# 1564 INDIAN LAW REPORTS ALLAHABAD SERIES State of U.P. & Ors v. Pankaj Srivastava

- **Citation:** (2013) 3 ILRA 1563
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-03
- **Case number:** Special Appeal (D) No. 845 of 2013
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Devendra Kumar Arora
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/1564-indian-law-reports-allahabad-series-state-of-u-p-ors-v-pankaj-srivastava-42749
- **Pages:** 5

## Headnote

U.P. Collection Amin Service Rule 1974Rule-5-Regularisation-seasonal
collection
Amin-committee
rejected
claim-as
the
petitioner/respondent was not working on
relevant time of consideration-held-learned
Single Judge rightly quashed committee
decision-in absence of such requirementcan not be interpreted otherwise than
statuary enactment-appeal dismissed.

Held: Para-6
The last four fasals does not mean that the
Seasonal Collection Amin must be actually
working on the date on which the Selection
Committee applies its mind to the claim for
regularization. Such a condition is not found
in the Rules and to introduce such a
condition, would amount to a modification
or amendment of the statutory rule, which
is impermissible for this Court. The Rule has
to be read as it stands. The learned Single
Judge was, in our opinion, correct in
holding that the ground which has weighed
with
the
Selection
Committee
was
extraneous to the Rules.

## Text

3 All] State of U.P. & Ors. Vs. Pankaj Srivastava
1563
petitioner is concerned, the same cannot
be held to be binding for the simple
reason that if a statute permits a particular
allowance that cannot be taken away by
admission of one of the parties. It is
settled law that there is no estopple
against the statute.

25. In Commissioner of Income-tax
Vs. Nestle India Ltd. [2000] 243 ITR
0435, a Division Bench of the Delhi High
Court while dealing with the deduction at
tax at source in relation to the income
under the head salaries held that where
the assessee was under a bona fide belief
that conveyance allowance was not
taxable then neither penalty under Section
201 of the Act nor interest under Section
201 (1A) of the Act was leviable.

26. The petitioner had made bona
fide allowance of the donation made by
the employees for rural development
programme while making deduction of
tax at source and as such there was no
occasion for any order under Section 201
read with Section 201 (1A) of the Act. It
may be pertinent to note that the employer
while making deduction of tax at source is
only required to have a broad picture of
the estimated income on which tax is to
be deducted. He is not supposed to
calculate
the
income
minutely
to
precession.

27. A similar view was expressed by
the Division of the Madhya Pradesh High
Court in the case of Gwalior Rayon Silk
Co. Ltd. Vs. Commissioner of Income
Tax [1983] 140 ITR 0832 and it was
further held that where the regular
assessment of an employee had been
completed the Commissioner of Income
Tax, TDS has no jurisdiction under
Section 201 of the Act to demand further
tax from the employer in respect of tax
shortly deducted at source relating to such
employees.

28. The revisional order dated
29.12.2008 makes a reference to the fact
that the employees have been subjected to
regular assessment in which case no
liability could have been fastened upon
the petitioner in respect of any tax which
may have been deducted less at source.
The assessing authority could have taken
care for realizing such shortage while
making the regular assessment.

29. Sri Govind Krishna, in the end
made a request that the authorities should
be given liberty to proceed to recover the
shortage of tax if any from the defaulting
employees.

30. I am afraid such liberty at this
stage is not warranted, in view of the fact
that all the employees have furnished
regular returns for the relevant years and
by now the assessment may have been
finalized leaving no scope for any further
recoveries against them.

31. In view of above the impugned
orders dated 28.3.2007 and 29.12.2008
are quashed.

32. The petitions succeeds and are
allowed without any costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.12.2013

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
HON'BLE DEVENDRA KUMAR ARORA, J.

Special Appeal (D) No. 845 of 2013
1564 INDIAN LAW REPORTS ALLAHABAD SERIES
State of U.P. & Ors.... Appellants
Versus
Pankaj Srivastava.... Respondent

Counsel for the Appellants:
C.S.C.

Counsel for the Respondent:
Sri Ramesh Kumar Srivastava

U.P. Collection Amin Service Rule 1974Rule-5-Regularisation-seasonal
collection
Amin-committee
rejected
claim-as
the
petitioner/respondent was not working on
relevant time of consideration-held-learned
Single Judge rightly quashed committee
decision-in absence of such requirementcan not be interpreted otherwise than
statuary enactment-appeal dismissed.

Held: Para-6
The last four fasals does not mean that the
Seasonal Collection Amin must be actually
working on the date on which the Selection
Committee applies its mind to the claim for
regularization. Such a condition is not found
in the Rules and to introduce such a
condition, would amount to a modification
or amendment of the statutory rule, which
is impermissible for this Court. The Rule has
to be read as it stands. The learned Single
Judge was, in our opinion, correct in
holding that the ground which has weighed
with
the
Selection
Committee
was
extraneous to the Rules.

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

1. The special appeal arises from a
judgment of the learned Single Judge dated 04
October 2013. By the impugned judgment,
the learned Single Judge has quashed the
decision, which was taken in a meeting of a
Selection Committee dated 15 December
2001 for considering the regularization of the
services of the respondent as a Collection
Amin against a 35% quota prescribed for
regular appointment on the post of Collection
Amin from amongst the Seasonal Collection
Amins under the U.P. Collection Amins'
Service Rules, 1974 (hereinafter referred to as
'the Rules, 1974'). The learned Single Judge
has directed consideration afresh. Hence, the
State is in appeal.

2. The respondent worked as a Seasonal
Collection Amin since the year 1989 from time
to time. He claimed regular appointment on the
post of Collection Amin under the Rules, 1974.
The State Government has regular posts of
Collection Amins and also engages Seasonal
Collection Amins. The Seasonal Collection
Amins are required to carry out the work of
collection of revenue during the Rabi and
Khareef crops. A provision was introduced in
the Rules,1974 for regularization of Seasonal
Collection Amins as Collection Amins against
35% of vacancies. Rule 5 of the Rules, 1974,
which provides for regularization, is in the
following terms:-

"izfrcU/k ;g gS fd iSarhl izfr'kr fjfDr;kWa
,sls lhtuy dysD'ku vehuksa esa ls p;u }kjk Hkjh
tk;saxh&

(d) ftUgksaus de ls de pkj Qlyksa rd
lUrks"ktud :i ls dk;Z fd;k gks ;

([k) ftudh vk;q ml o"kZ dh igyh tqykbZ
dks] ftl o"kZ p;u fd;k tk;] 45 o"kZ ls vf/kd u
gks%

izfrcU/k ;g Hkh gS fd ;fn mi;qDr vH;FkhZ
miyC/k u gksa rks 'ks"k fjfDr;kWa lh/kh HkrhZ ds ek/;e
ls lkekU; vH;fFkZ;ksa }kjk Hkjh tk;saxhA +

Li"Vhdj.k& lUrks"ktud dk;Z dk rkRi;Z
gksxk 'kq: ls vUr rd vPNs vkpj.k dks lfEefyr
djrs gq, vfUre pkj Qlyksa ds nkSjku fofgr Lrj
ds vuqlkj de ls de lRrj izfr'kr olwyhA"

3. Earlier the respondent had filed a
writ petition (Writ Petition No.3280 (S/S)
of 2001) since his claim for regularization
had not been considered. By a judgment
and order dated 12 July 2001, a learned
Single Judge of this Court disposed of the
petition with a direction that the claim of
3 All] State of U.P. & Ors. Vs. Pankaj Srivastava
1565
the respondent for regularization shall be
considered
in
accordance
with
the
relevant Government Orders and the
Rules against 35% of the total vacancies.
Since in pursuance of the aforesaid order
dated 12 July 2001 no intimation was
furnished to the respondent, he initiated
contempt proceedings before this Court.
In the contempt proceedings, a counter
affidavit was filed on behalf of the State
on 12 October 2009 in which there was a
disclosure that the claim of the respondent
for regularization had been considered
and rejected by the Selection Committee
in its meeting dated 15 December 2001.
Thereupon, the respondent instituted
another petition challenging the decision
of the Selection Committee in 2009. The
only ground on which the Selection
Committee rejected the claim of the
respondent was that he was not working
as a Seasonal Collection Amin on the date
on which the claim was considered (the
exact words used by the Selection
Committee being "dk;Zjr ugha"). When
the petition was filed before the learned
Single Judge, a counter affidavit was filed
on behalf of the State in which, besides
the ground which weighed with the
Selection
Committee,
an
additional
ground was sought to be taken, namely,
that the performance of the respondent
was
not
commensurate
with
the
requirement spelt out in the explanation to
Rule 5 of the Rules, 1974.

4. The learned Single Judge held
that the ground which weighed with the
Selection Committee, namely, that the
respondent was not working on the date
of consideration, was extraneous to Rule
5 of the Rules, 1974 since the Rules do
not contain any such requirement. The
learned Single Judge noted that the
additional ground, which was urged in the
counter affidavit in regard to the lack of
performance, had not weighed with the
Selection
Committee.
In
the
circumstances, the learned Single Judge
set aside the decision of the Selection
Committee dated 15 December 2001 and
directed a fresh consideration of the claim
of the respondent. However, the learned
Single Judge clarified that as regards the
figures of recovery, there was a Circular
of the Board of Revenue dated 29
September 2000, by which the percentage
of realization/recovery made by the
Seasonal Collection Amins must be
calculated in relation to the total demand
which was entrusted to the given
individual.

5. Learned counsel appearing on
behalf of the appellants submits that the
finding of the learned Single Judge that
there is no requirement in the Rules to the
effect that the Seasonal Collection Amin
should be working on the date of
consideration of his proposal is erroneous.
It was sought to be urged that the
explanation to Rule 5 of the Rules, 1974
defines satisfactory service as the extent of
recovery in the last four fasals. Hence, it is
urged that the expression 'last four fasals' if
duly taken note of, should mean the last
four
fasals
immediately
before
consideration of the claim for regularization
by the Selection Committee.

6. In assessing the submission, which
is urged on behalf of the State, Rule 5 of the
Rules, 1974, as it held the field at the
material time, has to be interpreted. As noted
earlier, the Rule contemplates regularization
of the Seasonal Collection Amins against
35% of the vacancies. The Rule prescribes
the following conditions, namely, (i) the
Seasonal Collection Amins must have
rendered satisfactory work in at least four
1566 INDIAN LAW REPORTS ALLAHABAD SERIES
fasals; and (ii) the Seasonal Collection
Amins should not have attained the age of 45
years by the 1st July of the relevant year. The
explanation states that 'satisfactory service'
would mean that in the last four fasals, the
Seasonal Collection Amins should have
attained the recovery in accordance with the
prescribed norms of at least 70%. Now the
explanation
has
to
be
harmoniously
construed with the main provision which is
made in the Rules of 1974. The requirement
of the Rules is that the Seasonal Collection
Amins should have worked for at least four
fasals. Where a Seasonal Collection Amin
has worked for more than four fasals, in
assessing
whether
he
has
rendered
satisfactory performance within the meaning
of the explanation, the extent of recovery has
to be assessed with reference to the last four
fasals during which he has worked. In a
situation where the Seasonal Collection
Amin has worked for only four fasals,
obviously the recovery has to be assessed
with reference to those four fasals. Hence,
the expression 'last four fasals' would mean
the last four fasals out of the total number of
fasals in which the Seasonal Collection
Amin has worked. The last four fasals does
not mean that the Seasonal Collection Amin
must be actually working on the date on
which the Selection Committee applies its
mind to the claim for regularization. Such a
condition is not found in the Rules and to
introduce such a condition, would amount to
a modification or amendment of the statutory
rule, which is impermissible for this Court.
The Rule has to be read as it stands. The
learned Single Judge was, in our opinion,
correct in holding that the ground which has
weighed with the Selection Committee was
extraneous to the Rules.

7. For the reasons indicated above,
this finding of the learned Single Judge is
correct. Having so held, the learned
Single Judge directed consideration afresh
by the Selection Committee, which again,
in our opinion, is in accordance with law.

8. The State had filed a counter
affidavit before the learned Single Judge in
which an additional ground was sought to be
set up for denying regularization, namely,
that the respondent has not attained the level
of recovery of 70% as prescribed in the
explanation. This has not weighed with the
Selection Committee. However, the learned
Single Judge has clarified that this issue
would be taken into consideration by the
Selection Committee during the course of
consideration of the claim of the respondent
for regularization, afresh. However, the
norms of 70% recovery, as clarified, must
relate to the demand which was actually
entrusted to the employee. The satisfactory
performance has to be read with reference to
the work, which is actually entrusted to the
Seasonal Collection Amin.

9. Learned counsel appearing on
behalf of the appellants has submitted that
in the memo of appeal, the State has taken
a ground that the respondent would not
meet the norms of 70% with reference to
the work which was entrusted to him.

10. We make no observation in this
regard since it would be open to the
Selection Committee, upon remand, to reconsider the entire issue, namely, as to
whether the respondent has rendered
satisfactory service and fulfilled the
requirement of the norms of 70%
recovery with reference to the work which
was entrusted to him as prescribed in the
explanation to Rule 5 of the Rules of
1974. The time for consideration of the
claim of the respondent for regularization
is extended by a further period of three
months
from
today.
3 All] State of U.P. and Ors. Vs. Jai Prakash
1567

11. We find no reason to deviate from
the order of the learned Single Judge
imposing costs. The learned Single Judge
was justifiably dismayed with the conduct of
the State in disclosing the minutes of the
meeting of the Selection Committee of 2001
only when a contempt petition was filed. The
minutes of the meeting of the Selection
Committee were not immediately disclosed
to the respondent and were disclosed only on
the request of the respondent after an
inordinate delay. Hence, there is no reason to
interfere with the order of the learned Single
Judge imposing costs.

12. For the aforesaid reasons, we
find no error in the judgment of the
learned Single Judge. The appeal shall,
accordingly, stand dismissed. There shall
be no order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2013

BEFORE
THE HON'BLE DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE SANJAY MISRA, J.

Special Appeal (D) No. 1278 of 2013

State of U.P. and Ors... .Appellants
Versus
Jai Prakash.... Respondent

Counsel for the Petitioners:
Sri Pankaj Saxena, S.C.

Counsel for the Respondent:
Sri R.K. Dwivedi

Civil Service Regulation-Regulation 351 Aa
read
with
Police
Regulation
919-AWithholding gratuity-during pendency of
criminal case-held-proper-however entitled
for provisional pension-direction otherwise
by Hon'ble Single Judge-set-a-side.
Held: Para-11
In the circumstances, we are of the view
that
the
order
passed
by
the
Superintendent of Police, Etah withholding
the
payment
of
gratuity
until
the
conclusion of the criminal trial was correct
and proper and was in accordance with the
provisions of regulation 351-AA read with
regulation 919-A (3). The respondent
would however be entitled to the payment
of provisional pension as contemplated in
law.

Case Law discussed:
Shri Pal Vaish Vs. U.P. Power Corporation
Limited and another; State of Jharkhand &
Ors. Vs. Jitendra Kumar Srivastava.

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

1. The special appeal arises from a
judgement of the learned Single Judge by
which
an
order
passed
by
the
Superintendent of Police, Etah on 22 July
2010 withholding the payment of gratuity
to the respondent has been set aside and a
direction has been issued to the appellants
herein to release the gratuity together with
statutory interest.

2. The respondent was appointed on
5 February 1969 as a fireman in the fire
services of the State and was regularised
in service. He attained the age of
superannuation on 30 June 2010. On 22
July 2010, an order was passed by the
Superintendent of Police, Etah allowing to
the respondent a provisional pension of
Rs.9025/- per month. The payment of
gratuity was however withdrawn on the
ground of the pendency of a criminal case
which has been registered under Section
498-A of the Penal Code read with
Section 304-B and Section 3/4 of the
Dowry Prohibition Act. There is no
dispute about the factual position that an
FIR was registered on 3 May 2009 against