# Animesh Jain v. Home Secretary, U.P., Lucknow through State of U.P

- **Citation:** (2003) 2 ILRA 480
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-06-20
- **Case number:** Civil Misc. Writ Petition No. 3305 of 2003
- **Bench:** Dr. B.S. Chauhan, Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/animesh-jain-v-home-secretary-u-p-lucknow-through-state-of-u-p-40127
- **Pages:** 4

## Headnote

Constitution
of
India-
Article
226maintainability against the Government
Officers or the employees of the State-if
filled against the State and the State is
not impleaded, the writ not maintainable
(Held in para )

Case law referred:
AIR 1965 277
AIR 1976 SC 2538
AIR 1964 SC 669
(2003) 3 SCC 472
AIR 1977 SC 1701

Held- Para 13

Writ is not maintainable against the
Government officers or the employees of
the State, it lies only against the State
and if State is not impleaded, the writ is
not maintainable.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2003
480
the ground of exemplary courage and
bravery or taking risk in performance of
duties, but that, by itself, cannot be a
conclusive proof to form an opinion for
bravery and courage.

11. For the aforesaid reasons, I do
not find any ground to interfere with the
impugned order. The writ petition is
dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.06.2003

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 3305 of 2003

Animesh Jain

...Petitioner
Versus
Home Secretary U.P., through State of
U.P. and Another.
...Opposite Party

Counsel for the Petitioner:
Sri C.M. Shukla
Sri C.B. Shukla

Counsel for the Opposite Party:
Sri R.S. Maurya
A.G.A.

Constitution
of
India-
Article
226maintainability against the Government
Officers or the employees of the State-if
filled against the State and the State is
not impleaded, the writ not maintainable
(Held in para )

Case law referred:
AIR 1965 277
AIR 1976 SC 2538
AIR 1964 SC 669
(2003) 3 SCC 472
AIR 1977 SC 1701

Held- Para 13

Writ is not maintainable against the
Government officers or the employees of
the State, it lies only against the State
and if State is not impleaded, the writ is
not maintainable.

(Delivered by Hon'ble Dr. B.S.Chauhan, J.)

1. This writ petition has been filed
for seeking a direction to the Home
Secretary of the State of Uttar Pradesh to
transfer the investigation to the C.B.C.I.D.
in Case Crime No. 92 of 2003 Under
Section 302 I.P.C. relating to Police
Station Adarsh Mandi, Muzaffarnagar.

2. The present writ petition has been
filed on the ground that the petitioner
does not expect a fair investigation by the
police for the reasons that the Area is
dominated by the Jats and they are
pressurizing the investigating Agency to
involve the petitioner. Therefore, the
investigation may be transferred to the
C.B.C.I.D.

3. The Learned A.G.A. has raised
preliminary
objection
regarding
the
maintainability of the writ petition as it
has been filed impleading only respondent
no. 1 i.e., The Home Secretary, U.P.
Lucknow, through State of U.P. It has
been submitted by him that the State has
not been impleaded as a respondent and
the writ cannot be entertained against the
officer of the State without impleading the
State as has been held by the Court's time
and again.

4. In Ranjeet Mal Vs. General
Manager, Northern Railway, New Delhi
& Anr, AIR 1977 SC 1701, the Hon'ble
Apex Court considered a case where the
writ petition had been filed challenging
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2 All] Animesh Jain V. Home Secretary, U.P., Lucknow through State of U.P.
481
the order of termination from service
against the General Manager of the
Northern Railways without impleading
the Union of India. The Apex Court held
as under:

"The Union of India represents the
Railway
Administration.
The
Union
carries administration through different
servants. These servants all represent the
Union in regard to activities whether in
the matter of appointment or in the matter
of removal. It cannot be denied that any
order which will be passed on an
application under Article 226 which will
have the effect of setting aside the
removal will fasten liability on the Union
of India, and not on any servant of the
Union. Therefore, from all points of view,
the Union of India was rightly held by the
High Court to be a necessary party. The
petition was rightly rejected by the High
Court."

5. While considering the similar
view in Chief Conservator of Forests
Government of A.P. Vs. Collector & ors;
(2003) 3 SCC 472, the Hon'ble Supreme
Court accepted the submission that writ
cannot be entertained without impleading
the State if relief is sought against the
State. The Hon'ble Apex court had drawn
the analogy from Section 79 of the Code
of Civil Procedure, 1908, which directs
that the State shall be the authority to be
named as plaintiff or defendant in a suit
by or against the government and Section
80 thereof directs notice to the Secretary
of that State or the Collector of the district
before the institution of the suit and Rule
1 of Order 27 lays down as to who should
sign the pleadings. No individual officer
of the government under the scheme of
the constitution nor under the Code of
Civil Procedure, can file a suit nor initiate
any proceeding in the name and the post
he is holding, who is not a juristic person.

6. The Court also considered the
provisions
of
Article
300
of
the
Constitution which provide for legal
proceedings by or against the Union of
India or State and held that in a suit by or
against the government, the authority to
be named as plaintiff or defendant, as the
case may be; in the case of the Central
Government, the Union of India and in
the case of State Government, the State,
which is suing or is being sued.

7. Rule 1 of Order 27 only deals
with suits by or against the Government
or by officers in their official capacity. It
provides that in any suit by or against the
Government, the plaint or the written
statement shall be signed by such person
as the Government may like by general or
special order authorise in that behalf and
shall be verified by any person whom the
government may so appoint. The Court
further held as under:

"It needs to be noted here that a legal
entity-a natural person or an artificial
person-can sue or be sued in his/its own
name in a court of law or a tribunal. It is
not merely a procedural formality but
it is essentially a matter of substance
and considerable significance. That is
why there are special provisions in the
Constitution and the Code of Civil
Procedure
as
to
how
the
Central
Government or the Government of a State
may sue or be sued. So also there are
special provisions in regard to other
juristic persons specifying as to how they
can sue or be sued. In giving description
of a party it will be useful to remember
the distinction between mis description
or misnomer of a party and misjoinder
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
482
or non-joinder of a party suing or being
sued. In the case of misdescription of a
party, the court may at any stage of the
suit/proceedings permit correction of the
cause-title so that the party before the
court is correctly described; however a
misdescription of a party will not be fatal
to
the
maintainability
of
the
suit/proceedings. Though Rule 9 of Order
1 CPC mandates that no suit shall be
defeated by reason of the misjoinder or
non-joinder of parties, it is important to
notice that the proviso thereto clarifies
that nothing in that Rule shall apply to
non-joinder
of
a
necessary
party.
Therefore, care must be taken to ensure
that the necessary party is before the
court, be it a plaintiff or a defendant,
otherwise, the suit or the proceedings
will have to fail. Rule 10 Of order 1 CPC
provides remedy when a suit is filed in the
name
of
the
wrong
plaintiff
and
empowers the court to strike out any party
improperly joined or to implead a
necessary party at any sage of the
proceedings."

8. The Court thus held that writ is
not maintainable unless the Union of
India or the State, as the case may be,
impleaded as a party.

9. A Full Bench of Kerala High
Court in Kerala State Vs. General
Manager, Southern Railway, Madras, AIR
1965 Ker 277 held that suit is not
maintainable if instituted against Railway
Administration. The condition precedent
for its maintainability is that it must be
instituted against the Union of India.

10. A similar view has been
reiterated by Hon'ble Apex Court in State
of Kerala Vs. General Manager, Southern
Railway, Madras, AIR 1976 SC 2538.
11. A Constitution Bench of
Supreme Court in State of Punjab Vs.
O.G.B, Syndicate Ltd, AIR 1964 SC 669
held that if relief is sought against the
State, suit lies only against the State, but,
it may be filed against the Government if
the Government acts under colour of the
legal title and not as a Sovereign
Authority, e.g., in a case where the
property comes to it under a decree of the
Court.

12. The Rajasthan High Court in
Pusha Ram Vs. Modern Construction Co.
(P) Ltd, AIR 1981 Raj 47, held that to
institute a suit for seeking relief against
the State, the State has to be impleaded as
a party. But misdescription showing the
State as Government of the State may not
be fatal and the name of party may be
permitted to be amended, if such an
application is filed.

13. Thus, we reach the inescapable
conclusion
that
the
writ
is
not
maintainable against the Government
officers or the employees of the State, it
lies only against the State and if State is
not
impleaded,
the
writ
is
not
maintainable.

14. Thus, in view of the above, the
preliminary objection raised by the
learned A.G.A. is worth acceptance being
preponderous.

15. In the instant case petition has
been filed in a casual and cavalier manner
without impleading the necessary parties.
The only respondent which has been
impleaded is the Home Secretary, U.P.,
through State of U.P. We fail to
understand how the Home Secretary can
be impleaded through the State; perhaps
the other way round was permissible.
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2 All] Akhilesh Kumar Naik V. Sh. K.G. Ramchandran, Chairman & M.D. and others
483
Learned counsel for the petitioner does
not ask for time for filing any amendment
application
or
for
impleading
the
necessary parties. The F.I.R. seems to
have been lodged at Police Station Adarsh
Mandi, Shamli, District Muzaffarnagar.
But in the prayer clause, reference is
made to the case related to the Police
Station Adarsh Mandi Muzaffarnagar.
Affidavit has been filed in support of the
writ petition originally, of the pairokar,
without disclosing his relation with the
petitioner. A supplementary affidavit was
filed today in the Court explaining the
relation and also for furnishing many
other
informations.
However,
no
reference is given in the said affidavit that
case related to the Police Station Adarsh
Mandi Shamli, and not Muzaffarnagar.
The practice of filing the writ petition in
such a casual manner is not worth
approval as it amounts to dis-service to
the Court and community as a whole.

16. In view of the above, we do not
find the petition as maintainable. It is,
accordingly,
dismissed.
However,
dismissal of the writ petition shall not
prejudice the cause of the petitioner to file
a properly maintainable writ petition
before this Court.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2003

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

Civil Misc. Contempt Petition No. 4005 of
1999

Akhilesh Kumar Naik (Nayak) ...Petitioner
Versus
Sh. K.G. Ramchandran, Chairman &
Managing Director and others
 ...Respondents
Counsel for the Petitioner:
Sri K.M. Asthana

Counsel for the Respondents:
Sri Sandeep Saxena

Contempt of Courts Act 1972-will full
disobedience- Removal from ServiceOrder Stayed by High Court-opposite
parties complied with order- But again
removed
from
service
on
fresh
misconduct- Contempt Petition filed.

Held- Once order passed by High Court in
favour of petitioner for continuing in
service does not mean that he can not
remove
from
service
on
fresh
misconduct-
No
ground
to
proceed
Contempt Petition.

Held- Para 8

Order of the court in favour of petitioner
for continuing him in service when he
was removed earlier, he can not be
removed on fresh misconduct. Therefore,
there is no question of proceeding in
contempt. The question whether the
misconduct has been committed by the
petitioner or not can not be decided in
this
contempt
proceedings.
The
petitioner may file fresh writ petition
challenging the removal on the ground of
alleged fresh misconduct.

(Delivered by Hon'ble B.K. Rathi, J.)

1. Request has been made to punish
the opposite parties for disobedience of
the order dated 30.09.1997 passed by this
court in Civil Misc. Writ Petition
No.32916 of 1997.

2. I have heard Sri K.M. Asthana,
learned counsel for the petitioner and Sri
Sandeep Saxena, learned counsel for the
opposite parties.

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