# Abdul Sattar and others v. State of U.P. and others

- **Citation:** (2010) 2 ILRA 573
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-12-16
- **Case number:** Civil Misc. Writ Petition No. 10970 of 2010
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-sattar-and-others-v-state-of-u-p-and-others-41632
- **Pages:** 3

## Text

2 All] Abdul Sattar and others V State of U.P. and others.
573
Chief
Manager
dated
16.12.2007.
However, the inquiry officer though, not
disbelieved the letter but observed that
appropriate entry has not been made in
the book to debit the leave period.
Whatever entry has been made it is after
institution
of
proceeding.
Even
if
necessary entry has not been made in
book immediately and has been recorded
after
institution
of
proceeding,
the
submission
of
delinquent
employee
carries weight.

11. In the facts and circumstances of
the case, at least, it is not a case which
shall warrant major punishment from
dismissal from service. Once, leave has
been
sanctioned
by
the
competent
authority, then the period of absence from
duty does not seem to constitute the
allegation of misconduct. There may be
procedural illegality on the part of the
petitioner but that shall not warrant to
make out a case for imposition of major
penalty. In view of the above, the writ
petition deserves to be allowed.

12. Accordingly, the writ petition is
allowed. A writ in the nature of certiorari
is issued quashing the impugned order
dated 19.12.1998 (Annexure No.12 to the
writ petition), with all consequential
benefit of service. The petitioner shall be
restored
in
service
forthwith
with
continuity of service and all consequential
benefits. However, since the petitioner
has not discharged duty the payment of
salary is confined to 50% admissible
under
Rules.
Liberty
is
given
to
respondents to proceed afresh in case,
advised to do so.

No costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 10970 of 2010

Abdul Sattar and others ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner
Sri Krishan Ji Khare,
Sri A.P.M. Tripath

Counsel for the Respondent
C.S.C.

U.P. Direct Recruitmnet Group-D Post
Rules 1986-appointemnt on class 4th
post-recognised
aided
Intermediate
education-governed
by
Regulation
101-107
of
the
Education
Act-No
procedure
regarding
mode
of
appointment-Rule
86-provides
one
nominee of D.M. in committee- in
absense
of
nominee
of
D.M.
The
selection
Committee
with
entire
selection vitiated-keeping it open to
re-advertise the vacancy.

Held: Para 4

In view of the aforesaid, it is now a
settled legal position that appointment
on
Class-IV
posts
which
can
be
approved, have to be made through a
Selection
Committee
which
must
comprise of a member nominated by
the
District
Magistrate.
Since
the
Selection
Committee,
in
pursuance
whereof petitioner nos.10 to 16 have
been appointed, did comprise of a
nominee of District Magistrate, the
selection are held to be illegal
Case law discussed:
2010 (1) ADJ 403"
574 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
(Delivered by Hon'ble Arun Tandon, J.)

1. Heard learned counsel for the
petitioners
Sri
Krishna
Ji
Khare,
Advocate, learned Standing counsel on
behalf respondent nos.1, 2, 3, 4 & 9 as
well as counsel for respondent nos. 10 to
16.

2. Counsel for the parties agree that
the writ petition may be disposed of at
this stage without calling any counter
affidavit specifically in view of the order
proposed to be passed today.

3. It may be record that the learned
Standing counsel has produced a copy of
the Government order dated 11.5.2001,
wherein
it
has
been
specifically
mentioned that the provisions of the U.P.
Direct
Recruitment
Group-D
Posts
Rules, 1986 (hereinafter referred to as
Rules, 1986) notified on 8.9.1986, are in
force and no appointment on Class-IV
posts
in
recognized
and
aided
Intermediate colleges shall be approved
except when made in accordance to said
Rules, 1986. It may be recorded that
under Regulation 101 to 107 of Chapter
III of the Regulation framed under the
Intermediate
Education
Act,
no
procedure has been prescribed for such
appointment. The Government order
dated 11.5.2001 is referable to the
powers vested in the State Government
under Section 9(4) of the Intermediate
Education Act. The controversy with
regard to the procedure to be followed in
the matter of appointment of ministerial
and Class-IV employees in Intermediate
colleges has been explained in detail by
this Court in the case of "Principal
Adarsh Inter College, Umari, Bijnor Vs.
State of U.P. And others; reported in
2010 (1) ADJ 403". The judgment of the
Single Judge stands affirmed by a
Division Bench of this Court with the
dismissal of Special Appeal No.1851 of
2009 "Principal, Adarsh Inter-College
Umari Vs. State of U.P. & others." filed
against the same, vide judgment and
order dated 3.12.2009.

4. In view of the aforesaid, it is now
a settled legal position that appointment
on
Class-IV
posts
which
can
be
approved, have to be made through a
Selection
Committee
which
must
comprise of a member nominated by the
District Magistrate. Since the Selection
Committee,
in
pursuance
whereof
petitioner nos.10 to 16 have been
appointed, did comprise of a nominee of
District Magistrate, the selection are held
to be illegal.

5. In view of the aforesaid, this
Court finds that the petitioner is entitled
to the relief prayed for the reasons that
the selections held are not in accordance
with law. As a result, the entire
proceedings stands vitiated. The order of
approval dated 20.11.2009 is hereby setaside. The writ petition is allowed. The
Principal of the institution is directed to
re-advertise the vacancy in accordance
with law and to hold fresh selections
having regard to the Government order
applicable and the procedure prescribed,
within eight weeks from the date a
certified copy of this order is filed before
him. Respondent nos.10 to 16 are at
liberty to apply.
-------
2 All] Raj Kumar and another V Rajasv Parishad Uttar Pradesh Allahabad and others.
575
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.04.2010

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 12330 of 2007

Raj Kumar and another
 ...Petitioner
Versus
Rajasv Parishad Uttar Pradesh Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri Surya Pratap Yadav

Counsel for the Respondents:
Sri Rajesh Pandey
Sri Anuj Kumar
C.S.C.

U.P.
Z.A.
&
L.R.
Act-122-B(U-E)-
Cancellation
of
allotment
of
Patta
allottee a widow lady already possessing
0.866 hectare land-not within.meaning
of landless agricultural labour-against
statute sympathy has no role to play nor
entitle for any benefit of section 122B(u-F)-suit dismissed.

Held: Para 16

In my considered view, the aforesaid
quoted portion from the judgment of the
Apex Court is equally applicable to the
facts
of
the
present
case
notwithstanding the fact that the said
observations
were
made
while
considering a case of workmen under the
Labour Laws. Moreover, in the present
case, the plea of sympathy in favour of
the
plaintiff
respondent
no.3
is
misplaced one as she has got two grown
up sons who are well placed in life as
they are in police service. She has,
admittedly, got a piece of land in her
own name. There may be other persons
in the village having no land or source of
income or having no earning member in
their family. The two judgment and
orders of the Appellate Authorities are
based on irrelevant considerations and
they cannot be allowed to stand.
Case law discussed:
AIR 2005 SC 851, (2004) 7 SCC 112, (JT
2003(2) SC 88).

(Delivered by Hon'ble Prakash Krishna, J.)

1. The present writ petition arises
out of Suit No.97 instituted by Lachi
Devi, respondent no.3 herein under
Section 229 B of the U.P.Z.A. & L.R. Act
for declaration of her right in respect of
Araji No.479 area 0.454 situate in village
Maharkhan, Pargana Mahuari, Tehsil-
Sakaldiha, District Chandauli on the
ground that she is a landless agriculturist
and is member of Scheduled Caste
community. She is entitled to get the
benefit as provided for under Section 122
B (4-F) of the U.P.Z.A. & L.R. Act and
her name may be recorded in the revenue
record and the entry of 'Navin Parti' be
corrected accordingly.

2. The suit was contested by Gaon
Sabha on the pleas inter alia that the
plaintiff does not fall in the category of
landless agriculturist. Her two sons are
major and they are in government service.
They are jointly residing with their
mother. An other suit in respect of same
land being suit No.110 of 2001 under
Section 229 B read with Section 122 B (4F) of the Act has been filed by Gulab and
others which is pending before the Court.
Possession of the plaintiff Lachi Devi or
Gulab and others was denied by Gram
Pradhan.

3. Parties led evidence in support of
their respective cases. Lachi Devi in her
deposition stated that her two sons are
leaving separately from her and she is an
agriculturist. Earlier, her husband was