U.P. Public ServiceCommission advertised for the recruitmentof the vacancy of U.P. CombinedState/Upper Subordinate Examination

(General/Special Recruitment) 2015 and inthe said direction the advertisement inquestion has been published on 28.1.2015.The last date of submission of the applicationwas 28.2.2015. Petitioner applied forconsideration of his candidature under thegeneral category. The aforesaid recruitmentprocess has to be completed in three tiersystem (i) preliminary examination (ii) mainsexamination and (iii) interview. Petitionerhas been allotted roll no. 046472 and he wasissued admit card and he undertook thepreliminary examination and by his sheerlabour qualified the preliminary examination.Petitioner, at the point of time, after beingdeclared as successful in preliminaryexamination filled up the form to makemains examination and at the said point oftime petitioner claims benefit of beingdependant of freedom fighter. Thereafter,petitioner has undertaken the mainsexamination and has cleared the same and,thereafter, petitioner has been asked to facethe interview by letter dated 7.12.2015,which has been scheduled to be held on7.1.2016 and prior to it on 4.1.2016 presentwrit petition in question has been filed and ithas been taken up on 7.1.2016 and thereinprayer of petitioner has been that he shouldbe treated as "Dependant of FreedomFighter" by virtue of being son of daughter offreedom fighter Late Sri Badri NarayanUpadhyaya in pursuance of certificate dated21.5.2015 issued by the competent authorityand similar treatment, as has been extendedto Markandey Pratap Narayan Singh, be alsoextended to him.

3. On the presentation of writpetition in question we asked the counselrepresenting the Commission in questionas well as learned Standing Counsel toobtain necessary instructions in the matterand pursuant thereto requisite instructionshave been obtained and the instructions in


question are to the effect that as the date ofsubmission of application was 28.2.2015and the gazette notification in respect to theamendment in U.P. Public Services(Reservation for Physically Handicapped,Dependant of Freedom Fighters and ExService Man) Act, 1993, was made on7.4.2015 and the certificate issued to thepetitioner in respect to the dependant of afreedom fighter was issued on 21.4.2015 inthe light of the aforesaid amendment, oncethe process of examination is on thenmidway petitioner cannot be permitted tochange his category, as is being sought to bedone in the present case and, accordingly,selection has to be made on the terms andconditions of the advertisement and, assuch, no relief or reprieve should be givento the petitioner.

4. State, on the other hand, in thepresent case, is not disputing thejudgment of this Court in the case of IshaTyagi Vs. State of U.P. and others, WritPetition No. 41279 of 2014, decided on26.8.2014 and the issuance of notification,so issued, thereafter, on the basis ofinstructions in question, present petitionhas been taken up for final hearing anddisposal.

5. Sri Rakesh Kumar Tiwari,Advocate, appearing for the petitioner,submitted with vehemence that petitionercannot be discriminated and in all eventualitypetitioner is eligible for being extended thebenefit of 2% reservation quota and theweightage of being dependant of freedomfighter in selection process of U.P.Combined State/Upper SubordinateExamination (General/Special Recruitment)2015, so that justice be done anddiscrimination be not perpetuated vis.a.vis.dependants of freedom fighter amongstthemselves based on gender.

6. Countering the said submissionSri Nisheeth Yadav, Advocate, contendedthat petitioner has proceeded to apply forconsideration of his candidature as ageneral category candidate and, in view ofthis, petitioner cannot be permitted tochange his category after the last datementioned in the advertisement inquestion has already been over andselection process is on and, in view ofthis, once instructions in question arebinding, this Court, in case, allows anyrelief, same would tantamount to alteringthe terms and conditions of theadvertisement in question, whereas nochange is permissible after the cut of dateand the judgment relied upon is not ajudgment in rem, as such, writ petition isliable to be dismissed.

7. Learned Standing Counsel, on theother hand, has accepted the situation thatthere is a judgment holding the field ofgender discrimination and remedialmeasures have already been undertakenby the State Government by makingnecessary amendments in the statute.

8. After respective arguments havebeen advanced the factual situation that isso emerging that the State Governmenthas taken a policy decision to grant ahorizontal reservation of 2% to thedescendants of freedom fighters and, atthe point of time, when such policydecision has been taken the StateGovernment in its wisdom has qualifiedthe condition of eligibility by stipulatingthat a son or a daughter would be entitledto the benefit of the reservation as well asgrandson (son of the son) and unmarriedgranddaughter (daughter of son offreedom fighter) would be inclusive in thedefinition of descendants of freedomfighters. While defining the descendants


of freedom fighters unmarried daughterwas entitled to the benefit of 2%horizontal reservation and marrieddaughter and her children were not at allentitled to receive the same benefit. In thesaid direction the challenge has beenmade before this Court in Writ PetitionNo. 41279 of 2014 (Isha Tyagi Vs. Stateof U.P. & others) wherein agranddaughter of freedom fighter ofTehsil-Deoband, District Saharanpur,questioned the validity of the saidexclusion by contending that it has theimpact of gender discrimination and thisCourt entertained such a plea thatexclusion of a granddaughter is plainly anact of hostile discrimination and findingfavour with the said plea, proceeded toallow the writ petition in question infollowing terms;

"The State Government has taken apolicy decision to grant a horizontalreservation of 2% to the descendants offreedom fighters. While doing so, the StateGovernment has qualified the condition ofeligibility by stipulating that a son or adaughter would be entitled to the benefit ofthe reservation. However, it has been statedin the relevant condition that the lawdepartment had opined that this benefit canbe extended only to an unmarried daughterof a freedom fighter. Consequently, whereasthe son's son would be eligible to apply foradmission, the children of a daughter standexcluded. Exclusion of a grand daughter isplainly an act of hostile discrimination whichis violative of the fundamental rightguaranteed under Articles 14 and 15 of theConstitution. The condition which has beenimposed by the State does not prescribefinancial dependence. In fact, theclarification is to the effect that it is notnecessary that the son of a freedom fightershould be financially dependant upon him.

The basis and object of the horizontalreservation of 2% is to recognise the seminalrole in the freedom struggle played byfreedom fighters. It is in recognition of theircontribution to the freedom struggle that abenefit of reservation is extended todescendants of freedom fighters. This beingthe rationale, there is no reason orjustification to exclude a married daughterand consequently the children of a marrieddaughter. Once a decision has been taken toextend the benefit of horizontal reservation todescendants of freedom fighters, whether thedescendant is a son or a daughter shouldmake no difference whatsoever. In fact, anydiscrimination against a daughter would beplainly a discrimination on grounds ofgender. The guarantee under Article 15 ofthe Constitution is broad enough toencompass gender discrimination and anydiscrimination on grounds of genderfundamentally disregards the right toequality, which the Constitution guarantees.

In National Legal Services AuthorityVs Union of India1, the Supreme Courtheld that any discrimination on the basisof gender identity would be contrary toArticles 14, 15 and 21 of the Constitution:

"82. Article 14 has used theexpression "person" and Article 15 hasused the expression "citizen" and "sex" soalso Article 16. Article 19 has also usedthe expression "citizen". Article 21 hasused the expression "person". All theseexpressions, which are "gender neutral"evidently refer to human beings. ...Genderidentity as already indicated forms thecore of one's personal self, based on self-identification, not on surgical or medicalprocedure. Gender identity, in our view, isan integral part of sex and no citizen canbe discriminated on the ground of genderidentity. ...

83. We, therefore, conclude thatdiscrimination on the basis of sexual


orientation or gender identity includes anydiscrimination, exclusion, restriction orpreference, which has the effect ofnullifying or transposing equality by thelaw or the equal protection of lawsguaranteed under our Constitution,..............."

It would be anachronistic todiscriminate against married daughters byconfining the benefit of the horizontalreservation in this case only to sons (andtheir sons) and to unmarried daughters. If themarital status of a son does not make anydifference in law to his entitlement or to hiseligibility as a descendant, equally in ourview, the marital status of a daughter shouldin terms of constitutional values make nodifference. The notion that a marrieddaughter ceases to be a part of the family ofher parents upon her marriage must undergoa rethink in contemporary times. The lawcannot make an assumption that marriedsons alone continue to be members of thefamily of their parents, and that a marrieddaughter ceases to be a member of the familyof her parents. Such an assumption isconstitutionally impermissible because it isan invidious basis to discriminate againstmarried daughters and their children. Abenefit which this social welfare measuregrants to a son of a freedom fighter,irrespective of marital status, cannot bedenied to a married daughter of a freedomfighter. The progeny of the children of afreedom fighter cannot be be excluded on thegrounds of gender. Grandchildren,irrespective of gender, must be treated on anequal footing. Whether grandchildren shouldat all be entitled to the benefit of a welfarescheme is a matter of policy for the State todecide. However, what is clearly not open tothe State is to confine the benefit tograndchildren of a particular category, basedon the gender of the parent or the gender ofthe child. Marriage does not have and should

not have a proximate nexus with identity.The identity of a woman as a womancontinues to subsist even after andnotwithstanding her marital relationship. Thetime has, therefore, come for the Court toaffirmatively emphasise that it is not open tothe State, if it has to act in conformity withthe fundamental principle of equality whichis embodied in Articles 14 and 15 of theConstitution, to discriminate against marrieddaughters by depriving them of the benefit ofa horizontal reservation, which is madeavailable to a son irrespective of his maritalstatus. Consequently, in the present case, weare of the view that the opinion of the lawdepartment of the State, which forms thebasis of the condition which is in question, isjust not sustainable and is fundamentallycontrary to basic constitutional norms.

In the circumstances, we order anddirect that the benefit of the horizontalreservation of 2% for descendants offreedom fighters shall extend both todescendants of a freedom fighter tracingtheir lineage through a son or through adaughter irrespective of the marital statusof the daughter. Neither a marrieddaughter nor her children would bedisqualified from receiving the benefit ofthe reservation which is otherwiseavailable to them in their capacity asdescendants of a freedom fighter.Whether, in a given case including thepresent, an applicant is truly a descendantof a freedom fighter is undoubtedly forthe authority to verify.

In the present case, the learnedcounsel appearing for the petitioner hasstated that the process of counselling isstill going on. In the event that thecounselling process is still underway, wedirect that the claim of the petitioner shall,subject to due verification as regards itsauthenticity, be considered under thecategory of the horizontal reservation of


2% provided for descendants of a freedomfighter.

The writ petition is, accordingly,allowed in the aforesaid terms. Thereshall be no order as to costs."

9. The said judgment in questionclearly proceeds to make a declarationthat the benefits of horizontal reservationof 2% for descendants of freedom fightersshall extend both to descendants of afreedom fighter tracing their lineagethrough a son or through a daughterirrespective of the marital status of thedaughter. Neither a married daughter norher children would be disqualified fromreceiving the benefit of the reservationwhich is otherwise available to them intheir capacity as descendants of a freedomfighter. However, it was left open as towhether in a given case including thepresent, an applicant is truly a descendantof a freedom fighter is undoubtedly forthe authority to verify. The judgment inquestion thus on its face value is ofdeclaratory nature wherein a declarationhas been made by this Court that thebenefits of horizontal reservation of 2%for descendants of freedom fighters shallextend both to descendants of a freedomfighter tracing their lineage through a sonor through a daughter irrespective of themarital status of the daughter. Neither amarried daughter nor her children wouldbe disqualified from receiving the benefitof the reservation which is otherwiseavailable to them in their capacity asdescendants of a freedom fighter. Thesaid judgment has been permitted to attainfinality and even in principle amendmenthas been introduced, which is as follows;

"No. 453(2)/LXXIX-V-1-15-1(ka)-14-2015

Dated Lucknow, April 7, 2015

In pursuance of the provisions ofclause (3) of Article 348 of theConstitution of India, the Governor ispleased to order the publication of thefollowing English translation of the UttarPradesh Lok Seva (Sharirik Roop seViklang, Swatantrata Sangram SenaniyonKe Ashrit Aur Bhootpurva Saninikon KeLiye Arakshan) (Sansodhan) Adhiniyam,2015 (Uttar Pradesh Adhiniyam Sankhya6 of 2015) as passed by the Uttar PradeshLegislature and assented to by theGovernor on April 6, 2015.

The Uttar Pradesh Public Services(Reservation for Physically Handicapped,Dependant of Freedom Fighters and ExService Man) (Amendment) Act, 2015

(U.P. Act No. 6 of 2015)[As passed by the Uttar Pradesh

Legislature]AN

ACTfurther to amend the U.P. Public

Services (Reservation for PhysicallyHandicapped, Dependant of FreedomFighters and Ex Service Man) Act, 1993.

IT IS HEREBY enacted in the Sixty-sixth year of the Republic of India asfollows:

1. This Act may be called the UttarPradesh Public Services (Reservation forPhysically Handicapped, Dependant ofFreedom Fighters and Ex Service Man)(Amendment) Act, 2015.

2. In section 2 of the Uttar PradeshPublic Services (Reservation forPhysically Handicapped, Dependant ofFreedom Fighters and Ex Service Man)Act, 1993, in section 2 of U.P. Act No. 4of 1993 clause (b) for sub-clause (ii) thefollowing sub-clause shall be substitutednamely:-

"(ii) grand son (son of a son ordaughter) and grand daughter (daughter of


a son or daughter) (married orunmarried)."

STATEMENT OF OBJECTSAND REASONS

The Uttar Pradesh Public Services(Reservation for Physically Handicapped,Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (U.P. Act no.4 of1993) has been enacted to provide for thereservation of posts in favour of physicallyhandicapped, dependants of freedom fightersand ex-servicemen. Clause (b) of section 2 ofthe said Act defines the word "dependant". Inaccordance with the said definition son anddaughter (married or unmarried) and grandson and grand daughter (son or daughter of ason) (married or unmarried) are thedependants of a freedom fighter. The Hon'bleHigh Court, Allahabad has in writ petitionno.41279/2014. Isha Tyagi vs. State of U.P.held in their order dated August 26, 2014 thatgender based discrimination isunconstitutional. In the light of the saidorder, it has been decided to amend the saidAct to include the son and daughter of adaughter of a freedom fighter.

The Uttar Pradesh Public Services(Reservation for Physically Handicapped,Dependents of Freedom Fighters and Ex-Servicemen) (Amendment) Bill 2015 isintroduced accordingly."

10. Much emphasis is being laid inthe present case that pursuant to thejudgment of this Court amendment hasbeen introduced on 7.4.2015 and pursuantthereto certificate in question has beenissued in favour of petitioner of beingdescendant of freedom fighter and theprovisions of U.P. Public Services(Reservation for Physically Handicapped,Dependant of Freedom Fighters and ExService Man) (Amendment) Act, 2015,

U.P. Act No. 6 of 2015, has been enforcedw.e.f. 7.4.2015 and, as such, amending actwould apply prospectively and,accordingly, benefit claimed by thepetitioner cannot be accorded and thejudgment in question is not a judgment"in rem" rather judgment is "in personam"

11. The judgment of this Court in thecase of Isha Tyagi (supra) clarifies theposition that there is hostile genderdiscrimination when married daughter andher children have been disqualified fromreceiving the benefit of reservation. In thisbackdrop arguments advanced by U.P.Public Service Commission that it is a caseof prospective ruling and further theamendment in question would beenforceable from the date it has been broughtin the statute book cannot be accepted asgender discrimination has been there sincethe inception of said provision and this Courthas proceeded to clarify the legal positionvide order dated 26.8.2014 clearlymentioning therein the benefits of horizontalreservation of 2% for descendants offreedom fighters shall extend both todescendants of a freedom fighter tracing theirlineage through a son or through a daughterirrespective of the marital status of thedaughter. Neither a married daughter nor herchildren would be disqualified fromreceiving the benefit of the reservation whichis otherwise available to them in theircapacity as descendants of a freedom fighter.In the said case the process of counsellingwas on, this Court directed consideration ofcandidature of the said candidate under thecategory of horizontal reservation of 2%provided for descendants of freedom fightersas discrimination has to be remedied and notto be perpetuated. The judgment of thisCourt in the case of Isha Tyagi (supra) has tobe accepted as of declaratory nature and ithas to be accepted that right from the


inception when policy decision has beentaken to grant horizontal reservation of 2% tothe descendants of freedom fighters, genderdiscrimination persisted whereas maritalstatus of daughter ought not to have madeany difference. The said judgment inquestion declares the correct law and oncethe judgment in question nowhere proceedsto mention that it would be appliedprospectively then it has to be accepted thatthe judgment in question clarifies the legalposition and is declaratory in nature. Theamending act in question i.e. U.P. Act No. 6of 2015 cannot be accepted as prospective innature, inasmuch as, in the facts of the case,it has to be held to be correction of anobvious drafting error based on genderdiscrimination. The said amending act bringsthe granddaughter (daughter of a son)(married or unmarried) within the fold ofdescendant of freedom fighter. The saidamending act is not at all prospective innature as even without amending suchprovision, this Court has already clarified thelegal position and the said provision wouldhave to be read and interpreted, as has beensought to be corrected by the amendment.The judgment in the case of Isha Tyagi(supra) has to be accepted as declaratory andamendment in question is nothing butclarificatory in nature, that clarifies thesituation as it ought to have been right fromthe inception of provision.

12. Consequently, in the facts of thecase, once this Court has already clarified thelegal position on 26.8.2014 in the case ofIsha Tyagi (supra) clearly providing thereinthat the benefits of horizontal reservation of2% for descendants of freedom fighters shallextend both to descendants of a freedomfighter tracing their lineage through a son orthrough a daughter irrespective of the maritalstatus of the daughter, then, thereafter, as thejudgment in question was judgment in rem,

the declaration made therein would bind allthe parties who were before the Court andeven who were not before the Court. Toaccept the preposition that the said judgmentis in personam is too far fetched, as here thesaid judgment has been delivered afterhearing the State of U.P. and State of U.P.has been a party therein, then each and everyadvertisement issued, thereafter, ought tohave been issued by taking note of thatjudgment. U.P. Public Service Commissionis a State agency authorised to conduct CivilServices Examination for entry levelappointments to the various civil services ofUttar Pradesh. The agency's charter isgranted by the Constitution of India. Articles315 to 323 of Part XIV of Constitution, titledservices under the Union and theStates,,provide for Public ServiceCommission for the Union and for eachState. U.P. Public Service Commissioncannot say that as U.P. Public ServiceCommission was not a party in the case ofIsha Tyagi (supra), said judgment is notbinding upon them.

13. Here accepted position is that theadvertisement in question, that has beenso made, is dated 28.1.2015 and last dateof submission of applications was28.2.2015 and this much is acceptedposition that by the said time thoughjudgment has been delivered by this Courtbut the authorities concerned on the spotwere not issuing certificate in line withthe aforementioned judgment and it wasonly when the amending act has beenissued the certificate in question has beenissued by the authorities concerned. Here,this much is accepted position that the lastdate of submission of application was28.2.2015 and at the said point of timecertificate in question was not beingissued by the State respondents in linewith the judgment of this Court, petitioner


proceeded to apply for consideration ofhis candidature as general categorycandidate and, thereafter, amending acthas been introduced and in consonancewith the same certificate has been issuedin favour of petitioner of beingdescendant of a freedom fighter andpetitioner in his turn, at the point of time,when he has proceeded to fill up the formof mains examination, this fact isaccepted that he has proceeded to claimthe benefit of descendant of freedomfighter and petitioner has also undertakenthe mains examination in question and hasqualified the same.

14. In normal course of business thisfact cannot be disputed that the terms andconditions of the advertisement cannot bepermitted to be altered and the said terms andconditions have a mandatory characteristic.The situation, that is so emerging in thepresent case, is that a candidate cannot beasked to perform and discharge impossibletask as here in spite of the fact that there hasbeen a declaration by this Court clearlyproviding therein to extend the benefit ofhorizontal reservation of 2% for descendantsof freedom fighters tracing their lineagethrough a son or through a daughterirrespective of the marital status of thedaughter, in spite of said binding precedent atno point of time any attempt or endeavourwas made by the State to implement the saidjudgment and bring the advertisement inquestion in line with the said judgment inquestion. The advertisement in questionought to have contained the reference of thejudgment of this Court and as far as State isconcerned, State Government is conceding tothe situation that there has been a judgmentof this Court and that they have proceeded toamend the definition in question. We havealready proceeded to take view that thejudgment of this Court is declaratory in

nature and the amending act in question hasto be accepted as clarificatory in nature, insuch a situation and in this background forthe fault of the State for not ensuringcompliance of the judgment of this Court acandidate cannot be put to disadvantageoussituation, inasmuch as, at the relevant pointof time as definition in question has not beenamended by means of amending act theauthorities on the spot were not issuing thecertificate to the incumbents who havelineage through married daughters offreedom fighters of being descendants offreedom fighters and, in such a situation,once act in question has been amended and,thereafter, certificate has been issued andbased on the same petitioner has filled up theform of the mains examination under thecategory of Descendant of Freedom Fighter,then it may be true that there was a last cut ofdate but such a situation has to be dealt within just and equitable manner.

15. We at this juncture would alsomake a mention that in identical set ofcircumstances faced with identical situationwherein U.P. Public Service Commissionwas a party, as State has not at all beenresisting the prayer, this Court in WritPetition No. 24988 of 2015 (MarkandeyPratap Narayan Singh Vs. State of U.P. &others), allowed the writ petition on 1.5.2015by directing the Secretary, U.P. PublicService Commission as follows;

"A bare perusal of theaforementioned judgment and orderwould go to show that the law on thesubject has been clarified that neither amarried daughter nor her children wouldbe disqualified from receiving the benefitof the reservation which is otherwiseavailable to them in their capacity asdescendants of a freedom fighter and inthe said case this Court proceeded to


mention that as the process of counselingis still ongoing, the claim of petitionershall, subject to due verification asregards its authenticity be consideredunder the category of the horizontalreservation of 2% provided fordescendants of a freedom fighter.

Once such has been the verdict of thisCourt and the said verdict had attained thefinality then in such a situation merely on theground that in preliminary examination nosuch declaration has been made, cannot be aground to non-suit the candidature ofpetitioner under the aforementioned categoryof 'Dependent of Freedom Fighter'.

Consequently, in the facts of the case,the order dated 18 April 2015 passed by theSecretary, Public Service Commission, U.P.at Allahabad is not being approved andsame is hereby quashed and set-aside. Thecandidature of petitioner be consideredunder the category of 'Dependent ofFreedom Fighter' subject to due verificationas regards its authenticity.

Writ petition is allowed, accordingly.No order as to costs."

16. We posed specific question to thecounsel appearing for U.P. Public ServiceCommission as to whether the order dated1.5.2015 has been subjected to challengebefore the Apex Court and the answer hasbeen in 'No'. State is not at all resisting therequest of petitioner. We have already takenthe view that the judgment in the case ofIsha Tyagi (supra) is declaratory in nature tothe effect that descendants of freedomfighters would get the benefit of horizontalreservation of 2% tracing their lineagethrough a son or through a daughterirrespective of the marital status of thedaughter. Once such is the factual situationthat U.P. Public Service Commission hasacquiesced to the order dated 1.5.2015 andhas not questioned the validity of the

aforementioned order, and State is notresisting the request of petitioner, then thereis no reason or occasion for us to take adifferent or contrary view, as has beenexpressed by this Court in the case of IshaTyagi (supra), Markandey Pratap NarayanSingh (supra).

17. At this juncture we also proceed totake note of the judgment of the Apex Courtin the case of U.P. Public ServiceCommission vs Satya Narayan Sheohare &Ors, 2009 (5) SCC 473, wherein the writpetitioners were general category candidateswhen recruitment notification dated 4.3.2000was issued. Subsequent to the same, the saidgeneral category candidates became OBCcandidates, when the act was amended on7.7.2000 i.e. before commencement ofwritten test on 4.8.2000, in the said case aDivision Bench of this Court in Writ PetitionNo. 28193 of 2000, Amrita Singh Vs. Stateof U.P., decided on 7.5.2001 gave benefit ofreservation. Apex Court in the said case heldthat as the process of selection was deemedto have been initiated when the written testwas started and as the Schedule-I to the Actwas amended prior to the commencement ofwritten test, the writ petitioners should betreated as OBC candidates, therein also OBCstatus was accorded after last cut of date andin peculiar facts of the case as they weretransitional provisions, benefit of the samehas been extended.

18. Consequently, in the present casealso, keeping in view the peculiar facts ofcase as is clearly reflected here that adeclaration has been made by this Court on26.8.2014 and by ignoring the sameadvertisement in question has been issuedand, thereafter, amendment in question hasbeen made that has been held to beclarificatory in nature, then even if that at thepoint of time when preliminary examination

1 All. C/M Shri Lal Bahadur Shashtri Junior High School Vs. Bapu Shiksha Samiti & Ors. 163

has been held, petitioner has proceeded to fillup the form as general category candidate asat the said point of time even thoughjudgment in the case of Isha Tyagi (supra)has been there, respective certificates werenot being issued to the incumbents by theauthorities concerned and certificates inquestion have been issued only afteramending act has been introduced, in view ofthis, to deny the benefit of being Descendantof Freedom Fighters having his/her lineagethrough married daughter cannot beapproved of by us.

19. Writ petition is allowed,accordingly. Respondents are directed totreat the candidature of petitioner underthe category of "Dependant of FreedomFighter" subject to due verification asregards its authenticity and his result bealso declared, accordingly.




CHANDRACHUD, C.J.THE HON'BLE YASHWANT VARMA, J.

Special Appeal Defective No. 847 of 2015

C/M Shri Lal Bahadur Shashtri JuniorHigh School ...Appellant

VersusBapu Shiksha Samiti & Ors. .Respondents

Counsel for the Appellant:Balwant Singh

Counsel for the Respondents:C.S.C., Arun Kumar, Rajeev Misra

High Court Rules, 1952-Chapter VIII Rule-5-Special Appeal against interim order-byLearned Single Judge-granted staywithout discussion of fact or reasons-held-

maintainable-neither the party nor theAppellate Court could understand thereason justifying the grant of interimorder-liberty to move fresh for interimprotection before Single Judge.

Held: Para-1Even at the interlocutory stage, it isnecessary for the Court to bear in mindthe basic principles governing the grantof an interim injunction, namely, theissue of a prima facie case, balance ofconvenience and irreparable harm.

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

1. The impugned order of thelearned Single Judge which is of aninterlocutory nature furnishes absolutelyno reason as to why the learned SingleJudge has stayed the operation of theorder dated 29 May 2015 passed by theDistrict Basic Education Officer,Gorakhpur. The order neither records thesubmission nor does it carry any primafacie evaluation of facts. Even at theinterlocutory stage, it is necessary for theCourt to bear in mind the basic principlesgoverning the grant of an interiminjunction, namely, the issue of a primafacie case, balance of convenience andirreparable harm.

2. Absent any reason whatsoever,neither the parties nor, for that matter, theappellate court would have the benefit ofunderstanding the basis on which theinterlocutory order has been passed.

3. For these reasons, we allow thespecial appeal and set aside the impugnedorder dated 12 June 2015 passed by thelearned Single Judge. However, we grantliberty to the original petitioner to move thelearned Single Judge afresh for the grant ofprotective interim relief.


4. The special appeal is,accordingly, disposed of. There shall beno order as to costs.


CRIMINAL SIDEDATED: ALLAHABAD 22.01.2016

BEFORETHE HON'BLE BALA KRISHNA NARAYANA, J.

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Capital Case No. 962 of 2007Connected with

Capital Case No. 903 of 2007

Vikas Sharma @ Moni & Anr. ...AppellantsVersus

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

Counsel for the Petitioner:Ashok Kumar Rai, Apul Misra, P.N. Misra,P.S. Pundir, R.K. Rai, Ravindra Nath Rai,V.P. Srivastava

Counsel for the Respondents:Govt. Advocate, D R Chaudhary, I.K.Chaturvedi, M S Yadav, Rajul Bhargava

Criminal Capital Appeal-conviction ofdeath sentence u/s 302, 34 IPC-with fineof Rs. 20,000 on each appellant-lifeimprisonment with fine of Rs. 10000 oneach under section 364 and 201-prosecution comprehensively andreliably established the chain ofcircumstances-with help of oral as wellas documentary evidences-presence ofappellant and intention of committingcrime the gruesome manner-try todestroy evidence established-convictionof Trail Court affirmed-considering ageof accused-and no previous criminalrecord-not likely to be danger to society-offence not premeditated-beingcircumstances evidence-except deathsentence all other sentences given byTrail Court need no interference-Appealpartly allowed.

Held: Para-15On 30.11.2003 the fingerprint expert Dr.Rajendra Singh collected finger prints fromthe dressing table, wooden, almirah,stainless steel kettle, T.V. Stand, the mirrorof dressing table and washbasin of room no.209 in presence of the witnesses and the I.O.who prepared its memo (Ex. Ka. 18). The siteplan of the hotel room and bathroomattached to it was also prepared by the I.O.which is Ex. Ka. 32 on the record.

Case Law discussed:(1983) 1 SCC 143; 2013 (14) SCC 434; (2014)6 SCC 716; (2012) 6 SCC 174; 1955 AIR 801;AIR 1994 SC 1733; 2002 (I) UPCr R 384; AIR2002 (SC) 2920; (1983) SCC 143; (2005) 11SCC 600; (1983) 1 SCC 143; 2005 SCC (Cri)1938; (1980) 2 SCC 684; (2014) 4 SCC 375.

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

1. Both these criminal appeals, arisingout of the same judgment and order dated1.2.2007 passed by Additional Sessions Judge(F.T.C. Ist), Muzaffar Nagar in S.T. No. 184of 2004 (State of U.P. Versus Rajesh Sainiand others), were connected vide order dated13.2.2007 of this Court and are herebydecided by this common judgment.

2. The facts in brief, if the case ofthe prosecution were true, reveal thetragic case of one young boy Abhishekalias Lovey, who was kidnapped forransom and was chopped off into twoparts by the accused appellants, one ofwhom (appellant - Vikas Sharma) the boyused to call 'uncle'. After his murder theaccused appellants buried both those partsseparately into the sugarcane fields.

3. The brief facts of the case asunfolded during trial are that on the fatefulday i.e. 27.11.2003 the father of the deceasedboy - informant Pradeep Kumar Garg, who isa practicing advocate in Tehsil Court,Jansath, district Muzaffar Nagar, had gone to

1 All. Vikas Sharma @ Moni & Anr. Vs. State of U.P. 165

tehsil Jansath for his work leaving his wife,daughter and son, deceased Abhishek, at hishome. At about 3.30 P.M. his wife rang himup and informed that just after he had left,accused Vikas Sharma, (who was a friend ofPradeep Kumar's younger brother ManojGarg and was working as a typist of TehsilCourt Jansath), had come to their house andhad taken away Abhishek with him butAbhishek had neither reached his school norhad yet returned. Hearing this, the informantat once rushed to the place where typistVikas Sharma (A-1) used to sit at the tehsilcourt campus, to inquire from him about thewhereabouts of his son but Vikas Sharmawas not found on his seat. The informantthen rushed to his home and asked aboutAbhishek from his wife and daughter, bothof whom, while weeping informed thatAbhishek had not yet returned. Theinformant alongwith his wife started tosearch his son. During search his brother-in-law (Behnoi) Rakesh Agrawal informed thathe had seen Abhishek and accused/appellantVikas Sharma going towards PrakashChowk at about 10.00 A.M. The informantand his wife searched their son at PrakashChowk but his whereabouts remaineduntraced. Searching their son when theyreached at Mahaveer Chowk, PramodSharma, Advocate and Anuj Kumar (PW-3)met them who informed them to have seenAbhishek in the company ofaccused/appellants Vikash Sharma, RajeshSaini, Aashu and Arvind, standing in front ofSwagat Hotel at about 10.30 A.M. Theinformant and his wife searched their son inSwagat Hotel and some other hotels also butin vain. When the whereabouts of Abhishekremained untraced till the morning of28.11.2003 i.e. the next day of Abhishek'sdisappearance, the informant lodged awritten report at P.S. Nai Mandi, MuzaffarNagar on 28.11.2003 at 9.15 a.m. narratingall the aforesaid facts and expressing therein

his apprehension about abduction of his sonfor ransom by all the accused/appellants. Inthe F.I.R. itself he also mentioned the namesof villages of appellants Rajesh and Aashu asKasba Jansath and village Aadampur, P.S.Khatauli, district Muzaffar Nagar,respectively.

4. On the basis of the aforesaidwritten report (Ext. Ka. 1), a criminal casewas registered at Crime No. 541 of 2003at P.S. Nai Mandi, District MuzaffarNagar under Section 364 I.P.C. against allthe appellants. Check F.I.R. (Ext. Ka. 4)was prepared and the investigation gotstarted. The I.O. obtained a photograph ofdeceased Abhishek from the informant(Material Ext. 1) and searched for all theaccused persons named in the F.I.R. butnone of them was found at his residence.The I.O. then recorded the statements ofwitnesses Pramod Sharma and RakeshAgrawal who had lastly seen the deceasedAbhishek in the company of accusedpersons. The I.O. reached Swagat Hotelwith the photograph of Abhishek andenquired from the hotel employees, whoinformed the I.O. to have seen Abhishekon 27.11.2003 when he was goingtowards room no. 209 of hotel. The I.O.checked the hotel register and found thatroom no. 209 was booked in the name ofsome Rohit Gupta, resident of 208/7,Lohia Nagar, Ghaziabad at a rent of Rs.400/- per day, having its check-in time at10.15 a.m. on 26.11.2003 and check outtime at 3.00 P.M. on 27.11.2003. Thehotel register was taken into custody andits recovery memo (Ex. Ka. 21) wasprepared. However, on verification, thename and address of occupant of room no.209 i.e. Rohit Gupta was found to be fakeand false. The verification report ofidentity of Rohit Gupta is available as Ex.Ka. 38 on the record.


5. On 28.11.2003, the I.O. onceagain visited Kasba Jansath in search ofappellants but with no result. Ultimately,on the information of a "Mukhbir", theappellants Rajesh, Aashu and Vikas werearrested by the I.O. from the bus stand ofKasba Jansath in the morning of29.11.2003,. At the time of their arrest,the informant Pradeep Garg - the father ofdeceased alongwith several otherresidents of Jansath Kasba also reachedthere. On enquiry, the aforesaid appellantsconfessed their guilt in presence ofinformant and the public gathered at thespot. They informed the I.O. that on27.11.2003 they had kidnapped Abhishekand had taken him to room no. 209 ofSwagat Hotel, giving him allurement ofshowing some pornographic movie.Appellant Arvind Saini was also withthem. On reaching the hotel room theybolted the room from inside. They had anintention to take at least Rs. 10 lacs fromAbhishek's father as ransom. WhenAbhishek tried to run outside the roomapprehending something fishy, all of themoverpowered him. They caught hold ofhim and made assault on his neck by ascissor. As a result of injury, Abhishekbecame unconscious. Then they draggedhim inside the bathroom attached to thehotel room. Inside the bathroom, they tiedhis hands and legs with a rope and thenthey chopped off his body into two parts.Thereafter, they kept both the parts in twoseparate polythene bags and packed thepolythene bags into two suitcases.Accused Rajesh Saini had already bookeda taxi from 'Shikhar Car Service' whichwas an Amabassador Car No. UGA 8551with its driver Saleem. They kept thosesuitcases into its dicky and the taxi drovetowards village Khatauli with theappellants Rajesh and Arvind. At Khataulithey threw the mobile phone of deceased

Abhishek into Ganga canal after breakingit. Arvind Saini alighted from the taxi atthe gate of Railway Crossing, Khatauliand proceeded towards his villageAdampur. Rajesh Saini took both thesuitcase to his shop "Sunny Cloth House"situated at Kasba Jansath. Co-accusedVikash Sharma and Aashu Gupta hadalready reached at that shop. RajeshSaini's real brother accused Raj Kumarand cousin brother accused Kailash werealso present there. All of them emptiedthe suitcases inside the shop. They keptboth the polythene bags containing twoparts of dead body alongwith otherincriminating articles in two separateplastic sacks. At about 8.00 P.M. Rajeshbrought a tractor. Those sacks were takento the jungle by that tractor and wereburied down under the sugarcane fields ofVishnu Sahai and Dinesh Kamboj.

6. On the aforesaid confessions of theappellants Rajesh, Aashu Gupta and VikasSharma, the police took them to the canefields of Vishu Sahai, where at about 10.30A.M. accused Rajesh Saini dug out theloose soil from a place and took out aplastic sack having a zipped bag inside it.When the zip of the bag was opened, theupper part of Abhishek's body was foundinside it which was identified by informantPradeep Garg as that of his son Abhishek.One pair of shoes, jeans with belt, one shirtwith one front button missing, one sandowbaniyan, all blood stained, one pair ofscissors, 3 blades of wood cutter ('aari')alongwith one blood stained "Aari" one pairof new plastic gloves and one pair of usedplastic gloves, one used piece of soap and aplastic rope were also recovered from thebag (material ex. 2 to 21 on the record).After that the accused Vikas Sharma, AashuGupta and Rajesh Saini pointed out towardsthe field of Dinesh Kamboj situated at the


other side of 'Mend' stating that the otherpart of body was buried in that field. Thepolice took accused Aashu Gupta and VikasSharma to the field of Dinesh Kambojwhere both of them after removing the loosesoil from a place took out a while polythenebag. Inside that bag the lower part ofAbhishek's body was found tied with anylon rope, which was also identified by thefather as that of his son.

7. On recovery of both the parts ofdead body of Abhishek, sections 302 and201 of I.P.C. were added in this case. Therecovery memo Ex. Ka. 2 and Ka. 3 wereprepared on which the signatures of allthe three accused appellants, at whoseinstance the recovery was made and thesignatures of witnesses were obtained.The inquest proceedings were conductedand the body was sent for post-mortemexamination.

8. The post-mortem examination ofthe dead body was conducted on29.11.2003 at 7.30 P.M. by two doctors.

9. Post-mortem report (Ex. Ka. 6)reveals that on external examination ofthe dead body the doctor found that it wasa well built body kept in two halves intwo separate transparent white plastic.

10. The horrifying description ofante-mortem injuries, according to thepost-mortem report is as follows :-

I. Incised wound 13 X 2.5 cm.trachea deep on right side of neck 6 cms.connected from thyroid cartilage in frontof neck and to the right side of neck frommiddle of chin in front 5 cms. below fromright ear where trachea is present. All softtissues muscles, trachea oesophagus andright carotid artery are cutted through and

through. Clotted blood is present in allinjury.

II. Incised wound 38 x 22 cms. Xthrough and through on mid of abdomen 2cms. above from unblinking 10 cms.below from zyphord angle. All soft tissue,muscle, abdomen and scera are cuttedthrough and through, Lumber vertical alsocut through and through clotted blood ispresent in all injury.

The external examination report is asunder : -

Well built body. Body is received intwo separate sealed clothes and in twohalves. On opening seals body found intwo halves. On opening sealed clothesboth halves are found in two separatetransparent white plastic two pieces.

Upper half

Eye close. Tongue protruded outslightly and clinches in between both jawsteeths. a frothy blood is coming out fromnostrils. A fiber rope is tied around neckand left wrist. A red thread is tied onaround right wrist.

Lower HalfA rope of same caliber ( Rassi joot ki )

is tied on both upper part of thigh and bothankle both knee were bending with the helpof rope. Internal viscera are visible on bothhalves. Rigor mortise is absent on all overbody. Dried blood smear is present on allover body at place and with green colour.Visible viscera and cuted muscles aresmeared noted on with green eye colour. Atuft of black hairs are present in both handsfinger which are sealed packet and fromscale hair are sealed in second packet.

11. The cause of death was found tobe shock and haemorrhage as a result ofantemortem injuries.


12. It is nghoteworthy that thedoctor while conducting post mortem,also found black human hairs entangledinside both the clenched fists of deceasedAbhishek. The doctor opened the fists andkept those hairs in a sealed envelop forsending it for forensic examination. Thehair samples of appellants Rajesh, Vikas,Aashu and Arvind were also taken forcomparison with those hairs and sent toFSL, Agra in separate envelops. Somehairs, found inside room no. 209 of hotelduring search, were also sent for chemicalexamination. The report of FSL, Agra isEx. 65 on the record. According to whichblood stains were found on the hairsfound from the closed fists of deceased.However, no definite opinion could begiven about the similarity of those hairsfound inside the fists of deceased withthose of appellants. All those samples ofhairs kept in separate envelops wereproduced in the Court during trial andwere marked as material exhibits 28 to 31.

13. At the instance of appellantsRajesh, Aashu and Vikas the suitcaseswere recovered from the godown situatedat the basement of "Sunny Cloth House".Both the suitcases were produced in courtand were marked as material Exs. 32 and33. The recovery memo of suitcaseshaving signature of appellants andwitnesses is Ex. Ka. 9 on the record.

14. From the almirah kept in roomno. 209 of the hotel, the I.O. recovered abutton with black thread in its holes,having resemblance with the remainingbuttons of the shirt of the deceased whichhe was wearing at the time of his deathand which was recovered with his deadbody with one front button missing. Oneblood stained hanky was also found in thehotel room. From the bathroom attached

to room no. 209, one blood stained bladeof 'aari' was recovered which had beenkept hidden behind the cistern of itscommode. The pieces of blood stainedtiles and blood stained wooden door werealso taken into possession by the I.O. Therecovery memo of all these articles havingsignature of appellants and the witnessesis Ex. Ka. 20 on the record.

15. On 30.11.2003 the fingerprintexpert Dr. Rajendra Singh collected fingerprints from the dressing table, wooden,almirah, stainless steel kettle, T.V. Stand,the mirror of dressing table and washbasinof room no. 209 in presence of thewitnesses and the I.O. who prepared itsmemo (Ex. Ka. 18). The site plan of thehotel room and bathroom attached to itwas also prepared by the I.O. which is Ex.Ka. 32 on the record.

16. The remaining accused personsKailash, Arvind and Raj Kumar werearrested on 2.12.2003 from Hindustan PetrolPump, Jansath. During search a ring made ofyellow metal having the name 'Lovey'engraved on it, was recovered from the pantpocket of appellant Arvind.

17. The site plan of place of arrestwas prepared Accused Rajkumarinformed that the CD player he hadbrought to hotel for the purpose ofshowing pornographic movie to deceased,had been concealed by him as perinstructions of accued Rajesh. At theinstance of accused Rajkumar, the I.O.recovered one Sony CD player, material(Ex. 80), a remote (material Ex. 82), aconverter (material Ex. 81), wire material(Ex. 83 to 86) and recovery memo of allthese articles Ext. Ka. 112 was preparedon which the signatures of accused RajKumar and witnesses were obtained.


18. On conclusion of theinvestigation, the I.O. submitted charge-sheet against 6 persons including theappellants. The case being exclusivelytriable by the court of Sessions, wascommitted to it where charges undersections 364, 302 read with Section 34and 201 of I.P.C. were framed against theappellants. Charge under Section 201 wasframed against accused Raj Kumar andKailash for aiding the appellants inconcealing the dead body. All the accusedpersons denied the charges and claimedtheir trial.

19. During trial, the prosecution, inorder to prove its case examined 13witnesses in all. Apart from it, 68documents (Ex. 1 to 68) and 132 articles(material Ex. 1 to 132) were alsoproduced in Court by the prosecution insupport of oral testimony of the witnesses.

20. After conclusion of prosecutionevidence the statements ofaccused/appellants under Section 313Cr.P.C. were recorded in which theappellants admitted the fact that VikasSharma was working as typist at TehsilCourt Jansath where the informantPradeep Kumar Garg used to practice asan advocate. They also admitted that thesamples of their hairs and finger printswere taken before CJM but all of themdenied the remaining allegations andcounter allegations and alleged their falseimplication by the police. All of them alsoalleged that the police forcibly compelledthem to confess their guilt.

21. In their defence, the appellantsproduced one defence witness VinayKumar as DW-1. As documentaryevidence photocopy of Newspaper "RoyalBulletin" dated 29.11.2003 and photocopy

of newspaper "Amra Ujala" dated29.11.2003 was produced by themchallenging the date and time of theirarrest and recovery at their instance asdoubtful. Apart from the above mentioneddocuments photo copies of some letters ofpolice officers and original receipt ofregistered letters sent to Human RightsCommission were also filed by theappellants.

22. The learned court below, after adetailed appreciation of evidence,adduced by both sides, found theprosecution case reliable and worthy ofcredit. Accordingly it held all theappellants guilty and convicted themunder Section 302/34, 364 and 201 ofI.P.C. The appellants were awarded deathsentence alongwith fine of Rs. 20,000/-for their conviction under Section 302/34.The sentence of life imprisonment andfine of Rs. 10,000/- under Section 364I.P.C., in default of fine two yearsadditional R.I. and 7 years R.I. with fineof Rs. 10,000/- under Section 201 and indefault of fine 1 year additional R.I. wasawarded to all the appellants.

23. Being aggrieved by theirconviction and sentence the appellants arebefore us, challenging the legality andcorrectness of the judgment and prayingfor their acquittal.

24. The points for determination inthis appeal are : -

(a) As the instant case rests oncircumstantial evidence whether all thecircumstances have been fully proved andestablished by the prosecution in such a wayso as to form a complete chain pointingonly towards the guilt of appellants andtowards no other hypothesis ?


(b) Whether the trial court has rightlyappreciated the evidence while arriving atthe decision of conviction ?

(c) Whether the death sentenceawarded by the trial court is excessive ?

25. As point nos. a and b are interrelated, therefore, we are discussing boththese points together.

26. Before dealing with the issuesinvolved in aforesaid points, it isconsidered expedient to have a birds eyeview of the statements of relevantprosecution witnesses.

27. The prosecution, in order toprove its case, has produced 13 witnessesin all, out of which 8 witnesses are of factand the remaining are formal.

28. Pradeep Kumar Garg who is thefather of the deceased and the firstinformant has been produced as P.W. 1,who has supported the prosecution case byhis oral testimony stating that on27.11.2003 he had left for Tehsil Jansath,as per his usual routine. At about 3.30 P.M.his wife rang him up on his office phoneno. 234491 and informed that VikasSharma had come sometime after hisleaving for his office and he had takenaway Abhishek with him, but Abhishekhad not yet returned. She also informedthat Abhishek had not even gone to hisschool. When she tried to contactAbhishek on his mobile number, she didnot get any response. Hearing this, theinformant immediately rushed to the seatof Vikas Sharma at Tehsil Court, Jansath,but Vikas Sharma was not found on hisseat. Then he rushed to the house of VikasSharma where his mother informed thatVikas had not come to home sinceyesterday. Thereafter, the informant went

to his home situated at Jansath from wherehe took his younger brother Manoj Gargwith him and returned to his home atMuzaffar Nagar. On returning home whenhe again asked from his wife and daughterwhether Abhishek had returned or not,both of them while weeping replied innegative. The informant and his wifeproceeded to search their son on amotorcycle. During search his brother-in-law Rakesh Agarwal informed him thatwhen he was going to his shop in themorning he had seen Abhishek at about10.00 A.M. going towards "PrakashChowk" with appellant Vikas Sharma. Theinformant reached "Prakash Chowk" andtried to search his son. From "PrakashChauk" he proceeded towards MahavirChowk. At Mahavir Chowk AdvocatePramod Sharma and one Anuj Kumarinformed him to have seen Abhishekstanding in front of Swagat Hotel alongwith Vikas Sharma, Rajesh Saini, Arvindand Aashu Gupta. PW-1 has stated that heknows the appellants Rajesh Saini, VikasSharma and Aashu Gupta since prior to theoccurrence. Pointing out towards theappellants present in the court andidentifying all of them as accused persons,PW-1 has further stated that thereafter hewent to Swagat Hotel along with his wife,but failed to get any information about hisson. Leaving his wife at home he againwent to tehsil Jansath and on the samenight he visited the houses of appellantsAashu Gupta, Rajesh Saini and VikasSharma, but no one was found at his house.Therefore, the informant returned toMuzaffar Nagar. Next day i.e. on28.11.2003 early in the morning at about5.00 A.M. he once again reached Jansathand visited the houses of appellants RajeshSaini, Vikas Sharma and Aashu Guptasituated at Jansath but neither any of themwere found nor any information was


received about informant's missing son.The informant, under the apprehension thathis son Abhishek might have beenkidnapped for ransom by the appellantsbecause of his sound financial conditionand apprehending that his son's life mightbe in danger, went to Police Station NaiMandi and lodged a written report (Ex. Ka-1) at 9.15 A.M.

29. PW-1 has further stated that hehad informed the police that at the time ofoccurrence Abhishek was wearing a goldring having the word "Lovey" engraved onit, Abhishek was aged about 18 years andhe was a student of Class XI. The policehad come to his house and had interrogatedhis wife and daughter and had prepared thesite plan of his house. He had also given aphotograph of Abhishek to the police(Material Ext. 1). He has further stated thaton 29.11.2003 at about 8.00-9.00 A.M. hestarted from his house and when hereached at the road proceeding towardsKasba Jansath, he saw large number ofcrowd gathered at the road. He wasinformed that the police had arrestedRajesh Saini, Vikas Sharma and AashuGupta. On reaching there he saw all thethree appellants in police custody. Whenthe police inquired from the appellantsabout the occurrence, they jointly disclosedthat they had abducted Abhishek forransom and had killed him inside the roomno. 209 of Swagat Hotel. They furtherinformed that Arvind Saini was alsoinvolved in the murder of Abhishek. Theappellants told that they had chopped offAbhishek into two parts and had burieddown both the parts of his body separatelyinto the sugarcane fields of Vishnu Sahaiand Dinesh Kamboj. While confessingtheir guilt the appellants Rajesh, Aashu andVikas stated that they could help the policeto recover the dead body from those fields.

30. P.W. 1 has further stated thatafter such disclosure, the police took theappellants by its jeep to the fields ofVishnu Sahai where the appellant RajeshSaini dug the loose soil from a place firstfrom his hands and then by a spade andtook out a white plastic sack, when thesack was opened a zipped bag was foundinside it. On opening its zip, the upperpart of the dead body of Abhishek wasfound inside it wrapped in a transparentpolythene sheet. Besides it, the clothes ofdeceased Abhishek including a blue jeansa shirt having white, light brown and bluecoloured checks with one front buttonmissing, a belt, a vest, shoes, one saw(aari) along with three blades havingblood stains, one pair of scissors, one pairof new gloves and one pair of used gloveshaving blood stains were also found in thebag. On seeing his son's body he startedcrying and identified his son's body.Thereafter, appellants Vikas Sharma andAashu Gupta were taken to the fields ofDinesh Kamboj where after removing theloose soil from a place one more whitesack was taken out, inside which thelower part of the body of Abhishek wasfound wrapped in a transparent polythenesheet having blood stains all over it. Therecovery memo of all articles and thedead body was prepared by the I.O. andthe signatures of appellants Rajesh Saini,Vikas Sharma and Aashu Gupta and alsohis signature, were taken on recoverymemo. PW-1 has proved these recoverymemos in the Court as Ex. Ka-2 and Ex.Ka-3.

31. This witness (PW-1) has facedlengthy and grueling cross examinationby several learned defence counselsappearing for different accusedappellants. During cross examination hehas admitted that he had not received any


call from the appellants demanding anyransom. He has also admitted that the factthat his son Abhishek was killed insidehotel room had come to his knowledge forthe first time by the confessionalstatement of appellants.

32. PW-2 Anshu Garg, mother of thedeceased Abhishek, in her statement hasstated that on 27.11.2003 at about 8.45A.M. typist Vikas Sharma alias Moni hadcome to her house and asked her to sendAbhishek with him stating that he wouldcome back after sometime. Her husband, asper his usual daily routine, had gone toTehsil Jansath for practicing. As she wasnot feeling well, she had asked Abhishek totake leave from his school. Her daughterAbhilasha Garg had gone to her school. Atabout 9.15 A.M. she went to sleep aftertaking some medicine. Thereafter she wokeup at about 2.45 P.M. and found thatAbhishek had not yet returned. She tried tocontact on Abhishek's mobile number bythe mobile phone of her landlord, but hisphone was found switched off. When herdaughter returned from school she told herabout Abhishek. She again called on hismobile phone, but still it was foundswitched off. Thereafter, PW-2 has narratedthe same facts, as stated by PW-1.

33. PW-3 is Anuj Kumar, who wasworking as a Deed Writer at TehsilJansath at the time of occurrence. He isthe witness who has seen the deceasedlastly in the company of appellants Vikas,Aashu and Rajesh. He has stated that on27.11.2003, he alongwith PramodSharma, Advocate, was going on arickshaw when they saw deceasedAbhishek alias Lovey standing withappellants Vikas Sharma, Aashu Gupta,Rajesh Saini and Arvind Saini in front ofSwagat Hotel. He has stated that he

knows all these accused appellants sinceprior to the occurrence. PW-3 has furtherstated that when they were returning fromKutchehry at about 6.30 P.M. he metPramod Sharma, Advocate, near PrakashChowk and both of them proceededtowards Mahavir Chowk on a rickshaw.At Mahavir Chowk they met PradeepGarg, Advocate, and his wife comingslowly on a motorcycle. Both of themwere appearing tensed and perturbed.Both of them told that they weresearching for their missing son Abhishekand he (P.W. 3) informed them to haveseen Abhishek in the company ofappellants. PW-3 has further stated thaton the next day i.e. 28.11.2003 at about7.00 A.M. Pradeep Garg had come to hishouse and had asked him to accompanyhim to police station for lodging thereport. Reaching at Police Station Mandi,Pradeep Garg wrote the F.I.R. in his ownhandwriting and gave it to "Diwanji".

34. PW-4 Constable Clerk JagbeerSingh, who has prepared the check F.I.R.(Ex. Ka-5). He has stated that at 9.15A.M. on 28.11.2003 he was on duty whenon the basis of a written report lodged byPradeep Kumar Garg, Advocate, heprepared the F.I.R.

35. PW-5 is Dr. R. Dayal, who hasconducted the postmortem of thedeceased. He has stated about the antemortem injuries and the articles receivedwith the dead body of Abhishek and alsoabout the hairs found his closed fists. Hehas proved the post-mortem report ( Ex.Ka. 6).

36. PW-6 Rakesh Kumar Agarwal, isthe second witness of "last seen" evidence.He is also a witness of recovery of deadbody. He has stated that on 27.11.2003 he


was going towards his shop situated atSanjay Marg, Patel Nagar. At about 10.00A.M., when he reached in front of roadways,he saw Abhishek going towards PrakashTalkies along with Vikas Sharma. He hasfurther stated that at 6.00 P.M. on the sameday when he was sitting in his shop, hisbrother-in-law Pradeep Garg and his wifeAnsu came to his shop on a motorcyclesearching their son Abhishek. He hadinformed them that when he was going to hisshop, he had seen Abhishek at 10.00 A.M. inthe company of appellants. PW-6 has furtherstated that on 29.11.2003 when they weresearching Abhishek at Tehsil Jansath and hadreached at the bus station of Tehsil, they sawa large crowd gathered there and found thatthe police had arrested Rajesh Saini, AshuGupta and Vikas Sharma. He hadaccompanied the appellants and police to thefield of Vishnu Sahai and had witnessed therecovery of two parts of body of Abhishekfrom the fields of Vishnu Sahai and DineshKamboj at the pointing out of the appellants.He has further stated that the inquest of deadbody was conducted before him. He was alsoa witness of inquest. He has identified hissignatures on inquest report (Ext.Ka-7). Hehas further stated that the inquestproceedings were started at about 1.00 P.M.and were concluded at about 3.30 P.M.

37. PW-7 S.L. Lawaniya is the firstI.O. of this case who has stated that thecase was registered on 28.11.2003 in hispresence. He recorded the statement ofinformant Pradeep Kumar Garg at thepolice station and thereafter went to thehouse of informant and recorded thestatements of Abhishek's mother andsister. He prepared the site plan (Ex. Ka-8) and interrogated the complainant'slandlord Sri Satya Narain Agarwal andalso some of his neighbors. Thereafter,the investigation of this case was taken up

by Inspector B.P.S. Solanki. On29.11.2003, he came to Muzaffar Nagaralong with Inspector Solanki and recordedthe statements of witnesses. On29.11.2003 at about 10.00 A.M. on theinformation of some 'Mukhbir' theaccused Aashu Gupta, Rajesh Saini andVikas Sharma were arrested from the BusStand of Jansath and all of themconfessed their guilt before the hugecrowd gathered at the bus station. Therelevant part of the statement of P.W. 6 (the first I.O. ) is extracted below :

".....Lkcsjs djhc 10-00 cts fn0 29-11-2003 dkseq[kfcj }kjk lwpuk feyh esjs lkeus feyh FkhA fdeqyfteku vk'kq xqIrk] jkts'k lSuh fodkl 'kekZ tkulB clvM~Ms ij [kM+s gSA rqjUr ge yksx ogkW igWqps mijksDr rhukseqyfteku dks idM+ fy;k iwNrkN dks rkss rhuks uslkoZtfud :i ls HkhM+ bdV~Bk gks x;h Fkh HkhM+ ds lkeuscrk;k Fkk eqyfteku us crk;k fd fn0 27-11-2003 dks gerhuksa vkSj vjfoUn lSuh gR;k es 'kkfey FksA Lokxr gksVy esgR;k dj 'ko dks nks fgLlks es dkVdj nks vyx &2lwVdslksa es Hkjdj tulB ds taxy esa nck fn;k gSA ogtxg ge py dj crk ldrs gSA bl lwpuk ij gemijksDr rhuks eqyfteku dks lkFk ysdj tkulB ds taxyeas jkejkt okys jksM ij fo".kq lgk; o fnus'k dkEckst ds[ksrksa es ys x;s] ogkW vkxs vkxs pydj vfHk;qDrksa us erdvfHk"ksd dk 'ko nks fgLlkas esa /kM+ okyk fgLlk fo".kq lgk;ds bZ[k ds [ksr ls o iSjks okyk fgLlk fnus'k dkEckst ds[ksr ls djhc 10&30] 11-00 cts fnu cjken djk fn;s FksAQnZ cjkenxh bUlisDVj lkgc us cukbZ FkhA tks ekSds ijcukbZ Fkh esjs Hkh gLrk{kj djk;s FksA yk'k ds vykok yk'k dslkFk IykfLVd dk cSx vkfn lkeku tks cjken gqvk FkkAmldh QnZ vyx ls cukbZ FkhA rFkk xokgku ds nLr[krHkh djk;s FksA eqyfteku rhuks dks dkih nh FkhA ge iqfyldeZpkjhx.k 3-00 cts rd ekSds ij jgsA -----------. vfHk;qDrksdh fu'kkunsgh ij dLck tkulB ls jkts'k lSuh dh nqdkuls lUuh DykFk gkml ls nks lwVdsl cjken djk;s FksAftues erd ds 'ko dks j[kdj ys x;s FksA lwVdslksa dhQnZ cuk;h FkhA esjs nLr[kr djk;s FksA lhy gqbZ eksgj fd;sFksA ftl ij QnZ esjs lkeus gS ftl ij bDt d&9 Mkykx;kA eqtfteksa dks QnZ dks udy nh FkhA jkr esa ge FkkusubZ eaMh igWqps eqyfteksa dks Fkkuk ys vk;kA lcsjs djhc 7-15 cts eqyftekas dks jkts'k lSuh fodkl 'kekZ o vklq xqIrkdks Lokxr gksVy esa ysdj vk;s mUgksus gksVy crk;k dejkua0209 crk;k mldh fu'kkunsgh dh ftldh QnZ cuk;hQnZ ij esjs gLrk{kj gSA fnukad 30-11-2003 dks lcsjs ge


Lokxr gksVy esa vk;s FksA isij ua0 10@5 ij esjs nLr[krgS ftlij bDt d&10 Mkyk x;kA mlds ckn gksVy es ghVsyhQksu ls lwpuk nsdj ,Q-,l-,y- dh Vhe cqyk yh FkhAfQj eSa okil vk x;k FkkA fQj fnukad 2-12-2003 dks eSizHkkjh fujh{kd ds lkFk rQ~rh'k o 'kkfUr O;oLFkk esavyekliqj pkSjkgs ij FkkA ogkW eq[kfcj ls lwpuk feyh Fkhfd eqyfteku vjfoUn lSuh dSyk'k o jktdqekj fgUnqLrkuisVªksy iEi ds ikl ckbZ ikl ij [kM+s gSA rks 'kke dks djhc5-00 cts rhuksa eqyfteksa vjfoUn lSuh jktdqekj o dSyk'kdks idM+ fy;k vfHk;qDrx.k dh tkek ryk'kh yh tkekryk'kh ij vjfOkUn lSuh ls lksus dh vaxwBh djhc 5 xzkedh ftl ij yoh ¼yoh½ fy[kk FkkA cjken gqbZA fxjQ~rkjho cjkenxh dh QnZ cukbZ FkhA esjs lkeus gSA ftl ij esjsnLr[kr gSA eS f'kuk[r djrk gWwA ftl ij bDt d&11Mkyk x;kA dkih eqyfteku dks nh FkhA mlh fnu vfHk;qDrjktdqekj dks fu'kkunsgh ls jkts'k lSuh dks V;wcoSy ls 10-30 cts lh-Mh- Iys;j o duoVZj cjken fd;k Fkk ftldhQnZ bUlisDVj lkgc us cukbZ FkhA i<+dj eSus Hkh nLr[krfd;s Fks esjs lkeus eqyfte dks dkWih nh FkhA

38. P.W. 8 Mohd. Salim is the a taxidriver on whose Ambassador Car No. UJA6551, the dead body of Abhishek was carriedin two suitcases from Swagat Hotel to theshop of appellant Rajesh Saini "Sunny ClothHouse" situated at Kasba Jansath. Thestatement of P.W. 8 is reproduced as under :-

"eSa dkj Mªkboj gWwA esjh viuh dkj gaS tks gSf'k[kj dkj lfoZl ls gSa blh esa pykrk gWwA 27-11-2003dks esjh xkM+h ok;k [krkSyh gksrs gq;s tylk ds fy;s cqdgqbZ FkhA 'kke ds 4-1@2 & 5 cts eS viuh VSDlh ;w-ts-,- 6551 vEcsLkMj dkj ysdj Lokxr gksVy ij igWqpkFkkA Lokxr gksVy ds ckgj gh nks cSx j[ks FksA eSusfMXxh [kksy nh mUgksus j[k fn;kA ,d yM+dk cSx dsikl ckgj gh [kM+k FkkA ,d xkM+h cqd djds yk;k FkkAmUgksus cSx esjh xkM+h dh fMXxh es j[ks FksA esjs iwNus ijmUgksus crk;k Fkk fd ge diM+k o dqN osVjksa dk lkekuysdj tk jgs gSA eSa lkeku o nksuks vknfe;ksa dks ysdj[krkSyh x;kA [krkSyh vkrs gq, lqxM Pkqaxh ds ikl :dsFksA mUgksus ogkW FkSys fy;s FksA ,d yM+dk [krkSyh QkVdij mrj x;k FkkA jsyos ds QkVd ds ikl mrjk FkkAnwljs dks ysdj eS tkulB x;k FkkA tkulB esa cktkjesa diM+s dh nqdku ij igWqps Fks] diM+s dh nqdku ij ogvkneh mrj x;k FkkA rFkk nksuksa cSx Hkh ogha mrkj fy;sFksA blds ckn eS xkM+h ysdj eqtQ~juxj vk x;k FkkAjkLrs es eq>s fdlh dk uke irk ugh pyk FkkA os vkilesa fj'rsnkj Fks eq>s vc /;ku ugh fd bues D;k fj'rsnkjh

FkhA xokg us nksuks cSx ns[kk Fkk dgk fd ;s gh os cSx gSatks esjh xkM+h esa Lokxr gksVy ls tkulB dks x;s FksAoLrq izn'kZ 32 o 33 Mkys x;sA"

39. P.W. 9 Manoj Kumar is thephotographer who had taken photographsof the dead body at the time of itsrecovery from the fields of Vishnu Sahaiand Dinesh Kamboj. He has proved thephotographs and their negatives in thecourt and all those have been marked asmaterial as Exs. 34 to 59.

40. P.W. 10 is Zaheear Shah who isa witness of recovery of two suitcasesfrom the shop of appellant Rajesh Saini.Some relevant part of his statement isreproduced below :

....."fnukad 29-11-2003 dh ckr gS 'kke djhc4] & 4-1@2 cts dk okdk gS eS tkulB esa viusfj'rsnkj b'R;kd ds ;gkW tk jgk Fkk tkulB cktkjesa feBkbZ dh nqdku ls feBkbZ [kjhnus yxk blh chp,d iqfyl dh xkM+h vk;h mles rhu eqyfte ftudsuke jkts'k lSuh vk'kq xqIrk o fodk'k 'kekZ tksgkftj vnkyr iqfyl dh fgjklr esa FksA iqfyl thils mrj dj jkts'k lSuh viuh diM+s dh nqdku ijx;k vkSj nqdku ls nks cM+h vVSph ftues ,d dkQhcM+h Fkh ,d NksVh Fkh fudkydj yk;k vkSj crk;kfd bUgh vVSfp;ksa esa odhy lkgc ds yM+ds dh yk'knks VqdM+s es Hkjdj yk;s FksA ¼vksCtsDVsM ckbZ fMQsUldkmafly½ iqfyl us ekSds ij gh fy[kr i<+r dhFkhA esjs gLrk{kj ml ij djk;s FksA

.......QnZ bDt d&9 ns[kdj o lqudj xokgus dgk fd ;gh og dkxt gS tks iqfyl us ekSds ijfy[kk Fkk QnZ ij xokg us vius nLr[kr igpkusA"

41. P.W. 11 is S.I. Rajveer Singh.He is the police official who hasconducted the inquest proceedings andhas sent the dead body for post-mortem.He is also a witness of recovery of deadbody and recovery of tractor from thehouse of appellant Rajesh Saini on whichthe dead body was carried towards thefield of Vishnu Shai and Dinesh Komboj.


He was posted at P.S. Jansath at the timeof occurrence and had accompanied thepolice force to the place of recovery. Hehas stated that as at the time of inquest,both the fists of deceased were tightlyclosed therefore he could not take out thehairs although he had seen the hairs in thefists of deceased.

42. P.W. 12 is Dr. Rajendra Singh,Scientist, Forensic Lab who has stated that onreceiving the telephonic call of Officer In-charge, P.S Mandi he reached at Swagat Hotelon 30.11.2003 alongwith his team. PoliceInspector B.P.S. Solanki and some otherpolice officials, employees of hotel, accusedVikas Sharma, Rajesh Saini and Aashu Guptaand some people were also present at that timeat the hotel. He reached the room no. 209 ofSwagat Hotel and opened its lock. He hasfurther deposed that the accused VikasSharma had informed that it was the sameroom where they had chopped off thedeceased and kept the two parts of his bodyinto separate polythene covers and after thatinto two suitcases. Thereafter they washed theroom. He has further stated that he inspectedthe room and collected finger prints from thealmirah, dressing table, mirror, T.V. stand,T.V. table, steel kettle and mirror of bathroometc. He has further stated that some blackcoloured hairs were found entangled in theright side corner of the table. Some hairs werealso found under the T.V. Stand and almirah.One white coloured hanky was found underthe almirah and one button with black threadwas found under the almirah. One redcoloured Bindi and black coloured hairpinwere also found from the dressing table. Allthese items were kept in a sealed cover andtheir respective memos were prepared. Allthese items were marked as material Exts. 60to 67. During his cross examination he hasstated that the lock of room no. 209 wasopened in his presence.

43. P.W. 13 Braj Pal Singh Solankiis the second I.O. of this case. Some ofthe relevant parts of his statements areextracted below :

.......xokgku ds dFkuksa ls vigr vfHk"ksd xxZdks mijksDr pkjks vfHk;qDrx.kksa ds lkFk Lokxr gksVyds lkeus [kM+k ns[kk x;k Fkk blfy, eSa fujh{kdLokxr gksVy igWqpkA Jh iznhi xxZ }kjk vius csVsvfHk"ksd dk fn;k QksVks dks Lokxr gksVy ds deZpkfj;ksadks fn[kk;kA rks ogkW ekStwn osVj f=yksd flag us dgkfd ;g yMdk ftldk QksVks fn[kk jgs gS fnukad 27-11-03 dks f}rh; ry ij fLFkr dejk ua0209 esa tkrsgqos ns[kk x;k gSA ,frgkr ds rkSj ij Lokxr gksVy dsfoftVj jftLVj dk voyksdu fd;k rks dejk ua0 209esa fnukad 16-11-03 dks d&751 ij] fQj dgk fdfnukad 26-11-03 dks Jh jksfgr xqIrk fuoklh 208@7yksfg;k uxj xkft;kckn mez djhc 22 o"kZ vafdr FkhAjksfgr xqIrk dh bUVªh dk vkus dk le; lok nl ctslqcg Fkk rFkk mlds tkus dk le; fnukad 27-11-03dks 3-1@2 cts fnu esa FkkA rFkk 400@ fdjk;k vafdrFkkA rFkk ,d gLrk{kj Hkh cus gq;s FksA gksVy ekfydv'kksd dqekj ,oa esjs }kjk ewy jftLVj ds ist ij pSddjds vius gLrk{kj cuk;s x;s Fks rFkk ml jftLVj dsnks istks dh Nk;k izfrfyfi djk;h Fkh ftldks dCtsiqfyl ysdj QnZ cuk;h Fkh vkSj mu nksuksa jftLVj dhNk;k izfr dh dCts iqfyl fy;k Fkk QnZ i=koyh ijdkxt la[;k 10@9 gS QnZ dks ns[kdj o i<+djxokg us dgk fd ;gh og QnZ gS tks eSus fy[kh Fkh esjsys[k esa gS xokg dks i<+dj lqukdj mlds Hkh gLrk{kjdjk;s Fks QnZ esjs ys[k o gLrk{kj esa gS bl ij bDt0d&21 Mkyk x;kA

......vxys fnukad 29-11-03 dks eSus e;gejkgh QkslZ ds vfHk;qDrx.kksa dh ryk'k dh blhnkSjku }kjk eq[kfoj lwpuk feyh fd dLcs ds vklwfodkl o jkts'k lSuh] tkulB cl vM~Ms ij [kM+s gSavkSj dgha tkus ds fy, rS;kj gSa bl ij eSaus e;gejkgh QkslZ ds tkulB cl vM~Ms ij izkr% 10 ctsvklw] fodkl o jkts'k dks iwNrkN gsrq jksd fy;kiwNrkN ij mDr rhuksa us crk;k fd ge rhuksa ovjfoUn fuoklh ekspMh tks jkts'k dk lkyk gS usfeydj iznhi xxZ odhy lkgc ls fQjkSrh olwyhdjus ds fy, muds yM+ds vfHk"ksd xxZ dk vigj.kfd;k vkSj Lokxr gksVy ds dejk ua0 209 esavfHk"ksd dh 'kjhj ds nks VqdM+s dj iSfdax djdsvyx&vyx dLok tkulB ds taxy esa fo".kq lgk;o fnus'k dEckst ds bZ[k ds [ksrksa esa [kM~Ms [kksndjnck fn;s gSaA gekjk bjknk vfHk"ksd xxZ dh gR;kdjds iznhi odhy lkgc ls 10 yk[k :i;s fQjkSrh


olwyus dk FkkA fnukad 27-11-03 dks 'kke ls ghodhy lkgc] fodkl o vfHk"ksd dks ryk'k djusyxs FksA rhuksa us gh crk;k fd ge vigr vfHk"ksdds 'kjhj ds nksuks fgLls dks cjken djk ldrs gSaAbl chp esa dLCks ls dkQh HkhM+ bdV~Bk gks x;h FkhAiznhi xxZ Hkh vk x;s Fks Fkkuk tkulB ls bUliSDVjujs'k pUnz ,l-,l-vkbZ- jktohj flag e; iqfyl cyds vk pqds FksA ge yksxksa nksuks ljdkjh thiksa dsrhuks eqyfteku] vklw] fodkl] jkts'k lSuh dks vktU;k;ky; esa gkftj gS ds crk;s jkLrs ij lqjs'k lSuhdh V~;wcoSy ds ikl thiksa dks :dok;kA ogkW lsturk ds nks xokg v'kksd o iznqEu dqekj rFkk geyksx] ds vkxs vkxs pydj mRrj nf{k.k esM+ ijpydj esM+ ls 10 ehVj iwjo dh rjQ [ksr bZ[k Jhfo".kq lgk; esa igWqps vkSj ogkW ls eqyfte jkts'k usHkqjHkqjh feV~Vh dks gkFk ls gVk;k vkSj fOk".kq lgk; lsfy, QkoM+s ls feV~Vh dks gVkdj xM~ .......ekSdsij :c: xokgku Jh v'kksd o iznqIu] 'kjhj ds nksuksafgLlksa dh QnZ cjkenxh cuk;h Fkh vkSj xokgku dksi<+dj lqukdj muds nLr[kr djk;s Fks iznhi xxZds Hkh nLr[kr djk;s Fks vkSj rhuksa eqyfteku dhQnZ dh udy nsdj muds Hkh gLRkk{kj djk;s FksAxokg us i=koyh ij QnZ cjkenxh bDt0 d&2 dksns[kdj dgk fd ;gh og QnZ gS tks esus fy[kh FkhvkSj esjs ys[k o gLrk{kj esa gSA ekSds ls cSx vkjh]CysM] dSph] [kwu vkywnk vkfn tks yk'k ds VqdMksa dslkFk cjken gq;s Fks] dCts iqfyl ysdj eSus xokgkuds lkeus QnZ rS;kj dh Fkh vkSj eqyfteku dks QnZdh udy nsdj muds Hkh gLrk{kj QnZ ij djk;s FksAi=koyh ij QnZ cjkenxh bDt0 d&3 gSa ftldksns[kdj xokg us dgk fd ;g esjs ys[k o gLrk{kj esagSA vkSj bl QnZ ds }kjk tks lkeku ekSds ls cjkengqvk Fkk og Hkh vkt U;k;ky; esa ekStwn gS tks eSVs0bDt0 2 ls eSVs0 bDt0 20 rd gSA**

The I.O. has also stated about therecovery of the ring having "Lovey"engraved on it, from the possession ofappellant Arvind after his arrest on2.12.2003.

44. No other witness was produced bythe prosecution. After conclusion ofprosecution evidence, the statement of all theappellants were recorded under Section 313Cr.P.C. during which all of them denied theallegations and stated about their falseimplication. All of them admitted the fact

that Vikas Sharma works as a typist at TelhilCourt Jansath and informant P.K. Garg is apracticing lawyer in that tehsil court butdenied the other facts. When they were askedas to how their finger prints were found atdifferent places inside room no. 209 ofSwagat Hotel, they simply stated that this is amatter relating to the evidence hence theycould not say anything about it. AppellantRajesh admitted that his photo was publishedin Royal Bulletin and Dainik Jagran on29.11.2003. All the appellants stated that thepolice arrested them from their house andfalsely implicated them. However, all ofthem admitted that the samples of their hairsand fingerprints had been taken before theC.J.M.

45. In their defence the appellantshave produced one witness Vinay Kumar asDW-1, a deed writer working at TehsilJansath who has stated about the newspaperDainik Jagran dated 29.11.2003 in whichthe photographs of informant Pradeep Garg,his brother Subhash Garg, Mahendra Singh,C.O., Pramod Sharma, Advocate and alsoof appellant Rajesh Saini were published.He has stated that all these photographswere taken prior to taking of the appellantsto the jungle. He has stated that after havingcome to know about the recovery of deadbody he had gone to the jungle and foundthe dead body being dug out from theground. The photographers were taking itsphotos. None of the appellants was presentthere. D.W. 1 has further stated that theaccused appellant Vikas is his real brother-in-law. On 27.11.2003 he was working inTehsil Jansath for the whole day. He hasfurther stated that Vikas was typing atKutchehry till 9.30 A.M. on 28.11.2003.

46. Thus, this witness has tried todemolish the prosecution story aboutarrest of appellant Rajesh on 29.11.2003


from Bus Stand of Jansath. He has alsostated about the alibi of appellant VikasSharma. No other witness has beenproduced by the defence.

47. Sri V.C. Srivastava and Sri P.S.Pundir, learned counsel for the accusedappellants, during their oral argumentsand by filing written submissions havechallenged the prosecution case and thefindings recorded by learned trial courtmainly on the following grounds : -

(i) There is delay in lodging the F.I.R.The date of occurrence, according to theprosecution story, is 27.11.2003. Theinformant is living in Nai Mandi and thedistance of Police Station Nai Mandi is only1.5 km. from his home. In the F.I.R. Itself,the informant has stated that on 27.11.2003the witness Rakesh Agrawal had told himabout the deceased Abhishek seen in thecompany of appellant Vikas. The witnessesPramod Sharma, advocate and Anuj had alsoinformed him about Abhishek being seen inthe company of appellants Vikas, Rajesh andAashu in front of Swagat Hotel. Theseinformations were received by the informanttill the evening of 27.11.2003 but the F.I.R.has been lodged on the next day i.e. on28.11.2003 at 9.15 A.M. The prosecution hasnot explained this delay properly.

(ii) The recovery of dead body at theinstance of accused appellants is doubtful.The body had already been recovered atthe time of lodging of the F.I.R. whichfact is evident from the photographpublished in the newspaper dated29.11.2003 showing the appellant RajeshSaini in police custody with a suitcase.The submission of learned counsel for theappellants is that the dead body had beenrecovered on 28.11.2003 and not on29.11.2003 because it is impossible topublish the news of an incident, in the

morning newspapers, which has takenplace on the same day. Learned counselhas contended that this fact also findscorroboration with the overwriting on thedate mentioned in inquest report and alsoon the "Parcha" in CD relating to thestatement of accused persons underSection 161 Cr.P.C.

(iii) There is inordinate delay insending the special report to Magistratewhich is obvious from the initials ofMagistrate on the check F.I.R. whichshows that the Magistrate had seen thisreport on 2.12.2003. This delay makes theprosecution story doubtful.

(iv) None of the accused appellantshas tried to abscond from the place ofoccurrence after the incident as appellantnos. 1 to 3 were arrested from Jansath andappellant no. 4 was arrested from a placenear Hindustan Petrol Pump by pass.

(v) There are so many latches andlacunas in the investigation which isevident from the statement of I.O. SriB.P.S. Solanki examined as P.W. 13 in thiscase. The I.O. has not interrogated any ofthe employees of Swagat Hotel. Duringsearch of room no. 209 of Swagat Hotel i.e.the place of murder of deceased Abhishekas per prosecution story, a Bindi stuck onthe mirror of dressing table, a hair clip andsome strands of long hairs were also foundentangled in the furniture which show theinvolvement of some woman in theoccurrence but the I.O. has not made anyinvestigation in this direction. The recoveryof these articles indicates that the deceasedmight have been in long touch of someprofessional sex worker who could havebeen involved in the said occurrence. It mayalso be possible that the deceased had fallenin love with some girl and the familymembers of the girl being opposed to it, hadcaused the murder of the deceased to savethe honour of their family.


(vi) There is no evidence on recordof demanding any ransom from the fatherof the deceased as the father of thedeceased/informant has admitted this factthat he did not receive any call regardingany such demand of ransom.

(vii) The forensic science lab reportshows that no definite opinion could begiven about the similarity of hairs takenfrom the accused-appellants and the hairsfound in the closed fists of deceasedAbhishek.

(viii) The blades of "Aari" recoveredby the police were found twisted at someplaces which fact makes the allegedweapon of murder wholly unreliablespecially in the light of the statement ofPW-5 - the doctor conducting the post-mortem who has stated that the edges ofall the incised wounds of the deceased'sbody were clean cut. Learned counselhave contented that clean cut woundswere not possible with those blades,twisted from places.

(ix) The evidence led by theprosecution shows that the appellants arealleged to have made joint disclosure aftertheir arrest, which is not contemplated underSection 27 of the Indian Evidence Act.Therefore, the joint disclosure and therecovery made in pursuance of thatdisclosure is not admissible in evicence. Inthis regard learned counsel for the appellantshave placed reliance on the law laid down byApex Court in Mohd. Abdul Hafeez Vs.State of A.P.; (1983) 1 SCC 143.

(x) This case rests entirely oncircumstantial evidence and the true andreal circumstances were not investigatedproperly by the I.O. so as to bring to lightthe real culprit. The chain ofcircumstances is incomplete and it can notbe said that the circumstances of this caseconclusively point out towards theculpaility of appellants so as to arrive at a

definite conclusion that in all humanprobability the act must have been doneby the accused persons and by none other.

On the aforesaid grounds, learnedcounsel for the appellants have submittedthat the prosecution story in this case,being based on imagination, conjecturesand surmises, is highly doubtful.Therefore it is liable to be discarded; theimpugned judgment sentencing theappellants to the maximum punishment, isliable to be set aside and the appealdeserves to be allowed.

48. Per contra, learned A.G.A. hascontended that the prosecution hassuccessfully proved the existence of allthe incriminating circumstances in thiscase pointing conclusively towards theappellants and the chain of events is socomplete that it does not leave anyreasonable doubt with regard to thecomplicity of the appellants in this case.Learned A.G.A. has submitted that thelatches and lacunas on the part of I.O. willnot give any benefit to the accused persons asper law laid down by Hon'ble Apex Court ina catena of judgments. There is no delay inlodging the F.I.R. which has been promptlylodged without any delay. The lodging ofFIR in the morning of next day i.e. on28.11.2003 at 9.15 A.M. appears natural inview of the fact that after having received theinformation about his son from the witnesseswho had last seen the deceased in thecompany of appellants, all of whom hadprior acquaintance with the informant/thefather of victim, he firstly visited their housesin search of his son and when he could notfind him, he lodged the F.I.R., naming all theappellants.

49. The submission of learned A.G.A.is that the deceased was lastly seen in thecompany of the accused-appellants Rajesh,


Aashu and Vikas by the witnesses who haveproved this fact by their testimonies in court.Therefore, the accused appellants were dutybound to explain that when and under whatcircumstances they parted with the companyof the deceased but the accused appellantshave not given any explanation or any properreply to this question put to them underSection 313 Cr.P.C. and have tried to avoidthe questions by giving evasive answers orby giving answer by a general denial. Thesubmission of learned A.G.A. is that thegeneral denial and the evasive answers givenby the accused persons during theirstatements recorded under Section 313Cr.P.C. provide the missing link, if any, inthe chain of circumstances.

50. Advancing his arguments further,learned A.G.A. has submitted that all theprosecution witnesses of fact arethroughout cogent and consistent whiledeposing in court. There appears nomaterial contradictions in their statements,the witnesses have no motive to falselyimplicate the appellants in this case. Theweapon of murder i.e. 'aari' fullycorroborates the nature of injuries i.e. cleancut incised wounds. Learned A.G.A. hasvehemently argued that the blade of 'aari'could have been twisted at some placesduring its use while cutting the body intohalf and it was not an 'aari' with twistedblades. The submissions of learned A.G.A.is that the appellants have committedbrutal murder of a young boy, therefore,the appeal being devoid of merits bedismissed and the conviction and sentenceawarded by learned trial court be affirmed.

51. Learned counsel from both sideshave placed before us several judgmentsof Hon'ble Apex Court in support of theirrival contentions. We have carefullyperused all those judgments.

52. As every criminal case stands onits own peculiar facts, the verdict given inany criminal case can not be blindly reliedon while deciding any other criminal casehaving different set of facts. However, ifany legal principle is laid down, that willapply in every case and we are drawingour conclusions, keeping in view the legalprinciples laid down by Hon'ble ApexCourt in all those cases laid before us bylearned counsel for both the parties.

53. The facts of this case clearlyshow that the entire prosecution case inthe instant appeal, rests on circumstantialevidence. The legal principles relating tocircumstantial evidence have been wellestablished by the Hon'ble Supreme Courtin a series of judgments. In the case ofRohtash Kumar Vs. State of Haryana;2013 (14) SCC 434, the Hon'ble ApexCourt has reiterated the law as follows :-

i. The prosecution must establish itscase beyond reasonable doubt, and cannotderive any strength from the weaknessesin the defence put up by the accused.

ii. The circumstances on the basis ofwhich the conclusion of guilt is to bedrawn, must be fully established. Thesame must be conclusive in nature, andmust exclude all posible hypothesis,except the one to be proved.

iii. Facts so estabhlished must beconsistent with the hypothesis of the guiltof the accused, and the chain of evidencemust be so complete, so as not to leaveany reasonable ground for a conclusionconsistent with the innocence of theaccused, and must further show, that in allprobability the said offence must havebeen committed by the accused."

54. Now the question is whether allthe facts and circumstances of the case in


hand have been fully established by theprosecution and are of such conclusive innature so as to leave no doubt that themurder of deceased Abhishek, within allhuman probability has been committed bythe appellants only and by none else ? Inother words, whether the chain ofcircumstances is so complete so that noother inference can be drawn except thatof the guilt and culpability of theappellants ?

55. On a careful scrutiny of theimpugned judgment in the light of evidenceavailable on record, as discussed in detail inthe earlier part of this judgment, we are ofthe firm view that all the circumstances ofthis case have been successfully establishedby the prosecution by means of oral anddocumentary evidence and there appears noillegality or perversity in the findingsrecorded by learned trial court regarding theculpability of the appellants. All thewitnesses are throughout cogent andconsistent during their testimony in court.All the witnesses, including even the formalwitnesses like I.O., the doctor and thefingerprint expert have been extensivelycross examined by learned defence counselbut nothing could be extricated from themso as to make the prosecution caseunreliable. Some minor discrepanciesoccurring in their statements should be overlooked in wake of the well settled legalprinciple laid down by Apex Court in acatena of judgments. In Shankar Vs. Stateof Karnataka, the law has been reiterated bythe Apex Court as under :

"Minor contradictions, inconsistencies,embellishment or improvements on trivialmatters which do not affect the core ofprosecution case, should not be made aground on which the evidence can berejected in its entirely."

56. It is also noteworthy that none ofthe material witnesses has any previousenmity with the appellants. On the otherhand the victim's family had friendlyterms with the appellants and the victimused to call appellant Vikas "Chacha".The rest of the appellants are also wellacquainted and previously knownpersons. There is no reason why anyonewould falsely implicate his close friend ?

57. As the pages of prosecutionstory are unfolded one after another, thesequence of events comes to light forminga complete chain conclusively pointingout only towards the guilt of appellantsand towards no other possibility. All thelinks in the chain of circumstances andevents as is clearly evident from a perusalof the evidence discussed in detail inearlier part of this judgment may besummarised here as under :-

(i) Admittedly the appellant VikasSharma was working as a typist in thesame court campus of tehsil Jansath,where the father of deceased Abhishekused to practice as an advocate.

(ii) Appellant Vikas Sharma was afriend of Manoj Garg, the real uncle ofdeceased Abhishek, and Abhishek used tocall him "uncle".

(iii) Being a family friend appellantVikas Sharma was on visiting terms withthe family members of deceasedAbhishek.

(iv) On the date of occurrenceappellant Vikas Sharma came to the houseof Abhishek and asked his mother to sendAbhishek with him. The mother permittedAbhishek to go with Vikas without anyhesitation or fear in her mind obviously


due to the reason that Vikas Sharma wasjust like a family member.

(v) Abhishek was given allurementof showing some pornographic movie bythe appellants which fact is evident fromthe recovery of CD player at the instanceof accused persons.

(vi) It is but natural for a young boyof 18 years to become curious and he maybe easily allured for seeing such movie.

(vii) After Abhishek left with appellantVikas Sharma, his mother who was notfeeling well, took some medicine and went tosleep. Under the influence of medicine sheslept till 2.45 P.M. when she got awake anddid not find Abhishek, she immediately triedto contact her husband who being apracticing lawyer at tehsil court, Jansath wasat Tehsil Jansath at that time.

(viii) Her mobile phone was notworking so she contacted her husband bymobile phone of her landlord andinformed him about Abhishek. Onreceiving such information the father ofthe deceased Pradeep Garg, advocate,immediately returned back to his houseand asked about Abhishek from his wifeand daughter.

(ix) The father came to know thatAbhishek had yet not returned. He was alsoinformed that Abhishek had not even gone tohis college. Hearing this the father alongwithhis wife started searching his son. Duringsearch he was informed by witnesses RakeshAgrawal (W-6) to have seen Abhishek goingwith appellant Vikas towards Prakash Chowk.

(x) The parents of deceased Abhishekproceeded towards Prakash Chowk, but didnot find their son there. On proceedingfurther, witnesses Pramod Kumar Sharmaand Anuj Kumar (PW-3) met them andinformed that they had seen Abhishek in thecompany of appellants Vikas Sharma, RajeshSaini, Aashu Gupta and Arvind in front ofSwagat Hotel.

(xi) The parents searched their son inSwagat Hotel and at other places but invain.

(xii) Leaving his wife at home, thefather of deceased once again rushed totehsil Jansath in the night of 27.11.2003and went to the houses of appellantsAashu Gupta, Rajesh and Vikas but noneof them was found at his house.

(xiii) The father returned back toMuzaffar Nagar and on the next day i.e.on 28.11.2003 in the early morning atabout 5.00 A.M. he once again visited thehouses of appellants Rajesh, Vikas andAashu but neither any one was found norany information about Abhishek wasreceived.

(xiv) Apprehending that his sonmight have been abducted for ransom ormight have been killed, the father lodgedthe F.I.R. at 9.15 A.M. on 28.11.2003naming all the appellants.

(xv) The police arrested VikasSharma, Rajesh Saini and Aashu Guptafrom the bus stand of tehsil Jansenist atabout 10.00 A.M. On 29.11.2003.

(xvi) The bus stand, being a publicplace, a large crowd gathered there at thetime of their arrest. The informant alsoreached there and before the crowd, theinformant and the police, all the threeappellants confessed their guilt by statingthat they had abducted Abhishek forransom and had killed him. They alsostated that they had chopped off Abhishekin two parts and had buried the two partsseparately under the sugar cane fields ofVishnu Sahai and Dinesh Kamboj andthey could help the police in discovery ofdead body.

(xvii) The police took the appellants ina jeep towards the fields of Vishnu Sahai andDinesh Kamboj and in presence of severalwitnesses including the informant, both the


parts of dead body of Abhishek wererecovered at the instance of the appellants.

(xviii) Several incriminating articleslike Aari, 3 blades of Aari having bloodstains on it, green coloured jute rope tiedon the legs, hands and neck of thedeceased, used soap, plastic hand gloves,clothes and shoes and socks of thedeceased, he was wearing at the time ofoccurrence, were also found inside thesame polythene bags in which the parts ofthe dead body had been kept.

(xix) The father of the deceased, whowas present on the spot at the time ofrecovery, identified the body as that of hisson.

(xx) The dead body was sent forpost-mortem. The description of ante-mortem injuries in the post-mortem reportshows that Abhishek was alive at the timewhen he was chopped of into two parts.

(xxi) During investigation the I.O.took into custody the visitor's register ofSwagat Hotel and it was found that roomno. 209 of Swagat Hotel was booked inthe name of some other person namelyRohit Gupta. On inquiry, the address ofRohit Gupta given in the register wasfound fake and false.

(xxii) Recovery of CD player and thewires leads etc. from the tube well at theinstance of Raj Kumar, the brother ofappellant Rajesh, finds corroboration withthe recovery memo Ex. Ka. 12 havingsignatures of appellants - Rajesh andRajkumar on it.

(xxiii) Both the suit cases have beenrecovered by the police from the shop ofappellant Rajesh Saini. Recovery ofsuitcases at the instance of accused isfound fully proved by the testimony ofP.W. 10- Zaheer Shah.

(xxiv) The gold ring having "Lovey"engraved on it was recovered from thepossession of the appellant Arvind who

was arrested on 2.12.2003. "Lovey" wasthe pet name of deceased Abhishek.

(xxv) The father of deceasedAbhishek being a financially soundperson, the possibility of abduction of hisson for ransom cannot be ruled out.

(xxvi) There is ample evidence onrecord that the appellants and thedeceased had been lastly seen together.

(xxvii) Although there is no evidenceon the record with regard to the fact thaton which date and when the demand ofransom was made and even assuming forthe sake of arguments that the appellantshad not abducted Abhishek for ransom,the fact that Abhishek was taken away bythe appellant Vikas Sharma from hishouse and Abhishek was lastly seen in thecompany of appellants Vikas, Aashu andRajesh, has been well established by theprosecution through its cogent andconvincing evidence.

(xxviii) The post-mortem ofdeceased Abhishek has been conductedon 29.11.2003 at 7.30 P.M. and theprobable time since death as mentioned inthe postmortem report is about two dayswhich means that Abhishek might havebeen killed in the evening of 27.11.2003.This clearly indicates that the time gapbetween the death of Abhishek and whenhe was lastly seen in the company ofaccused appellants is very small. TheHon'ble Supreme Court in the case ofMahavir Singh Vs. State of Haryana;(2014) 6 SCC 716 has held as under :-

"The theory of "last seentogether", normally comes into play onlyin a case where the time gap between thepoint of time when accused and deceasedwere seen alive and when deceased wasfound dead is small. When said time gapis very small, there may not be anypossibility that any person other than theaccused, may be the author of crime."


(xxix) The accused appellants havegiven no explanation as to when andwhere the deceased Abhishek parted withtheir company.

(xxx) It is noteworthy that in reply toquestion no. 2 put to the appellant, thataccused Vikas Sharma had visiting termswith informant's family and Abhishekused to call Vikas "Chacha', VikasSharma has stated that this is wrong (xyrgS) in total contradiction of the statementof the defence witness Vinay Kumar(D.W. 1) who has stated that he, Vikasand informant's brother Manoj Garg wereclassmates and Vikas had visiting termswith informant's family.

(xxxi) All the appellants have givenevasive answers to the questions put tothem under Section 313 Cr.P.C. by simplystating "xyr gS" or "ekywe ugh".

(xxxii) In answer to the question asto why this criminal case was institutedagainst them, Vikas Sharma stated thatthe police had committed "maarpeet"

(xxxiii) The aforesaid answers givenby the appellants to the question askingfor the reason about their false implicationin this case, neither appear satisfactorynor inspire confidence.

(xxxiv) Admittedly there was noprevious enmity between the appellantsand the informant's family. To thecontrary there existed family termsbetween informant's family and appellantVikas. All the appellants are named in theF.I.R. There is no reason as to why thefamily of victim would falsely implicateinnocent persons while exonerating thereal culprit in such a heinous murder case.

(xxxv) The fingerprint expert hadcollected the finger prints from variousplaces of room no. 209 of Swagat Hotel i.e.the place of occurrence. The fingerprints ofaccused-appellants were also taken beforeC.J.M. The fingerprint expert Dr. Rajendra

Singh has been produced as P.W. 12. He isan independent witness and has categoricallystated that the fingerprints collected from theroom of Swagat Hotel got matched with thefingerprints of accused appellants.

(xxxvi) The presence of all theappellants at room no. 209 of SwagatHotel is well established by their fingerprints found at various places. This fact issufficiently proved by the testimony offingerprint expert P.W. 12 who is anindependant witness and who has noreason to falsely implicate the appellants.All the appellants in reply to questionnumbers 61 and 63, asked in respect ofevidence collected by fingerprint expertand his report have simply stated " irkugh" "dqN ugh".

(xxxvii) In Munna Kumar UpadhyayVs. State of A.P.; (2012) 6 SCC 174 theHon'ble Supreme Court has held as under:

"Fingerprints of accused are foundpresent at crime scene, at place whereaccused was not supposed to be present inthe normal course and the accused fails toexplain existence of his fingerprints atsuch place, this circumstance pointstowards his involvement in crime."

(xxxviii) Learned counsel for theappellants have laid much stress on the factthat the accused persons were taken to theroom no. 209 of Swagat Hotel by the I.O.before their finger prints were collected by thefingerprint expert and that was the reason whytheir fingerprints were found at the room.

(xxxix) We do not find any merit in theaforesaid arguments for the reason that I.O.-PW-13, during his cross examination hasexplained this situation satisfactorily. Thequestion put to I.O. in this regard and theiranswers are reproduced below :

"iz'u& D;k eqyfteku dejk ua0 209 esavUnj x;sA


mRrj& th ughaA

iz'u& D;k dejs esa tkus ds ckn eqyfteku usvkxs&vkxs pydj crk;k fd ;g ckFk:e gSaA

mRrj& eqyfteku us izos'k djrs gh b'kkjs lscrk;k fd ;g ckFk:e gSaA dejs esa vkxs&vkxs ughpysA"

(xl) The taxi driver (PW-8), thephotographers (PW-9), the two investigatingofficers (PW-7 & PW-13), P.W. 10 ZahirShah, who is the witness of recovery of bothsuitcases from Sunney Cloth House, and P.W.3 Anuj Kumar, the witness of last seen, all ofthem are entirely independent witnesses,having no enmity with any of the accusedpersons. There appears no reason for them tocome to court and support the prosecutioncase just for falsely implicating the appellants.

58. Thus, the sequence of all theevents appears to have formed a completechain with no unreasonable time gap inbetween and with no link missing.Moreover, the appellants by givingevasive replies during their statementsunder Section 313 Cr.P.C., have providedthe missing links, if any.

59. In the case of Deonandan MishraVs. State of Bihar; 1955 AIR 801 decidedas far back in 1955, the Hon'ble Apex Courthas laid down the law which has beenreiterated in its several judgments that :

"A false explanation of circumstancesby the accused in his examination may itselfserve as a link to complete the chain ofevents leading to his conviction."

60. The testimony of defence witness -D.W.1 does not inspire confidence in us forthe reason that D.W. 1 has stated about thealibi of appellant Vikas whereas Vikashimself has not uttered a single word about

this during his statement under Section 313Cr.P.C. D.W. 1 has also stated about thenewspaper reports and the defence on thebasis of his statement and the news andphotographs published in some newspapersof 29.11.2003 showing the appellant RajeshSaini in police custody has assailed thetrustworthiness of prosecution case in respectof date of arrest of appellants. Learnedcounsel for the appellants has tried to assailthe prosecution story of arrest of appellantson 29.11.2003 on the ground that if theywere arrested on 29.11.2003 and the deadbody was recovered on 29.11.2003, howcould the news about the recovery at theinstance of accused appellants was publishedin newspaper dated 29.11.2003.

61. Though we, do not find anyforce in the aforesaid arguments in wakeof the well settled legal position thatnewspaper reports are only hearsayevidence and they are not substantialpiece of evidence as has been held by theApex Court in the case of Quamarul IslamVs. S.K. Kanta; AIR 1994 SC 1733 that :

"Newspaper reports by themselvesare not evidence of the contents thereof.Those reports are only hearsay evidence.These have to be proved and the manner ofproving a newspaper report is well settled.Newspaper, is at the best secondary evidenceof its contents and is not admissible inevidence without proper proof of thecontents under the Evidence Act."

However, in the interest of justice, weperused all the newspapers' cutting availableon record which clearly show that in none ofthese newspaper cuttings there is any reportabout recovery of dead body.

In the report of 'Dainik Jagran' the filephoto of deceased Abhishek and the photo of


police party alongwith some villagerssearching for Abhishek is published. Someother photographs in this newspaper includethe photos of father of deceased, of thecrowd gathered at police station, ofappellant Rajesh Saini alongwith a policeconstable and photo of an empty suitcase.The news report published in thisnewspaper clearly indicates that the S.S.P.,Muzaffar Nagar had given statement beforethe journalists that he is unable to sayanything about the occurrence unless thedead body is recovered which clearlyindicates that dead body had not beenrecovered till 28.11.2003. So far as thephotograph of appellant Rajesh Saini in thenewspaper is concerned, it appears that thepolice might have interrogated him beforehis arrest and during interrogation he mighthave been taken to the fields. In this regardthe explanation of I.O. in reply to questionput to him during his cross examinationappear satisfactory. The I.O. has stated that:-

"Izk'u& D;k vfHk;qDrx.k ls iwNrkN djus dsckn vkius mudks blfy, fgjklr esa ugha fy;k pwafdvkidh fuxkg esa ml oDr rd muds f[kykQ dksbZtqeZ dh lR;rk izekf.kr ugha gksrh FkhA

mRrj& ;g lgh ugha gS cfYd lR; ;g gS fdrhuksa eqfYteku ds dFku dh lR;rk lgh ugha gkstkrh rc rd eqfYte dks fgjklr esa ugha fy;ktkrkA"

It is noteworthy that the headings ofall these news items too, clearly indicatethe involvement of appellants in this case.The caption in 'Dainik Jagran' is " nksLrxn~nkj] fdl ij djs ,rokj". In anothernewspaper the news has been publishedwith the caption "vius gh nhid us mtkM+ fn;kvatqeu mudk" . If the newspaper report is tobe believed then the prosecution storybecomes all the more reliable.

62. So far as the argument with regardto absence of motive is concerned, theprosecution, from the very beginning, hascome with a clear case that the motivebehind the crime was abduction of deceasedAbhishek for ransom and when the deceasedafter reaching inside the hotel room andsmelling something fishy, tried to resist, hewas overpowered and thereafter brutallymurdered by the appellants. Although thefather of the deceased has fairly admitted thathe had not received any phone call fordemand of ransom but in the F.I.R. he hasclearly expressed his apprehension about theabduction of his son by the appellants. In thecase of Sewa Vs. State of U.P.; 2002(I)UPCrR 384 a Division Bench of this Courthas held that motive may be known only tothe offender and none else and for the reasonalone that the motive has not been proved bythe prosecution, the entire prosecution casecannot be discarded as suspicious.

63. In Mani Kumar Thapa Vs. Stateof Sikkim; AIR 2002 (SC) 2920 theSupreme Court has held that "when theprosecution case is proved against theaccused by other circumstantial evidence,necessity to prove motive is not required."

64. During the course of argument,the defence has pointed out towards, somecontradictions and omissions in thestatements of witnesses in order todemolish their credibility. However, allthese are minor contradictions and minordiscrepancies are bound to occur in everycase, due to the normal errors ofobservations, namely errors of memorydue to lapse of time or due to mentaldisposition such as shock and horror atthe time of occurrence.

65. Sri V.C. Srivastava, learnedcounsel for the appellants has repeatedly


contended that a hook was also foundentangled in the button of shirt ofdeceased recovered with his dead bodywhich indicates the involvement of somewoman in this crime because normallyhook is found only in ladies garments.

66. We do not find any force in suchargument. The presence of appellants inthe company of deceased in room no. 209of Swagat Hotel has been found fullyproved. What happened on that fatefulday is only within the knowledge ofappellants, but none of them have stated asingle word. Moreover, the defence hasnot cross examined the I.O. on this pointthat whether he had made anyinvestigation in such direction i.e. aboutinvolvement of any woman in this case,therefore, now the defence can not bepermitted to raise this issue.

67. In Mahavir Singh's case (supra)also the Apex Court has observed asunder :-

"It is a settled legal proposition thatin case the question is not put to thewitness in cross examination who couldfurnish explanation on a particular issue,the correctness or legality of the saidfact/issue could not be raised."

69. Learned counsel has tried toassail the prosecution case on one moreground by relying on the case of AbdulHafeez Vs. State of A.P.; (1983) SCC 143and has challenged the prosecution caseabout recovery of dead body at theinstance of appellants by haranguing thatit was a joint disclosure which is notadmissible.

70. There appears no force in theaforesaid arguments.

71. In State (NCT of Delhi) Vs.Navjot Sandhu; (2005) 11 SCC 600 theHon'ble Supreme Court has laid down thelaw as under :

"Before parting with the discussionon the subject of confessions underSection 27, we may briefly refer to thelegal position as regards joint disclosures.This point assumes relevance in thecontext of such disclosures made by thefirst two accused viz. Afzal and Shaukat.The admissibility of information said tohave been furnished by both of themleading to the discovery of the hideouts ofthe deceased terrorists and the recovery ofa laptop computer, a mobile phone andcash of Rs. 10 lacs from the truck inwhich they were found at Srinagar is inissue. Learned senior counsel Mr. ShantiBhushan and Mr. Sushil Kumar appearingfor the accused contend, as was contendedbefore the High Court, that the disclosureand pointing out attributed to both cannotfall within the Ken of Section 27, whereasit is the contention of Mr. GopalSubramanium that there is no tabooagainst the admission of such informationas incriminating evidence against both theinformants/accused. Some of the HighCourts have taken the view that thewording "a person" excludes theapplicability of the Section to more thanone person. But, that is too narrow a viewto be taken. Joint disclosures to be moreaccurate, simultaneous disclosures, per se,are not inadmissible under Section 27. 'Aperson accused' need not necessarily be asingle person, but it could be plurality ofaccused. It seems to us that the real reasonfor not acting upon the joint disclosuresby taking resort to Section 27 is theinherent difficulty in placing reliance onsuch information supposed to haveemerged from the mouths of two or more


accused at a time. In fact, joint orsimultaneous disclosure is a myth,because two or more accused personswould not have uttered informatory wordsin a chorus. At best, one person wouldhave made the statement orally and theother person would have stated sosubstantially in similar terms a fewseconds or minutes later, or the secondperson would have given unequivocal nodto what has been said by the first person.Or, two persons in custody may beinterrogated separately andsimultaneously and both of them mayfurnish similar information leading to thediscovery of fact. Or, in rare cases, boththe accused may reduce the informationinto writing and hand over the writtennotes to the police officer at the sametime. We do not think that suchdisclosures by two or more persons inpolice custody go out of the purview ofSection 27 altogether. If information isgiven one after the other without anybreak almost simultaneously, and if suchinformation is followed up by pointingout the material thing by both of them, wefind no good reason to eschew suchevidence from the regime of Section 27."

72. In paragraph 146 of the aforesaidjudgment, the Apex Court has discussedthe case of Mohd. Abdul Hafeez Vs. Stateof A.P.; (1983) 1 SCC 143 (supra) citedby learned counsel for the appellants andhas held that :

"there is nothing in this judgmentwhich suggests that simultaneousdisclosures by more than one accused donot at all enter into the arena of Section27, as a proposition of law."

73. Accordingly we do not find anyillegality in the admissibility of joint

disclosure statement by the appellants inthis case specially in view of the fact thatthe dead body alongwith otherincriminating articles and the 'aari' used asweapon of murder have been recoveredby the police after such disclosure.

74. The Apex Court in the case ofA.N. Venkatesh and another Vs. State ofKarnataka; 2005 SCC (Cri) 1938 has heldthat even if the disclosure statement isheld to be not admissible under Section27 due to some reason, still it is relevantunder Section 8 of the Evidence Act. Theevidence of the circumstances,simpliciter, that the accused pointed out tothe police officer, the place where thedead body of the kidnapped boy wasfound is admissible under Section 8irrespective of the fact whether thestatement made by the accused fallswithin the purview of Section 27 or not.Even if, the disclosure statement is held tobe not admissible under Section 27 ofEvidence Act, still it is relevant underSection 8 of Evidence Act.

75. Keeping in view all the facts andcircumstances of the case we are of theconsidered opinion that the prosecutionhas been able to comprehensively andreliably establish the chain ofcircumstances. The evidence produced bythe prosecution does not leave any majorloop holes in the case of prosecution.With the help of its oral and documentaryevidence, the presence of appellants at thescene of crime, their intention ofcommitting the crime, the gruesomemanner in which they committed themurder and later on tried to destroy orconceal the evidence, the recovery ofblood stained clothes of the deceasedalongwith several other incriminatingarticles like the 'Aari', rope, handgloves,


blades of aari, piece of soap etc.alongwith dead body of Abhishek cut intotwo parts and finally the conduct ofappellants of absconding from theirhouses, all these facts have been wellestablished by the prosecution. Thelearned trial court also after a detailedappreciation of evidence, has found thechain of circumstances complete andconclusively indicating towards the guiltof appellants. We do not find any error inthe findings arrived by learned trial court,so far as the conviction of all theappellants under Sections 302/34, 364 and201 I.P.C. is concerned.

76. Accordingly, the conviction ofall the appellants in the aforesaid sectionsof I.P.C. is hereby affirmed.

77. Now we proceed to examine thepropriety of sentence imposed by the trialcourt. The trial court has awarded deathsentence to all the appellants for theirconviction under Section 302/34 I.P.C.and a fine of Rs. 20,000/- has also beenimposed on each of them. For theirconviction under Section 364 I.P.C. theyhave been awarded life imprisonmentalongwith a fine of Rs. 10,000/- imposedon each. In default of payment of finefurther imprisonment of two years hasbeen awarded to all of them. Seven yearsR.I. alongwith a fine of Rs. 10,000/- hasbeen awarded to all the appellants fortheir conviction udner Section 201 I.P.C.and in default of payment of fine one yearimprisonment is awarded to all of them.All the sentences are to run concurrently.

78. Except death penalty, all theaforesaid sentences and fine as awarded bythe trial court neither appear excessive norunreasonable to us in view of the gravity andheinous nature of the offence in this case.

However, the death sentence awarded bylearned trial court appears excessive in viewof the legal position that death sentenceshould be awarded in rarest of rare cases andthe courts should follow the guidelines aslaid down by Hon'ble Supreme Court in aseries of judgments. The Apex Court in thelandmark case of Bachan Singh, (1980) 2SCC 684 has laid down the guidelines andthe sentencing norms. In a recent judgmentrendered in the case of Sunil Dutt SharmaVs. State (Government of NCT of Delhi);(2014) 4 SCC 375 the Apex Court hasreiterated the law relating to death penaltyand has summarized the circumstances underwhich life imprisonment should be awardedinstead of death penalty.

79. According to the Apex Court themitigating factors under which thesentence of life imprisonment instead ofdeath sentence is to be awarded, are asfollows :

(I) The young age of the accused.(II) The possibility of reforming and

rehabilitating the accused.(III) The accused had no prior

criminal record.(IV) The accused was not likely to be

a menace or threat or danger to society orthe community.

(V) A few other reasons need to bementioned such as the accused havingbeen acquitted by one of the courts.

(VI) The crime was notpremeditated.

(VII) The case was one ofcircumstantial evidence.

80. Testing the facts of the instantappeal on the touch stone of guidelines ascited above and on consideration of thetotality of circumstances, we are of thefirm view that the present case does not

1 All. Devendra Singh Vs. State of U.P. & Ors. 189

fall within the category of 'rarest of rarecases' attracting death penalty due topresence of two factors as cited above.

81. First, the present case,undisputedly is one of the circumstantialevidence and second, all the appellantshave no prior criminal antecedent.Therefore, it appears expedient in theinterest of justice that the extremepunishment of death penalty awarded tothe appellants under Section 302/34 I.P.C.be substituted with sentence ofimprisonment for life.

82. Accordingly the appeal is partlyallowed. The impugned judgment andorder dated 1.2.2007 is modified to theextent that the death penalty awarded tothe appellants under Section 302/34 I.P.C.is converted to imprisonment for thewhole of the remaining natural life of theappellants, subject however to thecondition that the prisoner would beeligible to any commutation andremissions that may be granted by theHon'ble President and the Hon'bleGovernor under Articles 72 and 161 ofthe Constitution of India or of the StateGovernment under Section 433-A of theCode of Criminal Procedure for good andsufficient reasons.

83. Subject to the aforesaidobservations the appeal is partly allowed.The reference No. 6 of 2007 forconfirming the death sentence is rejected.




CHANDRACHUD, J.THE HON'BLE YASHWANT VARMA, J.


Devendra Singh ...AppellantVersus


Counsel for the Appellant:Yogesh Agarwal


Uttar Pradesh Secondary EducationServices Selection Board Act 1982-Section17 (2)(3)-Petitioner/Appellant beingselected candidate as principle not allowedto join in the year 1984-management takenevery conceivable effort to resist the joiningright from filing writ petition and dismissingas withdrawn-against Civil suit seekingpermanent injunction getting decreeagainst statutory-protection-total in actionon part of Director under Section 17-failureto comply such direction being criminaloffence punishable under Section 22 of theAct-held-appellant not to blamed for failureon part of statutory authorities-entitled forsalary from the date of initial selection-without touching the direction of SingleJudge-director to hold enquiry and takedecision within3 months.

Held: Para-7There has been a clear failure on the part ofthe authorities to enforce their statutorypowers including the power which has beenconferred upon the Director under Section17(3) of the Act. Under Section 17(2), theDirector is empowered to direct themanagement to appoint the selectedcandidate and to pay him salary from thedate specified in the order. The salary isrecoverable as arrears of land revenue fromthe property belonging to or vested in theinstitution under sub-section (3) of Section17. These statutory powers have beenconferred for a salutary public purpose.Failure to comply with a direction underSection 17 is a criminal offence underSection 22 of the Act. The Director wasobligated, upon being informed by theappellant, to have taken recourse to the


provisions of Section 17(3) of the Act byissuing a direction to the Management ofthe College to pay arrears of salary andthen proceeding to recover them as arrearsof land revenue through the Collector. Theappellant cannot be blamed for the failureof the statutory authorities to comply withtheir provisions. The conduct of theManagement in obtaining an injunction in aproceeding to which the appellant was noteven impleaded, speaks volumes of themanner in which the rights of a dulyselected candidate have been defeated forno fault of his.

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

1. This special appeal arises from ajudgment of the learned Single Judgedated 4 December 2015.

2. The appellant filed a writpetition1 in 2013 in order to challenge anorder passed by the District Inspector ofSchools, Mainpuri on 30 May 2012declining to grant him arrears of salary forthe period during which he had notworked as Principal of Dayanand InterCollege, Ghiror, District Mainpuri2 andseeking a mandamus for the payment ofarrears of salary from 1985 till the date ofhis superannuation on 30 June 2011 andconsequential retiral benefits. The learnedSingle Judge allowed the writ petition inpart by directing that the appellant wouldbe entitled to salary with effect from 30June 2006 which was the date on whichthe appellant joined as Principal of theCollege pursuant to a letter ofappointment issued by the Committee ofManagement3 on 19 July 2006.Consequential benefits and retiral dueswere directed to be determined on thatbasis. The appellant is aggrieved since hiswider claim for the payment of salaryfrom 1985 and for the computation of

retiral benefits on that basis has not foundacceptance of the learned Single Judge.

3. The appellant was selected by theUttar Pradesh Secondary EducationService Selection Commission (nowreplaced by the Uttar Pradesh SecondaryEducation Services Selection Board4).The name of the appellant wasrecommended by the Board on 20December 1984 in pursuance of which theDistrict Inspector of Schools issued acommunication on 9 January 1985 to theManager of the College for the issuanceof a letter of appointment to the appellant.A writ petition5 was filed in 1984 by theManager of the College challenging theadvertisement in pursuance of which theappellant had applied for the post ofPrincipal, in which an interim order waspassed on 9 October 1984 by which it wasdirected that the selection may proceedbut the letter of appointment will not beissued until further orders. The interimorder held the field until the petition wasdismissed as withdrawn on 16 December1989. Consequent upon the dismissal ofthe writ petition, the appellant moved anapplication on 21 December 1989 to theDistrict Inspector of Schools for theissuance of a letter of appointment and theDistrict Inspector of Schools on 23December 1989 directed the Management ofthe College to appoint the appellant. TheManagement having failed to comply, theDistrict Inspector of Schools again issued aletter on 27 February 1990 to theManagement for appointment of theappellant but the appellant was notappointed. The appellant moved arepresentation before the Regional Directorof Education on 13 March 1990 who onceagain issued a direction to the Managementof the College on 15 May 1990. TheManagement of the College instituted a suit6

1 All. Devendra Singh Vs. State of U.P. & Ors. 191

before the Civil Court for a permanentinjunction restraining the State fromappointing the Principal selected for theCollege by the Board. The appellant appliedfor impleadment which was rejected andeventually the suit was decreed by the grantof a permanent injunction on 10 April 1991.

4. Nearly sixteen years thereafter on19 June 2006, the Management issued aletter of appointment to the appellant whoclaims to have joined on the post ofPrincipal on 30 June 2006. The DistrictInspector of Schools declined to attest thesignatures of the appellant on the groundthat the appointment of the appellant wascontrary to the decree of the Civil Court.The appellant filed a writ petition7 whichwas dismissed by a learned Single Judgeon 8 July 2008. The appellant then filed aspecial appeal8. A Division Bench of thisCourt by an order dated 18 January 2012allowed both the special appeal and WritPetition No 25950 of 2006 by settingaside the judgment of the learned SingleJudge dated 8 July 2008. The appellantthen filed Writ-A No 21939 of 2013seeking the payment of salary with effectfrom 1985 and the computation of hisretiral dues on that basis in which thejudgment dated 4 December 2015 hasbeen passed which has given rise to thepresent special appeal.

5. Section 10 of the Uttar PradeshSecondary Education Services SelectionBoard Act, 19829 requires the managementto notify vacancies to the Board in theprescribed manner. Under Section 11, theBoard, upon the notification of a vacancy,has to prepare a panel. The panel is requiredto be intimated to the management of theinstitution upon which under sub-section (4)of Section 11 the management shall, within aperiod of one month from the receipt of

intimation, issue a letter of appointment tothe selected candidate. Where a selectedcandidate is not appointed by themanagement within the period provided,Section 17 envisages an enquiry by theDirector, upon which under sub-section (2) adirection is to issue to the management toappoint the selected candidate and to paysalary. The amount of salary, if any, due tothe teacher is upon a certificate issued by theDirector recoverable by the Collector asarrears of land revenue.

6. In the present case, the recordbefore the Court would indicate that theManagement made almost everyconceivable effort to defeat the claim of theselected candidate. Initially in 1984, a writpetition was filed by the Manager of theCollege in which an interim order waspassed which operated until the petition wasdismissed as withdrawn on 16 December1989. Thereafter, from the narration offacts, it has emerged that the appellantcontinued to pursue his rights. The DistrictInspector of Schools on 23 December 1989,the Director on 27 February 1990 and theRegional Director on 15 March 1990directed the Management to pay salary butthe Management did not comply. TheManagement filed a suit seeking apermanent injunction which was decreed on10 April 1991. The appellant was notimpleaded as a party to the suit. TheDivision Bench of this Court in its judgmentdated 18 January 2012 noted that the suitdid not seek to challenge the appointment ofthe appellant but was filed for restrainingthe selected person from joining asPrincipal. The Division Bench held that thesuit can have no consequence on the rightsof the appellant. As a matter of fact, theManagement of the College eventuallyissued a letter of appointment on 19 June2006.


7. There has been a clear failure onthe part of the authorities to enforce theirstatutory powers including the power whichhas been conferred upon the Director underSection 17(3) of the Act. Under Section17(2), the Director is empowered to directthe management to appoint the selectedcandidate and to pay him salary from thedate specified in the order. The salary isrecoverable as arrears of land revenue fromthe property belonging to or vested in theinstitution under sub-section (3) of Section17. These statutory powers have beenconferred for a salutary public purpose.Failure to comply with a direction underSection 17 is a criminal offence underSection 22 of the Act. The Director wasobligated, upon being informed by theappellant, to have taken recourse to theprovisions of Section 17(3) of the Act byissuing a direction to the Management ofthe College to pay arrears of salary and thenproceeding to recover them as arrears ofland revenue through the Collector. Theappellant cannot be blamed for the failure ofthe statutory authorities to comply with theirprovisions. The conduct of the Managementin obtaining an injunction in a proceeding towhich the appellant was not evenimpleaded, speaks volumes of the mannerin which the rights of a duly selectedcandidate have been defeated for no fault ofhis.

8. In these circumstances, we are ofthe view that the judgment of the learnedSingle Judge granting to the appellantrelief only of the arrears of salary from 30June 2006 would not sub-serve the endsof justice. We clarify that this part of thedirection is not set aside as such.However, on the wider claim of theappellant, we direct that the Director ofEducation shall, within a period of threemonths from the receipt of a certifiedcopy of this order, carry out an enquiry

under sub-sections (2) and (3) of Section17 and issue appropriate directions for thedisbursal of salary to the appellant. TheDirector shall scrutinize all facts after duenotice both to the appellant and to theManagement. The retiral dues of theappellant shall thereupon be computed onthe basis of the directions so issued.

9. The special appeal is allowed inthese terms. There shall be no order as tocosts.


CIVIL SIDEDATED: LUCKNOW 15.02.2016

BEFORETHE HON'BLE SHRI NARAYAN SHUKLA, J.

THE HON'BLE RAKESH SRIVASTAVA, J.

Service Bench No. 1185 of 2014

Smt. Mamta Srivastava ...PetitionerVersus

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

Counsel for the Petitioner:Dr. Lalta Prasad Mishra, Prafulla Tiwari

Counsel for the Respondents:C.S.C., Rajnish Kumar

Uttar Pradesh Public Services (Reservationfor physically handicapped, dependents offreedom fighters & Ex-Serviceman)(Amendment)Act 2009-Section 2(b)-U.P. Act no. 4 of 1993-by amending original Act for first time on20.08.99-married grand daughter alsoinclude-petitioner being married granddaughter of freedom fighter-participated incompetitive examination in U.P. SubordinateServices-in pursuance of advertisement15.12.94-seeking benefits of amended Act-petition challenging enactment 1993 beingdiscriminatory between daughter and granddaughter-whether such amended provision-applicable prospectively or retrospectively ?-held-being purely new legislation without

1 All. Smt. Mamta Srivastava Vs. State of U.P. & Anr. 193

explanatory effect-can not be saidretrospective unless otherwise provided-petition dismissed.

Held: Para-19 & 2019. The purpose of statement of objectsand reasons as has been discussed bythe Hon'ble Supreme Court in the case ofUtkal Contractions and Joinery (P) Ltd.(Supra) is very limited to understand thebackground and the antecedent state ofaffairs leading up to the legislation. Itshows the intention of the legislation toamend the Act. The object is very clearas the statement of objects and reasonsstates that the impugned amendmentwas made to remove the discriminationbetween daughter and grand daughter.It is purely a substantive amendment,which cannot be said to be aretrospective unless the Act provide so,whereas in this case no such provision isprovided under the Act that theamendment in question shall haveretrospective force.

20. In view of the aforesaid submissions,we are of the view that the impugnedamendment of 2009 is prospective innature and it does not apply from the dateof substantive enactment of the Act 1993.In the result the writ petition standsdismissed.

Case Law discussed:(2004) 8 SCC; (2001) 8 SCC 24; (2015) 1 SCC;(1985) 1 SCC 591; 1987 (Supp) SCC 751; AIR1963 SC 1241.

(Delivered by Hon'ble Shri NarayanShukla, J.)

1. Heard Dr.L.P.Mishra, learnedcounsel for the petitioner as well asMr.Vivek Kumar Shukla, learnedAdditional Chief Standing Counsel.

2. The petitioner had claimed hercandidature for selection in U.P. UpperSubordinate Services notified through theadvertisement dated 15.12.1994 under the

quota reserved for the dependents of freedomfighters. The petitioner's grand father Shri BrijNath Prasad Srivastava was a freedom fighter.Earlier her name was not enlisted amongst thesuccessful candidates, but later on, on thebasis of recommendation done by theCommission, her name was recommended forappointment on the post of AssistantAccounts Officer. Since she could not submitthe requisite certificate of dependent offreedom fighter in the prescribed proforma, aletter was issued by the U.P.State PublicService Commission (in short Commission)on 26.4.1999, whereby the petitioner wasrequired to submit a requisite certificate, shesubmitted the said certificate to theCommission. However, vide letter dated2.7.1999 issued by the Secretary of theCommission the petitioner's candidature wasrejected on the ground that in her applicationthe petitioner had mentioned that she wasmarried, whereas the benefit provided underthe U.P. Public Services (Reservation forPhysically handicapped, dependents offreedom fighters and ex-servicemen) Act,1993 (in short Act 1993) was not available tothe married men/women.

3. Aggrieved petitioner submitted arepresentation to the Secretary of theCommission stating therein that at the timeof submission of application pursuant to theadvertisement dated 15.12.1994 thepetitioner was not married, therefore, in herapplication against the Coloumn of maritalstatus she marked as 'unmarried'. Later onshe got married on 20.1.1995. The Secretaryof the Commission rejected the petitioner'srepresentation vide order dated 16.11.1999.The petitioner had instituted a writ petitionbeing writ petition No.2024 (SB) of 1999, inwhich the petitioner had challenged the orderdated 2.7.1999 as well as 16.11.1999, passedby the Commissioner rejecting thepetitioner's representation.


4. Section 2(b) of the Act 1993defines the word 'dependents' withreference to a freedom fighter as follows:-

(i) Son and daughter (married orunmarried) of freedom fighter.

(ii)Grand-son (son of a son) andunmarried grant-daughter (daughter of ason) of freedom fighter.

5. The relationship between thepetitioner and her grand-father is notdisputed. Thus she is a grand-daughter ofShri Brij Nath Prasad Srivastava, who hadbeen declared as a freedom fighter. Theprovisions of Section 2(b) of the Act 1993being discriminatory were amended and amarried-grand daughter was includedwithin the definition of 'dependents' offreedom fighters, therefore, the writpetition was dismissed as having becomeinfructuous.

6. Since the married grand-daughterof the freedom fighter was includedwithin the definition of dependents offreedom fighters, the State Governmenttook a decision vide letter dated 12 April2010 to appoint her on the post ofAssistant Accounts Officer, however, noappointment order was issued, therefore,she submitted a representation dated30.5.2014 before the State Government toappoint her on the post of AssistantAccounts Officer, but has failed to get anappointment.

7. Dr.L.P.Mishra, learned counsel forthe petitioner drew attention of this Courttowards the statement of objects and reasonsof amendment introduced in the UttarPradesh Public Services (Reservation forPhysically Handicapped, Dependents ofFreedom Fighters and Ex-Servicemen)(Amendment) Act, 2009 notified on 20

August 2009 and submitted that since thepurpose of amendment was to remove thediscrimination between the daughter andgrand-daughter the State Governmentdecided to amend the said Act to include themarried grand-daughter of a freedom fighterin the said definition of word 'dependents'.He vehemently submitted that in case ofdaughter of the freedom fighter married orunmarried both had been included to bedependents of the freedom fighter, but incase of grand daughter only the unmarriedgrand daughter was defined to be dependentof the freedom fighter. The statement ofobjects and reasons of the amendment Act2009 is extracted below:-

"Statement of Objects and Reason.-The Uttar Pradesh Public Services(Reservation for Physically Handicapped,Dependents of Freedom Fighters and Ex-Serviceman) Act, 1993 (U.P. Act No.4 of1993) has been enacted to provide for thereservation of posts in favour ofphysically handicapped, dependents offreedom fighters and ex-servicemen.Clause (b) of Section 2 of the said Actdefines the word "dependent". Inaccordance with the said definition sonand daughter (married or unmarried) andgrand son and unmarried grand daughterwere the dependents of a freedom fighter.In order to remove the discriminationbetween daughter and grand daughter itwas decided to amend the said Act toinclude the married grand daughter of afreedom fighter in the said definition ofthe word "dependent".

8. The amended provision of Section2 of the Act 1993 is reproducedhereunder:-

"2. Amendment of Section 2 of U.P.ActNo.4 of 1993.- In Section 2 of the Uttar


Pradesh Public Services (Reservation forPhysically Handicapped, Dependents ofFreedom Fighters and Ex-Servicemen) Act,1993, hereinafter referred to as the principalAct, in clause (b) in sub-clause (ii) for thewords "unmarried grand daughter (daughterof a son)" the words "grand daughter(daughter of a son) (married or unmarried)"shall be substituted."

9. In the present case the main facet ofproblem is the date of application of the saidamendment published in the Gazette on 20August 2009. Dr.Mishra has contended thatsince the purpose of amendment was toremove the discrimination between thedaughter and grand daughter and once thegrand daughter has been put at par with thedaughter (married or unmarried) thisamendment has to be given effect to from thedate of incorporation of the Act 1993. Hefurther tried to fortify his argument with thecontentions that the amendment is purelyclarificatory in nature, therefore, it becomesapplicable from the previous date ofenforcement of the Act 1993. In support ofhis submission he cited the followingdecisions:-

(1) Zile Singh versus State ofHaryana and others reported in (2004) 8SCC, relevant paragraphs 16 and 19 of thesame are reproduced hereunder:-

"16. Where a statute is passed for thepurpose of supplying an obvious omission ina former statute or to "explain" a formerstatute, the subsequent statute has relationback to the time when the prior Act waspassed. The rule against retrospectivity isinapplicable to such legislations as areexplanatory and declaratory in nature. Aclassic illustration is the case of AttorneyGeneral v. Pougett (1816) 2 Price 381:146ER 130 (Price at p.392). By a Customs Actof 1873 (53 Geo.3), c.33) a duty was

imposed upon hides of 9s 4d, but the Actomitted to state that it was to be 9s 4d perewt., and to remedy this omission anotherCustoms Act (53 Geo.3, c.105) was passedlater in the same year. Between the passingof these two Acts some hides were exported,and it was contended that they were notliable to pay the duty of 9s 4d per ewt., butThomson, C.B., in giving judgment for theAttorney General, said: (DR p.134).

"The duty in this instance was, infact, imposed by the first Act; but thegross mistake of the omission of theweight, for which the sum expressed wasto have been payable, occasioned theamendment made by the subsequent Act;but that had reference to the formerstatute as soon as it passed, and they mustbe taken together as if they were one andthe same Act;" (Price at p.392).

(2) Shyam Sunder and others versusRam Kumar and another, reported in(2001) 8 SCC 24, relevant paragraphs 39and 40 of the same are reproducedhereunder:-

"39. Lastly, it was contended on behalfof the appellants that the amending Actwhereby new Section 15 of the Act has beensubstituted is declaratory and, therefore, hasretroactive operation. Ordinarily when anenactment declares the previous law, itrequires to be given retroactive effect. Thefunction of a declaratory statute is to supplyan omission or to explain a previous statuteand when such an Act is passed, it comesinto effect when the previous enactment waspassed. The legislative power to enact lawincludes the power to declare what was theprevious law and when such a declaratoryAct is passed, invariably it has been held tobe retrospective. Mere absence of use of theword "declration" in an Act explaining whatwas the law before may not appear to be adeclaratory Act but if the court finds an Actas declaratory or explanatory, it has to be


construed as retrospective. Conversely wherea statute uses the word "declaratory", thewords so used may not be sufficient to holdthat the statute is a declaratory Act as wordsmay be used in order to bring into effect newlaw.

40. Cries on Statute Law, 7th Edn.stated the statement of law thus: "If adoubt is felt as to what the common law ison some particular subject, and an Act ispassed to explain and declare the commonlaw, such an Act is called a declaratoryAct."

(3) Commissioner of Income Tax(Central)-I, New Delhi versus VatikaTownship Private Limited, reported in(2015) 1 SCC, relevant paragraph 32 ofwhich is reproduced hereunder:-

"32.Let us sharpen the discussion alittle more. We may note that undercertain circumstances, a particularamendment can be treated as clarificatoryor declaratory in nature. Such statutoryprovisions are labelled as "declaratorystatutes". The circumstances under whichprovisions can be termed as "declaratorystatutes" are explained by JusticeG.P.Singh Principles of StatutoryInterpretation, (13th Edn., Lexis NexisButterworths Wadhwa, Nagpur, 2012) inthe following manner:

"Declaratory statutes

The presumption againstretrospective operation is not applicableto declaratory statutes. As stated inCRAIES and approved by the SupremeCourt: 'For modern purposes a declaratoryAct may be defined as an Act to removedoubts existing as to the common law, orthe meaning or effect of any statute. SuchActs are usually held to be retrospective.The usual reason for passing a declaratoryAct is to set aside what Parliament deemsto have been a judicial error, whether in

the statement of the common law or in theinterpretation of statutes. Usually, if notinvariably, such an Act contains aPreamble, and also the word "declared" aswell as the word "enacted". But the use ofthe words 'it is declared' is not conclusivethat the Act is declaratory for these wordsmay, at times, be used to introduce newrules of law and the Act in the latter casewill only be amending the law and willnot necessarily be retrospective. Indetermining, therefore, the nature of theAct, regard must be had to be substancerather than to the form. If a new Act is 'toexplain' an earlier Act, it would bewithout object unless construedretrospective. An explanatory Act isgenerally passed to supply an obviousomission or to clear up doubts as to themeaning of the previous Act. It is wellsettled that if a statute is curative ormerely declaratory of the previous lawretrospective operation is generallyintended. The language 'shall be deemedalways to have meant' is declaratory, andis in plain terms retrospective. In theabsence of clear words indicating that theamending Act is declaratory it would notbe so construed when the pre-amendedprovision was clear and unambiguous. Anamending Act may be purely clarificatoryto clear a meaning of a provision of theprincipal Act which was already implicit.A clarificatory amendment of this naturewill have retrospective effect and,therefore, if the principal Act was existinglaw which the Constitution came intoforce, the amending Act also will be partof the existing law."

The above summing up is factuallybased on the judgments of this Court aswell as English decisions."

10. In view of the principlespropounded above, the learned counsel


for the petitioner has submitted that theamendment made in the Act 1993 ispurely declaratory as it declares thatthrough the amendment 2009 the marriedgrand-daughter shall also be included inthe definition of 'dependent', thisamendment shall came into force from thedate of enactment of the Act itself.Therefore, the petitioner's candidature,which was considered for appointment onthe post of Assistant Accounts Officerbeing 'dependent' of her grand-father afreedom fighter cannot be rejected.

11. Per contra Mr.Vivek KumarShukla, learned Additional Chief StandingCounsel contended that the statement ofobjects and reasons of the amendment Act2009 itself speaks that in order to remove thediscrimination between daughter and grand-daughter Section 2 of the Act 1993 wasamended to include the married granddaughter of a freedom fighter in thedefinition of word 'dependent'. Since in thecase of daughter, the Act has covered bothmarried and unmarried daughter, whereas inthe case of grand-daughter only unmarriedgrand daughter was included in the definitionof 'dependent' of freedom fighter, thelegislatures felt that non inclusion of marriedgrand daughter of a freedom fighter appearsto be discriminatory, therefore, it legislated alaw to include the married grand daughteralso in the definition of 'dependents' offreedom fighters. There was no ambiguity inthe provisions of the Act, which had requiredclarification of the Act by way of legislationnor have the provisions of the Act statedclearly that the amendment in question is in adeclaratory form, rather the provisions of theAct are very clear. Earlier only unmarriedgrand daughter was included in the definitionof 'dependents' of freedom fighter and nowmarried grand daughter of the freedomfighter has also been included in the

definition of 'dependents'. The reasonsassigned in the statement of objects andreasons of amendment that Section 2 of theAct 1993 has been amended in order toremove the discrimination between thedaughter and grand daughter does not meanthat there was ambiguity in the legislation,which has been clarified by way ofamendment. The intention of the legislationto include married grand daughter is verymuch obvious i.e. to remove thediscrimination between two, therefore, itcannot be said that the amendment in the Actbeing declaratory in nature shall becomeeffective from the date of original enactmentof the Act 1993.

12. Without disputing the propositionof law laid down by the Hon'ble SupremeCourt, he submitted that definitely theclarification being explanatory/clarificatorywill have the retrospective effect. He hasurged that in this case the nature ofamendment in question is not an explanatoryor clarificatory, but by way of legislation themarried grand daughter has been included inthe definition of 'dependents' it is completelya substantive amendment in the Act, 1993.

13. He cited a case of S.SundaramPillai and others versus V.R.Pattabiramanand others, reported in (1985) 1 SCC 591.The Bench consisting of three Hon'bleJudges had considered the impact ofexplanation and had held that it is nowwell settled that an Explanation added to astatutory provision is not a substantiveprovision in any sense of the term. TheHon'ble Supreme Court considering thevarious aspects of the explanation andobserved as under:-

" (a) The object of an Explanation isto understand the Act in the light of theexplanation.


(b) It does not ordinarily enlarge thescope of the original section which itexplains, but only makes the meaningclear beyond dispute."

14. The Hon'ble Supreme Courtsummed up its consideration in thefollowing manner:-

"53. Thus, from a conspectus of theauthorities referred to above, it is manifestthat the object of an Explanation to astatutory provision is-

(a) to explain the meaning andintendment of the Act itself,

(b) where there is any obscurity orvagueness in the main enactment, toclarify the same so as to make itconsistent with the dominant object whichit seems to subserve,

(c) to provide an additional supportto the dominant object of the Act in orderto make it meaningful and purposeful,

(d) an Explanation cannot in any wayinterfere with or change the enactment orany part thereof but where some gap isleft which is relevant for the purpose ofthe Explanation, in order to suppress themischief and advance the object of theAct it can help or assist the Court ininterpreting the true purport andintendment of the enactment, and

(e) it cannot, however, take away astatutory right with which any personunder a statute has been clothed or set atnaught the working or an Act bybecoming an hindrance in theinterpretation of the same."

15. He further cited a decision of theHon'ble Supreme Court rendered in the case

of M/s. Utkal Contractors and Joinery (P)Ltd. and others versus State of Orissa,reported in 1987 (Supp) SCC 751, in whichthe Hon'ble Supreme Court has discussed thescope of statement of objects and reasons ofthe Act. The Supreme Court held that theauthority of a statutory notification cannot bejudged merely on the basis of statement ofobjects and reasons accompanying the bill.The Supreme Court further referred itsanother decision rendered in the case of Stateof West Bengal v. Union of India, reported inAIR 1963 SC 1241, in which it had heldthat:-

"It is however well settled that theStatement of Objects and Reasonsaccompanying a Bill, when introduced inParliament, cannot be used to determine thetrue meaning and effect of substantiveprovisions of the statute. They cannot beused except for the limited purpose ofunderstanding the background and theantecedent state of affairs leading up to thelegislation. But we cannot use this statementas an aid to the construction of the enactmentor to show that the legislature did not intendto acquire the proprietary rights vested in theState or in any way to affect the StateGovernments' rights as owner of minerals. Astatute, as passed by Parliament, is theexpression of the collective intention of thelegislature as a whole, and any statementmade by an individual, albeit a Minister, ofthe intention and objects of the Act cannot beused to cut down the generality of the wordsused in the statute."

16. Regard being had to theaforesaid submissions, we proceed todecide the core issue involved in thematter, whether the amended Act 2009including the married grand-daughter inthe definition of 'dependent' shall have aretrospective effect?

1 All. Smt. Ram Sawari Devi & Ors. Vs. State of U.P. & Ors. 199

17. The statement of objects andreasons accompanying with the amendmentAct 2009 speaks that the said amendment hasbeen brought into the Act to remove thediscrimination between the daughter andgrand-daughter. The purpose of amendmentis obvious as earlier the married daughterwas included in the definition of 'dependents'of freedom fighter. Whereas in case of granddaughter only unmarried grand daughter wasincluded in the definition of 'dependents' offreedom fighter. It appears that legislaturesthought it discriminatory between the twoand by amending the Act 1993, they hadincluded the married grand-daughter also inthe definition of 'dependents' of freedomfighters. It is purely new legislation withouthaving any explanatory effect of anyprovision available under the Act.

18. The scope of explanation hasbeen discussed by the Hon'ble SupremeCourt in paragraph 53 of its judgmentrendered in the case of S.Sundaram Pillaiand others (Supra), in which the Hon'bleSupreme Court has held that theexplanation cannot in any way interferewith or change the enactment, rather itassists the Court in interpreting the truepurport and intendment of the enactment.

19. The purpose of statement ofobjects and reasons as has been discussed bythe Hon'ble Supreme Court in the case ofUtkal Contractions and Joinery (P) Ltd.(Supra) is very limited to understand thebackground and the antecedent state ofaffairs leading up to the legislation. Itshows the intention of the legislation toamend the Act. The object is very clear asthe statement of objects and reasons statesthat the impugned amendment was madeto remove the discrimination betweendaughter and grand daughter. It is purely asubstantive amendment, which cannot be

said to be a retrospective unless the Actprovide so, whereas in this case no suchprovision is provided under the Act thatthe amendment in question shall haveretrospective force.

20. In view of the aforesaidsubmissions, we are of the view that theimpugned amendment of 2009 isprospective in nature and it does not applyfrom the date of substantive enactment ofthe Act 1993. In the result the writpetition stands dismissed.



BEFORETHE HON'BLE RAN VIJAI SINGH, J.

Writ-C No. 1191 of 2016

Smt. Ram Sawari Devi & Ors. PetitionersVersus


Counsel for the Petitioners:Aditya Kumar Singh


Constitution of India, Art.-226-Opportunity of hearing-when required-order entailing Civil consequence-opportunity of hearing must-petitionerbeing Pradhan of village in question andbeneficiary of BPL Card holder-byimpugned order recovery sought to bemade-without opportunity of hearing-held-illegal-quashed.

Held: Para-12Learned standing counsel has not beenable to demonstrate from the perusal ofrecovery certificate that anywhere theversion of the petitioners has beenconsidered. It is settled law that any


order which leads to civil consequencesmust be passed in conformity with theprinciples of natural justice. Since herethe impugned order has been passed inderogation of principle of natural justice,therefore, impugned orders/recoverycertificates cannot be sustained in theeye of law.

Case Law discussed:1952 SCR 284:AIR 1952 SC 75:1952 Cri LJ510; (1978) 1 SCC 248:(1978) 2 SCR 621; AIR1975 Supreme Court 266; air 1989 SC 620;AIR 2001 SC 3707; (2010 (6) AWC 5762);(2011 (6) ADJ 787)

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

1. Heard Sri A.K. Singh, learnedcounsel for the petitioners and learnedstanding counsel for the State-respondents.

2. Through this writ petition, prayerhas been made to issue writ of certiorariquashing the order dated 16.10.2015passed by Block Development Officer, LarBlock, District Deoria as well as orderdated 22.8.2015 passed by ChiefDevelopment Officer, Deoria- respondentno. 2 by which recovery certificate hasbeen issued against each of the petitionersfor illegal allotment of houses under theIndra Housing Scheme.

3. Petitioner no. 1 happened to bePradhan and remaining petitioners arebeneficiaries. The reasons assigned in theimpugned order are that the petitioners no. 2,3 and 4 (beneficiaries) were not BPL cardholders. The submission is that thepetitioners no. 2, 3 and 4 are the members ofBPL family. Learned counsel for thepetitioners also contends that before issuingthe recovery certificate, any kind of showcause notice or opportunity was not offeredto the petitioners.

4. Learned standing counselappearing for the State-respondentssubmits that he may be granted time toseek instructions in this matter to verify asto whether opportunity was offered or not.

5. The Apex Court in the case ofMohinder Singh Gill Vs. Chief ElectionCommissioner, (1978) 1 SCC 405 :(1978) 2 SCR 272; has held that reasonscannot be supplied by filing counteraffidavit. From perusal of the impugnedrecovery certificates, which have beenbrought on record as annexure- 4A, 4Band 4C and 6 to the writ petition, ittranspires that neither any opportunitywas offered to the petitioner nor theircases have been considered.

6. In its comprehensive connotationevery thing that affects a citizen in hiscivil life inflicts a civil consequence mustbe passed in conformity with theprinciples of natural justice.

7. In State of Orissa Vs. (Miss)Birapani Dei this Court held that even anadministrative order which involves civilconsequences must be made consistentlywith the rules of natural justice. Theperson concerned must be informed of thecase, the evidence in support thereofsupplied and must be given a fairopportunity to meet the case before anadverse decision is taken. Since no suchopportunity was given it was held thatsuperannuation was in violation ofprinciples of natural justice.

8. In State of W.B. Vs. Anwar AliSarkar, 1952 SCR 284: AIR 1952 SC 75:1952 Cri LJ 510; per majority, a sevenjudge Bench held that the rule ofprocedure laid down by law comes asmuch within the purview of Article 14 of

1 All. Smt. Ram Sawari Devi & Ors. Vs. State of U.P. & Ors. 201

the Constitution as any rule of substantivelaw. In Maneka Gandhi Vs. Union ofIndia (1978) 1 SCC 248: (1978) 2 SCR621 another Bench of seven judges heldthat the substantive and procedural lawsand action taken under them will have topass the test under article 14. The test ofreasons and justice cannot be abstract.They cannot be divorced from the needsof the nation. The tests have to bepragmatic otherwise they would cease tobe reasonable. The procedure prescribedmust be just, fair and reasonable eventhough there is no specific provision in astatute or rules made thereunder forshowing cause against action proposed tobe taken against an individual, whichaffects the right of that individual. Theduty to give reasonable opportunity to beheard will be implied from the nature ofthe function to be performed by theauthority which has the power to takepunitive or damaging action. Evenexecutive 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 orunfairness. They have to act in a mannerwhich is patently impartial and meets therequirement of natural justice.

9. 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 liable tobe 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 civil

consequences 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 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 and ifa 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.

10. Therefore, fair play in actionrequires that the procedure adopted mustbe just, fair and reasonable. The mannerof exercise of the power and its impact onthe rights of the person affected would bein conformity with the principles ofnatural justice. Article 21 clubs life withliberty, dignity of person with means oflivelihood without which the gloriouscontent of dignity of person would bereduced to animal existence. When it isinterpreted that the colour and content ofprocedure established by law must be inconformity with the minimum fairnessand processual justice, it would relievelegislative 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 natural justiceare part of Article 14 and the procedureprescribed by law must be just, fair andreasonable.


11. Since the order impugned leads tocivil consequences, therefore the samecould not be passed without affording anyopportunity of hearing. Reference may behad to the judgments of the Apex Court inM/s Erusian Equipment and Chemicals Ltd.Vs. State of West Bengal & Anr., A.I.R.1975 Supreme Court 266, RaghunathThakur Vs. State of Bihar & Ors., A.I.R1989 SC 620, and M/s. Southern Painters(Supra), Gronsons Pharmaceuticals (P) Ltd.& Anr. Vs. State of Uttar Pradesh & Ors.,A.I.R. 2001 SC 3707, as well as DivisionBench judgment of this Court in (Smt RajniChauhan Vs. State of U.P. & Ors.), (2010(6) AWC 5762) and (Society for Educationand Welfare Awareness (Sewa) thru itsecretary vs. Union of India thru Ministry ofHuman welfare (Manav Sansadhan) NewDelhi and others) (2011 (6) ADJ 787).

12. Learned standing counsel hasnot been able to demonstrate from theperusal of recovery certificate thatanywhere the version of the petitionershas been considered. It is settled law thatany order which leads to civilconsequences must be passed inconformity with the principles of naturaljustice. Since here the impugned order hasbeen passed in derogation of principle ofnatural justice, therefore, impugnedorders/recovery certificates cannot besustained in the eye of law.

13. In the result, writ petitionsucceeds and is allowed and theimpugned order dated 22.8.2015(annexure- 4A, 4B, 4C) and the recoverycertificate dated 16.10.2015 (annexure-6)are hereby quashed. However, allowingthe writ petition will not preclude therespondents to proceed in accordancewith law.

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ORIGINAL JURISDICTIONCIVIL SIDE


BEFORETHE HON'BLE DINESH MAHESHWARI, J.THE HON'BLE RAKESH SRIVASTAVA, J.

Service Bench No. 1517 of 2001

Sewak Saran Gupta [Objection filed] ...Petitioner

VersusState of U.P. ...Respondent

Counsel for the Petitioner:C.S. Pandey, Chandra Shekhar Pandey,Vijay Dixit

Counsel for the Respondent:C.S.C., A.K. Srivastava, Ashok KumarSrivastava, Deepak Seth, SanjievaShankhdhar

Constitution of India, Art.-226-claim ofinterest-delay in payment of retiralbenefits-petitioner retired on 31.03.99working as District Judge-03.08.99pension paper forwarded to DirectorPension 29.01.2000 pension paymentorder send to Accountant General-after 8months error rectified on 20.09.2000pension paid on 12.02.01-held-entitledfor interest @ 12% p.a on delayedpayment-payable within 30 days-afterexpiry of aforesaid period 9% interestshall be payable on total amount ofinterest-from the date of judgment toactual payment made.

Held: Para-30 & 3130. Retiral benefits are the accumulatedsavings of a lifetime of service of aGovernment servants. In a large numberof cases, the retiral benefits are the onlysource of livelihood and means ofsurvival not only for the retiredGovernment servant but for his entirefamily. If the retirel benefits are not paidin time, the very survival of the retiredemployee and his family members comes

1 All. Sewak Saran Gupta [Objection filed] Vs. State of U.P. 203

under question. The respondents shouldrealise that the delay in payment of theretiral dues of a retired Governmentservant may have a devastating effect onthe lives of the retired Governmentservant and his family causing untoldhardship. In the matter of grant of retiralbenefits to the retired governmentservants, the respondents are expectedto be alive to the problem of the retiredemployee and are expected to strictlyadhere to the time-schedule prescribed.

31. In the facts and circumstancesmentioned above, we are of the firmopinion that there is no justification on thepart of the contesting respondents for theinordinate delay in processing the pensionpapers of the petitioner. The claim of thepetitioner for interest on delayed paymentof his retiral benefits is, thus, upheld.

Case Law discussed:(1985) 1 SCC 429; (1999) 3 SCC 438; (2008) 3SCC 44.

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

1. Shri Sewak Saran Gupta, a retiredDistrict Judge, has preferred this writpetition praying inter alia for a directionto the respondents to pay interest @ 18%per annum on the delayed payment of hisretiral dues.

2. After putting in 33 years ofunblemished service, the petitioner, onattaining the age of superannuation, retiredfrom service from the post of District Judge,Deoria on 31.03.1999. Nine months beforethe petitioner retired, in July, 1998, thepetitioner was served with a letter dated07.07.1998 sent by the Registry of HighCourt, requiring him to submit his pensionpapers. It is alleged that in response to thesaid letter, the petitioner sent his pensionpapers, duly completed in all respect, alongwith his letter dated 03.08.1998 to the

Registry of High Court. Just before hisretirement, the petitioner sent a letter dated19.03.1999 to the Registry with a request thathis pension and gratuity papers be forwardedto the Directorate of Pension at the earliest sothat he may get his retiral dues immediatelyafter his retirement and he may not have toface any financial hardship. The petitionerfurther requested that in case it was notpossible to process his pension papers at anearly date, for any reason, whatsoever, thenprovisional pension and gratuity be paid tohim as per the rules. The petitioner is said tohave sent reminders on 19.06.1999 &04.08.1999 for expediting the payment of hisretiral dues. On 03.08.1999 the respondentno.5 forwarded the pension papers of thepetitioner to the Director, Directorate ofPension, Lucknow-the respondent no. 2. Therespondent no. 2, after about four months, on29.01.2000, sent the 'Pension Payment Order'to the Accountant General (A&E) II, UP,Allahabad-the respondent no.3. Eight monthsthereafter, the respondent no.3 on20.09.2000, after getting the alleged error inthe 'Pension Payment Order' rectified by therespondent no.2, sent the requisite order tothe Accountant General (A&E), MadhyaPradesh, Gwalior - the respondent no.6 fordisbursement of petitioner's pension andother retiral benefits. The respondent no.6, inturn, on 20.12.2000 forwarded the pensionpapers of the petitioner to the TreasuryOfficer, District Datia, Madhya Pradesh - therespondent no.7. Ultimately, on 12.02.2001,the petitioner was paid a sum of Rs.3,49,470/- towards gratuity and on19.02.2001, the petitioner was paid a sum ofRs 4,76,531/- towards commutation ofpension and Rs. 1,85,938/- towards arrears ofpension. A sum of Rs 36,092/- towardsGroup Insurance had already been paid to thepetitioner on 25.07.2000. Shortly thereafterthe petitioner was paid a sum of Rs 530/-towards gratuity which was earlier withheld


for want of some ''No Dues Certificate'. Thepetitioner made a representation to therespondent no.5 claiming interest @ 18% perannum on delayed payment of his retiraldues. But, as no action was taken by theauthority concerned, the petitionerapproached this Court by means of thepresent writ petition claiming penal intereston delayed payment of his retiral dues.

3. The respondents (exceptrespondent no.4) have filed their separatecounter affidavits. In their respectivecounter affidavits, the contestingrespondents have stated the manner inwhich the matter was dealt with at theirend and have tried to account for the timetaken by them in processing the pensionpapers of the petitioner and havesubmitted that there was no deliberate orwillful delay on their part.

4. In the counter affidavit filed onbehalf of the opposite party no.5, it hasbeen stated that as the petitioner was dueto retire on 31.03.1999 and a such, inview of the G.O. dated 28.07.89, a letterdated 07.07.1998 was sent to thepetitioner requiring him to submit hispension and gratuity papers. A copy of thesaid letter was also endorsed to theDistrict Judge, Siddharthnagar and Balliaand to the Senior Accounts Officer,Accountant General, U.P., Allahabad forsubmission of ''No Dues Certificate'. Acopy of the said letter was also endorsedto the Joint Director (Treasury), CampOffice, Allahabad, requiring the latter tosubmit the History/Statement of Serviceof the petitioner to the former. In responseto the said letter, the petitioner sent hispension papers, along with his letter dated03.08.1998 to the Registry of High Court.The District Judge, Siddharthnagar andBallia and the office of the Accountant

General sent the desired ''No DuesCertificate' on 04.08.1998, 17.09.1998and 03.08.1998 respectively. Thepetitioner also submitted his revisedpension papers according to the revisedenhanced pay along with his letter dated18.12.1998. It has been then alleged thatafter obtaining reports from varioussections, the then Additional Registrar ofHigh Court along with his office notedated 25.05.1999 forwarded the pensionpapers of the petitioner to the RegistrarGeneral for laying the file before Hon'blethe Chief Justice for his perusal andorders; and vide Court's order dated29.05.1999, Hon'ble the Chief Justicegranted his approval for sending thepension papers of the petitioner to therespondent no. 2 for necessary action.

5. In paragraph 13 of the saidcounter affidavit, it has been alleged thatthe orders of Hon'ble the Chief Justicealong with the papers pertaining to thepetitioner were received by the DeputyRegistrar (M) on 31.05.1999 and on thesame day it was sent to Administration 'A'Section and was given to the then dealingassistant. It has been stated that after31.05.1999 there were summer vacationsfrom 01.06.1999 to 30.06.1999 and thedealing assistant proceeded to availsummer holidays from 02.06.1999 to15.06.1999 and then from 16.06.1999 to30.06.1999, the concerned dealingassistant was deputed on the work ofcodification of cases and thereafter heproceeded on medical leave w.e.f.04.07.1999 to 20.07.1999. He resumedduty on 21.07.1999 after availing medicalleave and thereafter prepared the draftletter on 22.07.1999 for sending thepension papers of the petitioner to theDirector, Directorate of Pension, U.P.,Lucknow for necessary action and


thereafter on 03.08.1999, the respondentno. 5 forwarded the pension papers of thepetitioner to the respondent no. 2 forsettlement of his pension and gratuity etc.

6. According to the respondent no.5,there was no deliberate delay inprocessing the pension papers of thepetitioner. On the contrary, it has beenalleged, that prompt action was taken inforwarding the pension papers of thepetitioner to the respondent no. 2. It hasbeen further alleged that the request forpayment of provisional pension made bythe petitioner in his letter dated19.03.1999 could not be acceded to as thefile was already under submission toHon'ble the Chief Justice for approval.The only duty cast upon the respondentno. 5, in so far as the District Judiciarywas concerned, it is alleged, was toforward the pension papers of thepetitioner to the Directorate of Pension. Ithas been submitted that the respondentno. 5 was not responsible for thedisbursement of retiral dues of thepetitioner and, as such, the respondent no.5 was not obliged to pay any penalinterest for the delay, if any, indisbursement of the retiral dues of thepetitioner.

7. As per the counter affidavit filedon behalf of the respondent nos. 1 & 2,the pension papers of the petitioner sentby respondent no. 5 along with his letterdated 03.08.1999 were received in theoffice of respondent no. 2 on 13.09.1999and on 29.01.2000 the ''Pension PaymentOrder' for making necessary paymentswas sent to the respondent no. 3. It hasbeen stated that the details of servicehistory and average pay, which werenecessary for processing the pensionpapers of the petitioner, were supplied to

the respondent no. 2 by respondent no. 4on 13.12.1999 and immediately thereafterthe pension papers of the petitioner wereprocessed and payment order was issued.It has been categorically stated that theretiral dues of the petitioner had been paidand as per rule the petitioner was entitledfor interest on delayed payment ofgratuity only @ 12% per annum whichwas to be sanctioned by the opposite partyno. 5.

8. A counter affidavit has also beenfiled on behalf of respondent no.3 inwhich it has been stated that the 'PensionPayment Order' received by therespondent no.3 from the office ofrespondent no.2 contained certainomissions/errors and, as such, the samecould not be processed at his end. It hasbeen stated that respondent no.3 in thisregard sent a letter to respondent no.2 on19.04.2000 for rectifying 'PensionPayment Order' of the petitioner. It hasbeen stated that after rectification of thepension payment order it was received inthe concerned section of the office ofrespondent no.3 in the month of August,2000 and on 20.09.2000 Special SealAuthority was issued by the respondentno.3 to the Accountant General (A&E),MP, Gwalior -the respondent no.6 fornecessary action in the matter. In hiscounter affidavit the respondent no.3 hasalleged that there was no delay on his partin processing the pension papers of thepetitioner and as such the petitioner wasnot entitled to any relief againstrespondent no.3

9. The respondent no.6, in hiscounter affidavit has alleged that thepension papers of the petitioner,forwarded by respondent no.3 under hisSpecial Seal Authority, were received in


his office on 12.10.2000 and on20.12.2000, with great promptitude, thepapers were forwarded by him to therespondent no.7 for necessary action athis end. It has been alleged that therespondent no.6 was in no wayresponsible for the delay, in any, inpayment of the retiral dues of thepetitioner.

10. The respondent no.7 has alsofiled his counter affidavit alleging thereinthat there was no delay, whatsoever, onhis part in making payment of the retiraldues of the petitioner. It has been allegedthat the certain information was requiredto be furnished by the petitioner and assoon the said information was furnishedby the petitioner, the retiral dues werepaid to him.

11. The petitioner, by filingrejoinder affidavits to the counteraffidavits filed on behalf of the contestingrespondents, has refuted the stand takenby the respondents and has reiterated thecontents of the writ petition. Though thepetitioner has made a prayer in the writpetition for a direction to the respondentsto pay the remaining gratuity and G.P.F.alongwith interest but since all theoutstanding amount has been paid to thepetitioner, the learned counsel for thepetitioner has confined his prayer forpayment of interest to the petitioner ondelayed payment of his retiral dues.

12. Sri Vijay Dixit, the learnedcounsel for the petitioner, has submittedthat the petitioner had completed all theformalities and had submitted all thepapers required for grant of his retiralbenefits much before his retirement, butunnecessarily and without anyjustification, the petitioner was paid his

retiral dues after a considerable delay oneach count, causing uncalled for financialhardship and as such the petitioner isentitled to interest on delayed payment ofhis retiral dues.

13. Per contra, the learned StandingCounsel appearing on behalf of therespondent nos.1 to 4 and Sri GauravMehrotra, the learned counsel appearingon behalf of the respondent no.5 havesubmitted, in unison, that the delay, ifany, in payment of the retiral dues of thepetitioner was neither deliberate nor itwas caused on account of any inaction onthe part of the contesting respondents andas such the contesting respondents couldnot be blamed for the delay, if any, inpayment of the retiral dues of thepetitioner.

14. Heard the learned counsel for theparties and perused the record.

15. Pension is not a bounty payableon the sweet will and the pleasure of theGovernment is a well-settled legalproposition. It is also well settled that theretiral dues of an employee have to bepaid with promptitude or else theGovernment is liable to pay interestunless the delay can be attributed to theemployee concerned or the Government isable to show that there was some cogentand valid justification for the delay.

16. In the case at hand, the petitionerretired from service on 31.3.1999 and hisretiral dues were paid to him in February,2001. Thus, there cannot be any disputethat there has been an inordinate delay inpayment of the retiral dues of thepetitioner. In the counter affidavits filedon behalf of the contesting respondents,the delay has not been attributed to any


fault or omission on the part of thepetitioner. What is to be seen now is as towhether the respondents have anyjustification on their part for theinordinate delay in making payment of theretiral dues to the petitioner.

17. The petitioner retired fromservice on 31.3.1999 and, admittedly, forthe first time a letter dated 07.07.1998was sent by the Registry of High Court tothe petitioner for submission of his papersfor payment of his retiral dues. It is not indispute that in response to the said letter,the petitioner submitted his pensionpapers along with his letter dated03.08.1998 to the Registry of High Courtbut eventually it was on 25.05.1999, aftermore than nine and a half months, that thepension papers of the petitioner wereforwarded by the Registry for laying thefile before Hon'ble the Chief Justice forperusal and orders. Nine months is toolong a time for the Registry of High Courtto process the pension papers of thepetitioner, a Judicial Officer belonging tothe District Judiciary, when apparentlythere was nothing adverse against thepetitioner. Admittedly, the ''No DuesCertificate' from the District Judge,Siddharthnagar and Ballia and the officeof the Accountant General were receivedon 04.08.1998, 17.09.1998 and03.08.1998 respectively. It is hard tocomprehend that it took eight months forthe Registry to process the pension papersof the petitioner and place it beforeHon'ble the Chief Justice for approval.The explanation given by respondent no.5for the delay in processing the pensionpapers of the petitioner is, thus, far fromsatisfactory and is unacceptable.

18. Apart from the above, after theHon'ble Chief Justice granted his

approval, the pension papers of thepetitioner should have been forwarded tothe respondent no.2 for necessary actionforthwith. But, the Registry of High Courttook almost two months to do so. We areof the firm opinion that the explanationoffered by the respondent no.5, inparagraph 13 of the counter affidavit, forthe time taken by the Registry inforwarding the pension papers of thepetitioner after the Hon'ble the ChiefJustice granted his approval is flimsy andis an attempt to cover up the failure intaking prompt action in the matter.

19. In so far as the respondent nos.2& 3 are concerned, the pension papersforwarded by the respondent no.5 werereceived in the office of respondent no.2 on13.09.1999 and on 29.01.2000 the ''PensionPayment Order' for making necessarypayments was sent by him to the respondentno.3. The respondent no.2 took three and ahalf months to process the pension papers ofthe petitioner. The respondent no.3 hasjustified the time taken by him by statingthat the information relevant for processingthe papers was furnished by the respondentno.4 only on 13.12.1999 and immediatelythereafter the pension papers of thepetitioner were processed and paymentorder was issued. But, noticeably, the dateon which information was sought from therespondent no.4 has no where beenmentioned.

20. In the counter affidavit, filed onbehalf of respondent no.3 it has beenstated that there was no delay on his partin processing the pension papers of thepetitioner and as such the petitioner wasnot entitled to any relief againstrespondent no.3. Explaining the timetaken by him, the respondent no.3 hasstated that in the 'Pension Payment Order'


received by him from the office ofrespondent no.2 there were certainomissions/ errors and, as such, a letterdated 19.04.2000 was sent to respondentno.2 for its rectification. Afterrectification, it is alleged that the 'PensionPayment Order' was received in the officein the month of August, 2000 and on20.09.2000 Special Seal Authority wasissued by the respondent no.3 to theAccountant General (A&E), MP, Gwalior-the respondent no.6 for necessary actionin the matter. There is nothing on recordto indicate as to why it took almost twoand a half months to write to respondentno. 2 for rectification of the allegedomission / error and why it took almostfour months for the respondent no.2 tomake the necessary rectification and sendthe ''Pension Paper Order' back to therespondent no.3. It can be safely inferredthat the respondent no.2 did not act withthe kind of promptness expected of him insuch matters. In any case, it was a matterbetween respondent nos.2 and 3 and thedelay on their part is not attributable tothe petitioner.

21. As per the counter affidavit filedby respondent no.6, the Special SealAuthority sent by respondent no.3 wasreceived in his office on 12.10.2000 andon 20.12.2000, with great promptitude,the papers were forwarded by him to therespondent no.7 for necessary action athis end. The respondent no.6 took morethan two months, just to forward thepension papers of the petitioner to therespondent no.7. By no stretch ofimagination it can be said that therespondent no.6 acted with promptitude asalleged by him.

22. There is no quarrel between theparties that as per the Rules andinstructions laying down the time-

schedule for the various steps to be takenin regard to the payment of pension of agovernment servant in the State of UttarPradesh, the Head of Office, or otherauthority responsible for preparing thepension papers is obliged to initiate thepension case, two years before retirementof the government servant and aftercollecting the essential informationnecessary for working out the qualifyingservice, the deficiencies andimperfections, if any, in the service-book/records is to be removed at leasteight months in advance of the date ofretirement of the government servant.Then the process of determining theadmissible pension and gratuity is to bepositively completed within a period of 2months and the pension papers are to besent to the Accountant General not laterthan 6 months before the date ofretirement. The office of the AccountantGeneral is obliged to issue the pensionpayment order one month in advance ofthe date of retirement. The authorities areobliged to ensure that the payment ofsuperannuation pension commences onthe first of the month following the monthin which the government servant retires.

23. In the case at hand, the time-schedule for processing the pensionpapers of the petitioner has not beenadhered to. Admittedly, the process forpreparing the pension papers of thepetitioner was initiated only on07.07.1998, nine months before the dateof retirement of the petitioner. Whereas,the said process ought to have beeninitiated two years before the date ofretirement of the petitioner. In the counteraffidavit filed on behalf of the respondentno.5, there is no explanation, whatsoever,for the delay in initiating the process forpreparing the pension papers of the


petitioner in time. The Registry of HighCourt was well aware of the date ofretirement of the petitioner and as such,there was no justification on the part ofthe Registry in not initiating the processfor preparing the pension papers of thepetitioner in time. Moreover, afterreceiving the pension papers, the Registrytook almost a year to process the same forwhich, there is no valid justification.Similarly, the other contestingrespondents have not been able to justifythe time taken by them at their end inprocessing the pension papers of thepetitioner.

24. After giving thoughtfulconsideration to the rival submissions andafter examining the material placed onrecord, we are satisfied that the petitioneris entitled to receive interest for theinordinate delay in payment of his retiraldues.

25. The learned counsel for thepetitioner has referred to a G.O. dated15.07.1997 which provides that aGovernment employee is entitled to intereston delayed payment of gratuity over andabove three months from the date it becamedue till the time of its actual payment. In fact,in the counter affidavit filed on behalf ofrespondent nos.1 & 2, it has been admittedthat the petitioner was entitled to interest ondelayed payment of gratuity amount as perG.O. dated 06.12.1994 & 15.07.1997. Whenconfronted, the other contesting respondentshave also admitted the said entitlement of thepetitioner to interest. Paragraph 4 (relevantportion) and 13 of the counter affidavit filedon behalf of respondent nos.1 & 2 beingrelevant are being quoted below:

"4. ..... As per rule, the petitioner isentitled for interest on delayed payment of

gratuity amount of @ 12%, which oughtto have been sanctioned by the Head ofthe Department of the petitioner i.e.Registrar, High Court, Allahabad.

13. That in reply to the contents of,Paras 18 & 19 of the writ petition, it issubmitted that payment of interest ondelayed payment of gratuity amount onlyis admissible to the petitioner as per G.O.dated 6.12.1994 and 15.7.1997 (copyplays at Annexure No. 10 to the writpetition). Necessary orders in this regardis required to be issued by the Head of theDepartment of the petitioner andresponsibility for delay is also to beascertained, for further necessary action."

26. Though the respondents haveadmitted their liability and have statedthat in the facts and circumstances of thecase, the petitioner was entitled to be paidinterest on gratuity from the date ofexpiry of three months from the date, itbecame due, as regards interest ondelayed payment of pension on otherretirel dues, the respondents have statedthat there was no provision in the rules forpayment of interest.

27. The question of payment ofinterest on delayed payment of retiraldues is no more res integra and is settledby a catena of decisions of the ApexCourt. In State of Kerala & Ors.Vs. M.Padmanabhan Nair, (1985) 1 SCC 429,the Apex Court in paragraph no. 2 of thesaid report held as follows:-

"2. Usually the delay occurs by reasonof non-production of the L.P.C. (last paycertificate) and the N.L.C. (no liabilitycertificate) from the concerned Departmentsbut both these documents pertain to matters,records whereof would be with theconcerned Government Departments. Since


the date of retirement of every Governmentservant is very much known in advance wefail to appreciate why the process ofcollecting the requisite information andissuance of these two documents should notbe completed at least a week before the dateof retirement so that the payment of gratuityamount could be made to the Governmentservant on the date he retires or on thefollowing day and pension at the expiry ofthe following month. The necessity forprompt payment of the retirement dues to aGovernment servant immediately after hisretirement cannot be over-emphasised and itwould not be unreasonable to direct that theliability to pay penal interest on these dues atthe current market rate should commence atthe expiry of two months from the date ofretirement."

28. In Dr. Uma Agarwal Vs. State ofUP & Anr., (1999) 3 SCC 438, the whileconsidering the Rules and instructionswhich prescribe the time-schedule for thevarious steps to be taken in regard to thepayment of pension and other retiralbenefits of government servants in theState of Uttar Pradesh, the Apex Courthas held that the Government was obligedto follow the rules and the delay insettlement of retiral dues should beavoided at all costs. Paragraph no. 5 of thesaid report is reproduced below:-

"5. We have referred in sufficientdetail to the Rules and instructions whichprescribe the time-schedule for thevarious steps to be taken in regard to thepayment of pension and other retiralbenefits. This we have done to remind thevarious governmental departments of theirduties in initiating various steps at leasttwo years in advance of the date ofretirement. If the Rules/instructions arefollowed strictly, much of the litigation

can be avoided and retired governmentservants will not feel harassed becauseafter all, grant of pension is not a bountybut a right of the government servant. TheGovernment is obliged to follow theRules mentioned in the earlier part of thisorder in letter and in spirit. Delay insettlement of retiral benefits is frustratingand must be avoided at all costs. Suchdelays are occurring even in regard tofamily pension for which too there is aprescribed procedure. This is indeedunfortunate. In cases where a retiredgovernment servant claims interest fordelayed payment, the court can certainlykeep in mind the time-schedule prescribedin the Rules/instructions apart from otherrelevant factors applicable to each case."

29. In the case of S.K. Dua v. Stateof Haryana, (2008) 3 SCC 44, the ApexCourt has held that in the absence ofstatutory rules, administrative instructionsor guidelines, an employee can claiminterest relying on Articles 14, 19 and 21of the Constitution. :

14. In the circumstances, prima facie,we are of the view that the grievance voicedby the appellant appears to be well foundedthat he would be entitled to interest on suchbenefits. If there are statutory rulesoccupying the field, the appellant couldclaim payment of interest relying on suchrules. If there are administrative instructions,guidelines or norms prescribed for thepurpose, the appellant may claim benefit ofinterest on that basis. But even in absence ofstatutory rules, administrative instructions orguidelines, an employee can claim interestunder Part III of the Constitution relying onArticles 14, 19 and 21 of the Constitution.The submission of the learned counsel for theappellant, that retiral benefits are not in thenature of "bounty" is, in our opinion, well

1 All. Umesh Chand Yadav Vs. The I.G. and Chief Security Comm. & Ors. 211

founded and needs no authority in supportthereof. In that view of the matter, in ourconsidered opinion, the High Court was notright in dismissing the petition in limine evenwithout issuing notice to the respondents.

30. Retiral benefits are theaccumulated savings of a lifetime ofservice of a Government servants. In alarge number of cases, the retiral benefitsare the only source of livelihood andmeans of survival not only for the retiredGovernment servant but for his entirefamily. If the retirel benefits are not paidin time, the very survival of the retiredemployee and his family members comesunder question. The respondents shouldrealise that the delay in payment of theretiral dues of a retired Governmentservant may have a devastating effect onthe lives of the retired Governmentservant and his family causing untoldhardship. In the matter of grant of retiralbenefits to the retired governmentservants, the respondents are expected tobe alive to the problem of the retiredemployee and are expected to strictlyadhere to the time-schedule prescribed.

31. In the facts and circumstancesmentioned above, we are of the firmopinion that there is no justification on thepart of the contesting respondents for theinordinate delay in processing the pensionpapers of the petitioner. The claim of thepetitioner for interest on delayed paymentof his retiral benefits is, thus, upheld.

32. In view of the above, this writpetition is allowed. The respondents aredirected to calculate and make payment ofinterest on the delayed payment of gratuityto the petitioner, as per the G.O.'s06.12.1994 & 15.07.1997. The respondentsare further directed to calculate and pay to

the petitioner interest on the delayedpayment of other retiral dues @ 12% perannum from the date the same became due,till the time of its actual payment. Therespondents shall ensure that the actualpayment is made to the petitioner within30 days from the date of this order, failingwhich, the entire payable amount shallcarry interest at the rate of 6% per annumfrom the date of this order. Therespondents shall be expected to holdnecessary inquiry/inquiries to fix theresponsibility for delay and defaults in thismatter and to take further necessary actionagainst the erring officers/employees inaccordance with law.



BEFORETHE HON'BLE AMIT STHALEKAR, J.

Writ-A No. 1575 of 2016

Umesh Chand Yadav ...PetitionerVersus

The I.G. and Chief Security Comm. & Ors....Respondents

Counsel for the Petitioner:Rajeev Chaddha

Counsel for the Respondents:Sudhir Bharti

Constitution of India-Art.-226-Service Law-Petitioner being selected on post ofconstable in RPF-during training period onits own filed affidavit regardinginvolvement in criminal case as well asdischarged by CJM-much prior toadvertisement-dismissal order-treatingconcealment of this fact in verificationforum-not available-even non considerationof eligibility-order illegal-quashed-directionfor reconsideration keeping in view of RamKumar Gupta case-given.


Held: Para-9In my opinion in the present case thejudgement of the High Court in the case ofRam Kumar (supra) squarely applies. Therespondents while passing the impugnedorder cancelling the candidature of thepetitioner have not taken into considerationthe question of eligibility of the petitioner orthe fact that he had himself at the time ofbeing sent for training filed an affidavitdisclosing the fact that he had beeninvolved in a criminal case and dischargedas far back as in 2001.

Case Law discussed:Civil Appeal No. 7106 of 2011; Civil Appeal No.3470 of 2008; Special Appeal No. 181 of 2015

(Delivered by Hon'ble Amit Sthalekar, J.)

1. Supplementary affidavit filedtoday is taken on record.

2. Heard Shri Rajeev Chaddha, learnedcounsel for the petitioner and Shri SudhirBharti, learned counsel for the respondents. .

3. The petitioner is seeking quashingof the order dated 19.2.2015 whereby hiscandidature for the post of Constablerecruit has been cancelled on the groundthat he has submitted false attestationform with regard to criminal case.

4. The facts which are not in disputebetween the parties are that the petitionerapplied for the post of Constable in theRailway Protection Force. In theattestation form he was required todisclose as to whether he has ever beenarrested or prosecuted or kept underdetention. The petitioner did not fill thispart of the attestation form. However, atthe time of training he himself filedaffidavit, Annexure-5 to the writ petition,stating that he was involved in a criminalcase under section 465/468/471 I.P.C. indistrict Gorakhpur and case crime no. 15

of 2000 had been registered against himbut he was discharged by the order of theA.C.J.M. Gorakhpur dated 15.1.2001,Annexure-6 to the writ petition.

5. Learned counsel for the petitionersubmits that it was never the intention of thepetitioner to withhold any information fromthe respondents in that though due to error hehad omitted to fill up the requisite applicationform disclosing the criminal proceedingsagainst him but at the very first instance atthe time of training he had filed his ownaffidavit disclosing these facts without evensame being called for by the respondents. Insupport of his contention, learned counselhas placed reliance upon the judgement ofthe Supreme Court passed in Civil AppealNo. 7106 of 2011 (Ram Kumar Vs. State ofU.P. and others) wherein also the petitionerhad applied for the post of Constable andomitted to fill up his attestation applicationregarding pendency of criminal case againsthim. In that case the facts were that in thecriminal case the petitioner therein had beenacquitted and therefore he did not think itnecessary to state the said case regardinginvolvement in a criminal case in hisattestation form. When these facts werediscovered his appointment was cancelled.Referring to the facts of the case, theSupreme Court held that the facts on whichthe petitioner/appellant had been acquittedwas not examined by the S.S.P. Ghaziabadas to whether they were of serious nature orwhether on the grounds mentioned thereinthe petitioner may be ineligible forappointment and accordingly the impugnedorder of cancellation of appointment of thepetitioner therein was quashed by theSupreme Court. Paragraphs 7,8,9 and 10 ofthe said judgement read as under:

" 7. In the facts of the present case, wefind that though Criminal Case No.275 of

1 All. Umesh Chand Yadav Vs. The I.G. and Chief Security Comm. & Ors. 213

2001 under Sections 324/323/504 IPC hadbeen registered against the appellant atJaswant Nagar Police Station, DistrictEtawah, admittedly the appellant had beenacquitted by order dated 18.07.2002 by theAdditional Chief Judicial Magistrate,Etawah. On a reading of the order dated18.07.2002 of the Additional Chief JudicialMagistrate would show that the sole witnessexamined before the Court, PW-1 Mr.Akhilesh Kumar, had deposed before theCourt that on 02.12.2000 at 4.00 p.m.children were quarrelling and at that timethe appellant, Shailendra and Ajay Kumaramongst other neighbours had reached thereand someone from the crowd hurled abusesand in the scuffle Akhilesh Kumar gotinjured when he fell and his head hit a brickplatform and that he was not beaten by theaccused persons by any sharp weapon. In theabsence of any other witness against theappellant, the Additional Chief JudicialMagistrate acquitted the appellant of thecharges under Sections 323/34/504 IPC. Onthese facts, it was not at all possible for theappointing authority to take a view that theappellant was not suitable for appointment tothe post of a police constable.

8. The order dated 18.07.2002 of theAdditional Chief Judicial Magistrate hadbeen sent along with the report dated15.01.2007 of the Jaswant Nagar PoliceStation to the Senior Superintendent ofPolice, Ghaziabad, but it appears fromthe order dated 08.08.2007 of the SeniorSuperintendent of Police, Ghaziabad, thathe has not gone into the question as towhether the appellant was suitable forappointment to service or to the post ofconstable in which he was appointed andhe has only held that the selection of theappellant was illegal and irregularbecause he did not furnish in his affidavitin the proforma of verification roll that acriminal case has been registered against

him. As has been stated in the instructionsin the Government Order dated28.04.1958, it was the duty of the SeniorSuperintendent of Police, Ghaziabad, asthe appointing authority, to satisfy himselfon the point as to whether the appellantwas suitable for appointment to the postof a constable, with reference to thenature of suppression and nature of thecriminal case. Instead of consideringwhether the appellant was suitable forappointment to the post of male constable,the appointing authority has mechanicallyheld that his selection was irregular andillegal because the appellant hadfurnished an affidavit stating the factsincorrectly at the time of recruitment.

9. In Kendriya Vidyalaya Sangathanand Others v. Ram Ratan Yadav (supra)relied on by the respondents, a criminalcase had been registered under Sections323, 341, 294, 506-B read with Section 34IPC and was pending against therespondent in that case and therespondent had suppressed this materialin the attestation form. The respondent,however, contended that the criminal casewas subsequently withdrawn and theoffences in which the respondent wasalleged to have been involved were alsonot of serious nature. On these facts, thisCourt held that the respondent was toserve as a Physical Education Teacher inKendriya Vidyalaya and he could not besuitable for appointment as the character,conduct and antecedents of a teacher willhave some impact on the minds of thestudents of impressionable age and if theauthorities had dismissed him fromservice for suppressing materialinformation in the attestation form, thedecision of the authorities could not beinterfered with by the High Court.

The facts of the case in KendriyaVidyalaya Sangathan and Others v. Ram


Ratan Yadav (supra) are thereforematerially different from the facts of thepresent case and the decision does notsquarely cover the case of the appellantas has been held by the High Court.

10. For the aforesaid reasons, weallow the appeal, set aside the order ofthe learned Single Judge and theimpugned order of the Division Benchand allow the writ petition of theappellant and quash the order dated08.08.2007 of the Senior Superintendentof Police, Ghaziabad. The appellant willbe taken back in service within a period oftwo months from today but he will not beentitled to any back wages for the periodhe has remained out of service. Thereshall be no order as to costs."

6. Shri Sudhir Bharti, learnedcounsel for the respondents on the otherhand has placed reliance upon anotherjudgement of the Supreme Court passedin Civil Appeal No. 3470 of 2008 (Unionof India Vs. Bipad Bhanjan Gayen)wherein the Supreme Court has held thatnon disclosure of information regardingpendency of criminal case under section376 and 417 I.P.C. in the attestation formwas a deliberate attempt by the petitionerto conceal material fact from therespondents. In that case it is noticed thatthe criminal case against the petitionerwas still pending in the court at the timewhen the petitioner Bipad Bhanjan Gayenhad filled the attestation form and,therefore, the Supreme Court held that itwas a case of deliberate concealment ofmaterial fact by the petitioner from therespondents while filling the attestationform. Therefore, in my view the aforesaidjudgement of the Supreme Court was onits own facts and has no application to thefacts of the present case.

7. The next case relied upon by thelearned counsel for the respondents is thedecision of the Division Bench of thisCourt in Special Appeal No. 181 of 2015(Veer Pal Singh Vs. State of U.P. and 3others) and in that case also the facts asemerging in paragraph 8 of the judgementare that the appellant had applied forrecruitment in pursuance of advertisementdated 2.5.2006 as a Constable in the PAC.Before he applied for selection a caseCrime No. 136 of 2004 had beenregistered against him under sections 323,452, 504 and 506 I.P.C. and a chargesheet had also been filed on 10.8.2004.When the appellant applied forrecruitment he expressly stated that nocriminal case had been registered againsthim and that no prosecution was pendingagainst him in any court. He was selectedon 28.8.2006 . On 31.8.2006 he appliedfor and was granted bail by the court ofC.J.M. The judgement of acquittal wasrendered by the C.J.M. on 27.8.2007. TheDivision Bench held that from these factsit cannot be even disputed that thedisclosures which the appellant madewhen he sought appointment as aConstable were palpably false and that hehad suppressed the material fact relatingto the pendency of the criminal caseagainst him. Paragraph 8 of the judgementreads as under:

"The facts in the present case arenot in dispute. The appellant applied forrecruitment in pursuance of anadvertisement dated 2 May 2006 as aConstable in the PAC. Admittedly,before he applied for selection, CaseCrime No.136 of 2004 had beenregistered against him under Sections323, 452, 504 and 506 of the IPC and acharge sheet had been filed on 10August 2004. Again, it is not in dispute

1 All. Shreyas Gramin Bank & Anr. Vs. Smt. Kasturi Devi 215

that when he applied for recruitment,the appellant expressly stated that nocriminal case had been registeredagainst him and that no prosecution waspending against him in any Court. Whenhe filed an affidavit, the appellant alsoundertook that if his disclosures werefound to be incorrect or, if he was foundto have materially suppressed any truefacts, his selection would standcancelled and that he would beterminated from service without notice.The appellant was selected on 28August 2006. It is his specific case inthe submissions of Counsel thatthereafter on 31 August 2006 he appliedfor and was granted bail by the Court ofthe Chief Judicial Magistrate. Thejudgment of acquittal was rendered bythe Chief Judicial Magistrate on 27August 2007. From these facts, it cannotnot even be disputed that the disclosureswhich the appellant made when hesought appointment as a Constable werepalpably false and that he hadsuppressed a material fact relating tothe pendency of the criminal caseagainst him. The appellant was clearlyon notice that his appointment wasliable to be terminated and the selectionwould be cancelled if his disclosureswere found to be incorrect and if therewas a suppression of material facts."

8. The judgment of the DivisionBench in the case of Veer Pal Singh(supra) is on its own facts and hasabsolutely no application to the facts ofthe present case.

9. In my opinion in the present casethe judgement of the High Court in thecase of Ram Kumar (supra) squarelyapplies. The respondents while passingthe impugned order cancelling the

candidature of the petitioner have nottaken into consideration the question ofeligibility of the petitioner or the fact thathe had himself at the time of being sentfor training filed an affidavit disclosingthe fact that he had been involved in acriminal case and discharged as far backas in 2001.

10. In this view of the matter, theimpugned order 19.2.2015 cannot surviveand is quashed. The writ petition isallowed and the matter is remitted to therespondent no. 3-Senior DivisionalSecurity Commissioner, R.P.F. AmbalaDivision, Incharge of PRTC/JehankhelanHoshiarpur to reconsider the matter in thelight of the observations made above aswell as having regard to the judgement ofthe Supreme Court in the case of RamKumar (supra) within a period of onemonth from the date of receipt of thecertified copy of this order.

-------.APPELLATE JURISDICTION


BEFORETHE HON'BLE V.K. SHUKLA, J.

THE HON'BLE MAHESH CHANDRATRIPATHI, J.


Shreyas Gramin Bank & Anr. ..AppellantsVersus

Smt. Kasturi Devi ...Respondent

Counsel for the Appellants:Yashwant Varma

Counsel for the Respondent:Bharat Pratap Singh, Amrish Sahai

Constitution of India, Art.-226-compassionate appointment class 4th


employee working Gramin Bank died inharness on 27.09.2005-applied forcompassionate appointment rejection onground of new scheme under clause 13-entitled for ex-gratia lump sum amount-Learned Single Judge exceeded itsjurisdiction by directing compassionateappointment-can not be claimed as matterright to this extent-order passed by SingleJudge modified with direction to considerex-gratia payment within 3 months.

Held: Para-29Hon'ble Apex Court considered variousaspects of service jurisprudence and came tothe conclusion that as the appointment oncompassionate ground may not be claimedas a matter of right nor an applicantbecomes entitled automatically forappointment, rather it depends on variousother circumstances i.e. eligibility andfinancial conditions of the family, etc., theapplication has to be considered inaccordance with the scheme. In case theScheme does not create any legal right, acandidate cannot claim that his case is to beconsidered as per the Scheme existing onthe date the cause of action had arisen i.e.death of the incumbent on the post. In StateBank of India & Anr. (supra), this Court heldthat in such a situation, the case under thenew Scheme has to be considered.

Case Law discussed:JT 2007 (3) SC 35; 2010 (5) SCC 186; 2006(1) ADJ 440; Special Appeal No. 840 of 2004;W.P. No. 24066 of 2000; Special Appeal No.1511 of 2012; Special Appeal No. 954 of 2009;Special Appeal Defective No. 884 of 2015;1994 AIR (II) 2148; (1994) 4 SCC 138; (2004)7 SCC 271; (2006) 7 SCC 350; 2010 Law Suit(SC) 1214; (2015) 7 SCC 412; 2014 (2) ADJ742 (FB); (1989) 4 SCC 468; (1994) 4 SCC138; (1994) 2 SCC 718; (1996) 1 SCC 301;(1996) 5 SCC 308:AIR 1996 SC 2445; (1997) 8SCC 85; 2006 AIR SCW 3708; Special AppealNo. 356 of 2012;

(Delivered by Hon'ble M.C. Tripathi, J.)

1. Gramin Bank of Aryavart (earlierknown as 'Shreyas Gramin Bank) through

its Chairman and the General Manager,Gramin Bank of Aryavart are before thisCourt assailing the validity of thejudgement and order dated 22.9.2010passed by learned Single Judge of thisCourt in Writ A No.43145 of 2007 (Smt.Kasturi Devi vs. Shreyas Gramin Bankand ors) wherein he had proceeded toallow the writ petition and the appellant-bank was directed to forthwith re-considerthe claim for compassionate appointmentwithin two months.

2. The factual situation that isaccepted before us is that husband of thepetitioner-respondent was working as aClass-IV employee under the appellant-bank and he died in harness on 27.9.2005.Thereafter being as widow of late LalaRam, the petitioner-respondent hadproceeded to move an application forcompassionate appointment on 8th October,2005. The claim of the petitioner wasrejected on 7.12.2010 precisely on theground that in view of the new Schemehaving been enforced, the petitioner-respondent is only entitled for ex-gratialump sum amount which satisfies her claim,and as such, she was not entitled forcompassionate employment. The said orderwas assailed before learned Single Judge onthe ground that in the case of State Bank ofIndia and others Vs. Jaspal Kaur reported inJT 2007 (3) SC 35, Hon'ble Apex Court hadheld that it is the scheme, which wasapplicable at the time of moving of theapplication, which has to be enforced andconsequently the claim of the petitioner-respondent was liable to be considered forcompassionate appointment. It had beenpleaded before learned Single Judge that inview of Scheme, which was prevailing atthe time of death of her husband, she wasentitled for being considered forcompassionate appointment and subsequent


Circular issued by the appellant-bank wouldnot divest her legitimate expectation forcompassionate employment. Therefore, itwas urged that she was entitled forconsideration on the basis of the thenexisting Rules and the appellant-bank couldnot reject her claim on the basis ofsubsequent Circular.

3. It has been argued by learnedcounsel for the appellant-bank that thepetitioner was not entitled forconsideration for compassionateemployment in terms of the new Schemeas per the decision taken by the Bank.Reliance had also been placed to Clause13 of the Model Scheme for payment ofex-gratia (lum sum amount), which recitesthat if any application is pending as on theeffective date on the promulgation of thenew Scheme, which is admittedly21.10.2006, the same will be governed bythe new Scheme and it had also beenpleaded that compassionate employmentis not vested right and as such, the date ofconsideration will be an appropriate date.Consequently the Scheme applicable onsuch date would be the criteria forconsideration of such claim. Theappellant-bank had placed reliance on thejudgement passed by Hon'ble SupremeCourt in State of Kerala Vs. B-SixHoliday Resorts (P) Ltd. reported in 2010(5) SCC 186, in which it was held inparagraph 22 as follow:-

" Where the rules require grant of alicence subject to the fulfilment of certaineligibility criteria either to safeguardpublic interest or to maintain efficiency inadministration, it follows that theapplication for licence would requireconsideration and examination as towhether the eligibility conditions havebeen fulfilled or whether grant of further

licences is in public interest. Where theapplicant for licence does not have avested interest for grant of licence andwhere grant of licence depends on variousfactors or eligibility criteria and publicinterest, the consideration should be withreference to the law applicable on the datewhen the authority considers applicationsfor grant of licences and not withreference to the date of application."

4. In this background, learned SingleJudge had proceeded to allow the writpetition filed by the petitioner-respondenton the basis of decision taken by Hon'bleApex Court in State Bank of India andothers Vs. Jaspal Kaur (supra). Therelevant part of the judgement isreproduced as follows:-

"In view of the ratio of the saiddecision it is clear that the applicability ofthe circular which was not in existence atthe time of moving of the application, isnot relevant. The judgement in the Caseof State of Kerala (supra) as relied by therespondents' counsel is in relation to grantof liquor licence which is a judgment on adifferent proposition of law. It would notbe applicable to the present controversywhen the judgment directly in issue holdsthat the benefit of compassionateappointment is available to the petitioner.

The question as to whether a personhas a vested right for compassionateappointment is no longer res-integra. Theright has limited only to the extent ofconsideration in accordance with rules.The authority has discretion but the saiddiscretion is also circumscribed by rules.

Accordingly the authority has toexercise a judicious discretion and not awhimsical decision so as to frustrate thevery purpose of the rule. Reference maybe had to the decision of the Apex Court


reported in 2006 (10) SCC 1 paragraphs26 to 35, Reliance Airport Developers (P)Ltd. Vs. Airports Authority of India andothers. In the instant case the authorityhas proceeded to reject the claim of thepetitioner on the ground that in view ofthe new scheme having been enforced thepetitioner is entitled only to ex gratiapayment which satisfies her claim. Therejection therefore is not inconsonancewith the law laid down in the case ofJaspal Kaur (Supra) as pointed out hereinabove. The petitioner in my consideredopinion has a right to be considered forcompassionate appointment in accordancewith the provisions that were thenexisting.

Accordingly the impugned orderdated 07.12.2006 is quashed. The writpetition is allowed. The respondent Bankis directed to forthwith re-consider theclaim for compassionate appointment inview of the observations made hereinabove and issue necessary orders withintwo months from the date of productionof a certified copy of this order before theconcerned authority.

5. Shri Amrish Sahai, learnedcounsel appearing for the appellant-banksubmitted that it is settled that anapplication seeking benefits ofcompassionate appointment must bedecided in accordance with thelaw/rules/regulations as prevailing on thedate of consideration of the applicationand when the petitioner-respondent hadproceeded to move an application on8.10.2005 for compassionateappointment, she did not have any vestedright in her favour to obtain appointmenton compassionate ground precisely in thebackdrop that by the Circular of IndianBanks Association dated 31.7.2004appellant-bank had already taken a policy

decision for doing away with the systemof compassionate appointment and thesame was eventually adopted by theappellant-bank on 27.10.2006. Eventhough the Circular of Indian BanksAssociation was moved on 31.7.2004 andthe final adoption took place on27.10.2006, the delay was occurred onaccount of clarification, which was soughtfrom the concerned Ministry ofGovernment of India to the extent, as towhether the said guidelines would alsoapply to the Regional Rural Banks createdunder powers vested in Rural Bank Act,1976. Once the Apex Body i.e. IndianBanks Association framed a ModelScheme for payment of ex-gratia for allPublic Sector Banks in pursuance of thedecision taken by the Government ofIndia, then the same had binding effect.Therefore, at the time of submission ofher application, the policy decision wasalready taken by the Indian BanksAssociation and the same was widelycirculated to all Public Sector Banksalongwith Model Scheme for payment ofex-gratia in lieu of compassionateemployment.

6. Learned counsel appearing for theappellant-bank has also placed his relianceon the judgments passed by this Court inAbhimanyu Ratan Bhardwaj vs. State of UPand ors 2006 (1) ADJ 440 (All. DB; SpecialAppeal No.840 of 2004 (Vidyavrat Rajpootvs. Mukhya Vittiya Adhikari Zila Parishad &ors); Writ Petition No.24066 of 2000(Ashutosh Arya vs. the Indian Bank and ors)decided on 27.7.2012; Special AppealNo.1511 of 2012 (Ashutosh Arya vs. theIndian Bank) decided on 2.4.2014; SpecialAppeal No.954 of 2009 decided on14.7.2009 and Special Appeal DefectiveNo.884 of 2015 (State of UP & 3 ors vs.Mahaveer Singh and 2 ors) decided on


12.1.2016. He has also relied uponjudgments of Supreme Court in LIC of Indiavs. Asha Ram Chandran Ambedkar 1994AIR (II) SC 2148; General Manager (D &PB) & ors vs. Kunti Tiwari & ors (1994) 2SCC 418; Umesh Kumar Nagpal vs. State ofHaryana & ors (1994) 4 SCC 138; PunjabNational Bank and ors vs. Ashwani KumarTaneja (2004) 7 SCC 271; Union of Indiaand ors vs. M.T. Latheesh (2006) 7 SCC350; State Bank of India and another vs. RajKumar 2010 LawSuit (SC) 1214; CivilAppeal No. 6348 of 2013 (MGB GraminBank vs. Chakrawati), arising out of SLP (C)No.13957/2010, decided on 7 August, 2013and Canara Bank vs. M. Mahesh Kumar(2015) 7 SCC 412 in support of hissubmission.

7. On the other hand, it has beensubmitted by Shri Bharat Pratap Singh,appearing on behalf of the petitioner-respondent that learned Single Judge hasrightly allowed the writ petition relying onthe judgement in State Bank of India and orsvs. Jaspal Kaur (supra) which holds the fieldand no interference is required at this stageand the petitioner has already suffered a lot.He has placed reliance on the judgment inCanara Bank and another vs. M. MaheshKumar (2015) 7 SCC 412 in which it washeld by Hon'ble Supreme Court that therescission of a scheme for compassionateappointment will not affect an applicationsubmitted when the scheme was in force andwhich was held to be governed by thescheme then prevailing on the date of theapplication.

8. Heard rival submissions andperused the record.

9. This much is reflected from therecord in question that the Scheme forcompassionate appointment was

introduced in the erstwhile AligarhGramin Bank as per the directives issuedby the Government of India vide CircularNo.71/82 dated 23.9.1982. The features ofthe Scheme are as under:-

"SCHEME FOR APPOINTMENTOF DEPENDENTS OF DECEASEDEMPLOYEES ON COMPASSIONATEGROUNDS IN REGIONAL RURALBANKS:

1. Short title and commencement:-

This scheme may be called "schemefor appointment in clerical and sub-ordinate cadres of dependents of deceasedemployees of Regional Rural Banks oncompassionate grounds. The scheme shallcome into force from 1.10.1982.

2. Definition:a) In this scheme, unless the context

otherwise requires "Bank" means AligarhGramin Bank.

b) "Board" means The Board ofDirectors of Aligarh Gramin Bank.

c) "Chairman" means The Chairmanof the Board of Directors.

d) "Employees" means a regularemployee whether in the sub-ordinate,clerical or Officers cadre, whetherconfirmed or on probation and whetherworking full time or part time but will notinclude temporary or casual employee.

e) "Dependent" means a widow, ason, a daughter, a brother, a sister of thedeceased employee or any other closerelative nominated by the widow whendeceased employee has left behind nochildren or his own eligible forappointment and on whom she will bewholly dependent.

3. Appointment under the Scheme:


The Bank may, at its discretion,appoint in the Bank in any of the pointsmentioned the reunder the widow or a sonor daughter of a deceased employee of theBank or a near relative nominated by thewidow on whom she will be whollydependent and who would give in writingthat he or she would look after the familyof the deceased employee, if the widow orson or daughter or a near relative as thecase may be, fulfills the criteria forappointment under the scheme, where thedeceased employee was a widower or abachelor, the bank may exercise itsdiscretion in this regard, by makinginquiries of the next elder in the family.The appointment under this scheme shallbe made in clerical and sub-ordinatecadres which is as under:

1. Junior clerk cum Cashier2. Junior Clerk cum Typist3. Steno Junior cadre4. Driver5. Sweeper/ Messenger."

10. As per record this much is alsoreflected that a policy decision was takenby the Government of India to abolish thescheme of compassionate employment.The Indian Banks Association vide theirletter dated 31.7.2004 had advised allPublic Sector Banks a model scheme forpayment of ex-gratia lump sum amount tothe need of kin of the deceased employeein lieu of appointment on compassionategrounds. Certain clarification was alsoasked from the Government of India aswell as NABARD whether the subsequentscheme was applicable to Regional RuralBanks. In this background, the GeneralManager, Canara Bank (A Government ofIndia undertaking) had informed to theChairman, Aligarh Gramin Bank, Aligarhon 26.2.2005 informing that IBA, vide

their letter No.PD/CIR/76/532/153 dated31.7.2004 had advised all Public SectorBanks a model scheme for payment of ex-gratia lump sum amount to the need ofKin of the deceased employee in lieu ofappointment on compassionate grounds.Consequently, it had also been informedthat the Bank had already proceeded forclarification with NABARD/Governmentof India in this regard to examine whetherthe guidelines applicable to RRBs needany change in the light of the schemeformulated by IBA for adoption by PublicSector Banks. Finally the Board ofDirectors of the appellant bank resolvedthat bank is permitted to implement thescheme for payment of ex-gratia (lumpsum amount) in lieu of appointment oncompassionate grounds as per ModelScheme of IBA on 27.10.2006 at AgendaNo.52.

11. We have occasion to peruse theModel Scheme in question. Clause-11 ofthe said Scheme provides that the ex-gratia relief under the above Scheme isnot an entitlement but may be granted atthe sole discretion of the bank lookinginto the financial condition of the familyand in deserving and eligibility casesonly. Clause-13 of the Model Schemeclearly proceeds to make a mention thatthe Scheme will come into force from thedate it is approved by the Board of thebank and all applications forcompassionate appointment/grant of lumpsum financial relief, if any, pending as onthe effective date will be dealt with inaccordance with the above Schemeapproved by the Board. This much is alsoreflected from the record in question thatsubsequent Scheme, which was floated byIBM in the year 2004, was also accordedapproval by the Board of Directors of theappellant bank on 27.10.2006. Clause-13is quoted here under:-


"13. The Scheme will come intoforce from the date it is approved by theBoard of the bank and all applications forcompassionate appointment/grant of lumpsum financial relief, if any, pending as onthe effective date will be dealt with inaccordance with the above Schemeapproved by the Board."

12. The decision of the Supreme Courtin Canara Bank (supra) dealt with a situationwhere there was a dying-in-harness schemeunder a circular of the Canara Bank dated8.5.1993. An employee of the bank diedwhile on duty on 10.10.1998 and anapplication was made on 30.11.1998 by hisheirs for seeking compassionateappointment. The bank rejected theapplication on 30.6.1999. Learned SingleJudge of the Kerala High Court allowed thewrit petition on 30.5.2003 with direction tothe bank to reconsider the claim inaccordance with law. The judgment of thelearned Single Judge was upheld by aDivision Bench of the Kerala High Court on24.8.2006. By the time the Division Benchhad decided the writ appeal, the scheme forcompassionate appointment was scrappedand the Indian Bank Association formulateda scheme based on guidelines of the UnionGovernment stipulating ex-gratia payment inlieu of compassionate appointment. Acircular was issued on 14.2.2005 and it wasasserted on behalf of the bank that as on thedate of consideration of the application forcompassionate appointment, there was nopolicy to provide such an appointment underthe 1993 Scheme. The Supreme Court, inthese facts, held that the father of therespondent had died in October, 1998 whenthe dying-in-harness scheme dated 8.5.1993was in force and in fact, the bank hadrejected the claim on 30.6.1999. Hence, thecause of action to be considered forcompassionate appointment had arisen when

the circular of 8.5.1993 was in force and thecircular of 2005 being an administrativeorder was held not to have retrospectiveeffect. Moreover, the Supreme Court alsoobserved that the 2005 scheme whichprovided only for ex-gratia payment in lieuof appointment had in fact been substituted(during the pendency of the proceedingsbefore the Supreme Court) in 2014 and anew scheme had been arrived at forproviding compassionate appointment.Hence, as on the date of the judgment of theSupreme Court, the scheme in force providedfor the grant of compassionate appointment.It was in these facts, which are clearlydistinguishable, that the Supreme Court heldthat the Bank was not justified in contendingthat the application for compassionateappointment could not be considered in viewof the passage of time.

13. In the present matter, what wefind from the record in question thathusband of the petitioner-respondent, whowas working as Class-IV employee in theappellant-bank, died in harness on27.9.2005. The petitioner-respondentmoved an application for compassionateemployment on 8.10.2005. Pendingconsideration of the above claim, a newscheme known as "Model Scheme forPayment of Ex-gratia (Lump SumAmount) in lieu of Appointment onCompassionate Grounds in RRB" cameinto effect. On 13.7.2006 the ChiefGeneral Manager, National Bank forAgriculture and Rural Developmentinformed the General Manager, allSponsor Banks, RRB Division that theeffective date for implementation of thescheme will be the date on which theBoard of the individual RRB approves thesame. As indicated in Para 13 of theModel Scheme, all applications forcompassionate appointment/grant of lump


sum financial relief, if any, pending as onthe effective date will be dealt with inaccordance with the above schemeapproved by the bank. The Board ofDirectors of the appellant-bank acceptedthe said scheme on 27.10.2006 andresolved that the bank is permitted toimplement the scheme for payment of ex-gratia (lump sum amount) in lieu ofappointment on compassionate grounds asper Model Scheme of IBA. Consequently,the appellant-bank rejected the claim ofthe petitioner-respondent vide order/letterdated 7.12.2006.

14. Any scheme or rule, whichcomes is always prospective in natureunless the scheme itself provides that it isapplicable from retrospective effect. Inthe said Scheme in question, there isspecific provision that the Scheme willcome into force from the date it isapproved by the Board of the Bank and allapplications for compassionateappointment/grant of lump sum financialrelief, if any, pending as on the effectivedate, will be dealt with in accordance withthe above Scheme approved by the Board.This much is also reflected from therecord in question that there was nochallenge to Clause-13 of the Scheme inquestion in the writ petition or any othercirculars which require the appellant-respondent to decide the application asper the Scheme in question.

15. In Anand Kumar Sharma vs.State of U.P. and Ors 2014 (2) ADJ 742(FB) a Full Bench of this Court held thatthe petitioner did not acquire any vestedright on making the application on25/7/2005 to get his applicationconsidered on the basis of the policy asexisting on the date of making theapplication. The Government order dated

04/8/2006 was fully applicable w.e.f.04/8/2006 and no error was committed bythe Collector taking into consideration thepolicy dated 04/8/2006 when theapplication was rejected on 18/12/2006.

16. In Smt. Sushma Gosain & Ors.V. Union of India & Ors. (1989) 4 SCC468, it was observed that in claims ofappointment on compassionate grounds,there should be no delay in appointment.The purpose of providing appointment oncompassionate ground is to mitigate thehardship due to death of the bread earnerin the family. Such appointments should,therefore, be provided immediately toredeem the family in distress.

17. In Umesh Kumar Nagpal V. Stateof Haryana & ors. (1994) 4 SCC 138, it wasruled that public service appointment shouldbe made strictly on the basis of openinvitation of applications and on merits. Theappointment on compassionate groundcannot be a source of recruitment. It ismerely an exception to the requirement oflaw keeping in view the fact of the death ofemployee while in service leaving his familywithout any means of livelihood. In suchcases, the object is to enable the family to getover sudden financial crisis. Suchappointments on compassionate ground,therefore, have to be made in accordancewith Rules,Regulations or administrativeinstructions taking into consideration thefinancial condition of the family of thedeceased. This favorable treatment to thedependent of the deceased employee musthave clear nexus with the object sought to beachieved thereby, i.e. relief againstdestitution. At the same time, however, itshould not be forgotten that as against thedestitute family of the deceased, there aremillions and millions of other families whichare equally, if not more, destitute. The


exception to the rule made in favour of thefamily of the deceased employee is inconsideration of the services rendered by himand the legitimate expectation, and thechange in the status and affairs of the familyengendered by the erstwhile employment,which are suddenly upturned.

18. In Life Insurance Corporation ofIndia V. Asha Ramchandra Ambekar (Mrs.)& Anr. (1994)2 SCC 718, it was indicatedthat High Courts and AdministrativeTribunals cannot confer benediction impelledby sympathetic considerations to makeappointments on compassionate groundswhen the regulations framed in respectthereof do not cover and contemplate suchappointments.

19. The Supreme Court in the caseof Jagdish Prasad V. State of Bihar andanother reported in (1996) 1 SCC 301dismissing the appeal filed by the son ofdeceased employee held in paragraph 3 asunder:

"3. It is contended for the appellant thatwhen his father died in harness, the appellantwas minor; the compassionate circumstancescontinue to subsist even till date andthat,therefore, the court is required toexamine whether the appointment should bemade on compassionate grounds. We areafraid, we cannot accede to the contention.The very object of appointment of adependent of the deceased employees whodie in harness is to relieve unexpectedimmediate hardship and distress caused tothe family by sudden demise of the earningmember of the family. Since the deathoccurred way back in 1971, in which yearthe appellant was four years old, it cannot besaid that he is entitled to be appointed afterhe attained majority long thereafter. In otherwords,if that contention is accepted, it

amounts to another mode of recruitment ofthe dependent of a deceased Governmentservant which cannot be encouraged,de horsthe recruitment rules."

20. In State of Haryana and Ors. Vs.Rani Devi and Anr (1996) 5 SCC 308 :AIR 1996 SC 2445), it was held that theclaim of applicant for appointment oncompassionate ground is based on thepremise that he was dependent on thedeceased employee. Strictly this claimcannot be upheld on the touchstone ofArticle 14 and 16 of the Constitution.However, such claim is consideredreasonable as also allowable on the basisof sudden crisis occurring in the family ofthe employee who had served the Stateand died while in service. That is why it isnecessary for the authorities to frameRules, Regulations or to issue suchadministrative instructions which canstand the test of Articles 14 and16 .Appointment on compassionate groundcannot be claimed as a matter or right.

21. The Supreme Court in the caseof Haryana State Electricity Board andanother V. Hakim Singh reported in(1997) 8 SCC 85 has observed that If thefamily members of the deceasedemployee can manage for fourteen yearsafter his death one of his legal heirscannot put forward a claim as though it isa line of succession by virtue of a right ofinheritance. The object of the provisionsshould not be forgotten that it is to givesuccor to the family to tide over thesudden financial crisis befallen thedependents on account of the untimelydemise of its sole earning member.

22. Hon'ble Apex Court in the case ofState of J. & K. vs. Sajad Ahmed Mir, 2006AIR SCW 3708, has taken the view that


compassionate appointment cannot beclaimed as matter of right, at the cost ofothers. 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, such as,death of sole bread earner and likelihood ofthe family 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 rule ofappointment and to show favour to one at thecost of interests of several others ignoring themandate of Article 14 of the Constitution.

23. A Full Bench of this Court,while deciding Special Appeal No.356 of2012 (Shiv Kumar Dubey vs. State ofU.P. & others) and other connected cases,has formulated the principles governingappointments on compassionate groundsunder the Dying in Harness Rules, 1974.The principles elucidated in para 29 of thejudgment read as follows:-

"29. We now proceed to formulatethe principles which must governcompassionate appointment in pursuanceof Dying in Harness Rules:

(i) A provision for compassionateappointment is an exception to theprinciple that there must be an equality ofopportunity in matters of publicemployment. The exception to beconstitutionally valid has to be carefullystructured and implemented in order toconfine compassionate appointment to

only those situations which subserve thebasic object and purpose which is soughtto be achieved;

(ii) There is no general or vestedright to compassionate appointment.Compassionate appointment can beclaimed only where a scheme or rulesprovide for such appointment. Wheresuch a provision is made in an 26C.M.W.P. No. 13102 of 2010administrative scheme or statutory rules,compassionate appointment must fallstrictly within the scheme or, as the casemay be, the rules;

(iii) The object and purpose ofproviding compassionate appointment isto enable the dependent members of thefamily of a deceased employee to tideover the immediate financial crisis causedby the death of the bread-earner;

(iv) In determining as to whether thefamily is in financial crisis, all relevantaspects must be borne in mind includingthe income of the family; its liabilities, theterminal benefits received by the family;the age, dependency and marital status ofits members, together with the incomefrom any other sources of employment;

(v) Where a long lapse of time hasoccurred since the date of death of thedeceased employee, the sense ofimmediacy for seeking compassionateappointment would cease to exist and thiswould be a relevant circumstance whichmust weigh with the authorities indetermining as to whether a case for thegrant of compassionate appointment hasbeen made out;

(vi) Rule 5 mandates that ordinarily,an application for compassionateappointment must be made within fiveyears of the date of death of the deceasedemployee. The power conferred by thefirst proviso is a discretion to relax theperiod in a case of undue hardship and for


dealing with the case in a just andequitable manner;

(vii) The burden lies on theapplicant, where there is a delay inmaking an application within the periodof five years to establish a case on thebasis of reasons and a justificationsupported by documentary and otherevidence. It is for the State Governmentafter considering all the facts to take anappropriate decision. The power to relaxis in the nature of an exception and isconditioned by the existence of objectiveconsiderations to the satisfaction of thegovernment;

(viii) Provisions for the grant ofcompassionate appointment do notconstitute a reservation of a post in favourof a member of the family of the deceasedemployee. Hence, there is no general rightwhich can be asserted to the effect that amember of the family who was a minor atthe time of death would be entitled toclaim compassionate appointment uponattaining majority. Where the rulesprovide for a period of time within whichan application has to be made, theoperation of the rule is not suspendedduring the minority of a member of thefamily."

24. In fact, as held by the Full Benchof this Court in Anand Kumar Sharma(supra), the mere making of an applicationwould not confer an indefeasible or vestedright for appointment on compassionateground. A new Scheme for payment of ex-gratia in lieu of appointment oncompassionate ground in RRBs came intoeffect on 31.7.2004 and the Board ofDirectors of appellant-bank accepted the saidscheme on 27.10.2006 and as per Para-13 ofthe Scheme in question, all applications forcompassionate appointment/grant of lumpsum financial relief, if any, pending as on the

effective date, will be dealt with inaccordance with the above Scheme approvedby the appellant-bank. Consequently theclaim of the petitioner-respondent wasrejected on 7.12.2006.

25. Learned Single Judge hadobserved in the impugned judgment dated22.9.2010 that the petitioner has a right to beconsidered for compassionate appointment inaccordance with the provisions that werethen existing and the appellant-bank wasdirected to forthwith re-consider the claim ofpetitioner-respondent for compassionateappointment.

26. In A. Umarani v Registrar, Co-operative Societies & Ors., AIR 2004 SC4504, Hon'ble Apex Court has held that theCourts should not exercise the extraordinaryjurisdiction issuing a direction to givecompassionate appointment in contraventionof the provisions of the Scheme/Rules etc., asthe provisions have to be complied withmandatorily and any appointment given orordered to be given in violation of thescheme would be illegal.

27. The word ''vested' is defined inBlack's Law Dictionary (6th Edition) at page1563, as ''vested', fixed; accrued; settled;absolute; complete. Having the character orgiven in the rights of absolute ownership; notcontingent; not subject to be defeated by acondition precedent. Rights are ''vested' whenright to enjoyment, present or prospective,has become property of some particularperson or persons as present interest; mereexpectancy of future benefits, or contingentinterest in property founded on anticipatedcontinuance of existing laws, does notconstitute vested rights.

28. In Webster's ComprehensiveDictionary (International Edition) at page


1397, ''vested' is defined as Law held by atenure subject to no contingency; complete;established by law as a permanent right;vested interest. (Vide: Bibi Sayeeda v Stateof Bihar AIR 1996 SC 516; and J.S. Yadav vState of Uttar Pradesh (2011) 6 SCC 570)Thus, vested right is a right independent ofany contingency and it cannot be taken awaywithout consent of the person concerned.Vested right can arise from contract, statuteor by operation of law. Unless an accrued orvested right has been derived by a party, thepolicy decision/ scheme could be changed.(Vide: Kuldip Singh v Government, NCTDelhi AIR 2006 SC 2652)

29. Hon'ble Apex Court consideredvarious aspects of service jurisprudence andcame to the conclusion that as theappointment on compassionate ground maynot be claimed as a matter of right nor anapplicant becomes entitled automatically forappointment, rather it depends on variousother circumstances i.e. eligibility andfinancial conditions of the family, etc., theapplication has to be considered inaccordance with the scheme. In case theScheme does not create any legal right, acandidate cannot claim that his case is to beconsidered as per the Scheme existing onthe date the cause of action had arisen i.e.death of the incumbent on the post. In StateBank of India & Anr. (supra), this Courtheld that in such a situation, the case underthe new Scheme has to be considered.

30. In view of the above position, thereasoning given by the learned SingleJudge is not sustainable in the eyes of law.The Special Appeal is allowed and theimpugned judgment passed by learnedSingle Judge of this Court is set aside.Consequently, the writ petition filed by thepetitioner-respondent shall standdismissed.

31. The respondent-petitioner mayapply for consideration of her case underthe new Scheme and the appellants shallconsider her case strictly in accordancewith Clause 13 of the said new Schemewithin a period of three months from thedate of receiving of application.



BEFORETHE HON'BLE ANIL KUMAR, J.

Misc. Single No. 2173 of 2016

Arun Kumar Singh @ Pappu Singh & Ors.Petitioners


Counsel for the Petitioners:Rajesh Bahadur Singh Rath

Counsel for the Respondents:Govt. Advocate

Constitution of India, Art.-227-petitionagainst direction by Magistrate toregister and investigate the case-whether can prospective accused beallowed to challenge such order? held-'No'-in view of Full Bench decision ofShushma Thomus case-only remedy tofile writ petition under Art. 226.

Held: Para-13In the instant matter on the applicationmoved by opposite party no.3 under Section156(3) Cr.P.C. order has been passed byAdditional Chief Judicial Magistrate, Kunda,Pratapgarh for registering and investigatingthe case against the petitioners so they areprospective accused have no right to saythat Magistrate does not have any power todirect the police authorities to lodge F.I.R.for cognizable offence. Further if the F.I.R.is registered in compliance of the orderpassed under Section 156(3) Cr.P.C. against

1 All. Arun Kumar Singh @ Pappu Singh & Ors. Vs. State of U.P. & Ors. 227

the petitioners, the proper remedy availableto them to invoke the jurisdiction underArticle 226 of the Constitution of India forquashing of the F.I.R. as well as for stayingthe arrest. In view of the said facts at thisstage, petitioners cannot derive any benefitfrom the law as cited on their behalf as laiddown in cases of Shambu Das @ Bijoy Das (Supra) as well as Priyanka Srivastava(Supra) in order to challenge the orderdated 23.1.2016, thus I do not find anyillegality or infirmity in the order dated23.1.2016 passed by Additional ChiefJudicial Magistrate, Kunda, Pratapgarh.

Case Law discussed:2010 (71) ACC 367; 2015 Supreme CourtCases 287; 2008 (2) ACR 1950; 2011 (72) ACC564.

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

1. Heard Sri R.B.S. Rathaur, learnedcounsel for the petitioners, Sri AnuragVerma, learned Additional GovernmentAdvocate for opposite parties no. 1 and 2and perused the record.

2. Facts, in brief, of the present caseare that on 9.12.2015 an election for thepost of Gram Pradhan in Gram PanchayatRai Askaranpur, Block Babaganj, DistrictPratahpgarh was held in which 'Bhabhi' ofpetitioner no.1, namely, Smt. PushpaSingh contested for the said post . In thesaid matter certain controversy has takenplace so opposite party no.3 moved anapplication under Section 156(3) Cr.P.C.in the Court of Additional Chief JudicialMagistrate, Kunda, Pratapgarh, registeredas Criminal Case no.6 of 2016 ( AjaiPratap Singh Vs. Pappu and others),allowed by order dated 23.1.2016 underchallenge in the present writ petition.

3. Sri Anuraj Verma , learnedAdditional Government Advocateappearing on behalf of opposite parties

no.1 and 2 raised a preliminary objectionthat as in the present case by an orderdated 23.1.2016 Additional ChiefMagistrate Kunda Pratapgarh on theapplication under Section 156(3) Cr.P.C.has directed the police authorities toregister and investigate the case, sokeeping in view of the law laid down bythis Court in the case of Gurbachan Singhand others Vs. State of U.P. and others,2008(2) ACR 1950 petitioners beingprospective accused have no right tochallenge the said order as such thepresent writ petition liable to bedismissed.

4. Sri R.B.S Rathaur, learnedcounsel for the petitioners, while rebuttingthe said contention, submits that againstthe order dated 23.1.2016 passed underSection 156(3) Cr.P.C. it is not open forpetitioners to raised their grievance byfiling revision hence the writ petition ismaintainable.

5. In support of his contention, heplaced reliance on a Full Bench decisionof this Court in the case of Father ThomasVs. State of U.P. and others, 2011 (72)ACC 564 the relevant paragraph is quotedas under:-

"65.A. The order of the Magistratemade in exercise of powers under Section156(3) Cr.P.C directing the police toregister and investigate is not open torevision at the instance of a personagainst whom neither cognizance hasbeen taken nor any process issued.

B. An order made under Section156(3) Cr.P.C is an interlocutory orderand remedy of revision against such orderis barred under sub-section (2) of Section397 of the Code of Criminal Procedure,1973.


C. The view expressed by a DivisionBench of this Court in the case of AjayMalviya Vs. State of U.P and othersreported in 2000(41) ACC 435 that as anorder made under Section 156(3) of theCode of Criminal Procedure is amenableto revision, and no writ petition forquashing an F.I.R registered on the basisof the order will be maintainable, is notcorrect."

6. Next arguments raised by learnedcounsel for the petitioners are that fromthe bare perusal of the material on record,the position which emerge out is that noallegation has been made out against thepetitioners, so there is no justification orreason to pass an order dated 23.1.2016directing the police authorities to registerand investigate the case against thepetitioners on an application moved underSection 156(3) Cr.P.C. and also placedreliance on the decision given by Hon'bleteh Apex Court in the case of ShambuDas @ Bijoy Das and another Vs. State ofAssam, 2010(71) ACC 367 in which ithas been held as under:-

" Section 157 of the Code says that if,from the information received or otherwisean officer incharge of a police station hasreason to suspect the commission of anoffence which he is empowered toinvestigate, he shall forthwith send a reportof the same to the Magistrate concerned andproceed in person to the spot to investigatethe facts and circumstances of the case, if hedoes not send a report to the Magistrate, thatdoes not mean that his proceedings to thespot, is not for investigation. In order tobring such proceedings within the ambit ofinvestigation, it is not necessary that aformal registration of the case should havebeen made before proceeding to the spot. Itis enough that he has some information to

afford him reason even to suspect thecommission of a cognizable offence. Any steptaken by him pursuant to such information,towards detention etc., of the said offence,would be part of investigation under theCode.

The principles now well settled is thatwhen information regarding a cognizableoffence is furnished to the police thatinformation will be regarded as the FIR andall enquiries held by the police subsequentthereto would be treated as investigation,even though the formal registration of theFIR takes place only later."

7. Last arguments raised by learnedcounsel for the petitioners are that in viewof the law laid by Hon'ble the Apex Courtin the case of Priyanka Srivastava andanother Vs. State of U.P. And others,(2015 6 Supreme Court Cases 287 anapplication under Section 156(3) Cr.P.C.seeking directions for registering the FirstInformation Report should beaccompanied by an affidavit. The saidposition does not exits in the present caseso the order dated 23.1.2016 passed byAdditional Chief Judicial MagistrateKunda, Pratapgarh, liable to be set aside.

8. After hearing learned counsel forthe parties and going through the record,the first and foremost question which tobe considered is that if an application hasbeen moved under Section 156(3) Cr.P.C.and the order has been passed forregistering the case and investigate thematter in that circumstances petitioners,who are prospective accused have anyright to challenge the same.

9. Answer to the said question findplace in the case of Gurbachan Singh andothers( Supra) wherein it has been held asunder :-

1 All. Arun Kumar Singh @ Pappu Singh & Ors. Vs. State of U.P. & Ors. 229

"If information regarding thecognizable offence is not registered by theconcerned police, the application shouldhave been made regarding the allegedincident to the Superintendent of Police orhigher authorities of the police accordingto the provision of Section 154(3) Cr.P.C.and even then the case is not registered,in such circumstances remedy is alsoavailable under Section 156(3) Cr.P.C.wherein the Magistrate concerned maypass orders upon the said application forregistering and investigating the caseregarding the cognizable offence. Thesame view has been reiterated in SakiriVasu Vs. State of U.P. (Crl. AppealNo.1685 of 2007) decided on 7.12.2007by Hon'ble Markandey Katju, J. In thepresent case, it has been alleged in thesaid application that deceased wassubjected to cruelty due to non-fulfillmentof dowry of Rs.50,000/- and she died atthe house of the petitioners. The postmortem was conducted and viscera waspreserved therefore, there is no disputethat she died within seven years of hermarriage. Unless the until the viscerareport is received in negative, thepresumption would be that it is a case ofunnatural death within seven years of themarriage. The information was also givenregarding her death by her 'Devar' but thesame was not registered. Then acomplaint was also made to theconcerned Superintendent of Police.Thereafter, the application 156(3) Cr.P.C.was moved by the opposite party.Therefore, the concerned Magistrate hasnot committed any illegality in passing theimpugned order and the same has beenpassed according to law.

It is worthwhile to mention here thatthe application moved under Section156(3) Cr.P.C. has been allowed and the

order for registering and investigating thecase has been passed against thepetitioners. In such circumstances, theprospective accused, who are petitioners,do not have any right to say that theMagistrate does not have any power todirect the police to lodge the F.I.R. forcognizable offence as has been held in thecase of Ram Kishore Purohit vs. State ofU.P. and Ors. Reported in 2007(2) JIC-194(Allahabad H.C.). and in the case ofRakesh Kumar and Ors. vs. State of U.P.and Ors. reported in 2007(2) 191 (Alld.),The same view has also been taken by mein my judgment dated Sept.10, 2007passed in Criminal Revision No. 2549 of2007 Smt. Gulistan and others vs. State ofU.P. and others.

10. So far as the argumentsadvanced by learned counsel for thepetitioners that the present writ petitionhas been filed because of the fact that inview of the Full Bench decision renderedby this Court in the case of FatherThomos (supra), in the said matter it hasbeen held that revision against the orderpassed on the application under Section156(3) Cr.P.C. is not maintainable as theorder is interlocutory in nature which isbarred under Section 397 (2) Cr.P.C.,even the application under Section 482Cr.P.C. against the order passed on theapplication under Section 156(3) Cr.P.C.is not maintainable, so no alternative,equally efficacious remedy is available tothem except to invoke the jurisdiction ofthis Court under Article 227 of theConstitution of India, has got no forcebecause the stage of the disposal ofapplication under Section 156(3) Cr.P.C.is a pre-cognizance stage.

11. And by directing the police toregister and investigate, the Magistrate


does not take cognizance of the offence.He simply sets the machinery into motionso that the police may perform his duty, incase, the police has refused to registerFirst Information Report on the writtenapplication of the complainant. It has alsobeen held in several decisions that aprospective accused has no right to beheard before the any court unless thecourt takes cognizance. The prospectiveaccused at the most can watch theproceeding going on against him but hecan not have a right to either oppose orsay anything unless the court takescognizance and issue process against theaccused person. Since by the impugnedorder, the Additional Chief JudicialMagistrate, Kunda Pratapgarh has onlydirected the police to register andinvestigate, the petitioners beingprospective accused have no locus standito challenge the said order passed on theapplication of the opposite party no.3.

12. Further, a perusal of the FullBench decision of this Court in the case ofFather Thomas (supra) reveals that threequestions for consideration were framed.The question no.2 was framed as towhether whether an order made underSection 156(3) Cr.P.C. is an interlocutoryorder and remedy of revision against suchorder is barred under Sub-Section (2) ofSection 397 of the Code of CriminalProcedure. This question was answeredby the Full Bench in negative and it washeld that the order under Section 156(3)Cr.P.C. is not amenable to challenge in acriminal revision or an application underSection 482 Cr.P.C. The Full bench hasalso gone to observe that the initial orderfor registration is not opened to challengein a writ petition and it is beyondcontroversy that the Province ofinvestigation by the police and the

judiciary are not overlapping butcomplimentary. Since in view of the FullBench decision the remedy of filing arevision or invoking the inherentjurisdiction of this Court under Section482 Cr.P.C. is completely barred, I am ofthe view that writ jurisdiction also can notbe invoked in such matters where thematter is still in the pre-cognizance stageand the prospective accused has no rightto be heard unless the court takescognizance or issues process against theaccused person.

13. In the instant matter on theapplication moved by opposite party no.3under Section 156(3) Cr.P.C. order has beenpassed by Additional Chief JudicialMagistrate, Kunda, Pratapgarh for registeringand investigating the case against thepetitioners so they are prospective accusedhave no right to say that Magistrate does nothave any power to direct the policeauthorities to lodge F.I.R. for cognizableoffence. Further if the F.I.R. is registered incompliance of the order passed under Section156(3) Cr.P.C. against the petitioners, theproper remedy available to them to invokethe jurisdiction under Article 226 of theConstitution of India for quashing of theF.I.R. as well as for staying the arrest. Inview of the said facts at this stage, petitionerscannot derive any benefit from the law ascited on their behalf as laid down in cases ofShambu Das @ Bijoy Das ( Supra) as wellas Priyanka Srivastava (Supra) in order tochallenge the order dated 23.1.2016, thus Ido not find any illegality or infirmity in theorder dated 23.1.2016 passed by AdditionalChief Judicial Magistrate, Kunda,Pratapgarh.

14. For the forgoing reason, the writpetition lacks merit and is dismissed.

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1 All. Uttar Pradesh Bhumi Sudhar Nigam Lko. Vs. Principal Commissioner of Income Tax & Ors. 231

ORIGINAL JURISDICTIONTAXATION SIDE


BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI, J.THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No. 2238 of 2016

Uttar Pradesh Bhumi Sudhar Nigam Lko. ...Petitioner

VersusPrincipal Commissioner of Income Tax &Ors. Respondents

Counsel for the Petitioner:Pradeep Agarwal

Counsel for the Respondents:Manish Misra

Income Tax Act 1961-Section 220(6)-Pendency of Appeal-against assessmentorder assessee to approach beforeassessment officer-to get interim protection.

Held: Para-12In the circumstances of the case, we leaveit open to the petitioner to approach theassessing officer under Section 220 (6) ofthe Act within a period of two weeks fromtoday and in case any application is filed bythe petitioner before the assessing officer,he shall pass necessary order afteraffording an opportunity to the petitionerwithin three months from the date of filingof any such application. Until decision onthe application, filed if any, or until decisionof the appeal itself within a period of threemonth, the recovery proceedings in relationto the assessment year 2012-2013 for thedisputed amount shall remain in abeyanceand the same shall abide by to the outcomeof the appeal.

Case Law discussed:[1994] 208 ITR 461 (All); (2010) 321 ITR 491(All.); (1969) 71 ITR 815; (1985) 154 ITR 172;AIR 1956 All. 130; AIR 1957 Andhra Pradesh114; AIR 1957 Andhra Pradesh 671.

(Delivered by Hon'ble A. R. Masoodi, J.)

1. Heard Sri Pradeep Agarwal,learned counsel for the petitioner and SriManish Misra, learned counsel who hasaccepted notice on behalf of therespondents.

2. By means of this writ petition, thepetitioner has assailed the recovery noticeissued by the assessing officer on3.11.2015 in respect of the amount duefor the assessment year 2012-13.

3. The contention of the learnedcounsel for the petitioner is that thepetitioner has already filed an appealagainst the assessment order passed by theassessing authority in relation to theassessment year 2012-13 and has alsofiled an application for the grant ofinterim stay against the assessment order.The appeal as well as interim stayapplication are pending before the C.I.T.(Appeals) i.e. respondent no. 2.

4. Referring to Section 220 (6) ofthe Income Tax Act, 1961, it is arguedthat since the assessee has preferred anappeal against the assessment order, it isnot open to the authorities to proceed withthe recovery pursuant to the assessmentorder once the appeal is pending. Thisargument has been raised on the strengthof Section 220 (6) of the Income Tax Actand the same is extracted below:

"220 (6) Where an assessee haspresented an appeal under section 246,the Assessing] Officer may, in hisdiscretion, and subject to such conditionsas he may think fit to impose in thecircumstances of the case, treat theassessee as not being in default in respectof the amount in dispute in the appeal,


even though the time for payment hasexpired, as long as such appeal remainsundisposed of."

5. The aforesaid provision clearlyrefers to the appeal filed under Section246 or 246-A of the Act and to this extentthere is no dispute with regard to thependency of appeal being filed by thepetitioner alongwith an application forinterim stay. However, the difficulty hasarisen due to the fact that the appellateauthority not being empowered with thejurisdiction of granting interim stay underthe appellate jurisdiction, can it be saidthat such a jurisdiction is either ancillaryor incidental to the appellate power underSection 246 or 246-A particularly whenSection 220(6) of the Act regulates thesituation in a different manner.

6. The assessing officer, it isprovided under the Statute, while theappeal remains undisposed of, mayimpose the conditions as he thinks fit inthe circumstances of the case so as to treatthe assessee as not being in default inrespect of the amount in dispute. Theplain reading of Section 220(6) of the Actrather imposes a restriction on theappellate authority not to entertain anyinterim stay application leaving the matteropen to be dealt with by the assessingauthority during the course of pendencyof appeal, inter alia, by establishing hisdue co-operation in the pending appeal orpointing out the failure on the part of theappellate authority to decide the appealdespite his cooperation.

7. The intention of the statute is veryclear to the extent that an assessee duringpendency of an appeal has primarily tosatisfy the assessing officer under Section220(6) at the first instance for seeking

deferment as regards the execution of anassessment order. In the present case, thepetitioner admittedly has filed an appealalongwith an application for interim staybut the fact remains that the petitioner hasnot approached the assessing officerunder Section 220 (6) for the exercise ofhis discretion to defer the recoveryproceedings.

8. Learned counsel for the petitionerwhile arguing the matter, has referred tothe judgements rendered in the case ofPrem Prakash Tripathi v. Commissionerof Income-tax and others, [1994] 208 ITR461 (All) and the judgement reported in(2010) 321 ITR 491 (All.): SmitaAgarwal (Individual) v. Commissioner ofIncome Tax and others, and it is urged,that in terms of the law settled by thisCourt, the proposition that duringpendency of an appeal, recoveryproceedings have to be stayed duringpendency of appeal or at least till thedisposal of interim stay application, isinevitable.

9. From a perusal of the aforesaiddecisions, it is seen that the High Courthas read the authority of dealing with theinterim stay applications by the firstappellate authority under Section 246 or246-A, keeping in view the law laid downby the apex court in the case of ITO V. M.K. Mohammed Kunhi (1969) 71 ITR 815,wherein the following observation hasbeen made:

"But the Appellate Tribunal must beheld to have the power to grant stay asincidental or ancillary to its appellatejurisdiction."

10. The apex court in the decisionmentioned supra while dealing with the

1 All. Uttar Pradesh Bhumi Sudhar Nigam Lko. Vs. Principal Commissioner of Income Tax & Ors. 233

provision of Section 255 (5) of the Act,opined that once the tribunal had anauthority to regulate its procedure to dealwith the appeals, in that situation thepower to grant stay can be read asincidental or ancillary to its appellatejurisdiction. The situation in the presentcase is different inasmuch as duringpendency of an appeal under Section 246or 246-A, the power of interim stayinstead of being conferred upon theappellate authority is rather, vested withthe assessing officer by virtue of Section220 (6). The power conferred on theassessing officer in view of the aforesaidprovision by its very nature, isdiscretionary but at the same time it is tobe read so long as an appeal remainspending or undisposed of by the appellateauthority under Section 246 or 246-A ofthe Act. The assessee, in such a situation,is left with no other remedy except toapproach the assessing officer for theexercise of his discretioni conferred underSection 220 (6). The intention ofrestricting the power of appellateauthority to grant interim stay may have apurpose of dealing with such appeals bythe appellate authority expeditiouslywhich in the event of grant of interim staywould prolong the proceedings due tonon-cooperation of the assessee like in thepresent case where appeal is pendingsince last about a year.

11. It is not the case of the petitionerthat he has filed any application underSection 220 (6) of the Act for seeking anorder of interim stay within the scope ofsaid provision but what is argued is that theassessee once having exercised the right ofappeal, is entitled to a protection of notbeing treated to be an assessee in default asa natural consequence of the mere filing ofan appeal. In our considered opinion, this

proposition in the context of the case lawsreferred to above is not the correctproposition of law and is contrary to thelegislative intention. The scheme of the Actprovides a specific remedy under Section220 (6) and the same having not beeninvoked by the petitioner in the presentcase, does not entitle him to the protectionas has been prayed for on the ground ofmere pendency of the appeal or till thedisposal of interim stay application. Fromthe perusal of impugned notice dated3.11.2015, we do find that the assessingauthority has not considered the aspect ofthe pendency of appeal nor the grievanceraised by the petitioner to this effect hasbeen considered in accordance with law butat the same time it is found that thepetitioner has not brought any materialwhatsoever to the knowledge of theassessing authority. Although the petitionerhas also made a reference to some circularsissued by CBDT but the same are not filedbefore the Court nor before the assessingauthority, therefore, the Court has no choiceexcept to interpret the intention oflegislation from its plain reading. In civildisputes Order XLI Rule 5 and 6 Code ofCivil Procedure, 1908 specifically conferjurisdiction on the appellate court or thecourt passing the decree for stay oforders/decree appealed against or forimposing conditions to secure the ends ofjustice. The benefit of Section 144 CP.C. isalso available to a litigant in all judicialproceedings, therefore, the exclusion ofpower of interim stay at the first appellatestage under Income Tax Act, 1961 has to beread in the manner provided for in Section220 (6) of the Act but not otherwise. Theprovisions of Section 144 C.P.C. may notbe applicable to the proceedings under theIncome Tax Act, 1961 but the principles doapply. It is true that an appeal is thecontinuity of proceedings but the legislative


intention of securing the interest of revenueby imposing just conditions at the firstappellate stage, can also not be held to bearbitrary and reading a principle contrary tothe intention of Section 220 (6) amounts toadding something in the appellatejurisdiction which the law neither expresslynor by implication does provide. The apexcourt judgement placed reliance upon in theDivision Bench judgements cited before us,does appear to have led to the incorporationof Rule 35-A in the Rules of 1963 but nosuch amendment was made in pursuance ofthe apex court judgement incorporating anysuch provision which may authorise theappellate authority at the stage ofproceedings under Section 246 or 246-A topass an interim stay order. The position oflaw becomes further doubtful when it isnoticed that the writ petition in the case ofPrem Prakash Tripathi (supra) wasdismissed, as such a direction issued thereinbecomes binding merely between theparties and is not a judgement in rem. Onthe other hand, looking to the scheme of theAct and law laid down by the apex court inthe case of Assistant Collector of CentralExcise v. Dunlop India Ltd. (1985) 154 ITR172 and the judgements reported in AIR1956 All. 130: Goverdhan Lal JagdishKumar v. Commissioner of Income Tax andothers; AIR 1957 Andhra Pradesh114:Vetcha Sreeamamurthy v. Income TaxOfficer and another and AIR 1957 AndhraPradesh 671: Shrimathi MokhamatlaMondamma and another v. ShrimathiMokhamatla Venkatalakshmidevi, we arenot in agreement with the proposition of lawas has been canvassed by the learnedcounsel for the petitioner in the writpetition. It is, however, open to the CBDTto issue guidance to the assessing authorityto deal with the matters, during pendency ofthe appeals filed under Section 246 and246-A so that the recovery of revenue of

direct taxes may not suffer a set back andthe assessee is equally relieved ofunnecessary torture.

12. In the circumstances of the case,we leave it open to the petitioner toapproach the assessing officer underSection 220 (6) of the Act within a periodof two weeks from today and in case anyapplication is filed by the petitionerbefore the assessing officer, he shall passnecessary order after affording anopportunity to the petitioner within threemonths from the date of filing of any suchapplication. Until decision on theapplication, filed if any, or until decisionof the appeal itself within a period ofthree month, the recovery proceedings inrelation to the assessment year 2012-2013for the disputed amount shall remain inabeyance and the same shall abide by tothe outcome of the appeal.

13. With the aforesaid observations,the writ petition is disposed of.



BEFORETHE HON'BLE RAJAN ROY, J.

Service Single No. 3426 of 2016

Mohd. Ishtiaq ...PetitionerVersus


Counsel for the Petitioner:Alok Mishra

Counsel for the Respondents:C.S.C., Amit Kr. Singh Bhaduriya

Indian Evidence Act-Section 107 and108-presumption of Civil death father of

1 All. Mohd. Ishtiaq Vs. State of U.P. & Ors. 235

petitioner disappeared more than 7years ago-Civil Suit for declaration ofcivil death-dismissed with finding inview of specific provision in EvidenceAct-no declaration required-claim ofcompassionate appointment deniedunless-declaration made by Court-authorities given all post retirel benefits-which itself denotes-acceptance of civildeath-denial of compassionateappointment-not proper-direction forfresh consideration given.

Held: Para-9A perusal of the said circular does notindicate any declaration is requiredunder it from a Court. It only refers tothe satisfaction of a competent authoritywhich in this case appears to be theauthority competent to providecompassionate appointment. In any casein view of the judgments cited hereinabove, the said circular can not come inthe way if the conditions for applicabilityof Section 108 of the Indian Evidence Actare satisfied. Moreover, in the presentcase, it has been averred that the death-cum-retirement benefits consequent tothe death of the father have beenreleased in favour of the petitioner andother family members, therefore, thisraises a presumption about thedisappearance and civil death of thefather having been accepted by theopposite parties themselves otherwiseeven this benefit would not have beenextended.

Case Law discussed:2005 (23) LCD 169; Special Appeal No. 767 of2012

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard learned counsel for theparties.

2. The father of the petitioner is saidto have disappeared more than sevenyears ago, therefore, he claimscompassionate appointment presuming

his civil death in terms of Section 107 and108 of the Indian Evidence Act.

3. The question as to whether insuch cases declaration is required by theCivil Court or not was considered by theDivision Bench of this Court in the caseof Ramakant Singh Vs. State of U.P. andothers reported in 2005 (23) LCD 169wherein it was held that even if the suithad not been filed, a presumption couldbe drawn, if the conditions imperative forraising the presumption were satisfied.Once a presumption of civil death israised on the satisfaction of the conditionsgiven in Section 108 of the IndianEvidence Act, the burden of proof that heis alive, is then shifted to the person whoaffirms that the person reported missingwas seen and is alive.

4. Similar view has been taken byanother Division Bench of this Court inthe case of District Judge Vs. SaurabhKumar, (Special Appeal No. 767 of2012).

5. In the present case, father of thepetitioner is said to have disappearedwhile in service on 06.10.2007. An F.I.R.is said to have been lodged on11.10.2007.

6. According to the petitioner, afinal report was submitted in respectthereto before a Court of competentjurisdiction. However, learned counsel forthe petitioner is unable to inform theCourt as to whether the same has beenaccepted or not. The mother of thepetitioner is said to have filed a RegularSuit bearing No. 128 of 2015 seekingdeclaration regarding the civil death ofher husband which was dismissed on theground that under Section 108 of the


Indian Evidence Act a presumption ofcivil death exists but the said provisiondoes not require any declaration by theCourt. A suit for declaration can only befiled under Section 34 of the SpecificRelief Act. However, such declaration isto be accompanied by such further reliefas may be necessary. As the Plaintiff didnot seek any relief other than declaration,therefore, only for this reason the Suit wasdismissed. The appeal against the saidjudgment was also dismissed.

7. Nevertheless the petitioner hereinapplied for compassionate appointment.The same has been rejected on the groundthat unless the competent authority givesa declaration about the civil death of hisfather he can not be providedcompassionate appointment.

8. Shri Amit Kumar SinghBhadauriya, learned counsel for theopposite parties 2 and 3 relies upon aCircular of the Board dated 16.08.1996which requires a declaration about thecivil death by the competent authority.

9. A perusal of the said circular doesnot indicate any declaration is required underit from a Court. It only refers to thesatisfaction of a competent authority whichin this case appears to be the authoritycompetent to provide compassionateappointment. In any case in view of thejudgments cited herein above, the saidcircular can not come in the way if theconditions for applicability of Section 108 ofthe Indian Evidence Act are satisfied.Moreover, in the present case, it has beenaverred that the death-cum-retirementbenefits consequent to the death of the fatherhave been released in favour of the petitionerand other family members, therefore, thisraises a presumption about the disappearance

and civil death of the father having beenaccepted by the opposite parties themselvesotherwise even this benefit would not havebeen extended.

10. In view of the aforesaid, theorder impugned can not be sustained andthe same is quashed. The competentauthority which is empowered to providecompassionate appointment is directed tohave a re-look at the matter in the light ofthe observations and the pronouncementsreferred herein above, after ascertainingthe correct factual position as regards theacceptance or otherwise of the final reportsubmitted as referred above, and take adecision regarding the entitlement of thepetitioner to compassionate appointmentwithin a period of two months from the datea certified copy of this order is submitted.Consequences shall follow as per law.

11. With the aforesaid observations,the writ petition is disposed of.


CRIMINAL SIDEDATED: LUCKNOW 05.02.2016

BEFORETHE HON'BLE BACHCHOO LAL, J.

Bail No. 6864 of 2014

Badey Lal ...ApplicantVersus

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

Counsel for the Applicant:Vishnu Kumar Srivastava

Counsel for the Opp. Party:Govt. Advocate

Cr.P.C.-Section 439-Third bail applicationoffence under Section 498-A, 304 B IPC and¾ DP Act-applicant is father-in-law-Hasiya

1 All. Badey Lal Vs. State of U.P. 237

used in murder of deceased recovery onpointing out of applicant-21 prosecutionwitness examined who supportedprosecution version-being head of familynot given information about offence-nonew ground in third bail application-held-not entitled for bail-rejected.

Held: Para-4Per contra; learned A.G.A. has opposed theprayer for bail and argued that theapplicant is father-in-law of the deceasedwho is head of the family. In postmortemreport incised wounds have been found onthe body of both the deceased. The Hasiaused in the commission of the murder ofthe deceased was also recovered on thepointing out of the applicant. It has furtherbeen submitted that in this case, thestatements of witnesses of the fact havebeen recorded in which they havesupported the prosecution version. It hasfurther been submitted that in this case,the statements of 13 witnesses have beenrecorded by the trial court. The personwho were released on bail are mather-in-law and Jeth of the deceased. Theapplicant is head of the family and noinformation with regard to the death of thedeceased has been given to the PoliceStation concerned. It has further beensubmitted that the second bail applicationof the applicant has been rejected on themerit. There is no new ground in this thirdbail application, therefore, the applicant isnot entitled for bail.

(Delivered by Hon'ble Bachchoo Lal, J.)

1. This third bail application has beenmoved on behalf of the applicant Badey Lalwho is involved in Case Crime No. 665 of2011, under sections 498A, 304B, 302 IPCand 3/4 D.P. Act, P.S. Gilaula, DistrictShrawasti. The first bail application of theapplicant was rejected on 12.11.2013 fornon- prosecution and the second bailapplication of the applicant was rejected onmerit on 9.4.2014 by another bench of thisCourt.

2. Heard learned counsel for theapplicant, learned A.G.A. for the Stateand perused the record.

3. Learned counsel for the applicantsubmits that the applicant is father-in-law ofthe deceased. There is general allegationagainst the applicant. No specific role hasbeen assigned to the applicant. It has furtherbeen submitted that the applicant has notcommitted the alleged offence. Falseallegation has been made against theapplicant. It has further been submitted thatco-accused Bitta Devi and Nan Babumother-in-law and Jeth of the deceasedhave already been granted bail by anotherbench of this Court vide orders dated27.2.2013 and 5.2.2013 respectively,therefore, the applicant is also entitled forbail. There is no criminal history against theapplicant and is in jail since 12.6.2011.

4. Per contra; learned A.G.A. hasopposed the prayer for bail and argued that theapplicant is father-in-law of the deceased whois head of the family. In postmortem reportincised wounds have been found on the bodyof both the deceased. The Hasia used in thecommission of the murder of the deceasedwas also recovered on the pointing out of theapplicant. It has further been submitted that inthis case, the statements of witnesses of thefact have been recorded in which they havesupported the prosecution version. It hasfurther been submitted that in this case, thestatements of 13 witnesses have beenrecorded by the trial court. The person whowere released on bail are mather-in-law andJeth of the deceased. The applicant is head ofthe family and no information with regard tothe death of the deceased has been given tothe Police Station concerned. It has furtherbeen submitted that the second bailapplication of the applicant has been rejectedon the merit. There is no new ground in this


third bail application, therefore, the applicantis not entitled for bail.

5. Considering the facts andcircumstances of the case and withoutexpressing any opinion on the merits ofthe case, I am not inclined to release theapplicant on bail.

6. Consequently, the prayer for bail ofthe applicant Badey Lal is hereby refusedand the bail application is rejected.

7. However, the trial court is directedto proceed with the trial and conclude thesame expeditiously preferably within aperiod of four months from the date ofproduction of the certified copy of this order.



BEFORETHE HON'BLE RAJAN ROY, J.

Service Single No. 6978 of 2015

Connected withService Single No. 6979 of 2015, ServiceSingle No. 7302 of 2015, Service SingleNo.7304 of 2015, Service Single No. 7326 of2015, Service Single No. 7338 of 2015,Service Single No.7341 of 2015, Service SingleNo. 7344 of 2015, Service Single No. 7346 of2015, Service Single No. 7347 of 2015,Service Single No. 6809 of 2015, ServiceSingle No. 7424 of 2015, Service Single No.7425 of 2015, Service Single No. 7434 of2015, Service Single No.7435 of 2015, ServiceSingle No. 7436 of 2015, Service Single No.7445 of 2015, Service Single No. 7446 of2015, Service Single No. 7474 of 2015 andService Single No. 7558 of 2015

Shailendra Kumar ...PetitionerVersus


Counsel for the Petitioner:Sanjay Mishra

Counsel for the Respondents:C.S.C., R.K.S. Suryavanshi

U.P. Intermediate Education Act 1921-Section 16 E (II)-payment of salary-shortterms appointment-without creation of postunder Section-9-or continuance of suchteachers beyond academic session-appointment made by management-de-hors to rules-liability can not be fastenedupon state exchequer-even on substantivevacancy after 2002-can be appointed underSection 16 of Act 1982 in view of regulation21 of Act 1921.

Held: Para-15In the case of an appointment againsttemporary vacancy in terms of Section 16-E(11) of the U.P. Intermediate Act, 1921 ateacher may be entitled for salary but onlytill the end of academic session and notbeyond that, that too, only if theappointment is against a postsanctioned/created as per Section 9 of theU.P. High School and Intermediate Colleges(Payment of Salaries of Teachers and otherEmployees) Act 1971 (hereinafter referredto as 'the Act 1971).

Case Law discussed:(2004) 3 UPLBEC 2671; [2010 (28) LCD 1375];2015 (33) LCD 2402

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard learned counsel for theparties.

2. All these writ petitions involvesame issue relating to the entitlement of theCommittee of Management to makeappointment of teachers againstsubstantive vacancies and theconsequential entitlement of such teachersto salary from the State-Exchequer.

1 All. Shailendra Kumar Vs. State of U.P. & Ors. 239

3. In all these writ petitions, thepetitioners have been appointed by theManagement Committee of the educationalinstitution which are recognized andallegedly aided by the State. The claim of thepetitioners herein is that in the absence of aregularly selected candidate the teaching inthe institution could not be allowed to suffer,therefore, in these compelling circumstancesthe Managing Committee proceeded to makeappointments on ad-hoc temporary basisagainst sanctioned post. They have placedreliance on the judgment of Rakesh ChandraMisra vs. State of U.P. and others reported in(2004) 3 UPLBEC 2671 as upheld in thecase of Daya Shanker Mishra vs. DistrictInspector of Schools and others reported in[2010(28) LCD 1375] on the applicability ofSection 16-E(11). They have claimed that theappointments are referable to the saidprovision and therefore, they are entitled tothe payment of salary from the State-Exchequer.

4. The issue involved herein is nolonger res-integra as the same has beenconsidered and decided by a DivisionBench of this Court on 17.12.2015 in thecase of Abhishek Tripathi vs. State ofU.P. through Secretary, SecondaryEducation, Lucknow and others whereintheir Lordships have held as under:-

"We hence, find merit in the contentionwhich has been urged on behalf of the Statethat the general considerations whichweighed with the learned Single Judge in thedecision in Sanjay Singh (supra) cannot formthe foundation of a sustainable direction inlaw, that the State can be issued a writ ofmandamus to pay salaries from the publicexchequer in respect of an appointment madeby the management against a substantivevacancy on an ad-hoc basis. The scope andambit of the power of the management to fill

up temporary vacancies is clearly defined bythe provisions of Section 16-E (11) of theAct of 1921 and its regulations. Thelegislature in its wisdom has enacted the Actof 1982 so as to provide in Section 16 thatnotwithstanding anything contained in theAct of 1921, an appointment shall be madeby the management only on therecommendation of the Board. Thelegislature further specified that anyappointment made in contravention of theprovisions of sub- section (1) of Section 16would be void. During the period when theRemoval of Difficulties Orders held the field,which contained a provision for making adhoc appointments, the law was well settledboth by the Supreme Court and by this Courtthat any appointment made in violation of theprovisions contained in those orders wouldbe void and that a direction for the paymentof salary could not be sustained on the basisof such an appointment. After Section 18was amended successively, a procedure wasprovided initially for making ad-hocappointments but, as we have noticed,Section 18, in its present form is confinedonly to Principals and Headmasters. Theonly source of power then for makingappointments of an ad-hoc nature is relatableto the provisions of Section 16-E (11) of theAct of 1921 read with regulations. Anyappointment which is de-hors the provisionsof the Act of 1921 and the regulations cannotbe countenanced in law. A mandamus cannotbe issued to the State for the payment ofsalary where the appointment by its verynature is in contravention of law and void.

There can be no dispute about the basicprinciple of interpretation which was soughtto be emphasized by the petitioner that, in thecourse of interpreting a statute, it would beopen to the Court to adopt an interpretationwhich, while being in accord with the termsof the statute, makes the statute workable.But equally in this process, it would not be


open to the Court to re-write statutoryprovisions or to mandate an act such as thepayment of salary in respect of anappointment which is made otherwise than inaccordance with the statutory provisions andthe rules. Article 21-A of the Constitutionupon which reliance has been placed by thelearned Single Judge in Sanjay Singh's case(supra) mandates that the State shall providefree and compulsory education to all childrenbetween ages of six to fourteen in suchmanner as the State may, by law, determine.The law undoubtedly, has to be fair, just andreasonable.

This Court in repeated judgments hasdrawn the attention of the State to the need tostreamline the procedures in a line ofprecedent from this Court culminating in thejudgment of the Full Bench in SantoshKumar Singh (supra). The observations ofthis Court shall be taken up by the State witha sense of the highest priority and with allseriousness to ensure that a situation does notemerge where vacancies of a substantivenature are left unfilled over a long period oftime to the detriment of education. The StateGovernment must take up the matter withnecessary alacrity and immediacy.

For these reasons, we have come tothe conclusion that the view of the learnedSingle Judge in Sanjay Singh's case(supra) cannot be upheld as laying downthe correct position in law. The view ofthe learned Single Judge shall stand,accordingly, overruled. The judgment inPradeep Kumar (supra) is upheld subjectto the principles which, we haveenunciated in this judgment.

The second issue which has beenreferred for decision before the DivisionBench is the scope of Section 16-E (11)when read in the context of Sections 16,22, 32 and 33-E of the Act of 1982. Wehave already dealt with the interpretation

of these provisions in the course of thejudgment.

The reference to the Division Benchshall stand answered in the aforesaid terms.The record of these proceedings shall now beremitted back to the learned Single Judge,according to roster, for disposal in the lightof the questions answered".

5. In view of the above theManaging Committee of a College doesnot have any statutory authority to appointa teacher against a substantive vacancyde-hors the provisions of Section 16 ofthe Act, 1982, consequently suchappointee is not entitled to salary from theState-Exchequer.

6. As far as appointment underSection 16-E (11) of the Intermediate Act,1921 is concerned, the law in this regardhas already been explained and settled bythe Full Bench decision in the case ofSantosh Kumar (supra) as also in theaforesaid Division Bench decision in thecase of Abhishek Tripathi (supra).

7. The relevant extracts of the FullBench decision in Santosh Kumar arequoted herein below:-

19. Sub-section (11) of Section 16-Ehas thus made a specific provision in regard toappointments in the case of temporaryvacancies caused by (i) the grant of leave to anincumbent for a period not exceeding sixmonths; or (ii) by death, termination orotherwise of an incumbent occurring duringan educational session. The object of theprovision is to ensure that where a temporaryvacancy arises as a result of fortuitouscircumstances, such as leave, death,termination or otherwise, the educationalneeds of students should not be disturbed. Thepurpose of making an arrangement in the case


of a temporary vacancy is to protect theinterest of education so that students are notleft in the lurch by the absence of a teacher inthe midst of an academic session. The provisoto sub-section (11), however, stipulates that anappointment which is made under theprovisions of sub-section (11) shall, in nocase, continue beyond the end of theeducational session during which theappointment was made. The proviso isintended to ensure that the purpose ofappointment against a temporary vacancycaused due to the absence of a teacher in themidst of an academic session is met bycontinuing the appointment during and untilthe end of the academic session but notfurther. This is a provision which has beenmade by the state legislature in its legislatingwisdom. The statutory provision providesboth for the circumstances in which atemporary vacancy can be filled up and thelength of an appointment made against atemporary vacancy. The difficulty whicharises is because the Board, which has beenconstituted under the Act, does not fulfill itsmandate of promptly selecting teachers forregular appointment. The District Inspector ofSchools is in possession of necessary factualdata in regard to the dates of appointment andretirement of teachers of aided institutions.This can be summoned by the Board even ifthe management does not comply with itsduty to intimate vacancies. There can be nojustification for the Board not to discharge itsduties with dispatch and expedition. This isliable to result in a situation where theeducational needs of students are seriouslydisturbed due to the unavailability of dulyselected teachers. Ad hoc appointments intemporary vacancies also cause a state ofuncertainty for teachers and lay them open tograve exploitation at the hands of certainmanagements of educational institutions.Thus, considering the matter both from theperspective of the interest of education as well

as the welfare of teachers, it is necessary thatthe Board must take due and proper steps wellin advance of an anticipated vacancy toinitiate the process of selection. Similarly, theState Government would do well tostreamline the procedure for makingappointments in respect of temporaryvacancies consistent with the mandate ofSection 16-E (11) so that, while the interest ofstudents is protected, the teachers are notexposed to exploitation.

"20. We consequently answer thereference in the following terms:

(a) .................(b) ................(c) Under Section 16-E of the

Intermediate Education Act, 1921, theCommittee of Management is empowered tomake an appointment against a temporaryvacancy caused by the grant of leave to anincumbent for a period not exceeding sixmonths or in the case of death, termination orotherwise, of an incumbent occurring duringan educational session. An appointmentmade under sub-section (11) of Section 16-Eas provided in the proviso thereto shall, inany case, not continue beyond the end ofeducational session during which theappointment was made; and

(d) The judgment of the DivisionBench in Subhash Chandra Tripathi(supra) is affirmed as laying down acorrect interpretation of the judgment in AA Calton (supra)."

8. In view of the abovepronouncement, appointment againsttemporary vacancy in terms of Section 16-E(11) of the Uttar Pradesh IntermediateEducation Act, 1921 (For short 'theIntermediate Act, 1921') can be made onlytill the end of academic session meaningthereby such appointments can be made inthe academic session in which the vacancy


arises thereby creating a corresponding needfor such appointment till the end of theacademic session and not beyond that.Thus, appointment under Section 16-E (11)of the U.P. Intermediate Act, 1921 can notbe made in a subsequent academic session.

9. Apart from an appointmentagainst a temporary vacancy caused onaccount of leave of an incumbent for aperiod not exceeding six months,appointment in the case of a vacancycaused by 'death, termination orotherwise' of an incumbent during aneducational session is also permissibleunder Section 16-E(11) of the Act 1921,with the rider that such appointments shallnot in any case continue beyond anothereducational session during which suchappointment was made.

10. Purport of the word 'or otherwise'has not been considered in any of thepronouncements referred to hereinabove andno such pronouncement has been placedbefore the Court by either of the partieswherein it may have been considered. As inthe present case, most of the vacancies havearisen on account of retirement or promotionof the incumbent, which is not specificallymentioned in Section 16-E(11) of the Act,therefore, it is necessary to consider thepurport and meaning of the words 'orotherwise' so as to determine the applicabilityof Rules 16-F (11) as has been pressed by thepetitioners. Etymologically, the word'otherwise' as per Black's Law Dictionarymeans "in a different manner; in anotherway; or in other ways". The word 'other' hasbeen defined in the same dictionary to mean"different or distinct from that alreadymentioned; additional, or further, "followingan enumeration of particular classes "other"must be read as "other such like" andincludes only others of like kind and

character." The use of words 'death ortermination' is indicative of the fortuitouscircumstances giving rise to the vacancyreferred in the provision. In thepronouncements of this Court referred andquoted hereinabove it has already been saidthat the object of Section 16-E(11) is toensure that where a temporary vacancy arisesas a result of fortuitous circumstances, suchas leave, death, termination or otherwise, theeducational needs of students should not bedisturbed, therefore, the aforesaid provisioncaters to the need created by fortuitouscircumstances. The word 'Fortuitous' isdefined in Black's Law Dictionary to mean"happening by chance or accident. Occurringunexpectedly, or without known cause,Accidental; undesigned; adventitious.Resulting from unavoidable physicalcauses". Vacancies on account of Death andTermination cannot be anticipated. They arebased on fortuitous circumstances.

11. The rule of Ejusdem generis isthat words of a general nature followingspecific and particular words should beconstrued as limited to things which areof the same nature as those specified. Thisrule is not to be applied where the contextmanifests a contrary intention.

12. In the present case the context is theprovision contained in Section 16-E(11) of theAct providing for filling up of temporaryvacancies and those of a fortuitous natureother than the vacancies which are to be filledup substantively under other provisions. Deathand termination also creates a substantivevacancy but they are distinct from othersubstantive vacancies as they are fortuitous.They cannot be anticipated or known beforehand nor pre-determined, therefore, they havebeen included under sub section 11 for beingfilled up temporarily in keeping with theobject of the said provision.


13. Applying the principle of Ejusdemgeneris the general word "otherwise" is tobe understood by giving a restrictedmeaning limited to matters of the sameclass, category or genus as the specificwords preceding it. The principleunderlying this approach to statutory is thatthe subsequent general words were onlyintended to guard against some accidentalomission in the objects of the kindmentioned earlier and were not intended toextend to objects of a wholly different kind.The specific words preceding the generalword "or otherwise" i.e. death andtermination can be placed under a commoncategory indicative of vacancies arising outof fortuitous circumstances, therefore, thegeneral word "otherwise" following thespecific words death and termination has tobe read and understood as indicative ofother vacancies which may also arisefortuitously such as resignation etc. If theword "otherwise" is given a wide meaningso as to include all other kinds of vacanciesit will render the very provision of section16-E (11) nugatory being contrary to itsvery object and the spirit underlying it. Ifthis was the intention then there was nonecessity of using the words death ortermination, therefore, it has to beunderstood as referring to other vacancies ofsimilar nature i.e. fortuitous vacancies. Thisis in consonance with the object of theprovision as explained by Full Bench of thisCourt in the case of Santosh Kumar (Supra).

14. A vacancy created by retirement isa substantive vacancy which is not fortuitousin nature. It can be anticipated and in fact ispre-determinable, therefore, against suchvacancies appointments can not be madeunder Section 16-E(11) of the Act but canonly be made under Section 16 of the Act,1982, afortori because of Regulations of 21of the Regulations made under U.P.

Intermediate Act 1921 under which a teacherwho attains the age of superannuation in themidst of an academic session is entitled tocontinue till the end of the session. Likewisea vacancy created by promotion can also notbe said to be purely fortuitous, as, it can, in agiven situation, very well be anticipated.Moreover it does not create absence of ateacher in the institution which is also one ofthe consequences of a vacancy arising out ofdeath or termination. On promotion theteacher is very much available in theinstitution and he can also teach the lowerclasses if the need arises, therefore, the saidvacancy is not covered by the aforesaidprovision of Section 16-E(11). The provisiondoes not evince any contrary intention so asto allow substantive vacancies, which are notof a fortuitous nature, to be filled under thesaid provision.

15. In the case of an appointmentagainst temporary vacancy in terms ofSection 16-E(11) of the U.P. IntermediateAct, 1921 a teacher may be entitled forsalary but only till the end of academicsession and not beyond that, that too, only ifthe appointment is against a postsanctioned/created as per Section 9 of theU.P. High School and IntermediateColleges (Payment of Salaries of Teachersand other Employees) Act 1971 (hereinafterreferred to as 'the Act 1971).

16. As per the dictum of the FullBench decision of this Court in the SpecialAppeal defective No. 673 of 2014 (State ofU.P. vs. Committee of Management, SriSukhpal Intermediate College) no directionfor payment of salary to a teacher of anEducational Institution governed by thePayment of Salary Act, 1971 can be issuedby this Court unless he has been appointedagainst a post sanctioned/created withcompliance of Section 9 thereof. The


relevant extracts of the aforesaid Full Benchdecision are quoted herein below:-

"In our view, the field of dispute in thepresent case, is governed by the judgment ofthe Full Bench in Gopal Dubey (supra). Thejudgment in Gopal Dubey clearly holds thatthe Act of 1971 operates in a field which isdistinct from the Act of 1921. The mere factthat recognition has been granted to aninstitution or, for that matter, for conductinga new course or subject or for an additionalsection, would not give rise to a presumptionof a financial sanction having been granted tothe creation of a post. A financial liabilitycannot be foisted on the State to reimbursethe salary payable to the employee or theteacher on the basis of such a presumption.For the purpose of creating a new post of ateacher or other employee, the managementhas to obtain the prior approval of theDirector as required under Section 9 of theAct 1971. Without the prior approval of theDirector, a new post cannot be sanctioned orcreated. Section 9 is mandatory. Thisprinciple in Gopal Dubey's case followsspecifically the judgment of the SupremeCourt in Gajadhar Prasad Verma's casewhich was rendered while interpreting theprovisions of Section 9 of the Act of 1971.The High Court cannot issue a directioncontrary to the mandate of Section 9. Ordersunder Article 226 must conform to law andcannot be contrary to the mandate of law. Nomandamus can issue - interim or final - forthe payment of salary by the state in theabsence of the prior approval of the Director.

For these reasons, we answer thequestions which have been framed forreference to the Full Bench in thefollowing terms:

In the absence of a sanctioned post, adirection cannot be issued to the state in theexercise of powers under Article 226 of theConstitution for the payment of salary. The

position in law, with which we respectfullyconcur, is as laid down in the judgment ofthe Full Bench in Gopal Dubey's case. Thejudgment in Om Prakash Verma is consistentwith the law laid down in Gopal Dubey'scase. In the absence of a sanctioned post, theHigh Court under Article 226 of theConstitution would not be justified in issuinga mandamus for the payment of salary,particularly since a mandamus cannot lie inthe absence of a legal right, based on theexistence of a statutory duty."

17. When considered against theaforesaid legal backdrop the factualposition which emerges in these bunch ofpetitions and the alleged entitlement ofpetitioners to salary from the StateExchequers is as under:-

18. As far as the Writ Petition No.7474(SS) of 2015 is concerned, theappointment having been made by theManaging Committee de-hors the statutoryprovisions and Rules made thereunder nodirection for Payment of salary can beissued. Moreover from a bare reading of theaverments made in the writ petition it isevident that though the matter pertaining tocreation of post in the institution in questionwas referred by the Director to the StateGovernment but no post was created andthe appointment of the petitioner(s) was notagainst any sanctioned post, therefore, inview of another Full Bench decision of thisCourt dated 12.05.2015 rendered in SpecialAppeal Defective No. 673 of 2014, State ofU.P. through Secretary, SecondaryEducation and Ors. Vs. Committee ofManagement, Sri Sukhpal IntermediateCollege, Tirhut, Sultanpur and Ors., for thisreasons also no such direction for paymentof salary can be issued as has been prayedfor, in absence of the appointment against asanctioned post.


19. In Writ Petition No. 7436(SS) of2015 the vacancy on account of leaveallegedly arose on 30.06.2012, however, theadvertisement for filling up the same wasissued on 26.09.2014 by the Committee ofManagement. Clearly the appointment has notbeen made as per the relevant statutoryprovisions referred above. As far as,application of Section 16-E(11) of the U.P.Intermediate Act 1921 is concerned, thevacancy having arisen on 30.06.2012appointment against the same could not havebeen made towards the end of 2014 for thereasons already mentioned herein above asalso indicated in the Full Bench decision inSantosh Kumar Vs. State of U.P. and othersreported in 2015 (33) LCD 2402, therefore,the said appointment is also de-hors thestatutory provisions and the rules madethereunder including Section 16-E(11),consequently, no direction for payment ofsalary from the State Exchequer can be issued.

20. As far as the Writ Petition No.7425(SS) of 2015 is concerned, theappointment has not been made by theBoard in terms of statutory provisions noris it against a sanctioned post as has beencategorically mentioned in the order dated17.12.2012 which is impugned in this writpetition, therefore, no direction for thepayment of salary can be issued.

21. In Writ Petition No. 6978(SS) of2015 the vacancies are said to have arisen inthe year in 2011, 2013 and lastly on30.06.2014 on account of retirement againstone of which the sole petitioner is said tohave been appointed on 22.06.2015, inpursuance to which he submitted his joiningon 01.07.2015 i.e. in the next academicsession, therefore, clearly the appointmentcan not be sustained under the StatutoryProvisions and rules made thereunderincluding Section 16-E (11) of the U.P.

Intermediate Act 1921, as, even under thelatter provision such appointment could notbe made against a substantive vacancyarising on account of retirement. Even if itcould the appointment should have beengiven effect during the academic session inwhich the vacancy arose whereas thepetitioner admittedly joined on 01.07.2015i.e. after the end of academic session on30.06.2015 as per the earlier definition of theacademic session, consequently, no directionfor payment of salary from the StateExchequer can be issued.

22. In Writ petition No. 6979(SS) of2015 a substantive vacancy is said to havearisen on 01.07.2013 on account ofretirement of the incumbent against whichthe Managing Committee is said to havemade the appointment as a short termmeasure on 27.08.2015. Clearly theappointment is de-hors the StatutoryProvisions and Rules made thereunder,including Section 16-E (11) of theIntermediate Act, 1921, therefore, nodirection for payment of salary from theState Exchequer can be issued.

23. In Writ Petition No. 7302(SS) of2015 a substantive vacancy is said to havearisen in June, 2015 on account ofretirement. The appointment has been madeby the Committee of Management on28.10.2015, in pursuance to which thepetitioner is said to have joined on02.11.2015. Clearly the appointment is de-hors the Statutory Provisions and Rulesmade thereunder, including Section 16-E(11) of the Intermediate Act, 1921, therefore,no direction for payment of salary from theState Exchequer can be issued.

24. In Writ Petition No. 7304(SS) of2015 a substantive vacancy is said to havearisen in June, 2013 on account of


retirement of the incumbent against whichthe Managing Committee is said to havemade the appointment on 15.02.2015,therefore, clearly the appointment is de-hors the statutory provisions and rulesmade thereunder including Section 16-E(11) of the U.P. Intermediate Act 1921,consequently, no direction for payment ofsalary from the State Exchequer can beissued.

25. In Writ Petition No. 7326(SS) of2015 a substantive vacancy arose on30.06.2012 on account of retirement ofthe incumbent which was allegedly filledup in 2014, therefore, such appointmentassuming for a moment it was made underSection 16-E (11) of the Intermediate Act1921, was also de-hors the said provisionsas per the law laid down by the FullBench in Santosh Kumar Singh's (supra),consequently, no direction for payment ofsalary can be issued.

26. In Writ Petition No. 7338(SS) of2015, a substantive vacancy arose on30.06.2007 on account of retirement againstwhich the Committee of Management madethe alleged appointment in the year 2015,therefore, clearly such appointment could nothave been made under Section 16-E (11) ofthe Intermediate Act, 1921, consequently, nodirection for payment of salary can be issued.

27. In Writ Petition No. 7341(SS) of2015 a substantive vacancy occurred due toretirement of the incumbent on 30.06.2012against which the Managing Committeeallegedly made appointment in the year2014, therefore, clearly the appointment wasde-hors the Statutory Provisions, includingSection 16-E (11) of the Intermediate Act1921, consequently, no direction for paymentof salary from the State Exchequer can beissued in this case also. .

28. In Writ Petition No. 7344(SS) of2015 a substantive vacancy is said to haveoccurred due to retirement of theincumbent on 30.06.2010 against whichthe Committee of Management made theappointment in the year 2015, therefore,clearly such appointment was also de-horsthe Statutory Provisions including Section16-E (11) of the U.P. Intermediate Act1921, therefore, no direction for paymentof salary from the State Exchequer can beissued in this case also.

29. In Writ Petition No. 7346(SS) of2015 a substantive vacancy arose on02.12.2013 due to promotion of theincumbent against which the Committee ofManagement made the appointmentallegedly on 25.06.2014 i.e. barely five daysprior to the end of the academic session andin pursuance of such appointment thepetitioner, as stated in paragraph 13 of thewrit petition, joined on 02.07.2014 that isafter the commencement of the nextacademic session. As, such appointment,assuming it was under Section 16-E (11) ofthe U.P. Intermediate Act 1921, can not spillover to the next academic session and thepetitioner did not work during the academicsession which came to an end on 03.06.2014,therefore, no direction for payment of salarycan be issued in this case also.

30. In Writ Petition No. 7347(SS) of2015 a vacancy is alleged to have arisenon 01.07.2014 on account of retirementon 30.06.2014 and the ManagingCommittee is said to have held theselection and appointed the petitioner on28.07.2014 in pursuance to which he issaid to have joined on 02.08.2014. Clearlythe appointment is de-hors the StatutoryProvisions and Rules made thereunder,including Section 16-E (11) of theIntermediate Act, 1921, therefore, no


direction for payment of salary from theState Exchequer can be issued.

31. In Writ Petition No. 6809(SS) of2015 there are two petitioners and it hasbeen alleged that three posts fellsubstantively vacant due to retirement ofthe incumbents on 30.06.2011,30.06.2013 and 30.06.2014. Against theaforesaid, posts were advertised on05.06.2016 i.e. barely 25 days prior to theend of the academic session and theappointment letters are said to have beenissued on 22.06.2015. Apart from the factthat a substantive vacancy consequent toretirement could not be filled underSection 16-E(11), the petitioners as pertheir own admission in paragraph 9 of thewrit petition joined on 01.07.2015 i.e. inthe next academic session, therefore,clearly their case is not covered bySection 16-E (11) of the U.P. IntermediateAct 1921, as under the said provisionsappointments and joining should havetaken place in the same academic sessionand could continue only till the end ofsuch academic session in which thevacancy had arisen, consequently, nodirection for payment of salary can beissued in this case also.

32. In Writ Petition No. 7424(SS) of2015 a substantive vacancy is said to havearisen on 10.02.2015 on account ofpromotion which was advertised on17.03.2015 against which the ManagingCommittee made the appointment on10.04.2015 in pursuance to which thepetitioner is said to have joined on18.04.2015. For the reasons alreadymentioned in the earlier part of thejudgment a vacancy arising out ofretirement cannot be filled under Section16-W(11) of the Act, therefore, theappointment of the petitioner is not in

accordance with statutory provisions andthe Rules made thereunder includingunder Section 16-E(11) as such nodirection for payment of salary from theState-Exchequer can be issued.

33. In Writ Petition No. 7434(SS) of2015, a substantive vacancy is said tohave arisen on 01.07.2013 due toretirement against which the ManagingCommittee is said to have made theappointment on 16.01.2015, therefore,clearly such appointment is de-hors theStatutory Provisions and the rulesincluding Section 16-E (11) of the U.P.Intermediate Act 1921, consequently, nodirection for salary can be issued in thiscase also.

34. In Writ Petition No. 7435(SS) of2015, a substantive vacancy arose on01.07.2014 due to retirement against whichthe Managing Committee made theappointment on 10.01.2015 i.e. during theacademic session 2014-15 as per thedefinition of the academic sessionprevalent at that time. Clearly theappointment having not been made underSection 16-E(11) 1982 as such vacanciesare not amenable to the provisions ofSection 16-E(11) of the Act, no directionfor payment of salary from the State-Exchequer can be issued.

35. In Writ Petition No. 7445(SS) of2015, a substantive vacancy is said to havearisen on account of promotion on15.05.2013 against which the ManagingCommittee is said to have made theappointment on 15.01.2015, therefore,clearly the appointment is de-hors thestatutory provisions and rules madethereunder, including Section 16-E (11) ofthe Intermediate Act 1921, consequently, nodirection for payment of salary can be issued.


36. In Writ Petition No. 7446(SS) of2015 a vacancy is said to have occurredsubstantively on 30.06.2015 on account ofretirement against which the appointment hasbeen made by the Committee of Managementon 04.07.2015, therefore, clearly theappointment, if any, is de-hors the statutoryprovisions and the rules made thereunder,including Section 16-E (11) of the U.P.Intermediate Act, 1921, consequently, nodirection for payment of salary from the StateExchequer can be issued.

37. In Writ Petition No. 7558(SS) of2015 a challenge has been made to theGovernment Order dated 10.05.2002restraining the institutions from makingappointments against the vacancies arisen on30.06.2002 with the stipulation that suchappointments can only be made by the Board.In this case, the vacancies are said to havearisen on 30.06.1999, 30.06.2002 and30.06.2007 on account of promotion andretirement of the incumbent. The writ petitionhas been filed in the year 2015. Against theaforesaid vacancies it is alleged that theappointments were made in September, 2010.Clearly, the appointments, if any, made by theCommittee of Management was de-hors theStatutory Provisions and rules madethereunder including Section 16-E (11) of theU.P. Intermediate Act, 1921, therefore, nodirection for payment of salary can be issuedin this case also. The Government Order dated10.05.2002 has to be read and understood inthe light of pronouncement referred hereinabove.

38. All the Writ Petitions aredisposed of in the aforesaid terms.



BEFORE

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

THE HON'BLE YASHWANT VARMA, J.

Writ-C No. 7078 of 2016

C/M Madhav U.M. Vidyalaya & Anr. ...Petitioners


Counsel for the Petitioners:Chandra Jeet Yadav, Anjali

Counsel for the Respondents:CSC

Constitution of India, Art.-226-Writ todeclare-the provisions of Section 5 ofPayment of Salaries Act 1971-Ultra Vires-being contrary to Section 16-A (7) of U.P.Intermediate Education Act 1921-held-both provisions are state legislation-toread harmoniously-no least confliction-petition dismissed.

Held: Para-6The Payment of Salaries Act is an Act toregulate the payment of salaries toteachers and employees of High Schooland Intermediate Colleges receiving Stateaid. The first proviso to Section 5(1)empowers the Inspector to order singleoperation of the bank account in thecircumstances which are referred totherein. Section 6 (3) empowers theRegional Deputy Director to supersede theManagement. In that event the AuthorisedController is appointed, upon which heshall exercise all powers of theManagement including single operation ofthe bank account. There is, thus, noconflict of jurisdiction much less anyconflict between the statutory provisions.Both sets of provisions are of Statelegislation and have to be readharmoniously so as to give full effect to thestatutory scheme.

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

1 All. C/M Madhav U.M. Vidyalaya & Anr. Vs. State of U.P. & Ors. 249

1. The petitioners have sought the issuance of a writ for declaring the provisos toSection 5 (1) of the Uttar Pradesh HighSchool and Intermediate Colleges (Paymentof Salaries of Teachers and Other Employees)Act, 19711 as being ultra vires to Section 16-A(7) of the Uttar Pradesh IntermediateEducation Act 19212.

2. Section 16-A of the IntermediateEducation Act provides for the framing ofa Scheme of Administration. Under sub-section (7), it has been provided thus:

"(7) Whenever there is dispute withrespect to the Management of aninstitution, persons found by the RegionalDeputy Director of Education, upon suchenquiry as is deemed fit to be in actualcontrol of its affairs may, for purposes ofthis Act, be recognised to constitute theCommittee of Management of suchinstitution until a Court of competentjurisdiction directs otherwise:

Provided that the Regional DeputyDirector of Education shall, beforemaking an order under this sub-section,afford reasonable opportunity to the rivalclaimants to make representations inwriting.

Explanation. - In determining thequestion as to who is in actual control of theaffairs of the institution the Regional DeputyDirector of Education shall have regard to thecontrol over the funds of the institution andover the administration, the receipt of incomefrom its properties, the Scheme ofAdministration approved under sub-section(5) and other relevant circumstances."

3. Sub-section (7) of Section 16-Aapplies where there is a dispute with respect tothe Management of an institution. In such anevent, persons found by the Regional DeputyDirector of Education, upon enquiry "to be inactual control of its affairs" may, for the

purpose of the Act, be recognized to constitutethe Committee of Management of theinstitution, until otherwise directed by a courtof competent jurisdiction. This provisionindicates that under sub-section (7), a powerhas been conferred upon the Regional DeputyDirector of Education to recognize as aCommittee of Management such body whichis found to be in actual control of the affairs ofthe institution. However, this is for thepurposes of the Act and the direction operatesuntil a court of competent jurisdiction decidesotherwise. The Explanation to sub-section (7)of Section 16-A provides the circumstanceswhich are to be borne in mind in determiningas to who is in actual control of the affairs ofthe institution. The Regional Deputy Directorof Education is to have regard to (i) controlover the funds of the institution; (ii) controlover the administration; (iii) control over thereceipt of income from its properties; (iv) theScheme of Administration approved undersub-section (5); and (v) other relevantcircumstances.

4. The Payment of Salaries Actcontains a provision in Section 5 for thepayment of salary of recognized institutionswhich receive a maintenance grant from theState Government. Under sub-section (1) ofSection 5, the Management is, for thepurpose of disbursement of salaries to itsteachers and employees, required to open aseparate bank account which is to be openedjointly by a representative of theManagement and by the Inspector or anofficer authorised by him. Under the firstproviso to sub-section (1) of Section 5, aprovision has been made for single operationof accounts if the Inspector is satisfied that itis expedient in public interest so to do. Insuch an event, the Inspector would instructthe bank that the account would be operatedby the representative of the Management


alone. In other words, joint operation isreplaced by a direction for single operationwhen it is expedient in public interest to doso under the first proviso to sub-section (1)of Section 5. Section 5(1) is extracted hereinbelow for convenience of reference:

"5. Procedure for payment of salary in thecase of certain institutions.- (1) The managementof every institution shall, for the purpose ofdisbursement of salaries to its teachers andemployees, open in a Scheduled Bank or a Co-operative Bank a separate account to be openedjointly by a representative of the managementand by the Inspector or such other officer as maybe authorised in that behalf:

Provided that after the account isopened, the Inspector may, if he is,subject to any rules made under this Act,satisfied that it is expedient in the publicinterest so to do, instruct the bank that theaccount shall be operated by therepresentative of the management alone,and may at any time revoke suchinstruction:

Provided further that in the casereferred to in the proviso to sub-section(2), or or where a difficulty arises in thedisbursement of salaries due to anydefault of the management, the Inspectormay instruct the Bank that the accountshall be operated only by himself or bysuch other officer as may be authorised byhim in that behalf and may at any timerevoke such instruction."

5. Section 6 of the Payment of SalariesAct empowers the Inspector to recommendaction being taken against an institutionwhere he is satisfied that the Managementhas committed default in complying with itsstatutory obligations under Sections 3, 4 or 5.Under sub-section (3) of Section 6, theRegional Deputy Director is empowered,upon considering the cause shown by the

Management, to supersede the Management.Thereupon, after an order is made under sub-section (3), the Authorised Controller shall,to the exclusion of the Management, exerciseall the powers and perform the functions ofthe Management including in respect ofmanagement of the property belonging to orvested in the institution. The AuthorisedController would operate singly the bankaccount referred to in Section 5. In otherwords, once an Authorised Controller isappointed under the provision of sub-section(3) of Section 6, sub-section (4) mandatesthat the bank account shall be operatedsingly; the bank account being that which isreferred to in Section 5.

6. Once the provisions of Section 16-A(7) of the Intermediate Education Act andthose of Section 5(1) and Section 6(4) of thePayment of Salaries Act are appreciated intheir proper perspective, it is evident thatthere is no conflict between the two sets ofprovisions. Sub-section (7) of Section 16-Aempowers the Regional Deputy Director ofEducation to recognize who shouldconstitute the Committee of Managementwhere there is a dispute with respect tomanagement, and the Explanation to sub-section (7) contains a reference to thecircumstances which are to be borne in mind,including control over the funds of theinstitution. The Payment of Salaries Act is anAct to regulate the payment of salaries toteachers and employees of High School andIntermediate Colleges receiving State aid.The first proviso to Section 5(1) empowersthe Inspector to order single operation of thebank account in the circumstances which arereferred to therein. Section 6 (3) empowersthe Regional Deputy Director to supersedethe Management. In that event theAuthorised Controller is appointed, uponwhich he shall exercise all powers of theManagement including single operation ofthe bank account. There is, thus, no conflict

1 All. Jagroop Singh (U/A 227) Vs. Dist. Judge Hardoi & Ors. 251

of jurisdiction much less any conflict between the statutory provisions. Both sets ofprovisions are of State legislation and have tobe read harmoniously so as to give full effectto the statutory scheme.

7. We do not find any reason orjustification to entertain the second prayerfor seeking enforcement of a GovernmentOrder. The State Government is vestedwith adequate powers to ensure that itsorders are duly enforced, albeit inaccordance with the provisions of law.

8. Consequently, we see no reasonto entertain the writ petition. The writpetition is accordingly dismissed. Thereshall be no order as to costs.



BEFORETHE HON'BLE ANIL KUMAR, J.

Misc. Bench No. 7573 of 2015

Jagroop Singh (U/A 227) ...PetitionerVersus

Dist. Judge Hardoi & Ors. Respondents

Counsel for the Petitioner:Bhagwandeen Sharma

Counsel for the Respondents:--

C.P.C.-Order VI Rule-16-Amendment inwritten statement-after closure ofevidence-by proposed amendmentpetitioner wants rescind from earlieradmission of written statement-certainlyaffecting rights of plaintiff-rightly rejected-petition dismissed.

Held: Para-12In the instant matter from the perusal ofthe judgment and order passed by thecourt below , the admitted position which

emerge out is that petitioner's applicationfor amendment in written statement hasbeen rejected on the ground thatpetitioner cannot resile from theadmission made by him earlier in thewritten statement. Keeping in view theabove said fact as well as settledproposition of law, defendant cannot beallowed from reciling rather taking U turnfrom the earlier statement made by himin the written statement in the garb ofamendment that will prejudice the case ofthe plaintiff and it will cause injustice tohim.

Case Law discussed:2009 (27) LCD 1096; L.Rs. 2008 (3) ARC 911

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

1. Heard Sri Bhagwandeen Sharma,learned counsel for the petitioner andperused the record.

2. Facts,in brief, of the present caseare that respondent no.3-Krishan LalGupta/ plaintiff filed a Regular SuitNo.1048 of 2008 ( Krishan Lal Vs.Jagroop) in the Court of Civil Judge( S.D.)Hardoi. In the said matter petitionerJagroop Singh/ defendant filed writtenstatement thereafter an evidence on behalfof the plaintiff was also closed. At thisstage, on behalf of petitioner/ defendant anapplication for amendment in writtenstatement has been filed on 28.2.2014 towhich plaintiff/ respondent has filedobjection . The trial court/ Civil Judge (S.D.) Hardoi by order dated 10.7.2014rejected the application under Order VIRule 17 CPC moved on behalf ofpetitioner on the ground that plaintiffcannot resile from the admission which hasmade in the written statement. The orderdated 10.7.2014 was challenged by thepetitioner by filing Revision No. 43 of2014( Jagroop Singh Vs. Krishan Lal


Gupta) . The District Judge Hardoi byorder dated 23.7.2015 rejected the same.

3. Learned counsel for the petitionerwhile challenging the impugned ordersubmits that the impugned order passedby opposite parties thereby rejecting thecase of the petitioner for amendment iscontrary to the provisions of law, liable tobe set aside.

4. In support of his arguments, hehas placed reliance on the judgment givenby Hon'ble Apex Court in the case ofShushil Kumar Jain Vs. Manoj Kumarand another, 2009(27) LCD 1096.

5. The provisions of amendment ofpleading provided under Order 6 Rule 17CPC as exits today can be summarizedand crystallized as under:-

" Order 6 Rule 17 of the Code deals withamendment of pleadings . By Amendment Act46 of 1999, this provision was deleted . It hasagainst been restored by Amendment Act 22of 2002 but with an added proviso to preventapplication for amendment being allowedafter the trial has commenced, unless theCourt comes to the conclusion that in spite ofdue diligence, the party could not have raisedthe matter before the commencement of trial.The proviso, to some extent, curtails absolutediscretion to allow amendment to any stage.Now , if application is filed aftercommencement of trial, it has to be shownthat in spite of the due diligence, suchamendment could not have been soughtearlier. The object is to prevent frivolousapplication which are filed to delay the trial.There is no illegality in the provision."

6. Thus, object of Order 6, Rule 17primarily is that if because of certain factsnot being pleaded or because of deficiencies

in the pleadings, the question involvedbetween the parties cannot be finallydetermined and unless it is finallydetermined, there is likelihood of multiplicityof proceedings. Order 6, Rule 17 empowersthe Court to permit such amendments whichare necessary for final determination of theissues in dispute or real point in disputebetween the parties. Expression "new case"has been the subject matter of discussion andthat expression has been defined to mean anew claim based on altogether new facts andnew ideas. New case does not mean andinclude in itself where there is an additionalapproach to the same facts already in thepleadings as an alternative approach. So, inthe context of the amendment application, anadditional approach to same facts cannotamount to making out a new case.

7. The principles established byjudicial decisions in respect ofamendment of plaint are :

(i) All amendments will be generallypermissible when they are necessary fordetermination of the real controversy inthe suit;

(ii) All the same, substitution of onecause of action or the nature of the claimfor another in the original plaint or changeof the subject-matter of or controversy inthe suit is not permissible;

(iii) Introduction by amendment ofinconsistent or contradictory allegationsin negation of the admitted position onfacts, or mutually destructive allegationsof facts are also impermissible thoughinconsistent pleas on the admittedposition can be introduced by way ofamendment;

(iv) In general, the amendmentsshould not cause prejudice to the otherside which cannot be compensated incosts; and

1 All. Jagroop Singh (U/A 227) Vs. Dist. Judge Hardoi & Ors. 253

(v) Amendment of a claim or reliefwhich is barred by limitation when theamendment is sought to be made shouldnot be allowed to defeat a legal rightaccrued except when such considerationis out-weighed by the specialcircumstances of the case.

8. Amendment can be refused in thefollowing circumstances :

(i) where it is not necessary for thepurpose of determining the real questionin controversy between the parties;

(ii) where the plaintiff's suit wouldbe wholly displaced by the proposedamendment;

(iii) where the effect of amendmentwould take away from the defendant alegal right which has accrued to him bylapse of time;

(iv) where the amendment wouldintroduce totally different, new andinconsistent case and the application ismade at a late stage to the proceeding; and

(v) where the application foramendment is not made in good faith.

9. Accordingly, in brief, it can beheld that all amendments should beallowed which satisfy the followingconditions :

(a) of not working injustice to theother side; and

(b) of being necessary for thepurpose of determining the real questionin controversy between the parties. Theyshould be refused only when the otherparty cannot be placed in the sameposition as if the pleading had originallybeen correct but the amendment wouldcause him an injury which cannot becompensated by costs.

10. Further in the case of NorthEastern Railway Administration,Gorakhpur Vs. Bhawan Das (d) ByL.Rs.2008 (3) ARC 911 wherein Hon'bleSupreme Court has held as under:-

"In so far as the principles whichgovern the question of granting ordisallowing amendments under Order VI,Rule 17 C.P.C, ( as it stood at the relevanttime) are concerned, these are also wellsettled. Order VI , Rule 17 C.P.C. Postulatesamendment of pleadings at any stage of theproceedings. In Pirgonda Hongonda Patil Vs.Kalgaonda Shidgonda Patil and others, AIR1957 SC 363, which still holds the field, itwas held that all amendments ought to beallowed which satisfy the two conditions (a)of not working injustice to the other side, and(b) of being necessary for the purpose ofdetermining the real question in controversybetween the parties. Amendments should berefused only where the other party cannot beplaced in the same position as if the pleadinghad been originally correct, but theamendment would cause him an injurywhich could not be compensated in costs.(Also see: Gajanan Jaikishan Joshi Vs.Prabhakar Mohanlal Kalwar, (1990) 1 SCC166: 1990 SCFBRC 134)".

11. Hon'ble the Apex Court in thecase of vide judgment dated 22.03.2006,passed in Appeal (Civil) No. 5350-5361of 2002 (Rajesh Kumar Aggarwal & Ors.Vs. K.K. Modi & Ors), while consideringthe scope of amendment, held as under(relevant paragraph):-

" In cases like this, the Court shouldalso take notice of subsequent events inorder to shorten the litigation, to preserveand safeguard rights of both parties and tosub-serve the ends of justice. It is settledby catena of decisions of this Court thatthe rule of amendment is essentially a rule


of justice, equity and good conscience andthe power of amendment should beexercised in the larger interest of doingfull and complete justice to the partiesbefore the Court.

While considering whether anapplication"

12. In the instant matter from theperusal of the judgment and order passedby the court below , the admitted positionwhich emerge out is that petitioner'sapplication for amendment in writtenstatement has been rejected on the groundthat petitioner cannot resile from theadmission made by him earlier in thewritten statement. Keeping in view theabove said fact as well as settledproposition of law, defendant cannot beallowed from reciling rather taking U turnfrom the earlier statement made by him inthe written statement in the garb ofamendment that will prejudice the case ofthe plaintiff and it will cause injustice tohim.

13. So far the law laid down byHon'ble the Apex Court in the case ofSushil Kumar Jain ( Supra) isconcerned,Lordship of Hon'ble SupremeCourt in the said case has held in para -9which on reproduction reads as under:-

" That apart a careful reading of theapplication for amendment of the writtenstatement , we are of the view that theappellant seeks to only elaborate andclarify the earlier inadvertence andconfusion made in his written statement.Even assuming that there was admissionmade by the appellant in his originalwritten statement, then also , suchadmission can be explained byamendment of his written statement even

by taking inconsistent pleas orsubstituting or altering his evidence."

14. The said position does not existsin the present case so the petitioner cannotderive any benefit of law as laid down byHon'ble Apex Court in the case of SushilKumar Jain ( Supra) rather the same is notapplicable in the fact and circumstancesof the case.

15. For the foregoing reasons, writpetition lacks merit and is dismissed.

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