# Bhagwati Prasad & another v. State of U.P. and others

- **Citation:** (2009) 1 ILRA 36
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-23
- **Case number:** Special Appeal No.1252 of 2008
- **Bench:** V.M. Sahai, Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwati-prasad-another-v-state-of-u-p-and-others-41310
- **Pages:** 4

## Headnote

Sri P.N. Saxena
Sri Awadhesh Kumar Malviya
S.C.

Intermediate
Education
Act
1921Chapter
III
Regulation
2
readwith
Subordinate
Officers
Ministerial
Employees Service (Direct Recruitment)
Rules
1985-Promotion-class
IV
employees on Class III post-practice of
written examination ignoring senioritycum-suitability-in absence of specific
provision for written test-entire selection
proceeding vitiated being contravention
of Rule-can not sustained.

Held: Para 7

As per rule 2, promotions are to be made
on the basis of seniority subject to
rejection of unfit and not through a
written test from amongst eligible class
IV employees working in the institution.
Subordinate
Offices
Ministerial
Employees Service (Direct Recruitment)
Rules, 1985 do not provide for any
written
examination
for
promotion,
therefore, selection of respondent no.5
was vitiated being in contravention of
rules.

## Text

36 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
protected under Article 21 of the
Constitution of India is also unnecessarily
curtailed till their release on granting bail
by the High Court.

14. Certain guidelines were issued
by the Hon'ble Apex Court in the case of
Sunderbhai Ambalal Desai Vs. State of
Gujarat AIR 2003 Supreme Court 638
regarding disposal of the property. While
passing the impugned order, the learned
Court below did not care to see those
guidelines. When no offence under the
Cow Slaughter Act is made out in the
present
case,
then
there
was
no
justification for the court below to decline
to release the seized bullocks merely on
the assumption that the said cattle were
being carried to Bihar for slaughtering.

15. The bullocks in question were
seized from the possession of the accused
persons named in the FIR, which was
lodged at P.S. Nanahra, whereas the
application for their release was moved by
the Revisionists claiming themselves to
be the owners of the said bullocks. The
Court below while passing the impugned
order has not decided the matter of
ownership of bullocks. The accused
persons named in the FIR do not appear to
have been heard at the time of passing the
impugned order. Therefore, the bullocks
can not be released by this Court in favour
of the Revisionists, as the matter of their
ownership has to be decided by the Court
below after giving opportunity to the
accused persons named in the FIR. The
Court below vide its impugned order
appears to have declined to release the
bullocks assuming that the said bullocks
were
being
carried
to
Bihar
for
slaughtering. As I have stated above, mere
carrying or transporting the cow, bull or
bullock from one place to another place
within the State of Uttar Pradesh does not
constitute
any
offence
under
Cow
Slaughter
Act
unless
there
is
contravention of section 3 and 5-A of the
Act. As stated herein-above, there was no
contravention of section 3 or any other
section of Cow Slaughter Act in the
present case. Therefore, the impugned
order being wholly illegal can not be
sustained.

16. Consequently, the Revision is
allowed. The impugned order is set-aside
and the court below is directed to dispose
of
the
release
application
of
the
Revisionists for release of the bullocks
seized by the police of P.S. Nanahra,
District Ghazipur in crime no. 1062 of
2004 keeping in view the observations
made in this judgement. The claim of
ownership of seized bullocks will be
decided by the Court below after
informing the accused Radhey Shyam
Yadav, Subhash Navik, Baladin Pasi,
Ramesh Yadav and Chottey Lal Yadav by
sending notices to them by registered
post.

The office is directed to send a copy
of this Judgment within a week to the
lower court concerned for necessary
action.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE PANKAJ MITHAL, J.

Special Appeal No.1252 of 2008

Bhagwati Prasad & another...Appellants
Versus
State of U.P. and others ...Respondents
1 All] Bhagwati Prasad and another V. State of U.P. and others
37
Counsel for the Appellants:
Sri Ashok Khare
Sri Siddharth Khare

Counsel for the Respondents:
Sri P.N. Saxena
Sri Awadhesh Kumar Malviya
S.C.

Intermediate
Education
Act
1921Chapter
III
Regulation
2
readwith
Subordinate
Officers
Ministerial
Employees Service (Direct Recruitment)
Rules
1985-Promotion-class
IV
employees on Class III post-practice of
written examination ignoring senioritycum-suitability-in absence of specific
provision for written test-entire selection
proceeding vitiated being contravention
of Rule-can not sustained.

Held: Para 7

As per rule 2, promotions are to be made
on the basis of seniority subject to
rejection of unfit and not through a
written test from amongst eligible class
IV employees working in the institution.
Subordinate
Offices
Ministerial
Employees Service (Direct Recruitment)
Rules, 1985 do not provide for any
written
examination
for
promotion,
therefore, selection of respondent no.5
was vitiated being in contravention of
rules.

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

1. The short question that arises for
consideration in this appeal is whether for
making promotion from class IV to class
III post in a government aided institution
a written examination is permissible?

2. In Mahavir Inter College,
Malikpura, Ghazipur a vacancy of class
III employee occurred which was to be
filled by promotion from class IV
employees. The respondent no.5 was
considered for promotion and the District
Inspector of Schools, Ghazipur by order
dated 24.1.2008 granted promotion to Raj
Narain Singh Chauhan, respondent no.5
who was recommended for promotion on
the basis of some written test conducted
by the selection committee.

3. The approval granted to the
promotion of respondent no.5 Raj Narain
Singh Chauhan was challenged by the
appellants by means of Civil Misc. Writ
Petition No.37763 of 2008 on the ground
that no written test was permissible for
promotion from class IV post to class III
post
and
the
appellants
possessed
minimum educational qualification of
High School prescribed for promotion but
their claim for promotion on class III post
was not considered by the selection
committee. The writ petition filed by the
appellants has been dismissed by the
learned single Judge on 30.7.2008 on the
ground of laches.

4. We have heard Sri Ashok Khare,
learned senior counsel assisted by Sri
Siddhartha Khare, for the appellants and
Sri P.N.Saxena, learned senior counsel
assisted
by
Sri
A.K.Malviya
for
respondent no.5 and the learned standing
counsel appearing for respondents no.1 to
3. With the consent of learned counsel for
the parties, we have taken up this appeal
as well as the writ petition for final
disposal.

5. Chapter III Regulation 2 of the
Regulations framed under the U.P.
Intermediate
Education
Act,
1921
provides for appointment and promotion
of class III and class IV employees. It lays
down that the minimum educational
qualification of clerks and class IV
employees would be same as is applicable
38 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
to the employees of government higher
secondary institutions. Regulation 2 of
Chapter III of the Regulations is quoted
below:-

"2 (1) fdlh laLFkk esa fu;qfDr gsrq fyfid ,oa prqFkZ oxhZ;
deZpkfj;ksa dh U;wUkre 'kSf{kd ;ksX;rk ogh gksxh tks jktdh;
mPprj ek/;fed fo~|ky;ksa ds led{kh; deZpkfj;ksa ds fy,
le; ij fu/kkZfjr dh xbZ gksA

(2) iz/kku fyfid ,oa fyfid Js.kh ds Lohd`r inks dh dqy
la[;k dk 50 izfr'kr laLFkk esa dk;Zjr fyfidksa ,oa prqFkZ
Js.kh deZpkfj;ksa es ls inksUufr }kjk Hkjk tk;sxk ;fn
deZpkjh in gsrq fu/kkZfjr vgZrk j[krk gks rFkk og vkxs in
ij 5 o"kZ dh vfojy ekSfyd lsok dj pqdk gks rFkk mudk
lsok vfHkys[k vPNk gks inksUufr vuqi;qDr dks NksMdj
T;s"Brk ds vk/kkj ij dh tk;sxhA"

6. The aforesaid rule does not lay
down any written test for the purposes of
promotion from class IV posts to class III
posts. Subordinate Offices Ministerial
Employees Service (Direct Recruitment)
Rules, 1985 are equivalent rules which
are applicable to government educational
institutions. Rule 6 of the 1985 Rules
clearly provides that 15% of the vacancies
would be filled in pursuance to the
government orders issued from time to
time by promotion of group D employees
to group C. Group D is equivalent to class
IV post of the educational institutions.

7. It is not disputed by the learned
counsel for the parties that the appellants
have passed High School examination.
From the list filed as Annexure-1 to the
writ petition, it is apparent that large
number of candidates who are working on
class IV post in the institution and who
have passed High School Examinations
were eligible for promotion, but they
could not be considered for promotion
along with respondent no.5 as the
selection committee conducted a written
test which was not provided under the
rules. As per rule 2, promotions are to be
made on the basis of seniority subject to
rejection of unfit and not through a
written test from amongst eligible class
IV employees working in the institution.
Subordinate
Offices
Ministerial
Employees Service (Direct Recruitment)
Rules, 1985 do not provide for any
written
examination
for
promotion,
therefore, selection of respondent no.5
was vitiated being in contravention of
rules. Moreover, the learned single Judge
committed error in dismissing the writ
petition on the ground of laches which has
been fully explained by the appellants in
paragraph 6 of the appeal. Had an
opportunity been given by the learned
single Judge to the petitioners in the writ
petition, they would have explained the
laches.

8. For the aforesaid reasons, the
impugned selection made by respondents
and the approval granted by the District
Inspector of Schools dated 24.1.2008 is
wholly illegal and cannot be maintained.

9. In the result, this special appeal
succeeds and is allowed. The order of
learned single Judge dated 30.7.2008
passed in Civil Misc. Writ Petition
No.37763 of 2008 is set aside. The order
dated 24.1.2008 passed by District
Inspector of Schools, Annexure-4 to the
writ petition, is quashed. Respondent
No.4 is directed to hold a fresh selection
for filling the vacancies of class III posts
by promotion of class IV employees, in
accordance with law.
---------
1 All] Krishna Kumar Rai V. State of U.P. and another
39
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.09.2008

BEFORE
THE HON'BLE S.N.H. ZAIDI, J.

Criminal Revision No. 3158 of 2005

Krishna Kumar Rai
 ...Revisionist
Versus
State of U.P. & another ...Opposite parties

Counsel for the Revisionist:
Sri Satish Trivedi
Sri P.K. Rai

Counsel for the Opposite Parties:
Sri Raj Kumar Khanna
A.G.A.

Code of Criminal Procedure-Section 319Summoning of applicant-during trailMagistrate
after
examine
the
prosecution witness for offence under
Section
323/325/336/506
I.P.C.-next
day allowed the application summoning
applicant-challenged on ground of delay
as well as plea of "Alibi"-held-plea of
alibi can be decided only after giving
opportunity to the prosecution for cross
examination
during
trail-summoning
order perfectly justified-No inference
required.

Held: Para 10

So far as the involvement of the
revisionist in the incident is concerned, it
appears that the Investigating Officer
had accepted the plea of alibi that the
revisionist was not present on the place
of occurrence and was present in Patna
where he was posted as Assistant
Statistician in the Industry Department.
The Hon'ble Supreme Court in Rajendra
Singh Vs. State of U.P. and another
(2007) 7 SCC 378 has observed that the
burden to prove the plea of alibi lies
upon the accused. This could be done by
leading evidence in the trial and not by
filing some affidavits or statements
purported to have been recorded under
section 161 Cr.P.C. In such a case the
prosecution
would
have
got
an
opportunity
to
cross
examine
the
witness and demonstrate that their
testimony was not correct. The Hon'ble
Apex Court has also observed that the
statements recorded under section 161
Cr.P.C. by the Investigating Officer are
wholly inadmissible as it is not a
substantive piece of evidence and in
view of the proviso to sub-section (1) of
section 162 Cr.P.C. the statement can be
used only for the limited purpose of
contradicting the plea taken therein in
the manner laid down in the said
proviso. The alleged plea of alibi that the
revisionist was not present at the place
of occurrence and was present at Patna
cannot
be
taken
into
account
for
deciding the application moved under
section 319 Cr.P.C.
Case law discussed:
1993 SCC (Cr) 407, (2007) 4 SCC 773, (2007)
7 SCC 378

(Delivered by Hon'ble S.N.H. Zaidi, J.)

1. This revision has been directed
against the order dated 19.3.2005 passed
by C.J.M. Ballia in Criminal Case
No.2336 of 1998 State Vs. Amit Rai and
others
whereby
the
application
of
opposite party no.2 under section 319
Cr.P.C. was allowed and the revisionist
was summoned for trial together with the
accused persons.

2. The facts which gave rise to this
revision, in brief, are that Opposite Party
no.2 Tap Narain had lodged a report on
2.8.98 at Police Station Narahi district
Ballia
against
4
persons,
including
revisionist Krishna Kumar Rai under
sections 328/336/504/506 I.P.C. The
police,
however,
after
investigation
submitted a charge sheet under sections
323/325/336/504/506 I.P.C. against 3