Indian Law Report - Allahabad Series - Feb2000

8/13/2019 Indian Law Report - Allahabad Series - Feb2000

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2ALL] Ms. Nidhi Singh V The Chairman, C.P.M.T.99, CPMT Examination & others 1

By the Court

1. Km. Nidhi Singh, a resident ofAllahabad appeared in Combined Pre MedicalTest, 1999 (for short CPMT) conducted byUniversity of Roorkee, Roorkee. An admitcard was issued to her bearing Roll No.511694. She appeared on 11.7.1999 at St.Fidelis College, Vikas Nagar, P.O. VishnupuriColony, Church Road, Lucknow, which washer centre for CPMT. She was unsuccessful asper result declared by the respondent no. 1.

2. The case of the petitioner is that she hadobtained 489 marks while the candidates,belonging to the general category andobtaining minimum 462 marks, have beencalled for counselling, which had commencedfrom 5.9.1999 for admission to M.B.B.S. Istyear course. According to the petitioner,though she was entitled for counselling andadmission in the M.B.B.S. Ist year course, therespondent no. 1-Chairman, CPMT- 99,CPMT Examination Centre, University ofRoorkee, Roorkee, has issued a letter dated14/16.8.1999 canceling her test for the allegedadoption of unfair means. For the betterappreciation and understanding of the case,the grounds specified in the aforesaid letterare reproduced below:

Whereas you appeared vide Roll no.511654 from St. Fidels College, Vikas Nagar,


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2 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

Lucknow (Centre of Examination) for theCPMT 99 held on 11.7.1999.

Whereas during the process of evaluationof your OMR Answer Sheet, it was detectedthat you have deliberately adopted unfairmeans with an intention to get undueadvantage under a well planned conspiracy.

Whereas you have initially entered thecorrect number of Question Booklet No. inboth the papers (paper-I and II) issued to youin fact, on your answer OMR sheetsrespectively, but after it was initialled by theinvigilators in the examination room, youhave changed the booklet numbers on theOMR answer sheets and thus the actual codenumber printed on the question bookletsissued to you do not match with the numberyou have written on the OMR sheet.

Whereas you were in fact issued theQuestion Booklet No. A 711249199 R (asacknowledged by you on the front page of theaforesaid Question Booklet) you have writtenanother Booklet No. A 7112194599 R on youranswer sheet in the column provided for it,which was never issued to you in Paper- I.This has been done by you with mala fideintention.

Similarly, whereas you were in fact issuedthe Question Booklet No. A 711249199 R asacknowledged by you on the front page of the

aforesaid Question Booklet, but you havewritten another Booklet No. B 1173197299 Ron your OMR answer sheet in the columnprovided for it, which was never issued to youin Paper-II. This has been done by you with amala fide intention.

Whereas the Question Booklet No. A711249199 and B 7113101299 R (as per youracknowledgement on the front page of thequestion Booklet actually issued to you) wereof English version, but the Question BookletNos. A 7112194599 R and B 1173197299 R

written by you on the answer sheet areQuestion Booklets of Hindi version whichwere never issued to you.

Whereas the very Booklet Nos. A7112194599 R and B 1172197299 which havebeen mentioned by you on the OMR Answer

Sheets have also been repeated by severalother candidates in contradiction to the actualbooklet no. issued to them, it is thus proved tobe an act of adopting unfair means in theexamination in a planned manner.

Whereas after detection of the aboveabnormal conduct on your part, the matterwas thoroughly considered and investigatedby an investigation committee and the saidcommittee is fully convinced that you havedeliberately adopted such unfair means to getundue advantage in the said examination.

3. By means of this writ petition, it isprayed that the order dated 14/16.8.1999through which the result of the petitioner ofCPMT 1999. Annexure 5 to the writ petitionhas been cancelled, be quashed and the

respondents be commanded to declare theresult of the petitioner of the said test and toadmit her in M.B.B.S. Ist year course in someMedical College, after necessary counselling.

4. When this petition came up foradmission before this court on 6.9.1999, aninterim order was passed directing therespondents to call the petitioner forcounselling, which was, however, subject toultimate outcome of the present petition. Theparties were also directed to exchange

affidavits. Counter and rejoinder affidavitshave been exchanged. Heard Sri S.P. Singh,learned counsel for the petitioner Sri S.N.Verma, learned counsel for the respondentUniversity of Roorkee assisted by Sri DineshKakkar and Sri Ashutosh Srivastava, learnedcounsel for the respondent no. 3- DirectorGeneral, Medical Education and TrainingU.P., Lucknow.

5. In the counter affidavit filed on behalfof the respondent no. 1 which has been sworn

by Dr. A.M.C. Srivastava, who himselfhappened to be a member of CPMT-99committee, it has been stated that thecandidates appearing in the CPMT-99 weregiven option to write their answers either inHindi or English language. The question


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papers were printed in English and Hindilanguages and issued to the candidates inaccordance with their choice in their allocatedcentres of examination. The Optical MarkReader (for short OMR) answer sheet induplicate was also separately issued to thecandidates on which they were required tomention the actual question Booklet codenumber issued to them. Four sets each of thequestion papers in Chemistry and Physics inEnglish and Hindi versions and four sets eachin the IInd paper, i.e. Zoology and Botany inEnglish and Hindi version were got printed,chart whereof is Annexure C.A. 1 to thecounter affidavit. When the answer sheetsubmitted by the candidates were scanned bythe OMR, to check the discrepancies, thefollowing instructions were fed to the

computer:

(i) to check whether the questionBooklet code numbers marked by thecandidates on their answer sheet tallied withthe question Booklet code numbers issued tothat centre and,

(ii) to check whether the questionBooklet code number marked by thecandidates tallied with valid (actual) questionbooklet code numbers.

6. According to the respondents, thecomputer brought out all such cases where theabove discrepancies were found. These casesof discrepancies included the cases of 32candidates, including the petitioner and onexamining the matter thoroughly, it was foundthat the petitioner and other 20 candidates inthe first paper and the petitioner as well as 25other candidates in the second paper hadmentioned the question Booklet numberwhich was not actually issued to them. A copyof the report of Unfair Means Committee has

also been brought on record in the form ofAnnexure C.A. 2. According to therespondents, after the question booklets werehanded over to the candidates at the time ofexamination, one of such booklets (Hindiversion) in each session was managed to go

outside the examination hall. The questionpaper, having been brought out of theexamination hall, was solved by those whoconduct coaching classes and smuggled backthe same to the examination centers wherepetitioner and other such candidates copiedthe same and mentioned booklet number forwhich the answers were made available tothem irrespective of the actual bookletnumbers issued to them. It has been furtherstated that the University only appoints CentreSuperintendent for particular centre and theremaining staff, such as, AssistantSuperintendent, Invigilators, etc., is appointedby the Centre Superintendent according to hisown choice. Since the centres are usuallyeducational institutions, normally thePrincipals are appointed as Centre

Superintendents. Another counter affidavithas been filed by the State Government(Medical Department) wherein more or less,the averments made in the counter affidavit ofthe University of Roorkee have beenreiterated. The petitioner has also filedrejoinder affidavits, denying the avermentsmade in the counter affidavits.

7. It is an admitted fact that there were twotypes of question booklets one meant for theexaminees, who opted to give their answers in

English and the other for those, who optedHindi. Question booklet nos. A 7112491999R and B 7113101299 R were issued to thecandidates who opted English and A7112194599 and B 1173197299 R wereissued to the candidates who opted Hindi, astheir medium of language to give answer. It isalso admitted fact that the petitioner had optedfor English language as medium for givinganswer to the question papers whereas shementioned A-712194599 R in her answersheet, which was not allotted to her and which

is a number allotted to the candidates whoopted for giving answer in Hindi language.

8. In view of aforesaid admitted factualposition, the core question for consideration,on which turns the ultimate fate of the


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petitioner depends, is: whether mere mentionof different question booklet number in theanswer sheet, instead of mentioning the actualquestion booklet number allotted to her, willamount to adoption of unfair means. Toarrive at a proper conclusion, it has to beconsidered as to what is the significance ofallotting different questions booklet numbersto the candidates giving their answers in Hindiand English as also the impact on marksobtained by a candidate if he/she hasdescribed the question booklet numberdifferently than the one actually allotted.

9. A perusal of Question booklet codes,contained in Annexure C.A. 1 to the counteraffidavit of the Roorkee University shows thatdifferent codes have been allotted for each of

the four sets of question paper booklets inHindi as well as English languages. Inparagraph 19 of the Counter Affidavit, Dr.A.M.C. Srivastava, deponent, has averred thatthe question booklets were packed in bundlesof 50 each. All these bundles had either foursets of papers in English language or in Hindilanguage. All the four sets (say A,B,C,D)were inter-mixed in the sequence A,B,C,D,A,B,C,D so on) and were issued to thecandidates just 15 minutes before the actualtime of start of examination at random. All the

100 questions in both papers were common inall the Booklets, though the order and thesetting of the questions in all the four sets ineach question paper was quite different. Forexample, in one set of booklets, the particularquestions were from serial numbers 1 to 25. Inthe different set of booklets, the samequestions may be from serial numbers 26 to50, 51 to 75 or 75 to 100, or in any othersequence. The sole purpose for doing soobviously was to ensure that no unfair meansare adopted. A candidate sitting in one room

may have a paper in which the question maybe at Sl.no. 1 whereas the candidates sittingbehind him could have the same question atSl.. No. 47. The candidate sitting in the nextrow may have a booklet number in which thatvery question is at Sl. No. 11. Since the

candidate has only to mark the answer bydarkening the printed circle by ink, in thecomputerized column, it ensures that thecandidates sitting immediately behind or infront or by his sides, cannot copy from eachother. The aforesaid procedure makes itvirtually impossible to copy the answers sincea candidate cannot possibly have an idea as towhat series of question paper has been handedover to the other candidates.

10. The case of the respondents is thatalthough the top candidates selected for firstcounselling have got about 77% marks, thepetitioner as well as all the candidates whohave engaged themselves in the adoption ofunfair means would secure 80% or more, ifevaluated on the basis of question booklet

code fraudulently mentioned in their answersheets different from the one actually allottedto them.

11. The petitioner had opted for papers inEnglish language. She was given the papers inthe same language. The group of candidateswho opted English language were made to sitat a place different from that meant for thecandidates who opted papers in Hindilanguage. It passes beyond onescomprehension as to in what circumstances

the petitioner came to know of the BookletCode Number to be used by candidates whoopted for papers in Hindi language and wrotea different question booklet number, whichwas never allotted to her. It is possible that acandidate, on account of inadvertence, maywrite wrong roll number or question bookletnumber, by misquoting a particular figure butto write a question booklet no. which isallotted to another candidate, who has optedto write his/her answers in Hindi, by thepetitioner raises serious doubt and suspicion.

During the course of arguments, it was urgedon behalf of the respondents that theexamination centre, namely, St. Fideliscollege, Vikas Nagar, Lucknow, wherefromthe petitioner appeared in the CPMT, was inthe grip of use of unfair means. From this


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centre, as many as 21 candidates in the firstgroup and 26 candidates in the second group,have been found using unfair means. It wasmaintained that what happened was that hugeamount from the candidates, wishing foradmission by unfair means in CPMT 99, wastaken by some persons, who formed a racketin connivance with the invigilators at theaforesaid Centre and other concerned staff.They smuggled out a question sheet, preparedthe answer with the help of some wellqualified teachers who run their Coachingclasses, and managed to send the same in theexamination hall. This answer sheet wascopied by the petitioner and such othercandidates. However, in doing so, theycommitted a glaring and fatal mistake.Booklet number belonging to candidates, who

opted papers in Hindi language, wasdeliberately mentioned in the English groupof papers, instead of quoting the originallyallotted Booklet number. Had the petitionerbeen the only candidate using a differentquestion booklet number, (which was allottedto those who opted to write their answer inHindi language), her version could have beenbelieved, but there are as many as 25 othercandidates who have done the same thing,which was a deliberate act and not a bona fidemistake, all in pursuance of a design

calculated to confer undue advantage and withan avowed object of securing maximummarks to march over the other candidates inthe matter of selection.

12. In the alternative, even if the case ofthe petitioner that she used the wrongQuestion Booklet Number accidentally on theanswer sheet is accepted and her sheet isexamined with English Booklet Numbercommand, the result would still be worse forone simple reason that she answered the

sequence of questions contained in the Hindianswer sheet.

13. There is considerable force in thesubmission made on behalf of the learnedcounsel for the respondents. The over all facts

and circumstances of the present case revealvery sordid tale of affairs happening in oureducational institutions. The petitioner, nodoubt, is a meritorious girl. She is throughoutfirst class candidate. But she was certainlylured to resort to unfair means instead ofexhibiting her merit in the test. From thematerial brought on record, this court is notpersuaded to accept the contention of thepetitioner that her result has been wronglywithheld. For the reasons stated above, thereis sufficient material available with therespondents to probe the matter and unearththe truth. During the course of arguments, itwas pointed out that the matter has alreadybeen entrusted to the C.B.I./Vigilance. If it iscorrect, then it would not be proper for thiscourt to touch the merits of the case as the

same may deflect the course of investigation.For the purpose of this case, suffice it to saythat the CPMT-99 committee constituted bythe University of Roorkee consists of eminentacademicians. They are experts in the field.They have formed an opinion against thepetitioner that she has used unfair means inthe aforesaid examination. This opinion orconclusion is well founded.

14. This court is loath to interfere with thedecision taken by the experts in the field and

the Courts should give due regard to theinterpretation of educational authorities.Academic freedom demands responsibility onthe part of the academicians to raise highstandards of education. If the academiccommunity does not fulfil the responsibility itinvites interference by Courts. The courtshave been cautious enough in upholdingacademic freedom and the autonomy of theeducational institutions, particularly,imparting professional courses and, therefore,has shown great reluctance to interfere with

the decisions of the experts in the field, aswould be evident from the series of decisionsof the apex court. A reference may be had to arecent decision of the apex court inAdmission Committee, C.I.I. 1995 V.Anand Kumar (1998)8 SCC-333 wherein it


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has been held that in the absence of mala fideor any other material, High Court should havepreferred to accept the Selection Committeesversion and to require the SelectionCommittee to justify each and every selectionmade by it, amounts to imposing animpossible burden on it. In Jawahar Lal

Nehru University Students Union V. Jawaharlal Nehru University and another (A.I.R. 1985 S.C.-567), the apex court heldthat court should not interfere with academicpolicy which has a rational basis and is notarbitrary. In Krishna Priya Ganguly etc.etc.V. University of Lucknow and others (A.I.R.1984 S.C.-186), the apex court laid downguideline to the effect that High Court, in itsextraordinary jurisdiction under Article 226 ofthe Constitution of India, cannot devise its

own criterion and has no jurisdiction tointroduce its notions in academic matter. TheHigh Court was not competent to do so andhad no jurisdiction to import its own ideology.Similarly, in Dr. M.C. Gupta V. Dr. A.K.Gupta and others (1979 Lab.I.C.-296),Honble Supreme Court held that whenselection of a candidate is made by aCommission aided and advised by expertshaving technical experience and highacademic qualifications in the specializedfield probing teaching/research experience in

technical subjects, the Courts should be slowto interfere with the opinion expressed byexperts unless there are allegation of malafides against them. It would normally beprudent and safe for the Courts to leave thedecision of academic matters to experts whoare more familiar with the problems the facethan the Courts generally can be. To the sameeffect was the view of apex court way back in1966 in Principal Patna College, Patna andothers V. Kalyan Srinivas Raman (A.I.R.1966 SC-707), wherein it held that in dealing

with matters relating to orders passed byauthorities of educational institutions, theHigh Court should normally be very slow tointervene under Article 226 of theConstitution because the matters fallingwithin the jurisdiction of the educational

authorities should normally be left to theirdecision and the High Court should interferewith them only when it thinks it must do so inthe interest of justice. It is thus settled andfirm proposition of law that the Court shouldbe extremely reluctant to substitute its ownviews as to what is wise, prudent and properin relation to academic matters in preferenceto those formulated by professional menpossessing technical expertise and richexperience in the field.

15. In the conspectus of the facts narratedabove, it is well established that the petitionerhas resorted to unfair means. The faint andbald allegation of mala fide on the part of theSelection Committee remains unsupported byany tangible evidence. It is merely an

ornamental plea. The case fails both on legaland factual matrix.

16. Before parting it may be observed thatthe Director General, Medical Education,Ministry of Health, U.P. Government,Lucknow respondent no. 3 shall move theState Government to ensure that a full fledgedenquiry into the matter is conducted byC.B.I./Vigilance so that the truth may beunearthed and appropriate action can be takenagainst the recalcitrant Centre Superintendentand other members of the staff as well as the

concerned Coaching Institute.

17. The writ petition is accordinglydismissed. The interim order dated 6.9.1999 isdischarged. Parties shall bear their own costs.

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2ALL] D.S. Tiwari V Chief of the Army Staff Army Head Quarter & others 7

By the Court

1. This Special Appeal has been preferredagainst the judgement and order passed bysingle Judge dismissing the writ petitionno.13165 of 1996 on the ground that there isno provision of counting the intending periodfrom the date of discharge to the date of re-enrolement towards qualifying service to earnminimum pension and the seniority of theappellant may be counted w.e.f. 10.4.93, thedate on which the claim rested has been cited,that the appellant may be allowed to continuein service even after attaining the age of 40

years to complete the qualifying service toearn minimum pension.

2. The events and the circumstancesconstituting the facts having bearing on thedecision of this appeal, are that the appellantwas enrolled in June, 1977 as Sepoy/Driver(MT) in Army service Corps.and afterrequisite training he was posted as Class -IIIDriver. As the luck would have he met withan accident in August, 1980.He sustainedsevere injuries, resulting in fracture of midshaft femur. Because he met with the accidentwhen he was on bonafide Government duty,he was allowed to continue in army serviceand was treated at various military hospitals..After completion of the treatment hisdisability was surveyed and classified in

category "BEE" with disability less than 20%.He was, therefore, discharged from theservice in ;the month of September, 1987.With a view to ventilate grievance, he filedCivil Misc.Writ Petition no.21823 of 1987.The said writ petition was heard and disposedof by judgement and order dated 28.1.1992with the observation that-

" In the circumstances of the case, if thepetitioner is still entitled to get the benefits ofthe above provisions and he makes

appropriate application for it within a monthfrom today, his application shall beconsidered and decided according to the Ruleswithin a period of three months from the dateof its receipt and the decision taken thereonwill be intimated to him"

3. In pursuance to the above order theappellant moved an application for re-enrolment and mustering as JCO (RT)Religious Teacher (Pandit). The appellant wasre-enrolled as Driver (MT) in SC (NT) w.e.f.

10.4.93 in terms of the provisions contained inRegulation 143 of the Army Act. However,the claim of the appellant for his mustering asJCO (Pandit) was rejected by the authorityconcerned. Consequent upon he filed anotherCivil Misc.Writ Petition No. 13885 of 1995


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before this court. This petition was disposedby the judgement and order dated 27.11.1996with the observation that -

" So far as the claim for posting as JCO (RT)is concerned, in paragraph 21 of the counteraffidavit it has been pointed out that the postof JCO (RT) is a Commissioned post of

junior officer, for which certain requisitequalifications are necessary. The petitioner donot possess requisite qualification, therefore,he cannot be considered for the same.Admittedly, the petitioner was a Sepoy whichis the lowest rank in Army. On re-enrolmenthe cannot be posted in a post higher than thepost he had held. From the Army Instructionno. 204 it appears that the recruitment in thepost of JCO (RT) is made direct from the rank

of Jamadar or Naib Subedar in the ratio of 3.1provided they fulfil age limit of 25-35 yearsand are found medically fit in the category"AYE" and possess the educationalqualification provided in paragraph 5 thereofand are selected in the manner provided inparagraph 6 by the Recruiting Officer inconsultation with Commanding Officer of theunit concerned. Thus, it appears that thepetitioner being the Sepoy cannot comewithin the ambit of consideration forrecruitment to the said post.. Therefore, the

said claim cannot be maintained by thepetitioner."

4. The appellant was not satisfied with theabove order, therefore, he moved a reviewapplication which also met the same fate.Ultimately he filed Special Appeal Nos. 132of 1997 and 154 of 1997. Both of them havebeen dismissed by a Division Bench of thisCourt on 1.9.1997. The appellant refused toleave the field and accept his defeat in thefight with the respondents. He filed another

Civil Misc.Writ Petition No. 13165 of 1996before this court and also SLP Nos. 14190 and14191 of 1998 before the Apex Court. Boththe SLPs were dismissed as withdrawnprimarily on the ground that petitioner was

pursuing his remedy in the writ petition no.13165 of 1996 pending in the High Court.

5. In the writ petition No. 13165 of 1996the appellant challenged the validity of theorder dated 14.8.95 discharging him w.e.f.31.7.96 basically on the ground thatimmediately after the notice of discharge wasserved on him, he ,lodged a complaint dated19.9.95 before the respondent no. 1 forcancellation of the discharge order, to begiven effect from 31.7.96. The respondent no.1 ought to have decided the same within theperiod of90 days as provided in sub-clause4(b) of para 361 of the Defence ServiceRegulation which he did not and has illegallydischarged him from the service. He,therefore, prayed for issue of writs:

(a) in the nature of certiorari quashingthe order dated 14 th August, 1995 discharginghim in the after noon of 31 st July, 1996.

(b) In the nature of mandamuscommanding the respondents not to dischargehim and not to give effect of the order dated14.8.95, prior to a decision on the statutorycomplaints dated 19..9.95 pending before therespondent no.1

(c) In the nature of mandamuscommanding the respondents to issue identitycard, pay books kit. etc. to the petitioner and

also to give all consequential service benefitsto him.

6. From the records it appears that thepetitioner was offered to receive his identitycard, pay book kits etc. and also pensionpapers from the army Head Quarter which herefused to collect there from. Seemingly forthis reason the last relief has not been pressedby the petitioner before the Single Judge. Thepetitioner contended only for quashing theorder, discharging him until the complaint

against his discharge pending beforerespondent no. 1 and also that the orderdischarging him from service is illegal and notin consonance with the Rules andRegulations.


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7. The learned Single Judge on the viewthat the petitioner had completed 40 years ofage on 31.7.96 and in no case he could servein the Army beyond the age of 40 years andtherefore, of necessity, he was to standdischarged in the afternoon of 31.7.96. Soalso no rule could be cited for countingintervening period from the date of dischargein the year 1987 till the date of re-enrolmenttowards qualifying service pension and claimfor seniority, dismissed the petition. Not beingsatisfied with the judgement and order of thelearned Single Judge the petitioner preferredthis Special appeal

8. It is submitted by the learned counselfor the appellant that the petitioner wasengaged in regular Army in 1977 and

medically boarded out and discharged fromthe services in September, 1987. Thus heremained engaged in the service for a periodof 10 years. In pursuant to the order of thisCourt, he was en-enrolled on 10.4.1993 andagain discharged on 31.7.1996 and therebycould get re-enrolment in the Army for aperiod of three years only. The total period ofhis engagement in the colour service was thusfor a period of thirteen years. He contends thataccording to the Instruction No. 1/S/76 theduration of engagement of the persons

enrolled under Army Act is15 years (now 17years) service with colours and two years inreserve or till the attainment of age of 40years which ever is earlier. He furthercontends that para 143 of the Defence ServiceRegulations provides that duration orengagements of the persons re-enrolled for thefull period of combined colour and reserveservice, if has not completed minimum periodof colour service, he will be allowed tocontinue his engagement until completion of15 years' service with colours and two years

in reserve. Thus the petitioner is entitled tocomplete seven years' more of his service withcolours and two years reserve service. It isurged that the learned Single Judge has failedto appreciate the difference between theconditions of enrolment and re-enrolment, as

provided in the Instructions and Regulationscited above and thereby the decision of thelearned Single Judge suffers from inherenterror and illegality and deserves to be setaside.

9. We have also heard the learned counselappearing for the respondents. The Armyinstructions 1/S/76 dated January 14, 1996relates to the duration of the engagement ofthe persons enrolled under the Army Act. Itprovides that the period of engagement ofGroup-1 personnel shall be 15 years servicewith the colours 2 years in reserve or till theattainment of 40 years of age, which ever isearlier . The para (2) of the instructionprovides that, all the personnel, dischargedfrom service at their own request before

completion of the colour service referred toabove will also carry reserve liability for aperiod of 2 years or till attainment of 40 yearsof age in the case of Group-1 categories and46 years of age in the case of Group-IIcategories, which ever is earlier. Theappellant since was enrolled in group-1 andnever mustered or promoted in Group-II. Soalso petitioner could not have the continuousengagement. He was discharged in 1987 onmedical ground and subsequently re-enrolledon 10.4.1993 in view of the provision of para

143 of Defence Service Regulations,therefore, the instruction no. 1/S/76, asdepicted above, is not applicable and is of nogain sake for the petitioner.

10. As we have mentioned above that thepetitioner was boarded out and dischargedfrom the service in 1987 and later on re-enrolled in 1993 in view of the provisions ofpara 143 of the Regulations, therefore, thecase of the petitioner is squarely governed bythe para143 of the Regulations, The perusal

of this para is, therefore, essential for thecorrect decision in appeal.

The para-143 is reproduced below:-


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143 (a)'Ex-Servicemen., who are in receiptof disability pension, will not be accepted forre-enrolment in the Army'

(b) Ex-Servicemen, medically boarded outwithout any disability pension or those whosedisability pension have been stopped becauseother disability having been reassessed below20% by the Re-Survey Boards, will beeligible for re-enrolment, either in combatantor non-combatant (enrolled) capacity in theArmy, provided they are re-medically boardedand declared fit by the medical authorities. Ifsuch an ex-servicemen applies for re-enrolment and claims that he is entirely freefrom the disability for which invalided, hewill be medically examined by the Rtg MOand if he considers him fit, the applicant will

be advised to apply to officer-in -charge,Records Office concerned, on receipt of theapplication, will arrange for his medicalexamination at a Military Hospital nearest tohis place of residence. The individualconcerned will have to pay all his expenses,including that on accommodation and journeyto and from the place of medical examination.'

11. The appellant had been re-enrolledunder para 143 of the Army Regulationshence the terms of para 143 shall be

applicable for counting the period forpensionary benefit. The para 143 of the ArmyRegulations lays down that if the individual isfound fit and re-enrolled on regularengagement, he will be enlisted for the fullperiod of combined colour and reserveservice, subject to the following conditions-

(I) if he had not previously completedthe minimum period of colour service afterwhich he could be transferred to the reservehe will rejoin the colours and his previouscolour service will count towards the

minimum service required for transfer to thereserve.

(II) if he had previously completed theminimum period of colour service requiredfor transfer to the reserve and is fully trained

and suitable in all other respects, he may bere-enrolled, provided a vacancy in the reserveexists, and be immediately transferred to thereserve.'

12. The para 143 envisages certainconditions for the enrolment of dischargedarmy personnel. The condition no.1 is that hehad not completed 15 years' of colour serviceand his previous colour service will becounted towards the minimum servicerequired for transfer to reserve. The conditionno. 2 is that in case the personnel had alreadycompleted the colour service, he will be re-enrolled and transferred to reserve serviceprovided vacancy is available in reserveservice. This para does not provide that theintervening period between the date of

discharge and the date of re-enrolment will becounted for transfer to reserve service, andalso that that period shall be reckoned for thepurpose of pensionary benefits.

13. In this context, a reference to letter no.A/32395/VII/Org 2 MP (c)/713-S/A/D (AG)dated 10 May, 1977 issued in supersession ofthe Ministry's letter no. A/18219/V/AG/Org 2(MP) (c)/3298/D(AG-II), dated 18 Jun, 1971may also be made. In this letter it is indicatedthat President of India was pleased to decide

that in respect of JCOs and OR who areplaced permanently in a medical categorylower than 'A' every effort would be made toprovide alternative employment in their owntrade category commensurate with theirmedical categorisation, provided it is in thepublic interest to do so. The competentadministrative authority should consider eachcase on merits and record a certificate in ;theindividuals service documents that hiscontinued retention in service is in the publicinterest. In the event of retention, any person

willing to remuster in other Arm or Branchwill not be denied the opportunity of such atransfer, if it is possible to try him out in thenew Arm/Brach despite his low medicalcategory. Their pay on remustering will befixed as for surplus personnel in accordance


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with AI 169/59 for JCOs and AI 4/S/55 forOR as amended.

14. Retention in service in alternativeemployment, in terms of para 1 above, willordinarily be for a period of 15 years in thecase of JCOs and 10 years for OR. Oncompletion of the aforesaid period of service,personnel will be discharged with allconvenient speed. However, personnel placedin permanent low medical category maycontinue to be retained beyond the periodsspecified above, until they become due fordischarge in the normal manner, subject totheir willingness, provided they can beemployed in sheltered appointments, theirretention is in public interest and theirretention will not exceed the sanctioned

strength of regiment/cops.

15. General provision for retirement isthat ordinarily low medical categorypersonnel will be retained in service tillcompletion of 15 years service with colours inthe case of JCOs and 10 years in the case ofOR (including NCOs). However, suchpersonnel may continue to be retained inservice beyond the above period until theybecome due for discharge in the normalmanner subject to their willingness and the

fulfilment of the stipulation laid as above. Thepara 3 of the letter referred to above consist acondition that all personnel retained in servicein terms of para 2 above will under allcircumstances, be discharged on completionof their engagement periods/retiring servicelimits. For this purpose, NCOs and JCOs willbe treated as under -

(a) NCOs will be discharged oncompletion of the retiring service limitsappropriate to their ranks as opposed to theextended limits laid down in AO13/77.

However, their retention beyond thecontractual period of engagement will beregulated under the provisions of paras 144 to147 of Regulations for the Army 1962.

(b) JCOs will be discharged oncompletion of the normal retiring service

limits as opposed to the extended limits laiddown in AO 13/77.

16. The appellant admittedly has been re-enrolled in evidence of the Courts order onthe terms and conditions given in the letterreferred to above and as provided in para 143of the regulation. In terms of the Governmentof India, Ministry of Defence letter no.A/37/395/A/2 (MP) (c) 713-S/A/D dated 10May, 1977, the personnel with permanent lowmedical category will be retained in servicetill the completion of 15 years in the case ofJCOs and 10 years in the case of OR. Theymay however be allowed to continue inservice beyond the above period until theybecame due for discharge in normal manner.The appellant before being discharged in

normal manner was OR, therefore, he couldhave been retained in service only for a periodof 10 years and could in all circumstances bedischarged on completion of his retiringservice limit. However extended limit ofdischarge of such personnel as laid down inAO13 of 1977 shall not be allowed to beavailed. Besides the above, regularisation andterms and conditions laid down by theinstructions issued time to time, no otherRule, Regulation or the Instruction has beencited and referred which provides that even

after completion of the retiring age limit there-enrolled personnel may be retained with aview to complete the period of service incolours and service in reserve. There isnothing in the Instruction No. 1/S/76 or inpara-143 of the Regulations or in the letterno.A/32395/VII/Org-2 MP (c) 713 S/A/D(AG) dated 10.5.1977 to indicate that theintervening period between the date ofdischarge and re-enrolment shall be countedfor reckoning the pensionary benefits.

17. It is not disputed that complaint filedby the appellant before respondent no. 1 wasnot disposed of prior to his discharge fromservice. However, the contention of theappellant's counsel that the respondent no.1could not discharge the petitioner until the


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disposal of his complaint is without substancefor two reasons, first that there is noregulation dealing with such situation andproviding that the Army personnel shall notbe discharged before disposal of a complaintif it is so made, second that the confirmationof the order dated 14,.8.1995 and discharge ofthe appellant amounts to an automaticrejection of his complaint.

18. For the above reasons, we are of thedefinite opinion that the learned Single Judgecommitted no error in dismissing the writpetition and refusing to grant relief as prayedby the appellant. The appeal is without meritand deserves to be dismissed.It is accordingly dismissed.

----------

arhat, Almora

By the Court

1. Heard Sri Sudhanshu Dhulia learnedcounsel for the petitioner and Sri B.D.Shuklalearned counsel for the respondent no. 1 aswell as learned standing counsel.

2. The petitioner was lecturer inMathematics in Kumaon Engineering College,Dwarhat, District Almora. He submitted hisresignation dated 6.9.9.3 vide Annexure-8 tothe writ petition, but he has alleged inparagraph 17 of the writ petition that hewithdrew that resignation by Registered letterdated 10.9.93 Annexure-9 to the writ petition.It has been further alleged in paragraph 27 ofthe writ petition that the resignation wasaccepted on 17.1.94. The allegation inparagraph 17 of the writ petition that thepetitioner has withdrawn his resignation letterdated 6.9.93 by his subsequent letter dated10.9.93 is not denied. In paragraph 16 to the

counter affidavit all that is stated is thatparagraphs 17 and 18 of the writ petition arematters of record and hence need no reply.Thus the short submission of the learnedcounsel for the petitioner is that the petitionerhad withdrawn his resignation before it wasaccepted.

3. Learned counsel for the petitioner hasshown us the Model Bye Laws forEngineering College/Institutes of U.P. In ByeLaw No. 3 of the same it is provided as

follows :-

3. APPOINTMENTS :

(1) All appointments to posts under theCollege/Institute shall be made:


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2ALL] Sri Devi Sharan Sharma V District Magistrate & others 13

(2) By the Principal/Director, If themaximum of the scale does not exceed Rs.3500/-

and(3) By the Board in other cases.

4. .In Annexure 2 to the writ petition itis mentioned that the pay scale of thepetitioner was Rs. 2200-4000. Thus hismaximum pay scale was above Rs. 3500/- andhence according to the Bye Law No. 3 thepetitioners Appointing Authority was theBoard of Governors. Hence it is submittedthat only the Board of Governors can acceptthe petitioners resignation. Annexure-2 to thecounter affidavit shows that the petitionersresignation letter dated 6.9.93 was accepted

by the Principal on the same date, but thePrincipal forwarded the matter to the Board ofGovernors with the following endorsement: -Although usually one months notice isrequired to be given by the employee whileresigning, it is upto the Board of Governorsto accept the resignation with immediateeffect and to waive the notice period.

5. In our opinion the Principal had noauthority or jurisdiction to accept thepetitioners resignation as the petitioners

Appointing Authority is the Board ofGovernors and hence only the Board ofGovernors can accept his resignation. In factthe Principal has recognized this legalposition as he forwarded the papers to theBoard, but there was no acceptance by theBoard of Governors and instead it was theState Government which accepted theresignation on 17.1.94 i.e. long after thepetitioner had withdrawn his resignation.

6. In Union of India V. Gopal Chand

Mishra (AIR 1978 SC 694) it has been heldthat resignation can be withdrawn at any timebefore it become effective. In the case ofemployees for whom acceptance ofresignation is necessary obviously theresignation becomes effective only when it is

accepted. Similarly in M/S J.K. CottonSpinning & Weaving Mills Co. Ltd.Kanpur V. State of U.P. and others (AIR1990 SC 1808) it has been held thatresignation is not complete until it is acceptedby the proper authority. The same view hasbeen taken in several other decisions. In thepresent case since the petitioners resignationwas withdrawn before it was accepted hencein our opinion the withdrawal of theresignation was valid and acceptance of theresignation was illegal.

7. Hence we set aside the impugned orderdated 27.1.94 (Annexxure-22 to the writpetition) and hold that the petitioner validlywithdrew his resignation. The petitioner willbe reinstated in service within six weeks from

the date of production of a certified copy ofthis order before the authority concerned andshall be treated in continuous service as if hisservice had never come to an end. He will getseniority and all consequential benefits andalso arrears within three months from the dateof production of a certified copy of this order.No. order as to costs.


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By the Court

1. The petitioner was appointed on1.4.1976 as peon in Collectorate, Meerut. Hewas regularised/confirmed with effect from1.8.1972. Since he was a class IV employeehis age of superannuation was sixty years. Hisdate of birth being 28.4.1940 he was due toretire in August, 2000. He was suspended on28.2.1985 and remained under suspension till18.3.1985. Thereafter, he was reinstated inservice. An adverse entry was awarded to himon 25.6.1985. The respondent no. 1 by hisorder dated 26.11.1991 compulsorily retiredthe petitioner/ It is this order which is underchallenge in the instant writ petition.

2. I have heard Miss Rollie Kauser,learned counsel for the petitioner and Sri V.K.Rai, brief holder, State of Uttar Pradeshappearing for the respondents. Learnedcounsel for the petitioner has urged that on thebasis of one adverse entry the petitioner couldnot be retired compulsorily and there wasnothing against the petitioner from the year1986 to 1991. On the other hand learned

counsel for the respondents supported theimpugned order of compulsory retirement andproduced the report of the screeningcommittee before this court. The relevant partof the report of the screening committee so faras t relates to the petitioner is quoted below :

43-

3. The report of the screening committee

demonstrates that the petitioner was

compulsorily retired on the basis of oneadverse entry awarded to him on 25.6.1985 ashe was under suspension for about twentydays and he made incorrect allegations againsthis officers. No material has been producedby the counsel for respondents to show thatthe petitioner was awarded any other adverseentry. The question, therefore, that arises forconsideration is whether one adverse entry byitself is sufficient for the appointing authorityto exercise his discretion that the retention ofan employee was not in public interest. Thecompulsory retirement under rule 56 (c) ofFinancial Hand Book Volume II, Part II to IV,is not a punishment but it affects theemployee injuriously,. That is why theexercise of power is subject to public interest.It can arise when the continuance of employeeis not in the interest of the service. Theobjective of the rule is obviously to weed outthe dead wood. In other words the employeeshould have become of no use for the service.For arriving at such a decision adverse entryof one year, ordinarily, cannot furnishmaterial to decide that the employee deservedto be weeded out. The record must establishthat the retention of the employee was not inpublic interest. In the case of petitioner he wasfound absent from duty for few days. Therespondents had taken action against him. Hewas reinstated. But he was given adverse


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2ALL] State of U.P. V Kamal Narayan Singh 15

entry. This entry in absence of any othermaterial either before or after was notsufficient to warrant the conclusion in rule 56(c) that it was in public interest to retire thepetitioner from service.

4. The petitioner was retired in publicinterest. This expression has been explained invarious decisions. For instance in S.Ramachandra Raju v State of Orissa(1994) Vol 28 Administrative TribunalCases 443 the apex court held that an order ofcompulsory retirement based on one adverseentry followed by subsequent good reportsmakes the exercise of power arbitrary. Inabsence of any material that the work of thepetitioner after 1985 was such that hedeserved to be weeded out the order is

arbitrary.

In the result this petition succeeds and isallowed. The order dated 26.11.1991 passedby respondent no. 1, Annexxure-1 to the writpetition is quashed with all consequentialbenefits of service to the petitioner. Therespondents are directed to reinstate thepetitioner and pay his entire arrears of salarywithin a period of two months from the date acertified copy of this order is produced beforethem.

There shall be no order as to costs.

By the Court

1. The proceeding before us is apparitionof the three contempt cases In Re : Kamal

Narain Singh, referred to above. Havingemerged from the graveyard in which thecomposite corpus of the three cases wereburied with contemners comeuppance in eachof the three cases disposed of by a common

judgment dated 28.5.1999, the ghost ischasing two Advocates namely Sri V.C.Mishra, Senior Advocate and his Advocateson Sri Vivek Mishra, besides some officialsof the Copying Section of this Court and thecontemner Kamal Narain Singh himself byusing the vehicle of contempt of court

jurisdiction of this Court. The proceeding, itappears, has been initiated as a suo motureview by the Bench which had disposed ofthe contempt cases as aforestated. It is neithernecessary nor desirable to speak of thecircumstances under which the proceeding


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was withdrawn from the concerned Bench andplaced before this Bench for disposal.

2. It so happened that one Kamal NarainSingh filed a writ petition being CriminalMisc. Writ Petition 91 of 1998 for quashing ofthe first information report in Case Crime No.376 of 1997 registered against him underSection 3(1) of the U.P. Gangsters and AntiSocial Activities Act, 1986, P.S.Mohammadabad, District Farrukhabad on30.12.1997. The said writ petition wasgrounded on the allegations that the petitionertherein happened to be a political workerbelonging to Samajwadi Party and the casecrime aforestated was registered against himat the instance of members belonging to theB.J.P. ruling party. In support of his

contention that he belonged to Samajwadiparty the petitioner Kamal Narain Singhplaced reliance on certain documents, whichpurported to have been issued under thesignature of Shri Malayam Singh Yadav, theNational President of Samajwadi Party. Thecourt found the documents to be forged andfictitious and accordingly dismissed the writpetition vide judgement and order dated11.2.1998. Criminal Contempt case no. 17 of1998 came to be registered against KamalNarain Singh for his having produced the

forged and fictitious document for thepurpose of obtaining a Rule. Relevantportion of the order date 11.2.1998 is quotedbelow :

Since the petitioner has producedbefore us a forged and fictitious document tohis knowledge for the purpose of obtaining aRule, we are of the view that he hascommitted not only contempt of this Courtbut also offence punishable under theprovisions of the Indian Penal Code. Issuenotice to him as to why appropriate orders in

that regard be not passed against him. SinceMr. Katiyar learned counsel for the petitionerStates that he has instructions only to appearin the case, which has been dismissed, letoffice issue a notice to the petitioner on theaddress given in the writ petition and the

supplementary affidavit making the Rulereturnable on 25 th March, 1998. The notice tobe registered as a separate criminal contemptcase.

Sd/- B.K. Roy,JSd/- P.K.Jain, J

3. The contemner Kamal Narain Singh didnot appear in pursuant to courts order dated11.2.1998. However, on 15.4.1998 SriV.C.Mishra, Senior Advocate and Sri VivekMishra, Advocate, put in appearance for thecontemner Kamal Narain Singh and submittedthat since the contemner had not been servedwith the notice, he could not know if he had toappear personally before the Court. The casewas adjourned to 28.4.1998 awaiting theappearance of the contemner and for the

reasons recorded in the order dated 15.4.1998,the court directed that another CriminalContempt Case be registered against thecontemner, Relevant part of the order reads asunder :

We had not exempted his personalappearance from his criminal contemptproceedings and under the Rules of the Courthe was expected to appear personally todaythe date fixed from before. We accordinglyfurther charge man as to why he should not be

punished for not personally presenting himselftoday and for that purpose we issue anothernotice to him fixing 10 A.M. of Tuesdaydated 28 th April, 1998. Since Mr. Misra,learned counsel states that he has noinstructions to receive notice of this secondcriminal contempt proceedings we direct theoffice to dispatch another notice to thecontemner at the address mentioned by him inhis writ petition as well as supplementaryaffidavit including the Vakalatnama whichhas been filed today. We reserve our further

comments in this regard awaiting hisappearance on 28 th April, 1998 alongwith hisshow cause in the first criminal contemptproceedings as well as the second criminalcontempt proceedings which we have initiatedwhich has to be registered separately by the


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2ALL] State of U.P. V Kamal Narayan Singh 17

office and put up together on the adjourneddate.

4. On the basis of the order aforesaidCriminal Case No. 35 of 1998 came to beregistered against the contemner KamalNarain Singh. It appears that during thependency of the aforesaid two contemptproceedings it was brought to the notice of theCourt that even though Criminal Misc. WritPetition No. 91 of 1998 filed by thecontemner had been dismissed vide orderdated 11.2.1998, the contemner filed yetanother Criminal Misc. Writ Petition No.1236 of 1998 grounded on the same cause ofaction and obtained interim order of stay ofhis arrest dated 9.4.1998 in crime case no. 376of 1998, P.S. Mohammadabad, District

Farrukhabad under Section 3(1) of U.P.Gangster and Anti Social Activities(Prevention) Act, 1986. The fact that theearlier petition had been dismissed was notdisclosed in the subsequent writ petition andin the affidavit it was stated that the writpetition namely the second one was the firstwrit petition with regard to the criminalproceedings sought to be quashed therein.When this fact was brought to the notice ofthe Court, the third criminal case was orderedto be registered against the contemner Kamal

Narain Singh vide order dated 10.7.1998 onthe basis whereof Criminal Contempt CaseNo. 59 of 1998 In Re : Kamal Narain Singhcame to be registered. Since the contemnerwas not present in Court, directions wereissued to the police authorities to apprehendand produce him before the Court. The casewas adjourned to 24.7.1998 awaitingproduction of the contemner. It appears thatthe police submitted a report that thecontemner was absconding and concealinghimself whereupon the Bench by its order

dated 24.7.1998 directed attachment ofimmovable properties of the contemner.Ultimately the contemner could beapprehended on 19.5.1999 and an applicationdated 21.5.1999 was moved by the learnedAdditional Government advocate praying

therein that appropriate orders be passed inrespect to detention of the contemner as wellas his production before the court. On22.5.1999 the Court directed that the saidCriminal Misc. Application be placed afterregistering its number alongwith records ofCriminal case no. 17 of 1998 on 24.5.1999 at1.45 P.M. in Chambers of one of the HonbleJudges constituting the Bench. Pursuant to thesaid order the contemner was produced inChambers on 24.5.1999 on which date thecontemner is said to have given a statementthat on 11.2.1998 he was personally present incourt when the writ petition was dismissed butSri V.C.Mishra, Senior Advocate advised himto leave the court room and see him in hischambers. The contemner, it appears, madefurther statement to the effect that his

signature was obtained by Shri V.C. Mishraon a Vakalatnama for moving the SupremeCourt against the orders dismissing the writpetition and further that he has handed overRs. 20,000/- in cash to Sri V.C.Mishra for thepurpose of filing the case in the SupremeCourt. The Bench seized of the matter felt thatthe facts stated by the contemner, prima facie,made out a case of criminal contempt asagainst Sri V.C.Mishra and Sri Vivek Mishrabut before saying anything in this regard itconsidered imperative on its part to give an

opportunity to the aforementioned Advocatesto have their say in the matter and accordinglyadjourned the three criminal contemptproceedings to 26.5.1999. The order dated24.5.1999 contained the following directionsto the Copying Section of the Court:

The Copying Section of the Department ofthe Court is directed to furnish particulars ofthe application/applications for whom theyhave been filed and to whom they werehanded-over for supplying certified copy of

the orders passed in the writ petition as also inthe contempt proceedings.

5. A copy of the order dated 24.5.1999was served on Sri V.C. Mishra, SeniorAdvocate and Sri Vivek Mishra, Advocate on


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25.9.1999 alongwith a complete copy of theorder sheet and relevant papers. Sri V.C.Mishra and Sri Vivek Mishra appeared inperson on the date fixed. They submitted thatthe statement made by the contemner waswholly false, frivolous and motivated for thepurpose of damaging their integrity andreputation at the instance of their enemies.They accordingly prayed for permission towithdraw their appearance from the firstContempt Case No. 17 of 1998 in which alonethey had entered appearance earlier. Afterhearing learned Additional GovernmentAdvocate appearing for the contemner and SriV.C.Misra, Sri Vivek Mishra, their counselShri J.N. Tiwari and Sri Jagdish Tiwari,Government Advocate, the Bench reserved itsorder and deferred its delivery to 28.5.1999.

The contemner was directed to be produced inChambers on 28.5.1999 and in the meantimehe was ordered to be kept with Civil LinesPolice Station, Allahabad.

6. Judgment was delivered on 28.5.1999whereby the contemner Kamal Narain Singhwas held guilty of committing contempt ofcourt and sentenced in each case to undergoimprisonments and to pay fines as indicated inthe order. For the purpose of this case it is notnecessary to go into details of the punishment

inflicted on the contemner Kamal NarainSingh. The main Judgment was delivered byP.K,.Jain, J. So far as Sri V.C. Misra and SriVivek Mishra, Advocates are concerned itwas held that the statement of the contemneragainst them had been, in all probabilitiesgiven by the contemner in order to save hisskin from punishment that may be awarded tohim in the contempt proceedings. It wasaccordingly held that :

In our view the statement of contemner

which is not supported by any corroborativematerial and possibility of which being falsein the circumstances stated above cannot beruled-out, cannot be accepted.

In the circumstances stated above we alsopermit Sri V. C. Mishra and Sri Vivek Mishrato withdraw their appearance from CriminalContempt Case No. 17 of 1998, in whichalone they had entered appearance on behalfof the contermner.

7. B. K. Roy, J., while agreeing with theopinion of P.K. Jain, J., passed an additionalorder with reference to the conduct of Sri V.C. Mishra but the conclusion arrived at by P.K. Jain, J. that the contemner had made falsestatement against Sri V. C. Mishra and SriVivek Mishra in order to save his skin frompunishment remained undiluted.

8. We have heard Sri J. N. Tiwariappearing for Sri V. C. Misra and Sri Vivek

Mishra and Miss Nahid Moonis, AdditionalGovernment Advocate and perused the entirerecord including the Minutes datedSeptember 24, 1999. Judicial disciplineforbids us from making any comment withrespect to the Minutes dated September24,1999 recorded in the Criminal ContemptCase No. 59 of 1999 and as stated earlier inthis judgment it is neither necessary nordesirable to go in to the circumstances inwhich the so called part heard case statedto be at the hearing stage of review were

directed to be placed before this Bench. On aconspectus of judgment and order dated 28.51999 we veer around the view that the noticesissued to Sri V. C. Misra and Sri Vivek Misrato explain their conduct in the backdrop of thestatement made by the contemner which in theopinion of the Bench made out a primafacie case of criminal contempt as against SriV. C. Misra and Sri Vivek Misra stooddischarged on Sri V. C. Misra and Sri VivekMisra being given a clean chit vide orderdated 28.5.1999. Thereafter there appears no

justification for initiating a suo motu reviewproceedings and giving , notice of the same toSri V. C. Misra and Sri Vivek Misra. We arealso of the view that the contemner KamalNarain Singh having been convicted andsentenced in criminal contempt cases, referred


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By the Court

1. This is an application under Section482 Cr. P. C. to quash the order dated30.8.99, Annexure-4 to the petition, passed byChief Judicial Magistrate, Mathura underSection 267 Cr. P. C. issuing warrant Bagainst the petitioners in Crime No.88 of 1999under Section 395 and 412 I.P.C., P.S. GovindNagar, District Mathura.

2. In brief , the relevant facts are that boththe petitioners are presently lodged in DistrictJail Ghaziabad. An application was movedbefore C.J.M., Mathura by the police of P.S.Govind Nagar, Mathura that the petitionersare wanted in Crime No. 88 of 1999 under

Sections 395 and 412 I.P.C and therefore,they may be summoned under Section 267 Cr.P.C. from District Jail, Ghaziabad. Thelearned C.J.M. has issued notice under thatsection in Form No.36 to the JailSuperintendent, Ghaziabad to transfer thepetitioners to District Jail, Mathura. Thisorder dated 30.8.99 Annexure-4 to the petitionhas been challenged before me. It has beenargued that the order is illegal as no inquiry,trial or proceeding is pending in the court ofC.J.M,. Mathura and therefore, an order u/s

267 Cr.P.C. cannot be passed. The learnedcounsel, in support of his argument, hasreferred to the case of Mukesh and others Vs.State of U.P. and others, 1998 A.C.C. page434, decided by Honble J.C.Gupta. J. TheHonble Judge considered Section 267Cr.P.C. and also Form No.36 prescribed in theCr.P.C. It is proper to reproduce below sub-clause (1) and its clause (a) of Section 267Cr.P.C. The same read as under:

267. Power to require attendance of

prisoners-

(1) Whenever, in the course of an inquiry,trial or other proceeding under this Code, itappears to a Criminal Court-

(a) that a person confined or detained in aprison should be brought before the Court foranswering to a change of an offence, or forpurpose of any proceeding against him, or

3. After considering this provision andForm No. 36, the learned Single Judgeobserved that the expression otherproceeding under this Code read with FormNo. 36 leaves no room of doubt that it wouldmean only such proceeding as may bepending in a court. He further held that otherProceeding does not include the investigationby the police and the investigation of theoffence by the police and interrogation cannotfall under other proceedings under the Codefor the purposes which are included in Section267 Cr.P.C.

4. With great respect to the HonbleSingle Judge, I am of the view that the wordsother proceeding under this Code andprescribed Form No. 36 have not beenproperly interpreted. The words otherproceeding under this Code Cannot beinterpreted to mean that the proceeding shouldbe in the Court. It means any proceedingunder the Code of Criminal Procedure. Hadthe intention of the Legislature been asinterpreted by the Honble Judge, the words

used would have been other proceeding inthe Court. The Legislature in its Wisdom hasnot been used the word court. On the otherhand, the words used are other proceedingunder this Code. Therefore, the same cannotbe interpreted to mean only the proceeding ofthe court and excluding proceedings underany other provision of the Cr. P.C., such asrecording of F.I.R., investigation, arrest,summoning of the accused for interrogation,search etc. In my opinion the proceedingsconcerning investigation are also proceedings

under the Code of Criminal Procedure.

5. My view gets support from the otherprovisions of the Cr.P.C. The preamble of thisAct is An act to consolidate and amend thelaws relating to Criminal Procedure. As


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2ALL] Bobby @ Premveer & another V State of U.P. 21

against this in C.P.C. of 1908 the preamble isAn act to consolidate and amend the lawsrelating to the procedure of the court of CivilJudicature. The words procedure of court ofcivil Judicature have been intentionallyomitted by the Legislature in preamble ofCr.P.C. and procedure of the court ofCriminal Judicature has not been mentioned.This cannot be said as omission, But itappears that the words have intentionally beenomitted. The C.P.C, applies to theproceedings of the Court only as it speaks;whereas the entire criminal proceedings underCr.P.C. whatever may be the stage, are theproceedings under the Code.

6. It will also be useful to mention someother provisions of Cr.P.C. Definitions have

been given in Section 2. Clause (h) of Section2 reads as follows:

(h)investigation includes all theproceedings under this Code for the collectionof evidence conducted by a police officer orby any person (other than a Magistrate) whois authorised by a Magistrate in this behalf:

7. This definition of investigation does notleave any room of doubt that the investigationis a proceeding under the Code within the

meaning of Section 267 Cr.P.C.

8. The other relevant provision, in myopinion, for the purposes of controversy inissue is Section 156 Cr.P.C which conferspower to the police Officers to investigate thecognizable case. Clause (2) of Section 256Cr.P.C. is relevant and is reproduced below:

156 Police Officers power to investigatecognizable case(2) No proceeding of a police officer in any

such case shall at any stage be called inquestion on the ground that the case was onewhich such officer was not empowered underthis Section to investigate.

This clause also shows that theproceedings of investigation before the policeofficer are also the proceedings under theCode. The heading of Section 157 Cr.P.C. isProcedure for investigation.

9. All these provisions show that theinvestigation of an offence is also aproceeding before the police Officer under theCode of Criminal Procedure and there can beno reason for limiting the interpretation of thewords used in Section 267 Cr.P.C. to theproceedings in the court only.

10. For the sake of clarity and removal ofdoubts it may also be mentioned that theargument that the Magistrate cannot interferein the investigation and therefore, he should

not pass any order u/s 367 Cr. P. C. duringinvestigation, also does not hold good. Thereare many provisions in the Cr. P. C. forproviding assistance by the Magistrate in theinvestigation of the cases by the police. Forexample, a Magistrate u/s 82 Cr. P. C. canissue proclamation in respect of abscondingaccused,; under Section 83 Cr. P. C. he canorder for attachment of the property of theabsconding accused, under Section 94 Cr. P.C. he can issue a warrant empowering thepolice to search any place, under section 97

Cr. P. C. he can issue search warrant for aperson wrongly confined, under section156(1) Cr. P. C. he may permit theinvestigation of a non-cognizable offence,under Clause (3) of this section he may directthe police to register a case and to investigate,under Section 164 Cr. P. C. he can recordstatement and confession and can conduct testidentification, and under Section 167 Cr. P. C.he may remand the accused to judicialcustody and even to the police custody forinterrogation and recovery. All these powers

can be exercised on the request of the policeOfficer investigating the offence and to aidand assist the investigation. The Magistratecan also order for inquiry by the policeregarding any matter under Section 202Cr.P.C. and may also release the accused


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2ALL] Sharda Prasad Mishra V A.G.M., Union Bank of India , Bombay& others 23

Stenographer. Admittedly, the petitionerwas appointed as Stenographer on daily wagebasis in March 1981, and he has been incontinuous service since then i.e. for morethen 18 years.

3. In our opinion, the state governmentcannot act arbitrarily in the matters relating totemporary or daily wage employees. No doubtthere is a principle in service law that atemporary employee has no right to the post,but this principle has to be considered alongwith the other legal principle that the Statecannot act arbitrarily. In the case of Smt.Maneka Gandhi Vs.Union of India andanother ,AIR 1978 SC 597 it has been held bya7 judge constitution Bench decision of thesupreme court that the State Government can

not act arbitrarily as arbitranuons violatesArt.14 of the constetion. In our opinion tokeep a person on daily wage basis for 18 yearis wholly arbitrary, Hence on the facts andcircumstances of the case, we direct that thepetitioner be regularised within a month fromthe date of production of the certified copy ofthis order and he shall be paid regular salarythereafter.

4. With the above observations, thepetition is disposed of.

Petition disposed of.----------

By the court

A number of prayers been made in thiswrit petition, but having gone through thepleadings of the parties and heard Sri K.P.Agarwal learned counsel appearing on behalfof the petitioner and sri V.R. Agrawal learnedcounsel appearing on behalf of theRespondent, we find that the real question isas to whether that memorandum, as containedin Annexure-15 to the writ petition, whichreads as follows should be should quashed byus or not:-

This has reference to the explanation date28.12.1993 submitted by Shri S. P. Mishra inreply to memorandum no CO:IRD:9034/93dated 20.12.93.

The aforesaid explanation dated 28.12.93submitted by Shri Mishra is not foundsatisfactory and convincing. I, therefore, holdSri Mishra guilty of the resons enumerated inmemorandum no CO: IRD: 9034/93 dated20.12.93:


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1. Failure to discharge his duties withutmost devotion and diligence.

2. Failure to ensure and protect theinterest of the Bank.

3. Doing acts unbecoming of a Bankofficer.

Looking to the nature and gravity of themisconduct /allegations levelled and poweragainst. Shri S.P.Mishra as also hugeoutstanding in the relevant accounts. I am ofthe opining that the ends of justice will be metby imposing upon him the penalty ofreduction of his pay one stage in the timescale of pay. Accordingly, by virtue of thepower vested in me in terms of regulation 7 ofthe Union Bank of India Officer Employees(Discipline & Appeal) Regulations, 1976, I

hereby pass the following order:ORDER

The penalty of reduction of his pay onestage in the time scale of pay applicable tohim be and is hereby imposed upon Shri S.P.MishraSd/-

Disciplinary Authority 2. The mainthrust of the submission of the learned counselfor the petitioner that the Enquiry officer hascompletely exonerated the filing of thecharges framed against him but without

recording any reasons whatsoever as to whythe Disciplinary Authority is differing fromhis findings it has proceeded to pass the orderimpudned a fore mentioned.

3. Learned counsel for the Respondent,after some arguments very fairly concedesthat true it is that the Disciplinary Authorityhad not recorded any reason as to why it isdiffering from the report of the EnquiryOfficer but having regard to the entire factsand circumstances explained in the counter

affidavit the petitioner is not entitled to thegrant of discretionary relief prayed for by himfrom this Court under Article 226 of theconstitution of India .

4. Having gone through the relevantpleading and appreciated the submissions

made by both learned counsel, we are of theview that since the disciplinary Authority hasnot recorded any reason for differing from thereports Submitted by the Inquiry Officeexonerating him of the charges and hadproceeded to impose the penalty of reductionof his spay by stage in the time scale of payapplicable to him, its validity cannot besustained

5. The order passed by DisciplinaryAuthority is held to be illegal and is quashed.As a necessary corollary the order passed bythe appellate authority as contained inAnnexure-17 is also qiashed.

6. It is clarified that it will be open for theDisciplinary Authority concerned to passfresh order in accordance lay.

7. In view of the fair stand taken by SriV.R. Agrawal learned counsel for theRespondents, we make no order as to cost

8. This write petition is disposed ofaccordingly.

9. The office is directed to hand over acopy of this order within one week to SriV.R.Agrwal learned counsel for theRespondent for its communication to and

follow Up action by the Respondentconcerned.

Petition disposed of.----------


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2ALL] S.K. Sharma & another V Chairman, M.K.G.B., Muzaffarnagar & others 25

laimregarding

Held-

By the Court

1. Petitioner have challenge theseniority list and relief in respect of theirseniority position .

2. Contentions have been made in thewrit petition that the petitioners wereappointed in the year 1985 as Field Supervisorand respondent nos. 4 to 17 (hereinafterreferred as private respondents) wereappointed as Officer in the year1989. At thetime of appointment of petitioners theirservice conditions were government byMuzaffar Nagar Kshetriya Gramin Bank(staff) Service Regulation, 1984 and in termsof definition of Officer Field Supervisorsand Officers both were include and thereforethey belong to the same cadre .relevant twoseniority lists dated 01.06.1992, one for fieldSupervisor and other for Officers have beenannexed to the writ petition at Annexureno.2and3 to the writ petition .After theCircular dated 25.03 1991 was issuedfollowing the award of the National IndustrialTribunal , the posts of field Supervisors andOfficers were merged with effect from01.09.1987. Following the same, a combined

seniority list (Annexure no.4to the writepetition) was published in year 1993 whereinpetitioner nos.1 and 2 Were shown at serialnos. 24 and 30 respectively, the positionsbelow the private respondents. The petitionersfield their objection but no relief was granted.Again in year 1997 a further combinedseniority list was published, a copy of witchis enclosed at Annexure no.6 to the writpetition, showing the petitions, positionfurther down at serial nos.33 and 39. It iscontended that a Circular dated 20.03.1993(Annexure 8 to write petition) was issued onthe basis of aforesaid award.

3. Respondents filed counter affidavit andsupplementary counter affidavit and rejoinderaffidavit was also filed.

4. Mr. A..K. Srivastava, learned counselfor the petitioners contended that theauthorities have fixed seniority putting thepetitioners below the private respondents on awrong interpretation of Circular dated20.03.93 as would appear from paragraphno.25 thereof. It is contended on behalf of thepetitioners that the side provision was madeonly for interregnum period between01.09.1987 and 22.02.1991 and therefore didnot apply to the petition who admittedly were

appointed in your 1985. It is contended that inrespect of aforesaid position, applying theprovision of Regulation 13(1)the petitionersbeing senior to the private respondent byreason of earlier appointment, can not beplaced below the said respondents in theseniority list. Law has been referred to in theconnection as decided I n the case of RamJanam Singh Vs. State of U.P. reported in1994(1)UPLBEC 216,Union of IndiaVs.S.S.Uppal reported in AIR 1996 SC 2340,State of Maharastra Vs. Purusottam reported

in AIR 1996 SC 2228,S.jamaluddin Vs. Highcourt of madras reported in AIR 1997 SC3780 for the deciding seniority , Rules are tobe followed Reference was also maid to thecase of B.V. Sivaiah and others Vs. K.Addanlo Babu reported in JT 1998(5)SC 96for showing the principles relating to


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promotion when criterion is seniority-cum-merit .

5. Mr. K.L. Grover, learned counsel of therespondent Bank authorities contended that hedose not dispute the proposition of law reliedon by the petitioners.

6. On behalf of respondents it has beenstated that field Supervisor were the postsbelow the Officers prior to the Award andCircular issued and promotions were to bemade from the posts of Field Supervisor to theto the Officer. In support of such contentionreliance has been placed on paragraph 8 of thewrit petition.

7. It is also contended that the position is

clear that the posts of find Supervisor werebelow the Officers according to the staffingpattern before award and Circular and mergerof posts of Field Supervisor with the posts ofOfficers. In terms of said award and circular,Field supervisor are to be en block junior tothe Office as benefit of their past serviceshave already been given when they werepromoted and no further benefit as regardsseniority is available. It is further contendedthat such seniority position was provided inthe list published in year 1993 and petitioners

neither protested nor moved any court of lawsseeking their relief.. Therefore, furtherseniority list in year 1997 dose not entitle thepetitioners to any relief.

8. We have considered the contentionsof the respective parties. The facts that thepetitioners were appointed as Field Supervisorin the year 1985 and private respondents wereappointed as Officers in the year 1989 areadmitted. The petitioners claim that theseniority lists of 1993 and 1997 have been

wrongfully prepared putting them below theprivate respondents as paragraph no.25 of theCircular has been wrongly interpreted. It iscontended that the said paragraph dealt withthe appointments of supervisors and Officersin the interregnum period between 1.9.1987and 22.2.1991 and it could not be applied in

case of petitioners appointed earlier. Therespondents denied the same. A perusal of thesaid circulars clearly indicate that inparagraph 6 of the circumstances prevailingearlier had been narrated. It appears that inApril, 1980 the post of Accountants and FieldOfficer were merged with that of BranchManager and created one combined post ofOffice And post of Field Assistant weremerged with Field Supervisor.

9. Staffing pattern in the Regional RuralBank is appearing from the said circular of1991 at Annexure no.1 which indicates thatprior to the said award in the category ofOfficers staff there were three categoriesviz. Field Supervisor, Officers/BranchManager and Area Manager/Senior manager.

Admittedly, after the award and the circularthe posts of Field Supervisor and officerswere merged as OJM-I. Therefore, there weretwo different cadres before such merger, onehaving Field supervisor and other having theofficers From paragraph 6 of the Circular, weare convinced that change was brought inApril, 1980 for having one cadre of Officerwherein Accountant, Field officer and BranchManager were merged and other cadre ofField Supervisor on merger of Field Assistantwith field Supervisors. It also appears from

paragraph 25 of the circular that prior tocircular and award there promotion from FieldSupervisor to Officer. This indicates that FieldSupervisor were to subordinate to Officer. Wealso find from paragraph 17 of the circularthat such merger resulted in promotion offield Supervisors to Officers and principle hasbeen laid down that the services rendered bythe Field Officers in the lower cadre beforesuch promotion has been rewarded bypromotion it self and their past services cannot once again be taken into consideration for

the purpose of fitment.

10. From the aforesaid materials, we areconvinced that prior to the said circular, thepost of find Supervisor were subordinate tothe post of Officers and therefore we are of


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Clause(E) .

2. When the writ petition was filed thearguments were advanced as a result of whichcounter affidavit was called. In due course oftime the other petitions in the bunch came tobe filed and in some of them counteraffidavits were again called which have beenfiled to which Rejoinder Affidavit have alsobeen filed.

3. As prayed by the learned counsel forthe parties this bunch of the writ petitions wastaken up on priority basis under the order ofthe Chief Justice because practically wholelength and breadth of the State is covered bythe State Notification dated 16.3.1999 in sofar as the mode, method and procedure of

auctioning the mining rights with regard tominor minerals is concerned.

4. Shri S.P. Singh, Shri Y.K. Saxena, SriC.L. Pandey, Shri Sanjay Kumar, Shri D.Mukherjee, Shri Ramesh Upadhyaya, ShriM.P. Yadav and several other counsels whoappeared on behalf of the petitioners. Onbehalf of the Respondents Shri Vishnu PratapStanding Counsel has been heard. As jointlyrequested all the petitions are being disposedof finally at this stage under the Rules of the

Court.

5. Before adverting to the argumentsadvanced relating to the validity of theaforesaid Govt. Order a few provisions haveto be noted here in order to comprehend thearguments in pith and substance TheParliament has brought the Minor andMinerals (Regulation and Development) Act1957, Act No.67 of 1957 with effect from 1 st June, 1958 in order that the Union should takein its control the regulation of Mines and the

Development of Minerals to the extenthereinafter provided (vide Section 2 thereof).In so far as the Minor Minerals are concerned,the Central Government has left the field openfor the State Government and Section 15provides that State Government by

Notification in the Official Gazetter make rulefor regulating the grant of quarry leases andMining leases or other Mineral concession inrespect of Minor Minerals and for thepurposes connected therewith. State Rulesmay provide for the procedure for obtainingquarry leases, Mining leases or other mineralconcession and fixing of collection of rentroyalty fees, fine of other charges and the timewithin which and the mining in which feesshall be done and be payable (See 1-A subclause (e) and (g) respectively); Armed withthe aforesaid powers the State of U.P. cameout with a comprehensive set of rules knownas U.P. Minor and Minerals (concession)Rules, 1963. (M.M.C. Rules) which make itclear that those shall apply to all the MinorMinerals available in the State vide sub-Rule

4 of Rule 1 of the M.M.C. Rules. By Rule 3thereof it has been provided that no personshall undertake any mining operations in anyarea within the State, of any minor minerals towhich these rules are applicable except underand in accordance with the terms andconditions of mining leases or mining permitgranted under these rules;

6. Proviso provides that nothing shalleffect any mining operations undertaken inaccordance with the terms and condition of a

mining lease or permit duly granted before thecommencement of these rules. It furtherprovides that no mining lease or miningpermit shall be granted otherwise than inaccordance with the provisions of M.M.C.Rules.

7. For the purpose of effectiveunderstanding in order to decide this bunch ofpetition, it may be mentioned that the State ofU.P. through a Govt. Order dated 4.10.91brought the entire area in the State under

Chapter IV of the M.M.C. Rules. It may bepointed out that Chapter IV of the M.M.C.Rules is captioned as auction lease-17amendment. It consists of provisions made inRules 23-30. Persons who were aggrievedeven by the aforesaid Government Order


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2ALL] Uma Stone Crushing Co. & others V State of U.P. & others 31

while making declaration for granting leaseunder the auction/auction-cum-tender systemthe insertion of the above mentioned proposedperiod should be taken care of.

(5) Such areas on which already leases orpermits are granted shall continue tillexpiration of their period but as soon as theperiod of lease/permit expires, declarationshall be issued under rule 23(1) of Rule 1963for granting lease under auction/auction-cum-tender system and the period of the lease shallbe fixed so far as it is possible, so that thelease in respect of river bed minerals to expirein the month of September, and for in siturock type mineral to expire according tofinancial year.

20. Before proceeding further it may benoted here that Clause 6 of paragraph 2specifically provided that new areas or vacantareas may be declared forthwith for settlementof lease in accordance with the provisions ofChapter IV. Likewise, Clause 9 of para 2provides that 15% enhanced rent/royaltyshould be ensured while making settlement.Rest of the Clause 2 of paragraph 2 ofremaining paragraph and the said G.O. are notrelevant for the purpose of present discussion.

21. Learned counsel for the petitionerobjected to the aforesaid G.O. on threegrounds. First, the G.O. is ineffective as nowhere does it refer to having been issued bySecretary and shall not have the force of law.In this connection provision of Article 166 ofConstitution of India read with the provisionof Chapter IV were read out, along withreference of two decided case of the HonbleSupreme Court. Second, by present policydecision declared through the aforesaid G.O.the State Government was not authorised to

interchange chapter II to Chapter IV and inthis connection it was emphasised thatbecause of the absence of objects and reasons,and unless special reasons were disclosed asprovided in Rule 68, it was not permissible forthe State Government to issue the aforesaid

Government Order. The third criticism is thatthe aforesaid Govt. Order contravenesprovisions of Article 37, 38 and 39 of theConstitution of India read with Article 14 and19 thereof particularly because the changesbrought out by Rules 9-A and 52-A are notperhaps going to be adhered to by theGovernment in view of this G.O. andtherefore it should be struck off.

22. During the course of argument ShriVishnu Pratap was afforded opportunity toproduce the record in order that first argumentof the learned counsel for the petitioner maybe met if possible. There is no denial of thefact that the G.O. itself does not show that it isissued in the name of the Governor whereasArticle 166 of the Constitution of India

provides that all Executive matters of theGovt. of a state shall be expressed to be takenin the name of Governor.

23. Shri Vishnu Pratap produced threerecords. From the first record it appears thatthe Chief Minister of U.P. passed an order forkeeping the consideration of the Industrialpolicy as item of agenda in the Cabinetmeeting. The second record shows that thepolicy decision was formulated as perparagraph 6 of the recommendation of the

Secretariat. The Mineral policy 98 has beenpublished in the Form of book-let, copy ofwhich has been furnished to the Court whichwill form part of the record. The third recordshows that principal Secretary of theIndustrial Department has issued directionsalong with copy of the cabinet decision takenon the 1 st December, 1998 and that letter ofthe Joint Secretary (Cabinet) was issued onbehalf of the Chief Secretary which is dated4 th December, 1998. As to the examining thecontroversy whether the Constitutional

guidelines have been followed, by the courtmaking judicial scrutiny of the policy decisionchallenged through these writ petit

Documents

Indian Law Report - Allahabad Series - Feb2000