# Ashraf Ali v. State of U.P. and another

- **Citation:** (2001) 1 ILRA 265
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-10-18
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashraf-ali-v-state-of-u-p-and-another-39609
- **Pages:** 4

## Text

1All] Ashraf Ali V. State of U.P. and another
265
suspend the Head of the institution or
a
teacher arbitrarily, in highhanded
manner. The only reason given by the
DIOS for disapproving the suspension
order is that from the examination of
records he came to the conclusion that the
management
has
suspended
the
respondent no. 2 in violation of the
provisions of Act. Form the impugned
order it is clear that the DIOS did not
apply its mind to the facts of the case nor
any provision of Act was considered.
Statutory provision of section 16 - G (7)
of the Act expressly provides that order
under this sub-section has to be passed in
writing by the DIOS. It is implicit that
while passing an order in writing he has to
apply his mind and give reasons for
approving or disapproving the suspension
order. He is under a legal duty and
obligation to pass a reasoned order that
can be upheld in law. It is not a formality.
Mere writing that suspension order was
contrary to the provision of the Act was
not sufficient. The impugned order
cannot be upheld.

4. I have held that order passed by
the DIOS is illegal, therefore, it is not
necessary for me to consider the other
arguments raised by the learned counsel
for the parties.

5. In the result, this writ petition
succeeds and is allowed. The order dated
26.9.198 passed by respondent no.1,
Annexure-6 to the writ petition, is
quashed. The District Inspector of
Schools, Allahabad shall pass a fresh
order in accordance with law within a
period of two months from today. The
petitioners
and
respondent
no.2 are
directed to serve a certified copy of this
order on respondent no. 1 within a period
of one week from today.
Office shall issue certified copy of
this order to learned counsel for the
parties on payment of usual charges
within three days.

Parties shall bear their own costs.
Petition Allowed.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2001
266
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By the Court

1. These two criminal revisions have
been preferred by same revisionist Ashraf
Ali against two different orders, one dated
18.10.2000 and another dated 3.11.2000
both passed by Mr. V.K. Gupta, II Add.
District
and
Sessions
Judge,
Muzaffarnagar in the same sessions trial
no. 906 of 1996. In Criminal Revision No.
2297 of 2000, by the impugned order
dated 18.10.2000 bail of the revisionist
was cancelled his bail bonds were
forfeited and notices were issued to the
sureties as to why the amount of bail
bonds should not be recovered from them.
Whereas in the connected Revision No.
2448 of 2000, by the impugned order
dated 3.11.2000, the S.H.O. of police
station concerned has been directed to
execute
non-bailable
warrant
issued
against the revisionist.

2. Before proceeding further, it
appears necessary to mention here that the
revisionist is facing trial under section
147, 427, 504, 506 IPC read with section
3(1), S.C.S.T. Act in S.T. No. 906 of 1996
before he Court of IInd Addl. District &
Sessions Judge, Muzaffarnagar.

3. I have heard Mr. Arvind Misra,
learned counsel for the revisionist and
learned A.G.A.

4. Mr. Misra, learned counsel for the
revisionist argued that the revisionist and
his counsel could not appear before the
trial court at the time when the case was
called out on 18.10.2000, with the result
by the impugned order, bail of the
revisionist was cancelled, his bail bonds
were forfeited and notices were issued to
the sureties. Mr. Misra further submitted
that after the above order, on that very
day i.e. 18.10.2000 an application seeking
exemption from personal attendance of
the
revisionist
was
moved
by
the
revisionists counsel, but that application
was also rejected on the ground that it was
moved after passing of the impugned
order and as such, according to Mr. Misra,
cancellation of bail of the revisionist
without giving him any notice is against
the provisions of law. In support of his
contention, Mr. Misra has relied on
various judgements passed by different
Benches of this Court reported in 1989
A.C.C.-446 (Ram Laut Vs. State of U.P.),
1989 A.C.R. 375 (Baju and another Vs.
State of U.P.), 1988 A.C.C.-6 (Hindi)
(Guru Bachan Singh Vs. State of U.P.),
1986 Allahabad Criminal Report (Har
Govind and another Vs. State of U.P.)
1997 C.B.C.-155 (Wahid Uddin Vs. State
of U.P.).

5. Thus, the point which emerges for
consideration in this revision is whether
without giving notice to the accused, can
his bail be cancelled and his bail bonds be
forfeited?

6. At this juncture, section 441 (1),
Cr.P.C. is relevant which is in the
following terms:

"Before any person is release don
bail or release don his own bond for
such sum of money as the police
officer or court as the case may be,
thinks sufficient shall be executed by
such person, and, when he is released
on bail, by one or more sufficient
sureties conditioned that such person
shall attend at the time and place
mentioned in the bond, and shall
1All] Ashraf Ali V. State of U.P. and another
267
continue so to attend until otherwise
directed by the police officer or
court, as the case may be."

7. The above quoted provision
contemplates execution of a bond by the
accused. Form No. 45 of Schedule II,
Cr.P.C. prescribes bond and bail bond for
attendance before Officer In charge of
Police Station or Court, which is as under:

"I (name) ............. of ..........
(police), having been arrested or
detained without warrant by the
officer in charge of..........Police
station (or having been brought
before the court of..........charged
with the offence of.............and
required to give security for my
attendance before such officer or
court on condition that I shall attend
such officer or court on every day on
which any investigation or trial is
held with regard to such charge, and
in case of my making default therein.
I
bind
myself
to
forfeit
to
Government the sum of rupees.
Dated,
this
...........day
of
..............19.......
(Signature)"
8. The words used in sub-section (1)
of section 441, Cr.P.C. leave no room for
doubt that before a person is released on
bail, said person also must execute a
bond. The undertaking given by the
accused as may be seen from Form No.
45 of schedule II, was to attend the court
on every day of hearing and to appear
before the court whenever called upon,
and if he fails to appear before the court,
then court has no option but to cancel his
bail, forfeit his bond and issue notices to
the sureties, and if the accuse din
pursuance of the undertaking given by
him in the bond, fails to appear before the
court, no notice is required before
cancelling his bail and bonds.

9. As per record, the order impugned
has been challenged by the revisionist,
who is an accused and no appeal has been
preferred by the sureties. The decisions
cited by the learned counsel for the
revisionist, are distinguishable from the
facts of the present case because in all the
cases cited, appeal was preferred by the
sureties under section 449, Cr.P.C.

10. After hearing learned counsel for
the parties and keeping in view the legal
position on the point as discussed above
in the opinion of this court, held the
orders impugned do not suffer from any
illegality, incorrectness and impropriety.

11. Both the revisions are therefore
liable to be dismissed.

12. However, considering the fact
that the revisionist is facing trial under
sections 147, 427, 504, 506 IPC read with
section 3(1), S.C.S.T. Act before the court
of IInd Addl. District & Sessions Judge,
Muzaffarnagar and he was granted bail
but on 18.10.2000 he could not appear
and after the impugned order, as is clear
from the order sheet itself, an application
was moved for his exemption from
personal attendance by his counsel as well
as the undertaking given by his counsel
that the revisionist shall appear before the
trial court on the next date fixed and shall
co-operate with the trial, it is provided
that in case the revisionist appears before
the trial court on the next date fixed, then
both
the
orders
impugned
dated
18.10.2000 and 3.11.2000 shall be kept in
abeyance and he shall continue to remain
on bail.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
268
With the above observation, both the
revisions stand dismissed.
Revision Dismissed.

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By the Court

1. The only question in this petition
is whether the petitioner who has been
appointed
by
the
management
on
7.7.1997 on the post of Lecturer Urdu, in
absence of any creation or sanction of
post of Lecturer Urdu is entitled to
continue as Lecturer and payment of
salary as he is teaching Urdu in
intermediate
classes
since
his
appointment?

2. The controversy stands squarely
covered by a full bench decision of this
court in Gopal Dubey v. District Inspector
of Schools 1999 (1) UPLBEC 1. It was
held that recognition of a subject did not
amount to presumed creation of post. The
bench held that in absence of sanction or
creation of post of state government was
not liable to pay the salary nor the
management could claim reimbursement
of it. But Sri P.K. Ganguli the learned
counsel for the petitioner vehemently
argued that once the District Inspector of
Schools, Azamgarh (in brief DIOS)
granted permission to start intermediate
class in Urdu it shall be deemed that the
post was created and the petitioner who
was appointed by the management was
entitled to salary. He relied on the
judgement of apex court in Chandigarh
Administration and others v. Rajni Vali
(Mrs.) and others (2000) 2 SCC 42.

3. To decide whether the ratio laid
down by the apex court is helpful to the
petitioner it is necessary to narrate facts in
brief. Muslim Inter College, Mau (in brief
institution) was granted recognition in
1956
under
the
U.P.
Intermediate
Education Act, 1921 (in brief Act, 1921).
The institution was taken in grant-in-aid
list, in April 1971, under the U.P. High
Schools
and
Intermediate
Colleges
(Payment of Salaries of Teachers and
other Employees) Act 1971 (in brief
Salaries Act). The DIOS by its order