# Awadhesh Kumar v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 930
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-07
- **Case number:** Civil Misc. Writ Petition No. 11872 of 2000
- **Bench:** V.M. Sahai, S.P. Mehrotra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadhesh-kumar-v-state-of-u-p-and-others-41273
- **Pages:** 3

## Headnote

Constitution of India, Article 311-change
of status and designation-in the garb of
reshuffling scheme-petitioner joined on
12.06.1997 on the post of Good Tax
Officer
after
completing
successful
training-change of cadre from transport
department
to
treasury
departmentcannot
be
against
the
desire
of
petitioner-even
on
probation
period
protection of Article 311 available.

Held: Para 4 & 6

Once a civil servant joins his post under
the Government, even during the period
of
probation,
Article
311
of
the
Constitution of India starts applying and
the protection recommended by the
Article become available. A Government
servant acquires the right to the post
and he cannot be removed from that
post, whether by reason of alleged
reshuffling or other reason short of
improper performance of duty , in case of
probationers , or misconduct in case of
confirmed employees.

In the circumstances, we are of the
opinion that the petitioner cannot be
moved out of the service cadre of the
Transport Department against his will.

## Text

930 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
only thereafter the application was
rejected.

5. He also argued before this Court
that definitely an application will be made
either under Section 163-A or Section 166
of the Act but if the claim petition is filed
referring two sections it is to be seen by
the tribunal under which Section the
parties are required to be proceeded
before the Tribunal. In the present case
rash and negligent driving of the vehicle
was called upon to prove by the
claimant/s. Therefore, obviously the claim
petition is to be treated under Section 166
but not under Section 163-A. It is also
stated that for the purposes of the
applicability of the multiplier as a
guidance, the second schedule under such
Section was considered not for any other
purposes. Mr. Arvind Kumar contended
that since the owner was not examined,
therefore, the Insurance Company has
right to contest to which the Tribunal fell
into error. However, upon going through
the judgment and order, we find that the
owner was produced for examination.
Therefore, factually such statement is
incorrect.

6. Therefore, taking into totality of
the matter, we are of the view that the
way of rejection of the order may be
defective or irregular but it cannot be said
to
be
illegal
for
the
purpose
of
intervention of the Appeal Court. In the
case of an irregular rejection, there is
every right of the insurance to make a
revisional application as we have already
held in the case of Manju Devi (supra).
We do not find any cogent reasons to
interfere with the order at the appellant
Insurance Company independently. So far
as the other point as agitated that
collective application under Section 163A
and
under
Section
166
is
so
fundamental
in
nature
if
Insurance
Company has right to oppose, we are of
the view that it is for the Court to treat the
claim petition under either of the Sections
but not to reject solely on such ground.
Therefore,
when
the
Tribunal
has
proceeded with the proof of rash and
negligence of the driver, it has to be
construed that the Court proceeded under
Section 166 of the Act but not under
Section 163-A of the Act. Therefore, in
totality, we do not find any prudent cause
to
support
the
contentions
of
the
appellant. Hence the appeal is liable to be
dismissed and accordingly, is dismissed,
however, without imposing any cost.

7. Incidentally, the appellantinsurance company prayed that the
statutory deposit of Rs.25,000/- made
before this Court for preferring this appeal
be remitted back to the concerned Motor
Accidents
Claims
Tribunal
as
expeditiously as possible in order to
adjust the same with the amount of
compensation to be paid to the claimants,
however, such prayer is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Writ Petition No. 11872 of 2000

Awadhesh Kumar

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

Counsel for the Petitioner:
Sri. Umesh Chandra Mishra
3 All] Awadhesh Kumar V. State of U.P. and others
931
Counsel for the Respondents:
Sri. Pushpendra Singh
S.C.

Constitution of India, Article 311-change
of status and designation-in the garb of
reshuffling scheme-petitioner joined on
12.06.1997 on the post of Good Tax
Officer
after
completing
successful
training-change of cadre from transport
department
to
treasury
departmentcannot
be
against
the
desire
of
petitioner-even
on
probation
period
protection of Article 311 available.

Held: Para 4 & 6

Once a civil servant joins his post under
the Government, even during the period
of
probation,
Article
311
of
the
Constitution of India starts applying and
the protection recommended by the
Article become available. A Government
servant acquires the right to the post
and he cannot be removed from that
post, whether by reason of alleged
reshuffling or other reason short of
improper performance of duty , in case of
probationers , or misconduct in case of
confirmed employees.

In the circumstances, we are of the
opinion that the petitioner cannot be
moved out of the service cadre of the
Transport Department against his will.

(Delivered by Hon'ble V.M. Sahai, J.)

1. We have heard learned counsel
for the petitioner, the learned Standing
Counsel and the learned counsel for the
respondent no.4.

2. It is not denied that the petitioner,
after selection by the U.P. Public service
Commission, joined on 12.6.1997, and
underwent requisite training at the Head
Quarter of Transport Commissioner, and
thereafter at the U.P. Administrative
Academy, Nainital. After completion of
his training, the petitioner was granted
regular posting, and he joined his duties
as Goods Tax/ Passenger Tax Officer in
the Office of Regional Transport Officer,
Bareilly and was continuing in that
service when the impugned orders dated
23.10.1998 and 21.12.1999 issued by the
State Government (Annexure nos. 2 and 5
to the writ petition) and the order dated
2.2.2000
issued
by
the
Transport
Commissioner, U.P., Lucknow (Annexure
no. 6 to the writ petition) were passed by
the aforesaid impugned orders, passed
after more than two years of the
petitioner's working in the Transport
Department of the U.P. Government, he
was asked to change the service cadre and
was directed to join the State Civil service
as Treasury Officer/ Accounts Officers
which is a distinct and separate service
cadre under the said State Government.
This action has been sought to be justified
by the respondents under the name of
reshuffling. It is submitted by the
respondents that this reshuffling is done
according to the choice given by the
candidate at the time of their selection by
the Commission and because of the
situation created by the reason of nonjoining
or
resignation
of
certain
candidates which requires readjustment of
the merit- list and the choice of the
candidates.

3. The submissions from the side of
the respondents are contrary to the basic
law.

4. Once a civil servant joins his post
under the Government, even during the
period of probation, Article 311 of the
Constitution of India starts applying and
the protection recommended by the
Article become available. A Government
servant acquires the right to the post and
932 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
he cannot be removed from that post,
whether by reason of alleged reshuffling
or other reason short of improper
performance
of
duty,
in
case
of
probationers or misconduct in case of
confirmed employees.

5. The petitioner in this writ petition
claims that he is not willing to move out
of cadre of Transport Department of the
State Government and it is not the case of
the respondents that there is any shortcoming in the performance of his duties
by
the
petitioner,
much
less
any
misconduct.

6. In the circumstances, we are of
the opinion that the petitioner cannot be
moved out of the service cadre of the
Transport Department against his will.

7. Accordingly, the writ petition is
allowed and the impugned orders dated
23.10.1998 and 21.12.1999 issued by the
State Government (Annexure nos. 2 and 5
to the writ petition) and the order dated
2.2.2000
issued
by
the
Transport
Commissioner, U.P. Lucknow (Annexure
no.6 to the writ petition) are quashed.
 Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2008

BEFORE
THE HON'BLE S. U. KHAN, J.

Civil Misc. Writ Petition No. 5571 of 1984

Qazi Abdul Wahab

...Petitioner
Versus
The Special Judge (A.D.J.), Bijnor and
others

...Respondents

Counsel for the Petitioner:
Sri. S.A. Gilani
Counsel for the Respondents:
S.C.

U.P. Urban Buildings (Regulation, Letting
And Eviction) Act 1972-Section 20(4)-
tenant deposited entire amount of rent
and damages-during pendency of earlier
revision
pending
against
evictionlandlord in second notice communicated
willingness
to
withdraw
the
rent
deposited in earlier decided suit-heldsuch deposit perfectly valid-entitled to
benefit of Section of 20(4) of the Act.

Held: Para 18, 19 & 20

In the second notice dated 27.04.1979,
the landlord clearly asked for details of
deposit
and
communicated
its
willingness
to
withdraw
the
rent
deposited by the tenant in the decided
suit. This clearly meant that the landlord
had approved the deposit, hence it
cannot be said that the said deposit
cannot be taken into consideration.

Accordingly, I am of the opinion that
deposit of rent by the tenant in the
decided suit in between the two notices
sent by the landlord was valid.

In this manner, rent was deposited
within 30 days from the first notice and
at the time of second notice, tenant was
not
defaulter
even
for
a
month.
Accordingly, suit could not have been
decreed for eviction on the ground of
default.
Case law discussed:
AIR 2008 SC 187, 2008 (2) A.R.C. 613, AIR
2000 SC 568, J 2004(2) ARC 64, 2004(2) ARC
652, AIR 1998 SC 602, (2008) 5 SCC 287,
2008 (71) ALR 499, AIR 1996 SC 2410, 2004
(2) A.R.C. 652.

(Delivered by Hon'ble S.U. Khan, J.)

1. Heard learned counsel for the
petitioner. No one appeared on behalf of
tenants respondents.