# Awadh Naresh Sharma v. State of U.P. and others

- **Citation:** (2007) 3 ILRA 1046
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-22
- **Case number:** Special Appeal No.1595 of 2007
- **Bench:** H.L. Gokhale, C.J. Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadh-naresh-sharma-v-state-of-u-p-and-others-40997
- **Pages:** 7

## Headnote

Sri Girish Chandra Upadhyay
Sri R.P. Dubey
Sri P.K. Ganguly

Allahabad
High
Court
Rules
1952,
Chapter VI, Rule-7-part heard casesdirection of Single Judge to list the case
before him as part heard-even after
change
of
Roster-at
pre-admission
stage-held-in violation of Rule-can not
sustained-after change of roster all
direction/orders without jurisdiction.

Held: Para 20

In the circumstances, we accept the
contentions of the appellant that the
orders passed by the learned Single
Judge after change of roster were
without jurisdiction and are liable to be
treated as null and void.
Case law discussed:
2006 (8) SCC-294
1998 (1) SCC-I
1996 AWC 644 (FB)

## Text

1046 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2007

BEFORE
THE HON'BLE H.L. GOKHALE, C.J.
THE HON'BLE PANKAJ MITHAL, J.

Special Appeal No.1595 of 2007

Awadh Naresh Sharma
...Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Appellants:
Sri Ashok Khare, Senior Advocate
Sri P.N. Ojha.

Counsel for the Respondents:
Sri Girish Chandra Upadhyay
Sri R.P. Dubey
Sri P.K. Ganguly

Allahabad
High
Court
Rules
1952,
Chapter VI, Rule-7-part heard casesdirection of Single Judge to list the case
before him as part heard-even after
change
of
Roster-at
pre-admission
stage-held-in violation of Rule-can not
sustained-after change of roster all
direction/orders without jurisdiction.

Held: Para 20

In the circumstances, we accept the
contentions of the appellant that the
orders passed by the learned Single
Judge after change of roster were
without jurisdiction and are liable to be
treated as null and void.
Case law discussed:
2006 (8) SCC-294
1998 (1) SCC-I
1996 AWC 644 (FB)

(Delivered by Hon'ble H.L. Gokhale, C.J.)

1. Heard Sri Ashok Khare, Senior
Advocate appearing with Sri P.N. Ojha
for
appellant.,
Sri
G.C.
Upadhyay,
Standing Counsel for the State appearing
for respondents no.1, 3 and 4, Sri R.P.
Dubey appearing for respondent no.2 and
Sri P.K. Ganguli appearing for respondent
no.6.

2. Mr. Ashok Khare seeks to delete
respondent
no.5,
Committee
of
Management, Rani Murar Kumari Balika
Inter College, Bhojubir, Varansi as no
relief is sought against it. He is permitted
to do so during the course of the day.

3. The appellant herein is the Joint
Director of Education (Basic). He was
earlier working as the Secretary of
respondent
no.2,
U.P.
Secondary
Education
Service
Selection
Board,
Allahabad.

4. Respondent no.6 herein had
applied for the post of Assistant Teacher
in L.T. Grade in pursuance of an
advertisement no.1 of 2001 of U.P.
Secondary Education Service Selection
Board. She was amongst the successful
candidates
and
her
name
was
recommended for appointment at an
intermediate college at Lucknow after a
selection examination. On approaching
that college she was informed that there
was no vacancy. She was, therefore,
asked by the Board to approach another
intermediate college at Varanasi. She was
not absorbed there also. She then filed
Civil Misc. Writ Petition No.40684 of
2006. The prayer in this petition was to
direct the Board to consider the claim of
the petitioner for allocation of another
institution for the post of L.T. Grade
Teacher (Social Science).

5. The prayer in the petition was
thus very clear and it was directed against
the second respondent, Board. The
3 All] Awadh Naresh Sharma V. State of U.P. and others
1047
Authorities
of
the
State
and
the
intermediate college of Varanasi were
also joined as respondents in that petition.

6. When the petition reached before
the learned single Judge, he had the
jurisdiction to look in the matter as per the
roster as it stood at that point of time. The
grievance of the appellant is that the
learned single Judge has gone outside the
frame of that petition. He has passed
various orders and seven of these are
affecting the appellant. As a result of
these orders passed by the learned single
Judge the appellant was suspended at one
point of time. He has challenged that
suspension by filing an independent
petition and suspension has been stayed.
A C.B.I. inquiry has also been directed by
the Court in general against which the
Board filed an appeal and that order has
been stayed by another Division Bench
and now a disciplinary proceeding is
going on against the appellant. The
impugned orders are:

(i) 28th August, 2006;
(ii) 14th September, 2006;
(iii) 19th July, 2007;
(iv) 26th July, 2007;
(v) 2nd August, 2007;
(vi) 17th September, 2007 and
(vii) 12th October, 2007.

7. This appeal was admitted on
19.11.2007. The appellant was not a party
to the original petition and, therefore, he
had applied for leave to appeal, as he was
the affected person. The leave was
granted and the appeal was adjourned to
today's date. With the consent of the
counsel for all the parties, the appeal is
taken up for hearing and is being disposed
of finally.

8. The principal grounds raised in
this appeal are two. One, the court is
required to restrict itself to the frame of
the petition, i.e to the pleadings and the
prayer. This is ground (b) of the memo of
appeal. Ground (e) of the appeal is that
the learned single Judge took up the
matter when he was having the particular
jurisdiction but subsequent thereto there
has been change of jurisdiction of learned
single Judge on account of rotation but
despite that this petition continues to be
treated as part heard/tied up. Another
ground (g) is that this petition has
erroneously been treated as part heard.
Ground (h) is that various direction have
been issued by the learned single Judge
which could have only been issued at the
stage of final disposal.

9. If we peruse the orders that have
been passed, we find the first order is
dated 7th August, 2006 asking the District
Inspector of Schools to file his affidavit as
to why the petitioner was not offered
appointment at the institution for which
she was selected. The order passed
thereafter is dated 28th August, 2006,
which is the first impugned order in this
appeal. It questions the directions of
absorption
which
have
not
been
implemented. The second impugned order
is dated 14th September, 2006, which
refers to 180 orders, which have not been
implemented and the Chief Standing
Counsel was directed to take appropriate
action against all responsible for the
deliberate
non-compliance
of
the
directions issued. The third impugned
order dated 19th July, 2007 records that
an enquiry was conducted by the
Secretary, Education Department of the
State
and
the
Additional
Advocate
General had to inform as to why the
regular Secretary was not appointed in the
1048 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Secondary Education Department. The
fourth impugned order challenged in this
appeal is dated 26th July, 2007. This order
directs impleadment of a private firm and
its proprietor, one Mr. Ravi Prakash
having his office at Noida as respondent
no.6. This firm is supposed to have
conducted the evaluation at the selection
examination. The respondent no.6 was
directed to file affidavit disclosing all the
documents including the letter authorizing
him to evaluate the answer sheet and the
amount of payment actually received by
him etc. The fifth order under challenge is
dated 2nd August, 2007, which alleges that
the Government is not holding the enquiry
purposely and is not passing proper
orders, so that the persons charge-sheeted
may get benefit. The next impugned order
dated 17th September, 2007, amongst
others, records that the Board had made
payment
of
Rs.5,38,600/-
to
the
respondent no.6 for the evaluation of the
answer sheets and that too without
deducting the income tax at source. The
Secretary
was
directed
to
examine
whether such payment, without deducting
the income tax at source, is legally
justified or not. Last order is dated 12th
October, 2007 which defers the matter to
16th November, 2007. This appeal was
filed at that stage to challenge these
orders.

10. Having seen the orders it is very
clear that these orders have been passed
going beyond the frame of the petition.
Mr. Ganguli appearing for original
petitioner, who is respondent no.6 does
not dispute that these orders have gone
beyond the prayer in the petition and
states that the prayer in the petition has
remained unattended. The respondent
no.6 wanted a job. She had applied for the
post of Assistant Teacher in L.T. Grade in
pursuance of an advertisement of U.P.
Secondary Education Service Selection
Board. She was amongst the successful
candidates
and
her
name
was
recommended for appointment at an
intermediate college at Lucknow after a
selection examination. The Board is
expected to have verified the vacancy
before it was advertised. It was the duty
of the Board to see that the respondent
no.6 is appointed in that particular
institution. If the Board had directed the
respondent no.6 to approach another
institution at Varanasi, then it should have
been ensured that she joins there.
Respondent no.6 has nothing against
various other officers of the Board or the
appellant, who is Joint Director of
Education (Basic).

11. Thus, from the orders passed by
the learned Single Judge it is clear that
when the respondent no.6 wanted a job
the learned Single Judge had gone into the
question as to how the 180 appointment
orders which were passed, have not been
implemented and directed an enquiry to
be made. He has further gone into the
question as to how the examination for
selection was made, how much payment
was made to the organisation which
conducted the evaluation and whether the
tax was deducted at source. None of these
questions were raised in the petition. The
learned Single Judge had no occasion to
go into all these questions. All these
orders are clearly beyond the frame of the
petition and not sought by the petitioner
whose prayer has remained unattended in
the meanwhile. The learned Single Judge
was not taking any public interest
litigation. He was looking into a specific
petition of an individual petitioner that
despite selection she was not given the
job. Due to this approach, the matter
3 All] Awadh Naresh Sharma V. State of U.P. and others
1049
which was filed in July, 2006 continued
with the learned Single Judge beyond
October, 2007. There is much merit in the
argument of Mr. Khare that the petitioner
had come with a limited prayer when the
appellant and other officers are being
framed by the learned Judge by throwing
a wider net.

12. The second ground is that the
petition has erroneously been treated to be
part heard for which there exists no
justification. We have looked into the
orders passed by the learned Single Judge.
All throughout the learned Single Judge
passed orders that the matter may be put
up or listed on a subsequent date for
further orders. Even if he was to treat the
matter as part heard, it is not permissible
under the Rules of the Court. The relevant
rules from the Allahabad High Court
Rules, 1952 are Rule 14 of Chapter V on
tied up cases and Rule 7 of Chapter VI on
part-heard cases, which read as follows:

"14. Tied up cases.- (1) A case
partly heard by a Bench shall ordinarily
be laid before the same Bench for
disposal. A case in which a Bench has
merely directed notice to issue to the
opposite party or passed an ex parte order
shall not be deemed to be a case partly
heard by such Bench.
(2) When a criminal revision has
been admitted on the question of severity
of sentence only, it shall ordinarily be
heard by the Bench admitting it."

"7. Part-heard cases.- A case which
remains part-heard at the end of the day
shall, unless otherwise ordered by the
Judge or Judges concerned, be taken up
first after miscellaneous cases, if any, in
the Cause List for the day on which such
Judge or Judges next sit. Every part-heard
case entered in the list may, unless the
Bench orders otherwise, be proceeded
with whether any Advocate appearing in
the case is present or not."

13. As far as the question with
respect to pre-admission matters being
part heard or tied up matters is concerned,
the question is no longer res-integra and is
answered in Sanjay Kumar Srivastava Vs.
Acting Chief Justice and others, 1996
A.W.C. 644. In that matter a writ petition
was pending in this Court for admission.
The matter was adjourned for about seven
dates and an interim order was passed. On
the application to vacate the interim order
the prayer was rejected by the Division
Bench. On application being moved by
the State Government the then Acting
Chief Justice withdrew the matter and
referred it to the Full Bench. This order of
the Acting Chief Justice was challenged
by filing another writ petition. It was
stated that the writ petition was part heard
before the earlier Bench and it was not
permissible to the Acting Chief Justice to
withdraw the same and refer to Full
Bench. The Full Bench in para 36 has laid
down law (Per Sagir Ahmed, J., as His
Lordship then was in this Court) on above
referred rule 14 as follows:

"36. The other part of sub-rule (1)
lays down in clear terms that the case in
which the Bench has merely issued notice
to the opposite party or had passed an ex
parte order shall not be deemed to be a
case partly-heard by that Bench. This
provision has been made to specify that a
case does not become part-heard merely
by passing of interim order. It also lays
down that if notices are directed to be
issued to the opposite party, the case does
not become part-heard case of that Bench.
The consequences are obvious. If the
1050 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Division Bench which has merely passed
an ex parte order or directed notice to be
issued to the opposite party locate it as a
part heard case or passes an order that it
will come up before that Bench for
"further hearing" or as a part-heard" or as
a "tied-up" case, the order would be in
violation of the Rules of Court and,
therefore, a nullity. Such an order would
be without jurisdiction and would not
confer any jurisdiction on the Bench
concerned to proceed with that case
unless the case is listed before them again
under the orders of the Chief Justice. In a
situation where any order has been passed
indicating such a case on the order-sheet
or on the main writ petition to be part
heard or tied up case, the Chief Justice
inspite of that order would retain his
jurisdiction to list it before the appropriate
Bench for hearing as the order limiting
the case to be a part-heard or tied up
would be in violation of the Rules of
Court and would not bind the hands of the
Chief Justice from listing that case as a
"seen" case before any other Bench rather
than as a "tied up" case before that very
Bench." (Underling supplied)

14. Thus, the Full Bench of this
Court has clearly laid down that if a
Bench has issued only notice to the
opposite party and passed an order that
the matter will come up before that Bench
for further hearing or as a part-heard or as
a tied-up case, the order would be in
violation of the Rules of Court and,
therefore, a nullity. Such an order would
be without jurisdiction and would not
confer any jurisdiction on the Bench
concerned to proceed with that case,
unless the case is listed before that Bench
under the orders of the Chief Justice.

15. In paragraphs 34 and 35 the Full
Bench went into the question about the
matters which are being heard finally and
are part-heard. After referring Rule 14 of
Chapter V of the Rules of the Court the
Full Bench held in paragraph 34 that the
provision of sub-rule (1) would indicate
that even a case which is partly heard by a
Division Bench is not necessarily to be
laid before that Bench. The use of word
"ordinarily" itself indicates that there can
be a departure from the normal practice of
listing a part-heard case before the same
Bench.

16. Identical rules of Rajasthan High
Court came up for consideration before
the Apex Court in State of Rajasthan Vs.
Prakash Chand reported in (1998) 1 SCC
1. A Bench of three Judges of the Apex
Court (Per Dr. Anand, J. prior to His
Lordship becoming, C.J.I.) affirming the
judgment of the Full Bench in paragraph
23, specifically held that "the above
opinion appeals to us and we agree with
it." Paragraph 23 reads as follows:

"23. The above opinion appeals to us
and we agree with it. Therefore, from a
review of the statutory provisions and the
case on the subject as rightly decided by
various High Courts, to which reference
has been made by us, it follows that no
Judge or a Bench of Judges can assume
jurisdiction in a case pending in the High
Court unless the case is allotted to him or
them
by
the
Chief
Justice.
Strict
adherence of this procedure is essential
for maintaining judicial discipline and
proper functioning of the Court. No
departure from it can be permitted. If
every Judge of a High Court starts picking
and choosing cases for disposal by him,
the discipline in the High Court would be
the casualty and the administration of
3 All] Awadh Naresh Sharma V. State of U.P. and others
1051
justice would suffer. No legal system can
permit machinery of the Court to collapse.
The Chief Justice has the authority and
the jurisdiction to refer even a part-heard
case to a Division Bench for its disposal
in accordance with law where the Rules
so demand. It is complete fallacy to
assume that a part-heard case can under
no circumstances be withdrawn from the
Bench and referred to a larger Bench,
even where the Rules make it essential for
such a case to be heard by a larger
Bench."

17. In this paragraph the Apex Court
has clearly held that no Judge or Bench
can assume jurisdiction in a case pending
in the High Court unless the case is
allotted to him or them by the Chief
Justice. Strict adherence of this procedure
is essential for maintaining judicial
discipline and proper functioning of the
Court. No departure from it can be
permitted.

18. Recently, in another judgment
the Apex Court has held in para 19 of
Jasbir Singh Vs. State of Punjab
reported in (2006) 8 SCC 294 that it is not
within the competence of any Single or
Division Bench of the High Court to give
any direction to the Registry in that behalf
which will run contrary to the directions
of the Chief Justice. The judgment (Per
Balakrishnan, J. prior to His Lordship
becoming C.J.I.) specifically referred to
the
earlier
judgment
in
State
of
Rajasthatn
Vs.
Prakash
Chandra
(Supra) and reiterated the legal position.

19. The law laid down in these
judgments clearly establishes that the
learned Single Judge could not have
directed the Registry to continue the
matter to be placed before him as the
roster had been changed. Even if he was
to say that the matter was part heard, in
view of the law laid down by the Full
Bench which is affirmed by the Apex
Court: such a direction or order would be
in violation of the Rules of Court and,
therefore, nullity. Any case at pre
admission stage cannot be treated as part
heard or tied up and such a direction
contrary to the roster is not within the
competence of the any Single or Division
Bench of the High Court as has also been
held in the case of Jasbir Singh (supra).

20. In the circumstances, we accept
the contentions of the appellant that the
orders passed by the learned Single Judge
after change of roster were without
jurisdiction and are liable to be treated as
null and void.

21. Accordingly, we allow this
appeal and set aside the orders dated 28th
August 2006, 14th September 2006, 19th
July 2007, 26th July 2007, 2nd August
2007, 17th September 2007 and 12th
October, 2007 passed by the learned
Single Judge.

22. The relief sought by respondent
no.6, the original petitioner remained
unattended all this time. The writ petition
will now be sent to the learned Single
Judge, who is taking the work of
educational service matters as per the
present roster. The respondent no.2 must
file affidavit stating as to what was the
material before it on the basis of which
the vacancy was noted at Lucknow and if
there was a vacancy then why she could
not be absorbed at Lucknow. The Board
will also place the material which was
before it to arrive at the conclusion that
there was a vacancy at Lucknow or later
at, Varanasi and what action they are
1052 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
proposing
to
take
against
these
institutions. All these institutions are
receiving
grant-in-aid
from
the
Government and are duty bound to follow
the orders of the Government. It is within
the jurisdiction of the State Government
to take necessary action against these
institutions. The State Government must
also state on the affidavit as to what
action will be taken against these
institutions if the directions given by the
U.P.
Secondary
Education
Service
Selection Board are not honoured by these
institutions. They will see to it that the
petitioner is absorbed. It is for this
purpose that the matter will be listed
before the learned Single Judge. The
matter will be listed on 17th December,
2007. By that date these affidavits must
be filed.

23. The appeal is allowed in
aforesaid terms. There will be no order as
to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2007

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 28429 of 2006

Lalloo Singh

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

Counsel for the Petitioner:
Sri G.K. Singh
Sri V.K. Singh
Sri Ram Sajiwan

Counsel for the Respondents:
S.C.
Sri C.B. Yadav

U.P. Police Officers of Subordinate Ranks
(Punishment & Appeal) Rules 1991-Rule8-Dismissal from service without enquiry
without-recording
any
reason
for
satisfaction-why enquiry not possiblemerely
this
fact-the
misconduct
if
incourased in discipline in force-heldcontrary to requirement of Rules 8
(2)(b)-disciplinary
authority
not
expected to dispense with enquiry lightly
or arbitrarily.

Held: Para 12,13 & 15

After
noticing
this
fact,
the
Superintendent of Police held that he is
satisfied that it is not possible to hold an
enquiry against the petitioner. It was
also observed in the order that in case
petitioner remain in post, it will give a
bad lesson to others.

No reason in the order has been
recorded as why it is not reasonably
practicable to hold disciplinary enquiry
against the petitioner as observed in
Tulsi Ram Patel's case that disciplinary
authority is not expected to dispense
with a disciplinary enquiry lightly or
arbitrarily.

In view of the aforesaid fact, it is clear
that the power which has been exercised
by the Superintendent of Police under
Rule 8(2)(b) contrary to the requirement
as laid down in Rule 8(2)(b).
Case law discussed:
2005 (2) ESC Alld-1229
1985 (2) SLR-576
1991 (1) SCC-362

(Delivered by Hon'ble Shishir Kumar, J.)

1. By means of the present writ
petition the petitioner has approached this
court for a writ of certiorari quashing the
order dated 8.5.2006 (Annexure 1 to the
writ petition) passed by respondent No.2.
Further a writ in the nature of mandamus
commanding the respondents from