The Tribunal, in the instant case, has issued notices

and has called upon the opposite party in the

Contempt Application for appearing before it in
order to frame charges and then proceed in the
matter. In our opinion, this stage cannot be a stage
for entertaining a writ petition on the ground as if
the Contempt Application was not maintainable and
the Tribunal had no jurisdiction to proceed with the
same. To our mind, it appears that the Tribunal on
a perusal of the order dated 18th November, 2009
as well as the 6th December, 2006 was of the
prima facie opinion that disobedience has been
committed. The Contempt Application was filed
against three named officials. Unfortunately, the
said officials, who were summoned in person have
not filed the present writ petition. The present writ
petition has been filed in thename of the designation
of the officials and not in their own personal
capacity. The writ petition, therefore, as framed on
behalf of the personnel in their official capacity
would not be maintainable when the notices have
been issued in person to the then officials who
were being complained of having disobeyed the
orders.
The issue of finality in relation to the dispute of the
vacancy and availability of the post of Lab Assistant
was an issue which was decided in paragraph no. 5
of the judgment dated 6th December, 2006 as
extracted hereinabove. Even if, it is presumed that
the operative part of the said judgment in paragraph
no. 8 allowed the authority to proceed if the vacancy
was available then too, an order came to be passed
by the High Court dismissing the writ petition filed
by the petitioners on 27th March, 2008. The finding
recorded in paragraph no. 5 of the order dated 6th
December, 2006 was therefore, upheld and not set
aside. Apart from this, an attempt to get the
judgment of the Tribunal reviewed also failed and
the review application was dismissed on 10th
December, 2007. The respondent no. 1 filed a
Contempt Application No.
92 of 2007 and the order passed therein and
extracted hereinabove directed the authority to
ensure compliance within three months. Thereafter
also the petitioner-General Manager passed an
order on 25th April, 2008 again rejecting the claim
of the respondent no. 1 which was set aside in the
execution application decided on 18th November,
2009.
It was urged that the petitioner has no grievance as
he was not residing at the premises in question and
only an ex-Judge was residing who exerted his
authority in getting the registration under the Sarais
Act cancelled. It was urged that the grant of
registration under the Sarais Act was a matter
between respondent no. 3 and the authority as well
as the petitioner or his brother had no locus standi
to raise any objection. It was alleged that the brother
of the petitioner used his influence to get the
registration cancelled. This assertion, in our
opinion, is patently erroneous and bereft of any
merit. There is not an iota of evidence brought on
record to indicate that any kind of pressure or
influence was exerted by an ex-Judge of this Court
upon the administration in cancelling the
registration. The petitioner had a locus as well as a
right to object to the grant of the registration under
the Sarais Act and after the grant when the terms
and conditions of the registration certificate was
violated with impunity, the petitioner had every
right to object and pray for cancellation of the
registration. On the other hand, the Court finds that
after the cancellation of the registration certificate
by the authority, respondent no.3 initially took a
legal recourse by filing a writ petition, in which an
interim order was granted by the Court, but,
subsequently respondent no.3 withdrew the writ
petition to enable him to approach the authority,
based on which a review application was filed,
which was rejected by the authority and the matter
came to an end thereafter. After the expiry of six
months, the record reveals that a recommendation
was obtained by respondent no.3 from a powerful
State Minister as well as from a local Member of
Legislative Assembly. Based on the
recommendation from the Minister, the matter was
reopened on the second review application of
respondent no.3. When no action was being taken
on the second review application, the State Minister
again writes to the authority directing him to pass
orders and not to make it a prestigious issue. On this
basis, the order of cancellation was recalled without
giving opportunity to the petitioner. From the
evidence that has been brought on record, it is
apparently clear that there is no evidence filed by
respondent no.3 to indicate that the brother of the
petitioner exerted any kind of influence upon the
administration. On the other hand, there is
sufficient material to indicate that the impugned
order has been passed at the behest of the
politicians, upon pressure being exerted by them.
The respondent no.3 asserted that the petitioner was
also running a marriage hall in its premises under
the name of Lakshmi Narain Vatika.
The submission which was urged before the learned
Single Judge was that denial of arrears of salary to
the first respondent was illegal and without
jurisdiction on the ground that no such punishment
was prescribed under the Rules and in the garb of
reducing the punishment, arrears of salary could not
have been denied. The learned Single Judge
observed that the Appellate Authority did not find
the order of dismissal to be correct and
consequently directed reinstatement. According to
the learned Single Judge, the denial of back wages
was a punishment imposed by the Appellate
Authority and since the Rules do not provide for
imposition of such a punishment, the order was
contrary to the statutory Rules and hence a nullity.
Learned counsel appearing on behalf of the
appellant submits that the impugned order of the
learned Single Judge is based on a patent
misreading of the order passed by the learned
Administrative Judge as Appellate Authority. It has
been urged that denial of back wages in the present
case was not imposed by the learned Single Judge
as a punishment. The learned Administrative Judge
held that this wasfit and proper case for reducing the
extreme penalty imposed upon the first respondent
on humanitarian grounds and consequently directed
reinstatement. However, back wages were denied
not by way of punishment but for the reason that
while ordering reinstatement, an order has
necessarily to be passed in terms of the Financial
Handbook in regard to the pay and allowances
payable to a government servant for the period of
his absence from duty including the period of
suspension preceding his dismissal. On the other
hand, it is urged on behalf of the first respondent
that if the order of the Administrative Judge is
properly construed it would appear that the
Appellate Authority had arrived at a finding that the
charge of misconduct was not proved and once a
charge of misconduct was held not to have been
proved, the first respondent was entitled to
reinstatement and a consequential order of back
wages was necessary. There being no statutory
penalty of reducing the quantum of back wages, the
learned Single Judge was justified in setting aside
the order of the learned Administrative Judge and
ordering full back wages. The judgment of the
learned Single Judge would indicate that the only
submission which was urged by the first respondent
at the hearing of the petition was that denial of
arrears of salary to the first respondent was without
jurisdiction since no such punishment is prescribed
under the Rules and in the garb of reducing the
punishment, arrears of salary could not have been
denied.

Bare perusal of the testimony of the complainant

and the statements of accused persons under Section
313 CrPC. would reveal that both the parties had
inimical relationship. This fact has been mentioned
in the first document prepared after the incident i.e.
the first information report. The FIR itself says that
the rival parties had hostile relationship. Few
months prior to the incident, election for assembly
took place, in which the complainant party was
supporting an independent candidate while Late
Mishri Lal and his family were supporting
candidate of political party. This created tension
between the rival families. It is suggested that
accused persons were in fact searching for right
moment to attack on the deceased. This incident
occurred almost 4-6 months prior to the main
episode. We have carefully examined the factual
evidence of P.W.-1 and P.W-2 and we believe that
there is absolutely no reason to disbelieve or to
discard their testimony. As far as question of lack
independent witness is concerned, it is evident that
in every case the independent witnesses are not
available. It is also not necessary to produce them in
every eventuality. When the witnesses of fact are
not fully trustworthy then alone courts can seek
some corroboration. In the present case, evidence
given by both P.W.-1 and P.W-2 is highly natural
and consistent with the normal human conduct. If
the evidence, produced by the prosecution is
trustworthy and reliable then this evidence cannot
be rejected merely on the ground that independent
witnesses, though available, were not produced.
Criminal cases are decided on the basis of available
evidence. If available evidence is trustworthy then
even the testimony of sole witness can be relied to
convict the perpetrator of the crime. Argument of
appellants that both the witnesses of facts are not
reliable as both are partisan, is not acceptable. Of
course, both witnesses are partisan but there is
nothing on record to demonstrate that witnesses of
facts are either lying or economical with truth. Fact
of the matter is that it is much more difficult for
partisan witnesses to spare real culprits of
commission of grave crime like murder and to
implicate falsely someone with whom they merely
had some minor altercation 5-6 months prior to the
incident on a very trivial matter during surcharged
atmosphere of election. Ordinarily, people do take
such things in their stride and this observation finds
support from a fact that neither party went to the
police after this incident
Sri Mishra contends that the said regulation in
relation to extension of the period of probation
requires recording of reasons in writing by the
appointing authority. He therefore submits that in a
lesser adverse situation where the period of
probation is to be extended the regulation provides
for recording of reasons. Therefore, while
discharging a probationer such recording of reasons
are all the more necessary as discharge is a harsher
measure than extension of probation. For this, the
guidelines are provided in Regulation 46(v) where
the satisfaction has to be recorded by indicating as
to whether the work and conduct of an employee is
satisfactory or not. In addition, thereto, the
requirement is certification of integrity and the third
criteria is that the appointing authority should be
satisfied that the employee has otherwise
successfully and satisfactorily completed his period
of probation. Dr. Mishra contends that there is only
one recital in the communication that the work and
conduct was not found to be satisfactory. He
submits that this recital in the communication is not
born out from any such endorsement or expressed
opinion having been recorded by the appointing
authority. He contends that on the submission of a
report for approval the appointing authority has to
independently apply his mind and record his
satisfaction may be in a very few words to maintain
brevity. In the instant case the appointing authority
has not even chosen to do that and has simply put
his initials. He, therefore, submits that Regulation
46 has not been complied with and the judgment
relied on by the learned counsel for the respondents
had only an endorsement of signatures certifying
approval cannot be a ratio applicable in the present
case as there is adifferent statutory provision with a
clear requirement of recording satisfaction. Before
we proceed to deal with the aforesaid submission of
Dr. Mishra it would be apt to comment upon the
status of the records as indicated above. We find
that the letter of the Head of the Department dated
2.5.2015 in relation to appraisal of performance for
the period of probation recites that the integrity of
the petitioner was poor and this letter finds mention
in the report dated 29.5.2015 submitted by the
Director for approval that has been counter signed
with the initials of the President. In our considered
opinion, if this is treated to be a concurrence then it
also certifies concurring with the endorsement of a
poor integrity of the petitioner in the letter dated
2.5.2015.
It is admitted case that the petitioner had applied for
allotment of a flat in the above mentioned scheme.
The normal procedure of allotment of a flat has been
prescribed in 1979 Regulation. Regulation 34, in
unequivocal terms says that a plot/building shall be
allotted by a lottery drawn publicly. It has also been
mentioned in the same Regulation that all the
applicants shall be sent written information
regarding the place, date and time of the lottery and
such information shall be made public by
publishing the same in newspapers and
promulgation through other similar sources. It is the
admitted case of the petitioner that she did not
participate in the draw made through lottery and
that her name and the disputed flat were kept
segregated. The main contention of the petitioner is
that since the Housing Commissioner kept her name
and the disputed accommodation out of the drawl of
lottery, it means that the disputed flat was allotted
to her and the Housing Commissioner and the
respondent no.1 are bound under law to approve its
allotment in her favor. It is her further contention
that the segregation process by itself means that the
respondent no.1 as well as the Housing
Commissioner have decided that keeping in view
her request the said flat was allotted to her and
giving an approval of the same is nothing more than
a formality. This contention has been vehemently
opposed by the official respondents. They have
categorically stated that there were few more
applications pending before the Housing
Commissioner regarding the same flat and after due
consideration the Housing Commissioner took the
decision that this flat should be exchanged by flat
No. L-410 which was allotted through lottery to
private respondents. Learned counsel for the
petitioner Sri Satish Chaturvedi has argued that
since the flat in question was segregated for
allotment in favour of the petitioner awaiting formal
approval of the same, the flat in question stood
allotted in her favour. It has been further submitted
that the decision taken by the Housing
Commissioner on 20.12.2006 to segregate the flat
from normal mode of allotment and the fact that the
application of the petitioner was kept out of lottery
draw simply means that the Parishad had actually
allotted the same in favour of the petitioner. It has
been further submitted by Mr. Chaturvedi that the
allotment of the disputed flat in favour of the private
respondents is bad as it was done under the orders
of the respondent No.3, who did not have any
authority to pass such an order.
The facts arising out of the present writ petition are
that on the basis of advertisement made by the
respondent in the year 1989 for the purposes of
appointment on the post of Constable, as the
petitioner was fully eligible to be considered and
appointed, he submitted relevant documents and on
the basis of aforesaid document, petitioner was
considered treating his date of birth as 15th
November 1969. The High School certificate issued
by the Board of High School and Intermediate of the
year 1983 was submitted at that time. Petitioner on
the basis of aforesaid appointment was working and
the conduct of the petitioner was always appreciated
by the relevant authority from time to time. It
appears that on the basis of some complaint
regarding various persons who have obtained the
appointment claiming themselves to be dependent
of the employees working in the Department under
the Dying in Harness Rules, some investigation was
made without any notice to the petitioner and it was
found as alleged by the respondent that in the
certificate submitted by the petitioner of the High
School the date of birth of the petitioner is entered
as 15.11.1965. Though in the certificate which has
been submitted by the petitioner, the date of birth is
recorded as 15.11.1969.The contention of the
petitioner to this effect is that in case on the basis of
some complaint if the respondent was of the opinion
that on the basis of some inquiry made thereunder
the certificate submitted by the petitioner was
having some discrepancy or wrong date of birth
according to respondent is entered, the petitioner
was entitled to have a show cause notice and
opportunity. The appointment of the petitioner
cannot be cancelled without any notice and
opportunity that too after completion of about 17
years of service in the Police Department. In case
the petitioner would have been given a liberty he
would have submitted a certificate issued by the
High School Board which was submitted at the time
of entrance in service. Without any notice and
opportunity to the petitioner, the order impugned
dated 22.02.2008 cannot be passed. The petitioner
has placed reliance upon a judgment of apex court
reported in 1991 SCC330 Shrawan Kumar Jha and
others Vs. State of Bihar and others.
The petitioners contend that the Tribunal has
committed an error by allowing the claim petition in
view of the fact that the claim of the respondent no.
2 had already been rejected as he himself had
voluntarily refused to take up the job of a Sweeper
and, therefore, the respondent no. 2 cannot claim
compassionate appointment as a matter of right. It
is further submitted that several reasons have been
given while passing the order that the vacancies
were not available within the 5% quota and the
appointment on compassionate ground is not a
matter of right and further respondent no. 2 and his
family was financially well off so as to provide
enough aid and hence compassionate appointment
was not permissible in view of the guidelines
framed by the Government Policy. Another reason
given is that the claim is on account of death of
respondent no. 2 and, therefore, the compassion did
not exist so as to give rise to any claim.
Sri I.P. Srivastava submits that the answering
respondent was prepared even to perform the job of
a sweeper and the appointment of the answering
respondent was cancelled vide order dated 14th
November, 1998, which is bereft of any reasons. He
further submits that so far as the subsequent order
dated 4th July, 2002 is concerned, the same reflects
non-application of mind, inasmuch, it does not even
refer to the earlier offer of compassionate
appointment made by the respondents and further
none of the aforesaid contingencies are available for
denying compassionate appointment as have been
indicated therein. He further submits that the
answering respondent is even now prepared to
accept the job of a sweeper and his claim survives,
inasmuch as he had approached the authority well
within time. Having heard learned counsel for the
parties, it is evident that the claim for compassionate
appointment was made immediately after the death
of the father of the answering respondent. The said
claim was processed and the appointment was
offered to the respondent. It appears that another
application had been moved by the answering
respondent on 22nd May, 1998, which was also
pending consideration for being appointed as a
Majdoor. The answering respondent appears to
have made a request to the authorities that he would
be unable to perform the job of a sweeper due to fear
of a social boycott and, therefore, he may be offered
the job of a Majdoor. The cancellation order of 14 th
November, 1998 appears to have been made only
after such request had been made.
The respondent preferred a writ petition before the
High Court of Judicature at Bombay, which was
ultimately allowed by the High Court by its
judgment dated 27.7.2004. After briefly noticing
the facts of the case, the High Court accepted the
finding of the Appellate Bench that the appellant
had not left the premises with the intention of
staying with her brother permanently. The High
Court also accepted the finding of fact recorded by
the First Appellate Court that the appellant had no
share in the flat in Ashoka Apartments and,
therefore had no right to stay therein. However, the
High Court was impressed by the subsequent
events, which were brought to its notice by a civil
application. The subsequent events, which
impressed the High Court, were that the appellant's
mother had died in the year 1976 and her sister-in-
law had also died in the year 1982. Her brother was
residing permanently in Goa to look after the
ancestral family property. The learned Judge held
that apart from the appellant all the others, who
were earlier residing with the appellant, had either
expired or had settled down elsewhere and,
therefore, the need of the other family members did
not survive. The High Court concluded that her
brother being a bachelor, the appellant has also
inherited a share in his flat at Ashoka Apartments
and thus became a co-owner having aright to reside
in the flat in Ashoka Apartments. Her brother, no
doubt, was also a co-owner of the premises since he
owned the premises jointly with her late brother. In
view of the fact that she, as a co- owner, had a right
to reside in the premises, her need of her own
apartment did not survive. The High Court,
therefore, concluded that in the changed
circumstances and subsequent events, which
happened during the pendency of the writ petition
before the High Court, the need of the appellant did
not survive and, therefore the decree passed by the
Appellate Court deserved to be set aside.
Accordingly, the writ petition was allowed and the
eviction petition was rejected. Having noticed the
evidence on record and the findings recorded by the
Courts below, we have come to the conclusion that
this appeal must be allowed. The finding of bona
fide personal need recorded by the Appellate Court
is a finding of fact based on the evidence on record.
We have considered the evidence on record and we
find that the finding recorded by the Appellate
Court did not deserve to be set aside.
The background in which the dispute arose appears
to be the availability of a huge amount of funds for
the Zila Panchayat from the State Finance
Commission through the communication dated
27.02.2015. The Zila Panchayat had already passed
resolution nos. 4 and 5 on 27.12.2014 for utilization
of the grants that were proposed to be made
available to the Zila Panchayat for seventy-eight
projects. Part of the grant was utilized on being
approved after following the due process of tender
and award of contracts. For the other projects, the
tenders and contracts are stated to have been
approved by the Chairman where after an
advertisement was published in two local
newspapers as well as other newspapers of repute
inviting tenders / bids. Permission was sought from
the competent authority through proper channel
namely the Chief Development Officer and during
this period a query was made by the respondent no.
2 i.e. the Collector in relation to publishing of such
tenders and award of contracts. The petitioner urges
that even before any reply could be submitted to the
query, the District Magistrate passed an order
sitting in office on a second Saturday i.e.
08.08.2015, that is officially not a working day,
alleging that she had received some complaints that
the funds are to be mis utilized for award of such
contracts which have already being executed by
adopting dubious methods of splitting the amount
of such contracts. She therefore imposed a restraint
on the opening of the tenders through the order
dated 08.08.2015 and 10.08.2015, appointing a
three-member committee to enquire into the said
allegations. A three-member committee was
accordingly appointed to make a fact finding
inquiry with regard to the said process having been
adopted upon which the matter was inquired into
and a report is said to have been submitted. It is in
this background that the Upper Mukhya Adhikari
sent a letter dated 10.08.2015 stopping the entire
tender process pursuant to the impugned orders of
the District Magistrate. A representation was filed
by the Chairperson alleging that this was being done
on account of an alleged political rivalry and
personal malice, as the Chairperson had contested
the election against Sri Rakesh Yadav, son of a
minister in the State Government Sri S.P. Yadav
and, therefore, in order to impede the functioning
and carrying out of the execution work of the Zila
Panchayat, this method was adopted and the
District Magistrate / Collector surrendered her
jurisdiction in favour of such persons so as to annul
the aforesaid tender process
Learned counsel for the petitioner submits that the
plaintiff petitioner is 58 years' old lady who had
instituted suit for injunction in the year 2005 after
having purchased the property by way of registered
sale deed in the year 2003. It is submitted that the
plaintiff- petitioner had been bona fidely pursuing
the matter and there has never been any act on her
part, which could even remotely suggest any mala
fide conduct on her part to delay the disposal of the
proceedings. It is submitted that the plaintiff has
been bona fidely contesting the matter and the delay
occasioned in filing of the written statement to the
counter claim was entirely due to lack of proper
advise by the counsel for which plaintiff ought not
to have been punished. It is further submitted that
even otherwise all evidence in connection with due
execution of the sale deed had already been placed
on record and there was no occasion for either of
the parties to file any further evidence on account
of acceptance of the written statement. It is
submitted that grave injustice would be caused to
the plaintiff in case the written statement to the
counter claim is not accepted, as all such evidence
led in this regard would not be liable to be
considered in the absence of any written statement
to the counter claim. Contention, therefore, is that
delay in moving of the written statement was wholly
bona fide and for any inconvenience caused, the
defendant could have been compensated by
payment of cost. Per contra, learned counsel
appearing for the respondent submits that there was
absolutely no justification for accepting the written
statement to the counter claim after expiry of 8
years and no justifiable cause has been brought on
record to accept the written statement to the counter
claim. It is also submitted that the provisions of
Order 8 Rule 1 CPC clearly bars entertaining of
such belated written statement and therefore, there
is no error in the orders passed by the courts
below, which may require any interference. Having
considered the respective submissions urged by
learned counsel for the parties, this Court finds that
the plaintiff had filed the suit for injunction in
respect of the property, which she had purchased by
way of registered sale deed dated 29.10.2003. A
counter claim was filed in February, 2006
challenging the sale deed itself. The court had
proceeded to frame issues including the question of
validity of the sale deed and whether the defendant
was the owner of the suit property.
Now coming to the second question, I am of the
view that the appointment made on a post which is
not in accordance with law would not confer any
right upon the incumbent either to hold the post or
to continue in service on such post in any manner.
Mere length of service or lack of any fault on the
part of the employee concerned is not relevant
inasmuch it is the observance of statutory
provisions and not the personal or individual act on
the part of the parties concerned which would
decide the rights of the persons to hold the post. If a
person does not possess the requisite qualification
or is otherwise appointed on a particular post in
violation of the statute, he/she cannot claim to have
a right to continue in service simply because it has
worked for a long time for the reason that estoppel
does not apply against statute and any appointment
against the statute is void ab initio. Even, on the
ground of sympathy, no such relief can be granted
since a Court of law is primarily concerned with rule
of law consistent with constitutional provision and
mere sympathy, which is directly against the statute
and constitutional provisions would be a case of
misapplication of the understanding of principles of
equity and justice. It would be difficult to hold that
an action which would be contrary to statute has the
effect of violating others' fundamental right of equal
opportunity of employment, can be equitable and
sympathetic though it is otherwise unconstitutional.
A sympathy or equity which will result in upholding
illegal and unconstitutional orders or acts cannot be
considered to be within the four corners of
principles of administration of justice in equitable
exercise of power under Article 226 of the
Constitution. It would be a travesty of justice if we
allow the concept of sympathy or equity to
influence the mind of the Court even when the
action is ex facie illegal and unconstitutional,
violative of Article 16 (1) of the Constitution.
Recently, the Apex Court has declined to grant any
relief to a person merely because it has worked for
long time though did not possess requisite
qualification at the time of appointment in
accordance with rules and the appointment is not in
accordance with the procedure prescribed. Now
coming to the third question, it is no doubt true that
before passing the impugned resolution and giving
effect thereto, no opportunity has been afforded to
the petitioner by issuing a show cause notice, but
the petitioner has been given extensive hearing
before this Court to show whether her appointment
on the post of Assistant Teacher, Junior High
School was valid and the arguments at length have
We have given our thoughtful consideration to the
various pleas raised by the parties. We are of the
considered opinion that it is not necessary for us to
go into the question as to whether the President of
Nagar Palika Parishad can be said to be a person
aggrieved by the order dated 30.3.2010 or not, or
the appeal is not maintainable as it has been filed
against an interlocutory order as the present appeal
itself is liable to be dismissed on the ground that
whatever material has been placed in the appeal can
very well beplaced before the Hon'ble Single Judge
as the scope of intra court appeal is limited to see
the correctness of the order passed by the Hon'ble
Single Judge on the basis of material or evidence
which is before him and not on the basis of material
or evidence which are filed along with the appeal by
way of additional evidence. As held by the Hon'ble
Supreme Court in the case of Shobha Devi (supra),
a Letters Patent Appeal as permitted under the
Letters Patent, is normally an intra court appeal
whereunder the Letters Patent Bench corrects its
own orders in exercise of the same jurisdiction as
was vested in the Single Bench. Such is not an
appeal against an order of a subordinate court. In
such appellate jurisdiction, the High Court exercises
the power of a Court of Error. Therefore, we can, in
exercise of appellate jurisdiction which is being
exercised in an intra court appeal, correct errors in
the order of the learned Single Judge on thebasis
of material which was on record before the learned
Single Judge and not on such documents or material
which have not been placed before him, more so
when the intra court appeal is against an ex- party
interim order passed by the learned Single Judge. It
is true that in an intra court appeal additional
evidence can be filed. In the case of Ram Prasad
(Supra), a Division Bench of this Court has held that
though the provisions of Code of Civil Procedure
are not applicable to writ proceedings, the
provisions contained in Rule 27 of Order XX of
Civil Procedure Code may be considered as general
principle for admission of additional evidence in
writ appeal. However, this remedy is not available
in all situations.
The revisionist is one of the defendants in Original
Suit No.352 of 2006. The suit was instituted by the
plaintiff-opposite party for mandatory injunction.
The defendants in the said suit moved an
application 69 Ga before the trial court pointing out
that a matter arising out of Original Suit No.721 of
2005 is pending before this Hon'ble Court, in which
validity of Will dated 27.3.1985 on the basis of
which the plaintiff claims title to the suit property,
is an issue under consideration. It was further
pointed out that by an order dated 13.11.2006 the
instant suit was clubbed with Original Suit No.721
of 2005 and the said suitwas made the leading case.
Consequently, it was prayed that since the leading
case is pending before this Court and, therefore,
proceedings of Original Suit No.352 of 2006 be
stayed. The application was opposed by the plaintiff
stating that there was no stay by any court to the
proceedings of the instant suit. The trial court, by an
order dated 11.5.2015, rejected the application.
Aggrieved thereby, some of the defendant’s
preferred application under Article 227 No.3830 of
2015 before this Court. The petition was dismissed
by order dated 18.8.2015 by noting that the
defendants themselves admit that Original Suit
No.721 of 2005 stood dismissed and as such the
application filed by them on the ground that the
proceedings of the instant suit are to be stayed
during the pendency of the Original Suit No.721 of
2005, was a misconceived one. However, liberty
was reserved in favour of the defendants to move a
separate application raising plea of Section 10
C.P.C., in case they are so advised. In pursuance of
the liberty so granted, the defendants filed an
application 73 Ga before the trial court for framing
an issue relating to applicability of Section 10
C.P.C. The trial court, after taking into
consideration the objections filed by the plaintiff,
rejected the said application. In the order, it is noted
that Original Suit No.721 of 2005 was rejected, as
the plaintiff did not pay the requisite court fee. The
trial court further noted that no evidence has been
filed by the defendants to demonstrate that the said
suit or any appeal arising out of order dismissing the
said suit is pending before any court of law.
Learned counsel for the petitioner raised several
issues and contended that the principles of natural
justice was violated with impunity. which caused
prejudice to the petitioner and therefore, the
impugned orders stood vitiated. The learned counsel
submitted that a show cause notice was issued for
the incident which occurred on 16.9.2007 whereas
the petitioner has been expelled taking into account
his previous conduct and taking into account the
intelligence report for which the petitioner was not
put to notice nor an opportunity to rebut the
allegations made in intelligence report was given.
The non-supply ofthe intelligence report and by not
providing an opportunity to rebut these documents
seriously prejudiced the petitioner which was in
gross violation of the principles of natural justice.
The learned counsel further submitted that the
intelligence report which was relied upon by the
Disciplinary Committee was not signed by any
person and had been prepared subsequently and
therefore, no cognizance on this report could be taken
into consideration by the Disciplinary Committee.
The learned counsel further submitted that the Circle
Officer had certified that the petitioner was not
involved in the destruction of the University and that
the petitioner was given a clean chit and was
absolved from the incident which unfortunately had
been discarded by the Disciplinary Committee
without assigning any valid reason. The learned
counsel for the petitioner further submitted that the
resolution of the Executive Council was also liable to
be quashed as it suffered from various infirmities.
The learned counsel submitted that the quorum of the
Executive Council was incomplete and therefore, the
resolution of the Executive Council stood vitiated on
account of the mandatory non-compliance of having
a proper quorum for holding a meeting. Further, the
Vice Chancellor not only chaired the meeting of the
Executive Council but also participated in the
deliberations and voted for the resolution which
action of the Vice Chancellor was totally illegal since
it was his own order which was challenged in the
appeal. The learned counsel for the petitioner
submitted that the Vice Chancellor could not be a
judge of his own cause and therefore, the resolution
of the Executive Council stood vitiated on account of
this fatal error. In support of his submission, the
learned counsel for the petitioner placed reliance
upon a decision of this Court in Daya Shanker Gupta
vs. Aligarh Muslim University Aligarh and others,
(2014) 11 SCC 941.
Sri G. K. Singh, learned counsel appearing for the
petitioners submitted that after elections were
already approved by the District Inspector of
Schools and no parallel Committee of Management
was set up by any rival claimant, the Joint Director
could not have adjudicated on the validity of the
elections set up by the petitioners. He further
submitted that the irregularities, if any, on which the
election held on 31 March 2014 has been declared
invalid, are not such on which the result of the
election could be said to have been materially
affected. It has been submitted that according to the
report of the post office since the year 2011,
certificate of posting was not being issued,
therefore, apart from publication in newspaper,
agenda was circulated personally to the members
who have signed in acknowledgment. Thus, there
was substantial compliance of the provisions of the
Scheme of Administration with regard to the proper
publication of the election program and notice to the
members of the General Body and, therefore, on the
said ground the election could not have been
declared invalid. Further, the affidavit of Principal
and alleged 25 members denying holding of
elections was nothing but false as the alleged
members were close relative of rival group and so
far as the principal is concerned, a complaint was
filed against him with regards to his qualification,
therefore, he made false allegations. It has been
submitted that the representation was made to the
Joint Director of Education for removing the
Prabandh Sanchalak and, therefore, the Joint
Director of Education was only required to see
whether the continuance of the Prabandh Sanchalak
was legally justified in view of the fresh elections
or not. It has been submitted that minor variation in
the procedure cannot be a ground to declare the
election invalid unless a finding is returned that
there is substantial noncompliance of the
procedure.Sri P.C. Pathak, who has put in
appearance on behalf of respondent No.6 submits
that the respondent No.6 had submitted a detailed
objection before the Joint Director of Education, in
which various grounds were taken to demonstrate
that the elections set up on 31 March, 2014 were not
valid and, therefore, the prayer of the petitioners for
removal of the Prabandh Sanchalak was liable to
be rejected. Sri Pathak further submitted that the
last election of the Committee of Management was
held on12.10.2008.
Sri P.N. Saxena learned counsel for the appellants
contends that the procedure adopted by the two
Professors in declaring the result on a manual check
of the OMR sheets is in contravention of the mode
prescribed which should have been done by the
Computer Centre through a scanner. He submits that
there was no occasion for the two Incharge
Professors to have undertaken the evaluation
themselves manually. He further submits not only
this, the manner in which there has been a
substantial change in marks of one of the students
and few minor changes in the case of six other
students raises a serious suspicion and a genuine
doubt about the conduct of the two Professors, who
undertook the exercise of change of answer sheets
manually. He further submits that there was no
provision for any such re-checking or scrutiny and
the declaration of the list on 1.4.2010 was
unsupported by any authority. It has further
contended that the learned Single Judge committed
an error by accepting the submissions made by the
respondents, which was directly in conflict with the
relief claimed by them. He submits that the
respondents had clearly questioned the correctness
of the subsequent list and had prayed for admissions
being made on the basis of the first list published on
19.2.2010. Accordingly, it is submitted that the
learned Single Judge ought not to have granted the
relief as prayed for. Sri Saxena has further invited
our attention to the application moved in this special
appeal making a prayer that an appropriate direction
be issued to the University to ensure transparency in
holding of the examinations and the declaration of
the results as well as evaluation of the OMR sheets
so that in case any student has any doubt, the same
can be ascertained by adopting a fair procedure. Sri
V.K. Singh, learned senior counsel for the
University contends that the University may not
have filed an appeal against the impugned order, yet
the University supports the cause of the appellants
and at the same time would abide by the orders of
this Court. He however takes exception to the
finding and observations that were made by the
learned Single Judge on the steps taken by the Vice
Chancellor and he submits that the Vice Chancellor
in order to ensure fairness had taken a decision to
cancel the examinations on the asking of the
candidates themselves. He further submits that
prompt decision by the Vice Chancellor was taken
as he was wholly unaware about the two In charge
Professors having manually evaluated the results
who upturned the same through a revised list.
It is submitted that the petitioner filed a review
petition, which was rejected by learned Single
Judge, against which the petitioner has filed a
Special Appeal Defective No.402 of 2013, which is
still pending. He submits that in view of the
aforesaid, the order of punishment has become final
which includes the recovery of the amount and
which is sought to be recovered by a procedure
provided in the Rules, which is retrospective in
nature. The procedure and the method of recovering
the amount does not give any substantive right to
the petitioner on the basis of which he may
challenge the recovery proceeding. Shri Shrikant
Shukla further submits that in pursuance to a Public
Interest Litigation filed in Lucknow Bench of this
Court an enquiry was made with regard to serious
irregularities in shortage and distribution of food
grains in which an investigation was conducted by
the Special Investigation Team of the State
Government and in which these godowns were also
involved. Large scale irregularities have been found
in the investigation. Large quantities of food grains
were found to be transported through trucks,
whereas the registration number of the vehicles
were found to be of scooters and motorcycles. He
submits that the Court should not interfere and
relegate the petitioner to file an appeal, and that
since the petitioner has not submitted adequate
security in compliance with the orders passed in
Writ Petition No.57919 of 2011, the writ petitions
be dismissed. We have considered the arguments
and find that the departmental enquiry was
conducted in gross violation of principles of natural
justice, which are incorporated in the Model
Conduct Discipline & Appeal, Rules 1992,
applicable to the Corporation. Though the charge
sheet was submitted prior to the retirement of the
petitioner, and the enquiry could have continued,
the charges of lack of administrative and financial
supervision would have required a detailed enquiry
in which the petitioner was required to participate.
The enquiry report was not served on the petitioner.
Out of 36 charges, only charge nos. 7, 14, 20, 23 and
36 related to financial irregularities on which the
findings are cryptic and vague. The disciplinary
authority has merely reiterated the charge and the
finding of enquiry officer, without discussing the
enquiry report and the reply given by the petitioner
to the charge.
The State of UP in exercise of its power under
Section 110 of U.P. Panchayat Raj, 1947 enacted
the U.P. Panchayat Raj Rules, 1970 which provide
for the preparation of family register which is
popularly known as Kutumb register. Rule 2 of the
aforesaid Rules provides for preparation of Kutumb
register in Form 'A' containing family wise names
and particulars of all persons ordinarily residing in
the village. These entries are to be made quarterly.
All the changes made in the Kutumb register are to
be ratified by the Gram Panchayat in the next
meeting. The object behind maintaining the
Kutumb register under the aforesaid Rules is to
maintain a list of all persons who are ordinarily
resident in the area of the Gram Sabha to be
recorded family wise. Therefore, entry in the
Kutumb register may be a conclusive proof of a fact
that a person whose name appears therein is a
resident of the village and belongs to a particular
family but as its purpose is not to maintain the
record of date of birth or death of a person it can be
a conclusive proof about the date of birth or even
the death of a person whose name happened to be
recorded therein though it may form a piece of
evidence. Such date of birth or death could have
been proved conclusively by producing a certificate
of registration under the Registration of Births and
Deaths Act, 1969. No such certificate of registration
under the above Act either with regard to the date of
birth of Smt. Suchita Patel or of the death of her
mother Smt. Sakhi Devi was produced, which
could have been the most authentic document to
establish the date of birth of the respondent Smt.
Suchita Patel or of the date of death of her mother.A
perusal of the above Kutumb register reveals that it
contains the names of all family members of Jokhan
Ram but it does not mention the name of the
respondent Smt. Suchita Patel therein. It records the
date of death of Smt. Sakhi Devi as 15.10.1984 and
as such if Smt. Suchita Patel was born earlier her
name ought to have appeared in the Kutumb register
which is conspicuous of her absence. Besides the
above, the date of birth of all family members
recorded in the Kutumb register happens to be 1st
of January of the year concerned.
The petitioners are aggrieved by the exclusion of
the names of 239 members from the list finalized by
the Election Officer. According to the petitioners,
these 239 members had been validly inducted and
there was no justification for the Election Officer to
exclude their names. The petitioners claim to have
filed objections to the tentative list and also before
the Assistant Registrar, the Vice-Chancellor of the
University and the District Inspector of Schools
after the elections were held and the result was
declared. The grievance is that the Vice-Chancellor
of the University and the District Inspector of
Schools completely ignored the objections filed
against the finalization of the voters list while
granting approval to the Committee of Management
of the Post Graduate College and the Intermediate
College.
Before examining as to whether the objections were
required to be considered, it will be appropriate to
first ascertain whether the objections had at all been
filed before the Vice-Chancellor of the University
or the District Inspector of Schools because an
objection has been raised by the respondents to this
effect. A perusal of the objections indicates that they
were addressed to the Assistant Registrar for setting
aside the elections held on 15th February 2015.
Copy of the representation was sent to both the
Vice Chancellor of the University as also the
District Inspector of Schools for information and
necessary action at their end. This objection was
received in the office of the Vice Chancellor and the
District Inspector of Schools as the endorsements
indicate. It cannot, therefore, be said that the
objections had not been served. The dispute,
therefore, is not as to whether the objections were
actually received in the office of the Vice-
Chancellor and the District Inspector of Schools but
whether they were required to be considered before
a decision was taken on the validity of the elections
held for the Post Graduate College and the
Intermediate College. It needs to be noted that three
elections were held in regard to the Society, the Post
Graduate College and the Intermediate College. The
Assistant Registrar could take a decision only with
regard to the Society. The Vice-Chancellor of the
University and the District Inspector of Schools
were required to take a decision with regard to the
elections held for the Post Graduate College and
the Intermediate College. What also needs to be
noted is that objections had to be examined in view
of the directions issued by the Court on 19th
December 2013.