# (2010) 2 ILRA 761

- **Citation:** (2010) 2 ILRA 761
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-22
- **Case number:** Civil Misc. Writ Petition No. 49545 of 2007
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2010-2-ilra-761-41691
- **Pages:** 4

## Headnote

Constitution
of
India
Art-226Regularisation
of
services-Petitioner
working as teacher in campus school of
University for last 20 years-school
established by decision of executive
council
of
University-government
refused
to
provide
any
financial
assistance-subsequently
executive
council decides to close down the
school after at the end of academic
session 2006-07-running of school did
not
fall
down
under
statuary
obligation-No
mandamus
can
be
issued.

Held: Para 9

A perusal of the said paragraph would
clearly demonstrate that there are
several factors which are required to
be fulfilled before the criteria of deep
and pervasive control can be pressed
into service in order to maintain a writ
petition against a body running such an
institution. Undoubtedly, the University
is a State within the meaning of Article
12 of the Constitution but the present
activity of running a Campus School
would not fall within its statutory
762 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
obligation
and,
therefore,
in
the
absence of such obligation on the part
of the University particularly without
any corresponding right in favour of
the petitioner and keeping in view the
tests laid down in the case of Pradeep
Kumar Biswas (supra), in my opinion,
the present case on behalf of the
petitioner cannot be entertained for
the reliefs claimed.
Case Law discussed:
(2002) 5 SCC 111.

## Text

2 All Smt. Kamlesh Agnihotri and another V State of U.P. and others
761
general category candidates on the basis
of merit."

9. In this case we further find that
the three candidates who belonged to
O.B.C. category and were selected in
general category, giving the cause of
action for filing the writ petition, have not
been impleaded. They were appointed in
the year 1992 and most of them would
have served for more than 18 years as
District Audit Officers and may have been
promoted to the higher posts in the
department. In the absence of necessary
parties, no relief can be granted to the
petitioner.

10. In the end it is submitted that
one vacancy of the S.C. category was not
filled up and that two persons from the
general category did not joined.

11. We do not find any good ground
for calling of the record after 18 years, to
find out as to which general category
candidate
has
not
joined,
on
the
averments
made
in
amendment
application, after 16 years of the filing of
the writ petition. The vacancy must have
been
filled
up
in
the
subsequent
recruitment.

12. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 49545 of 2007

Smt. Kamlesh Agnihotri and another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the petitioner:
Sri D.P.S. Chauhan
Sri Shesh Kumar

Counsel for the Respondents:
Sri Neeraj Tiwari
C.S.C.

Constitution
of
India
Art-226Regularisation
of
services-Petitioner
working as teacher in campus school of
University for last 20 years-school
established by decision of executive
council
of
University-government
refused
to
provide
any
financial
assistance-subsequently
executive
council decides to close down the
school after at the end of academic
session 2006-07-running of school did
not
fall
down
under
statuary
obligation-No
mandamus
can
be
issued.

Held: Para 9

A perusal of the said paragraph would
clearly demonstrate that there are
several factors which are required to
be fulfilled before the criteria of deep
and pervasive control can be pressed
into service in order to maintain a writ
petition against a body running such an
institution. Undoubtedly, the University
is a State within the meaning of Article
12 of the Constitution but the present
activity of running a Campus School
would not fall within its statutory
762 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
obligation
and,
therefore,
in
the
absence of such obligation on the part
of the University particularly without
any corresponding right in favour of
the petitioner and keeping in view the
tests laid down in the case of Pradeep
Kumar Biswas (supra), in my opinion,
the present case on behalf of the
petitioner cannot be entertained for
the reliefs claimed.
Case Law discussed:
(2002) 5 SCC 111.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Since common questions of law
and fact are involved in these petitions,
therefore, they are being disposed of by
a common judgement by this Court.

2. Heard Sri Shesh Kumar, learned
counsel for the petitioner and Sri Neeraj
Tiwari for the respondent - University.

3.

The
petitioners
claim
themselves to be the Teachers of a
Campus School which was established
under an administrative decision of the
Executive Council of the University
dated 3.8.1980. This institution was
established for the purpose of providing
education
to
the
children
of
the
employees of the University. During the
course of its functioning, the said
institution was got affiliated with the
Central Board of Secondary Education.

4. Gradually, it appears that the
number of students dwindled which
impelled the University to review the
continuance of such an institution and
for that the University took into account
the Audit Report which indicated huge
deficiencies
in
expenditure
being
incurred
by
the
University
itself.
Learned counsel for the petitioner Sri
Shesh Kumar vehemently contends that
all the teachers have been continuing for
almost 20 years and, therefore, their
discontinuance by the University is an
act which can be termed arbitrary being
violative
of
Article
14
of
the
Constitution of India.

5. Sri Shesh Kumar further
contends that as a matter of fact, the
University
being
a
State
and
an
authority within the meaning of Article
12 of the Constitution, they ought to
have proceeded to make adjustment of
the petitioners against any available post
sanctioned by the State Government for
the University. He submits that as a
matter
of
fact
certain
class-IV
employees have been accommodated by
the University and, therefore, such an
attitude should not be adopted by the
University
in
respect
of
these
petitioners, who have spent their life
time within the campus and have lost all
other avenues of employment.

6. Sri Neeraj Tiwari, learned
counsel for the respondents, contends
that the University may have all
sympathy for the petitioners but so far
as law is concerned, it is evident that
this campus school was never funded by
any State funds and it was out of the
income of the institution that the salary
etc. was paid by the University.
Whatever deficiency was found was
aided by the University to which serious
objections have been taken by the Audit
Department inasmuch as the State
Government has not extended any
financial aid for running the Campus
School within the University.

7. Sri Tiwari further submits that
so far as the engagement of the
petitioners are concerned, they have
2 All Smt. Kamlesh Agnihotri and another V State of U.P. and others
763
been engaged under the executive
instructions of the University and
further
their
engagement
was
in
accordance with the by-laws framed for
running the said institution. He further
submits that so far as the adjustment of
class-IV employees is concerned, the
petitioners do not belong to that class
and, therefore, they cannot complain of
violation
of
Article
14
of
the
Constitution of India. Sri Tiwari has
further invited the attention of the Court
to the averments contained in the
counter-affidavit indicating that the
institution was affiliated to the Central
Board of Secondary Education and the
Campus School was closed down in
view of the decision taken and intimated
through the letter dated 30.6.2007 after
completion of the session 2006-07. He
submits that so far as the claim of the
petitioners in the teaching profession is
concerned, there is no equivalent post
against which the petitioners can be
considered sympathetically for their
engagement. They having no right to
continue, the writ petition as framed
cannot be entertained.

8. Having heard learned counsel
for the parties and keeping in view the
submissions advanced, the fact remains
undisputed that the institution was
established under the resolution of the
executive council and was to run as a
Campus School for the purpose of
providing education to the children of
the employees of the University. The
viability of this institution was adjudged
keeping in view the performance and
the
number
of
students
and
the
University ultimately found that it was
not possible to continue with the said
Campus School and accordingly ordered
its closure. There is no material on the
record, which may indicate that there is
any financial aid, extended by the State
or
by
any
authority
for
the
establishment of the institution or for
the payment of salary to the teacher.
The deep and pervasive control test has
now been laid down by the Supreme
Court in the case of Pradeep Kumar
Biswas Vs. Indian Institute of Chemical
Biology and others, (2002) 5 SCC 111.
Paragraph No.40 of the said decision
lays down as under:-

"40. The picture that ultimately
emerges is that the tests formulated in
Ajay Hasia are not a rigid set of
principles so that if a body falls within
any one of them it must, ex hypothesi,
be considered to be a State within the
meaning of Article 12. The question in
each case would be - whether in the
light
of
the
cumulative
facts
as
established, the body is financially,
functionally
and
administratively
dominated by or under the control of the
Government. Such control most be
particular to the body in question and
must be pervasive. If this is found then
the body is a State within Article 12. On
the other hand, when the control is
merely regulatory whether under statute
or otherwise, it would not serve to make
the body a State."

9. A perusal of the said paragraph
would clearly demonstrate that there are
several factors which are required to be
fulfilled before the criteria of deep and
pervasive control can be pressed into
service in order to maintain a writ
petition against a body running such an
institution. Undoubtedly, the University
is a State within the meaning of Article
12 of the Constitution but the present
activity of running a Campus School
764 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
would not fall within its statutory
obligation and, therefore, in the absence
of such obligation on the part of the
University particularly without any
corresponding right in favour of the
petitioner and keeping in view the tests
laid down in the case of Pradeep Kumar
Biswas (supra), in my opinion, the
present case on behalf of the petitioner
cannot be entertained for the reliefs
claimed.

10. Sri Shesh Kumar then contends
that keeping in view the nature of the
engagement of the petitioner which has
continued for the past almost 20 years,
the University should have formulated a
scheme for the absorption of adjustment
of the petitioners. In this regard, suffice
it to say, that no mandamus is required
to be issued by this Court and it is
expected that keeping in view this
peculiar situation of the teachers, who
have spent almost half of their life in the
institution, it would be in the interest of
justice for the University to consider the
request of the petitioner sympathetically
and take an appropriate decision in the
matter. The University is expected to
take a decision as expeditiously as
possible.

11.

With
the
aforesaid
observations, these writ petitions stands
disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2010

BEFORE
THE HON'BLE B.K. NARAYANA, J.

Civil Misc. Writ Petition No. 62742 of 2007

Dinesh and others
 ...Petitioners
Versus
The Additional Commissioner, Agra and
others

 ...Respondents

Counsel for the Petitioners:
Sri Vishal Khandelwal

Counsel for the Respondents:
Sri K.P. Singh
Sri V.K. Singh

U.P. Z.A. & L.R. Act, 1950-Section 333Revision against cancellation of lease for
Abadi purpose-cancellation Order setaside
by
Revisional
Court-On
recall
application by without issuing any Notice
without hearing to the petitioner-order
recalled
receiving
notices-recall
application with candonation of delayRejected by impugned order the delay
application without any discussion for no
satisfaction
explaination
apart
from
revision itself was not maintainableheld-misconceived-illegal-Patta
was
granted under Rule 115-P and not under
122(C)-Law laid dawn in Wahajuddin
case fully applicable-direction issued to
consider recall application in accordance
with law.

Held: Para 8

In the instant case also the application
for cancellation of the allotment made
in favour of the petitioners was filed
under Rule 115-P of the Rules and the
allotment of land in favour of the
petitioners is not alleged to have been
made under Section 122 (C) of the Act,
since
the
petitioners
are
neither
agricultural
labourers
nor
village