# Ashok Kumar v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 846
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-17
- **Case number:** Civil Misc. Writ Petition No. 25035 of 2013
- **Bench:** Vineet Saran, B.Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-v-state-of-u-p-and-ors-42625
- **Pages:** 5

## Headnote

Constitution of India Art. 226- cancellation
of candidature-petitioner participated in
interview
on
28.08.2012-no
objection
certificate could not be produced withing 21
days-but produced only on 13.09.2012
issued on 03.09.2012-commission being
conscious
about
delay
in
getting
no
objection-taken decision on 18.04.2013-not
to cancel the candidature on this Countadmittedly
canceling
candidature
on
12.03.2013-was prior to decision held-no
justification for cancellation of candidature.

Held: Para-9
From the facts, what this Court finds is that
either the Commission ought to have
strictly adhered to the terms and conditions
of the advertisement and not interviewed
the petitioner if no objection certificate was
not filed or once the indulgence had been
granted by the Commission and the
2 All] Ashok Kumar Vs. State of U.P. and Ors.
847
petitioner was permitted to file the no
objection certificate within 21 days of the
interview and from the facts we find that
the no objection certificate was prepared
and
countersigned
by
the
competent
authority on 3.9.2012 and submitted before
the Commission on 13.9.2012, which is on
record and was also admittedly produced
before the passing of the impugned order
dated 12.3.2013, there was no justification
for cancelling the candidature of the
petitioner.

Case Law discussed:
W.P. No. 14841 of 2013

## Text

846 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
been recorded tenure holders or the
recording of the name of the defendant
petitioner had been promptly objected to
by the plaintiffs only then they could
maintain the suit before the civil court.
The
relief
claimed
is
purely
of
declaration. The Supreme Court in the
aforesaid authority observed as follows in
para-7:

"7. On analysis of the decisions cited
above, we are of the opinion that where a
recorded tenure holder having a prima
facie title and in possession files suit in
the civil court for cancellation of sale
deed having obtained on the ground of
fraud or impersonation cannot be directed
to file a suit for declaration in the revenue
court -- reason being that in such a case,
prima facie, the title of the recorded
tenure holder is not under cloud. He does
not require declaration of his title to the
land. The position would be different
where a person not being a recorded
tenure holder seeks cancellation of sale
deed by filing a suit in the civil court on
the ground of fraud or impersonation.
There necessarily the plaintiff is required
to seek a declaration of his title and,
therefore, he may be directed to approach
the revenue court, as the sale deed being
void has to be ignored for giving him
relief for declaration and possession."

8. Accordingly, both the impugned
orders are set aside. It is held that the suit
is not maintainable before the civil court.
Issue No.6 is decided against the
plaintiffs. The plaintiffs may either file
fresh suit before the revenue court under
Section 229-B of U.P.Z.A. & L.R. Act
and such others sections of the said Act,
which may be available to the plaintiffs or
they may within two months from today
apply before the trial court/ Additional
Civil Judge (J.D.), Court No.3, Rampur to
return the plaint for filing before the
revenue court. If they do so, then the
plaint shall be returned to them for filing
the same before the revenue court.

9. Writ Petition is accordingly
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.05.2013

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE B.AMIT STHALEKAR, J.
Civil Misc. Writ Petition No. 25035 of 2013

Ashok Kumar

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare

Counsel for the Respondents:
C.S.C., Sri A.K. Sinha
Sri V.P. Mathur

Constitution of India Art. 226- cancellation
of candidature-petitioner participated in
interview
on
28.08.2012-no
objection
certificate could not be produced withing 21
days-but produced only on 13.09.2012
issued on 03.09.2012-commission being
conscious
about
delay
in
getting
no
objection-taken decision on 18.04.2013-not
to cancel the candidature on this Countadmittedly
canceling
candidature
on
12.03.2013-was prior to decision held-no
justification for cancellation of candidature.

Held: Para-9
From the facts, what this Court finds is that
either the Commission ought to have
strictly adhered to the terms and conditions
of the advertisement and not interviewed
the petitioner if no objection certificate was
not filed or once the indulgence had been
granted by the Commission and the
2 All] Ashok Kumar Vs. State of U.P. and Ors.
847
petitioner was permitted to file the no
objection certificate within 21 days of the
interview and from the facts we find that
the no objection certificate was prepared
and
countersigned
by
the
competent
authority on 3.9.2012 and submitted before
the Commission on 13.9.2012, which is on
record and was also admittedly produced
before the passing of the impugned order
dated 12.3.2013, there was no justification
for cancelling the candidature of the
petitioner.

Case Law discussed:
W.P. No. 14841 of 2013

(Delivered by Hon'ble Vineet Saran, J.)

1. The petitioner appeared in the
Combined State/Upper Subordinate Services
Examination-2010 in which he was declared
provisionally selected. At the time of
interview, he was however required to submit
his no objection certificate from his employer
as he was employed with the State
Government.
On
28.8.2012 when
the
petitioner appeared before the interview
board, he was interviewed and was required to
give an undertaking that he would furnish the
no objection certificate within 21 days.
According to the respondents, the said
certificate was not furnished within the said
period of 21 days and as such, by order dated
12.3.2013 passed by the respondent no. 4 his
candidature was cancelled on the ground that
the petitioner did not furnish his no objection
certificate within 21 days of the interview
which was held on 28.8.2012. Challenging the
said order dated 12.3.2013 passed by the
respondent no. 4, this writ petition has been
filed. Further prayer has been made for a
direction to the respondents to grant
appointment as Manager (Marketing &
Economic Survey) in pursuance of the result
as published by the U.P. Public Service
Commission on 10.10.2012.

2. We have heard Sri Ashok Khare,
learned Senior Counsel along with Sri
Siddharth Khare, learned counsel for the
petitioner as well as learned Standing
Counsel appearing for the State respondent
no. 1 and Sri A.K. Sinha, learned counsel
appearing for the contesting respondents no.
2,
3
and
4
(U.P.
Public
Service
Commission).
Pleadings
between
the
contesting parties have been exchanged and
with consent of the learned counsel for the
parties, this writ petition is being disposed of
finally at the admission stage itself.

3. The case of the petitioner is that
on 28.8.2012 the no objection certificate
was not available with the petitioner even
though he had applied for grant of such
certificate
on
18.8.2012,
before
the
institution where the petitioner was working.
It is admitted to the respondents that such
certificate was issued after the same being
countersigned by the District Inspector of
Schools on 3.9.2012. It is also the specific
case of the petitioner that he visited the office
of the U.P. Public Service Commission on
13.9.2012 and was issued a gate-pass to enter
the premises of the Commission on the said
date in which the purpose of visit was
mentioned as 'for submission of no objection
certificate'. The issuance of the gate-pass,
(filed as Annexure-7) mentioning the said
purpose of the visit of the petitioner in the
premises of the Commission is admitted to
the respondents. The issuance of the
certificate and countersignature of the
District Inspector of Schools has also been
got verified by the Commission through a
letter sent to the District Inspector of
Schools, Allahabad by the Commission on
7.5.2013 to which the District Inspector of
Schools, Allahabad has responded on
8.5.2013 intimating that no objection
certificate of the petitioner was sent by the
Principal of the College to the District
848 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Inspector of Schools on 3.9.2012 for
countersignature, which was returned back
on the same day after being countersigned by
the District Inspector of Schools. Such
communication has been filed by the
petitioner as Annexure-1 along with the
rejoinder affidavit. The same would go to
show that the matter relating to the filing of
the no objection certificate and its correctness
was under consideration of the Commission
even after filing of this petition.

4. Sri A.K. Sinha, learned counsel
appearing for the contesting respondents
has placed reliance on a letter of the
petitioner dated 5.12.2012 in which it is
stated that he was filing the no objection
certificate. Sri A.K. Sinha has however
stated that the recommendation for
cancellation of the candidature of the
petitioner was made by the Commission
on
5.12.2012
and
thereafter
the
candidature
of
the
petitioner
was
cancelled
by
the
Commission
on
21.2.2013 and the petitioner was informed
of the said cancellation by letter dated
13.3.2013. Specific averments in this
regard have been made in paragraph 3 (D)
of the counter affidavit filed by Sri
Brijendra Kumar Dwivedi who is said to
be posted as Under Secretary in the office
of the U.P. Public Service Commission
and in paragraph 1 he has been described
as Section Officer of the Commission.

5. Sri A.K. Sinha, learned counsel
for the contesting respondents has today
passed on a communication of the State
Government dated 13.3.2013 wherein in
paragraph 3 it is mentioned that the
candidature of 18 candidates including
that of the petitioner was cancelled by the
Commission vide letter dated 17.1.2013.
Such communication, which has been
passed on today during the course of
argument, is taken on record.

6. From the facts of this case, it is
not understood that when the petitioner
was admittedly in possession of the no
objection
certificate,
which
was
countersigned by the District Inspector of
Schools on 3.9.2012 and the petitioner
was to submit such certificate with the
Commission within 21 days of the
interview held on 28.8.2012 and the
petitioner actually visited the premises of
the Commission and got a gate-pass
issued for the purpose of submitting the
no objection certificate, why the petitioner
would not submit the certificate, which
was already in his possession and he very
well knew that if the said certificate was
not submitted, his candidature would be
cancelled.

7. In paragraphs 18 and 19 of the
writ petition, it is specifically stated by
the petitioner that the no objection
certificate
was
submitted
by
him
personally on 13.9.2012 in the office of
the U.P. Public Service Commission to
which there is no specific denial in
paragraph 8 of the counter affidavit
except that it is stated that the no
objection certificate was received in the
office of the Commission on 5.12.2012. It
is not disputed that if the candidature of
the petitioner is considered to be valid, he
would be selected on the post of Manager
(Marketing & Economic Survey) after the
result of interview. The appointment to
the petitioner has not been given merely
because of the alleged non-submission of
the no objection certificate within 21 days
of the interview.

8. Sri A.K. Sinha, learned counsel
for
the
contesting
respondents
has
2 All] Ashok Kumar Vs. State of U.P. and Ors.
849
vehemently argued that the advertisement
issued by the Commission inviting
applications clearly provided that the
candidates serving under the Central or
State Government will have to produce a
'no objection certificate' from their
employer at the time of interview and as
such, he submits that since the no
objection certificate was not produced
within
the
extended
period,
the
petitioner's candidature has rightly been
rejected.

9. From the facts, what this Court
finds is that either the Commission ought
to have strictly adhered to the terms and
conditions of the advertisement and not
interviewed the petitioner if no objection
certificate was not filed or once the
indulgence had been granted by the
Commission and the petitioner was
permitted to file the no objection
certificate within 21 days of the interview
and from the facts we find that the no
objection certificate was prepared and
countersigned by the competent authority
on 3.9.2012 and submitted before the
Commission on 13.9.2012, which is on
record and was also admittedly produced
before the passing of the impugned order
dated 12.3.2013, there was no justification
for cancelling the candidature of the
petitioner.

10. It is also noteworthy that the
Commission itself has taken a decision on
18.4.2013 (filed as Annexure 16 to the
writ petition and not denied in the counter
affidavit)
to
the
effect
that
the
Commission
has
decided
that
no
candidature shall be cancelled because of
non-production of the no objection
certificate
and
while
sending
the
recommendation to the State Government
for appointment of the candidate, the
Commission shall make a request that
those candidates, who have not produced
the no objection certificate, may be issued
appointment
letter
only
after
such
certificate is produced. From this, it is
absolutely clear that the Commission
itself is conscious of the position that the
no objection certificates are not delivered
by the concerned authorities within time
and therefore not produced at the time of
interview and therefore such concession
of the same being permitted to be
produced
till
the
issuance
of
the
appointment letter is necessary.

11. Sri A.K. Sinha has placed
reliance on a judgment of this Court
passed in Writ Petition No. 14841 of 2013
(Amit
Kapoor
vs.
U.P.P.S.C.Through
Secretary) decided on 15.3.2013. We find
that the same is distinguishable on facts as in
that case the caste certificate was not
produced by the petitioner therein within the
extended period of 21 days. In the present
case, as we have already observed above, the
no objection certificate of the petitioner was
prepared
and
countersigned
and
also
submitted on 13.9.2012, well within the
extended period of 21 days of the interview.

12. However, considering the fact that
the petitioner has approached this Court in its
extraordinary
discretionary
and
equity
jurisdiction and what we find is that the
petitioner had submitted the no objection
certificate duly prepared and countersigned
by the competent authority within 21 days of
the interview, and even if it is presumed that
the same was produced later but before the
order of cancellation had been passed, the
same ought to have been taken into
consideration, especially keeping in view the
subsequent decision of the Commission
dated 18.8.2013. As such, in the aforesaid
facts and circumstances, we are of the
850 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
opinion that this writ petition deserves to be
allowed.

13. Accordingly, this writ petition
stands allowed. The order dated 12.3.2013
passed by the respondent no. 4 (Examination
Controller, Public Service Commission UP,
Allahabad) is quashed. The respondents are
directed to grant appointment to the
petitioner on the post on which he has been
selected by the Commission in pursuance of
the interview held on 28.8.2012, the result of
which was published by the Commission on
10.10.2012.

14. There shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP
SAHI, J.

Civil Misc. Writ Petition No. 25583 of 2013

Amar Nath Chaubey

 ...Petitioner
Versus
State of U.P. & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Niraj Tiwari, Sri Anirudh Upadhyay

Counsel for the Respondents:
C.S.C.

Constitution of India, Art. 226- Payment
of salary-ad hoc principal grade-rejected
by
D.I.O.S.-on
ground
before
appointment
no
requisition
sendprovision of Section 18 not attractedheld-once
requisition
send-selected
candidate
not
recommended-death
before joining-resulted continuance of
petitioner-as ad-hoc Principal entitled
for salary as principal.

Held: Para-8
Thus,
in
view
of
the
aforesaid
circumstances, the impugned order dated
02.02.2013, proceeds on an erroneous
assumption of fact to apply the law
wrongly and cannot be sustained. If the
petitioner was working as an ad-hoc
Principal and his signatures were attested
then he would be entitled for payment of
salary in the Principal's grade in view of
the law as declared by this Court in the
case of Narbedeshwar Misra Vs. District
Inspector of Schools [1982 UPLBEC 171].

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard learned counsel for the
petitioner.

2. The petitioner is claiming
payment of salary as Adhoc Principal in
the Principal's Grade from 01.07.2010 to
30.06.2011.

3. The vacancy of Principal in the
institution had come into existence and
had been duly notified to the U.P.
Secondary Education Service Selection
Board. The Board selected one Dr.
Chandresh Tiwari and placed him in the
institution, but before Sri Chandresh
Tiwari could join in the institution, he
died. The petitioner was functioning as
adhoc principal of the institution. There is
no dispute about this fact and the
attestation
of
his
signatures
on
05.08.2010.

4. Aggrieved by the non payment of
salary in Principal's Grade, the petitioner
came up before this Court by filing Writ
Petition No. 64201 of 2012, which was
disposed of on 11th December 2012 with
a direction to the District Inspector of
Schools, Varanasi to pass appropriate
orders in accordance with law. The
D.I.O.S. in turn has now passed the
impugned order dated 02.02.2013 and has