# Bindhyachal Kumar Singh v. Union of India & Ors

- **Citation:** (2013) 3 ILRA 1463
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-29
- **Case number:** Civil Misc. Writ Petition No.3283 of 2012
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bindhyachal-kumar-singh-v-union-of-india-ors-42726
- **Pages:** 9

## Headnote

1464 INDIAN LAW REPORTS ALLAHABAD SERIES
A.S.G.I., Sri K.J. Shukla, Sri R.B. Singhal
Sri K.J. Khare.

Constitution of India, Art.-14&16-Service
Law-Cancellation of candidature-on ground
of failure to give option in column 17 of the
application form-no rule-regulation or G.O.
produced in support of cancellation-heldonce petitioner obtained 46 marks and
other with lesser marks send for trainingpetitioner can not be denied by treating
automatic preference in order of ABCD-but
can not cancel the candidature-if found
selected and any candidate with lesser
mark already got selection-the appointment
shall relate back to the date of appointment
of last candidate-approach of authoritiespatently arbitrary held violation of Art. 14
and 16(1) of constitution.

Held: Para-22
Despite repeated query, respondents could
not tell as to why the candidates like
petitioners, who did not fill in column no. 17
of the application form, with respect to
preference, ought not have been considered
for the main select list by treating all those
applications to have given preference in
order of the codes, i.e., A, B, C, D or 1, 2, 3,
4, as the case may be, which they have
applied admittedly, by considering these
candidates, while preparing reserve list, for
the reason that this fault on the part of
candidates like petitioner has not been
treated fatal, so as to result in rejection of
candidature or the application form, but
treating this fault to be a mere irregularity,
a default deemed option clause has been
applied by respondents, but confined only
for reserve list and not the select list. The
approach of respondents, therefore, is
patently arbitrary and violative of Articles
14 and 16 (1) of the Constitution of India.

Case Law discussed:
1978(1979) 1 SCC 380; AIR 1967 SC 1889;
1974(1) SCC 19;AIR 2010 SC 1001.

## Text

3 All] Bindhyachal Kumar Singh Vs. Union of India & Ors.
1463
Prohibition while the FIR and dying
declaration does not support the theory of
demand of dowry and cruelty for payment of
dowry.

11. It is a case in which trial court
should have framed an additional charge of
Section 302 IPC against Jawahar, but the
trial court has failed to do so even after
dying declaration of the deceased. Since
Section 302 IPC is graver offence than
Section 304-B IPC, hence conviction of
accused Jawahar under Section 304-B IPC
cannot be converted in convicted of Section
302 IPC without framing charge under
Section 302 IPC.

12. The Apex Court in Rajbir @
Raju v. State of Haryana, Crl.M.P.
No.23051 of 2010 dated 22.11.2010 has
directed the trial courts in India to
ordinarily add Section 302 to the charge
of Section 304-B, but the trial court has
not complied with the directions of the
Apex Court The decision of the Apex
Court is most appropriate for the instant
case in the prevailing circumstances, as
there is an evidence under Section 32 of
the Indian Evidence Act, in form of dying
declaration, which, at present does not
reveals demand of dowry and harassment
or cruelty due to non-fulfillment of
demand of dowry.

13. In view of the above, I deem it
fit to quash the judgment and conviction
of Jawahar, and remand the matter with
the direction to the trial court to frame
additional charge of Section 302 IPC, and
proceed with the trial in accordance with
law within a specific period.

14. In view of the above, without
making any comments on the offence under
Sections 304-B and 498-A IPC, and without
any comments on their conviction and
without commenting on the judgment and
conviction under Section 4 of the Dowry
Prohibition Act, the judgment is liable to be
quashed and the sentence of the appellant
Jawahar is liable to be set aside, and the
appeal is liable to be allowed.

15. In the result, the criminal appeal
is allowed. The conviction and sentence
of the appellant Jawahar is quashed. The
matter is remanded back to the trial court
to frame additional charge under Section
302 IPC, and to proceed with the trial in
accordance with law. The trial court is
directed to decide the sessions trial
expeditiously, preferably within a period
of
six
months
from
the
date
of
communication of this order. It is also
directed that the trial court shall not be
prejudiced by any observations made in
this judgment.

16. The Registrar, High Court
Lucknow
Bench
is
directed
to
communicate the order immediately to the
Sessions Judge of the trial court. Record
be
also
transmitted
along
with
communication so that trial may start
earlier.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.10.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.3283 of 2012

Bindhyachal Kumar Singh ...Petitioner
Versus
Union of India & Ors. ....Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar

Counsel for the Respondents:
1464 INDIAN LAW REPORTS ALLAHABAD SERIES
A.S.G.I., Sri K.J. Shukla, Sri R.B. Singhal
Sri K.J. Khare.

Constitution of India, Art.-14&16-Service
Law-Cancellation of candidature-on ground
of failure to give option in column 17 of the
application form-no rule-regulation or G.O.
produced in support of cancellation-heldonce petitioner obtained 46 marks and
other with lesser marks send for trainingpetitioner can not be denied by treating
automatic preference in order of ABCD-but
can not cancel the candidature-if found
selected and any candidate with lesser
mark already got selection-the appointment
shall relate back to the date of appointment
of last candidate-approach of authoritiespatently arbitrary held violation of Art. 14
and 16(1) of constitution.

Held: Para-22
Despite repeated query, respondents could
not tell as to why the candidates like
petitioners, who did not fill in column no. 17
of the application form, with respect to
preference, ought not have been considered
for the main select list by treating all those
applications to have given preference in
order of the codes, i.e., A, B, C, D or 1, 2, 3,
4, as the case may be, which they have
applied admittedly, by considering these
candidates, while preparing reserve list, for
the reason that this fault on the part of
candidates like petitioner has not been
treated fatal, so as to result in rejection of
candidature or the application form, but
treating this fault to be a mere irregularity,
a default deemed option clause has been
applied by respondents, but confined only
for reserve list and not the select list. The
approach of respondents, therefore, is
patently arbitrary and violative of Articles
14 and 16 (1) of the Constitution of India.

Case Law discussed:
1978(1979) 1 SCC 380; AIR 1967 SC 1889;
1974(1) SCC 19;AIR 2010 SC 1001.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Sanjay Kumar, learned
counsel for petitioner, and Sri K.J.
Shukla, learned counsel appearing of
respondent-Union of India.

2. Petitioner, Bindhayachal Kumar
Singh, has competed in the selection/
recruitment to the post of Constable
(G.D.) in various Para-Military Forces
(termed by respondents as "Central Police
Organizations, i.e. "CPO"), like, Border
Security Force (in short "BSF"), Central
Industrial
Security
Force
(in
short
"CISF"), Central Reserve Police Force (in
short "CRPF") and Sashastra Sima Bal (in
short "SSB") conducted by Staff Selection
Commission (hereinafter referred to as
"SSC"). He claims to have secured 46
marks in final merit list declared on
2.12.2011, but has not been sent for
training though it is alleged by him that
certain candidates, who had secured lesser
marks, i.e., 38, 39, 41, 42 and 45, have
been shown selected and sent for training
and that is how he has been discriminated.
Accordingly, he has sought a writ of
mandamus commanding respondents 1 to
4 to send him for training and appoint on
the post of Constable (G.D.), in any of the
aforesaid Forces, for which a combined
recruitment was held.

3. Facts, in brief, giving rise to the
present dispute, are as under.

4. SSC published an advertisement on
5.2.2011,
inviting
applications
for
recruitment and appointment on the post of
Constable (G.D.) in CPOs, referred to above.
The examination centres spread across the
Country. The total number of vacancies,
notified, was 49080. The candidates were
required to submit applications to the
concerned Regional Office of SSC under
whose jurisdiction the centre of examination,
selected by him/her, falls. Candidates were
supposed to make a single application and
3 All] Bindhyachal Kumar Singh Vs. Union of India & Ors.
1465
multiple applications were liable to be
rejected, outright, without any notice to the
candidate. The vacancies available were
State-wise and as per the domiciliation of
candidate concerned, in the respective State.
The candidates who domiciled in naxal and
militancy affected areas were provided
separate reservation. The details of vacancies
was given in para 2 of the instructions which
provided State-wise break up of vacancies in
all the four CPOs, with further fragmentation
of vacancies under reserved categories and
unreserved. The allotment of respective
organization to the candidates selected from
each State depended on "merit-cum-option"
as well as availability of vacancy in each
CPO, earmarked for the State.

5. The candidates were required to
indicate preference of CPOs and it was
also provided that option once exercised
will be final and no change will be
allowed under any circumstances. SSC
gave code to the above CPOs, as under:

Code Organization
(i)A BSF
(ii) B CISF
(iii) C CRPF
(iv) D SSB

6. The final result was processed by
SSC in consultation with Ministry of
Home Affairs and as per the guidelines
communicated by the Ministry, which
read as under:

"(i) Select list has been prepared as
per state-wise vacancies with further
reservation for candidates of Border
Districts/ Naxal or Militancy affected
districts within the state. Vacancies in
Border/ Naxal or Militancy affected
districts remaining unfilled in a state have
been filled with the surplus candidates
available
in
the
respective
state.
Candidates belonging to Border/Naxal or
Militancy affected districts have been
considered against vacancies in such areas
or in the State concerned as may be
advantageous to them. However, it has
been ensured that only candidates from a
State/UT are considered against vacancies
in such State/UT, for inclusion in the
Select List. Allocation to various CAPFs
has been done as per merit cum option of
the candidates, subject to availability of
vacancies in State/UT concerned and
category-wise reservation.

(ii) MHA has advised that unfilled
vacancies in Jammu & Kashmir, North
Eastern
States
(Assam,
Arunachal
Pradesh, Manipur, Mizoram, Meghalaya,
Nagaland, Sikkim, Tripura), Naxal and
Militancy
affected
states
(Andhra
Pradesh,
Bihar,
Orissa,
Jharkhand,
Chhattisgarh,
Madhya
Pradesh,
Maharashtra, Uttar Pradesh, West Bengal)
should not be filled with candidates from
surplus
States/UTs.
Therefore,
such
vacancies
were
not
taken
into
consideration after preparation of the
Select
List
while
allotting
surplus
candidates against vacancies in deficit
States/ UTs. Surplus candidates securing
marks above the highest cut off marks
fixed in the written examination for their
respective categories were considered for
allocation against the unfilled vacancies
other than in the State mentioned above,
for inclusion in the Reserve List.

(iii) In order to ensure that candidates
selected in the reserve list are not
allocated to a better preference as
compared to the candidates with higher
merit order in the select list, such
candidates
who
are
getting
better
preference while being considered against
vacancies meant for other States are
included in reserve list.
1466 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) Some candidates did not get
allocated in the select list due to blank/
invalid option. These candidates were also
considered for allocation in the reserve list
after substituting their preference as ABCD
i.e. orders of preference in the Notice."

7. The final result declared 44152
candidates successful, which included 6460
in the reserve list, for appointment to the post
of Constable (G.D.) in the above CPOs.

8. Petitioner, admittedly, is an
unreserved category candidate with Roll
No. 3206023174. He applied for the post
allotted
in
militancy/naxal
affected
Districts of Bihar. Though the petitioner
claims to have filled in column pertaining
to option, but the case set up by
respondents is that the said column was
left blank and petitioner did not give
preferences to the organizations, though
he ought to have done so. It is in these
circumstances, he was considered to be
placed only in reserve list, but since
marks secured by him were less than the
last candidate selected and placed in
reserved list, petitioner, in the ultimate
result, has not been selected.

9. The case set up by respondents is
that since petitioner did not mention his
option for the respective services and left the
column meant for that purpose, blank, his
merit could not be compared with those
candidates who had filled in the column
pertaining
to
option
and
who
were
considered for different services on the basis
of the merit-cum-preference which was the
criteria to be adopted by SSC, as per the
instructions contained in the advertisement.

10. Though petitioner has seriously
disputed the fact about filling of column
no. 17 of the application form and insisted
that he had filled in the preference of
posts for CPOs, but could not produce any
evidence in support of his claim. On the
contrary, respondents, along with counter
affidavit, have filed a photocopy of
petitioner's application form as Annexure3 and a bare perusal thereof makes it clear
that column no. 17 thereof is blank. The
respondents, therefore, are right in stating
that petitioner did not fill in column no.
17 in the application form and left the
column, pertaining to preference of posts
for
CPOs,
blank.
It
is
in
these
circumstances, this Court has to examine
whether non selection of petitioner in the
case in hand is justified or not.

11. Respondents' case is that the
candidates, who did not fill in the preference
column, they could not have been considered
in the selection, based on merit-cut-option.
The mere fact that the persons securing
marks lesser than petitioner have been
selected,
therefore,
would
make
no
difference inasmuch they are the candidates
who have exercised their option which the
petitioner has failed. They are differently
placed. It is, however, admitted that the
forms having column no. 17 blank or
invalidly filled in, have not been rejected
outright. On the other hand, therein the
respondents
have
substituted
a
suo
moto/automatic preference in order of A, B,
C, D, as per the codes prescribed for
respective
CPOs,
and
thereby,
those
candidates have been considered only for the
purpose of allocation in reserve list and not
in the select list.

12. The first issue need be
considered by this Court is, whether this
process adopted by respondents can be
said to be per se arbitrary, or, in the facts
and circumstances, is just and reasonable
and warrants no interference.
3 All] Bindhyachal Kumar Singh Vs. Union of India & Ors.
1467

13. There is no condition or
instruction published by respondents that,
any column in the application form, if left
blank or not correctly filled in, that by
itself shall be a sufficient error, illegality,
or mistake, sufficient enough with the
consequence of rejection of application
form. The two conditions which empower
SSC
to
reject
applications
form
mentioned, are; (1) where more than one
application are submitted; and, (2) if the
eligibility conditions disclosed by the
candidate are found incorrect. If candidate
is not found eligible, his candidature is
liable to be cancelled by SSC.

14. Leaving column no. 17 or any
other column which is not concerned with
the eligibility etc. may result suo motu in
rejection of the candidature is neither
prescribed
in
the
instructions
or
conditions informed to the candidates,
nor, it is the case of respondents hereat.
What they claim is that the preference
column, if not filled in by the candidate,
would not enable him to be considered in
merit, either with a deemed preference,
applied due to default, or for any other
reason, only for the purpose of "main list/
select list", but such candidate can be
considered for "reserve list" by applying
deemed option in order of codes, i.e. A,
B, C, D.

15. It clearly shows that the result of
leaving column no. 17 blank is not fatal.
The respondents do not find it sufficient
or justified to reject an application form
or the candidature of the candidate
concerned for all purposes. They confined
it for considering in preparation of reserve
list and not select list. It is also not in
dispute that for the preparation of merit
list of the candidates against respective
vacancies, State-wise etc., the criteria is
merit-cum-option.
This
criterion
is
common for reserve list also. The
respondents have prepared select list and
the so called "reserve list". Despite
repeated query, respondents' counsel
could not tell any logical or substantial
difference between a "select list" and a
"reserve list" when the total number of
candidates selected and recommended in
the two lists are less than the total notified
vacancies. As already noticed above, the
number of vacancies, advertised in four
CPOs is 49080, while the number of
candidates, declared successful, in total,
are 44152 which included 6460 placed in
reserve list.

16. Meaning thereby the number of
candidates declared successful and kept in
select list is 37692, which is almost 11
thousand and odd, less than the total number
of vacancies advertised. Therefore, for all
practical purposes, the reserve list candidates
which included 6460 successful candidates is
at par with the select list and all the
candidates placed in reserve list are almost
sure and bound to get appointment. Here the
status of "reserve list" is not that of a wait
list, where the candidates selected and
recommended is beyond the advertised
number of vacancies, to the extent whereof
select list is prepared. Here the "reserve list"
as well as the "select list", both include
candidates whose aggregate number is much
less than the total number of vacancies
advertised. Why the respondents prepared a
reserve list of lesser candidates, I do not find
any reason either in the counter affidavit or
otherwise placed before me.

17. It is not disputed that petitioner
fulfil all the eligibility conditions with
respect to physical requirements, medical
requirements as also merit requirements.
Had he filled in column no. 17, in own
1468 INDIAN LAW REPORTS ALLAHABAD SERIES
words of the respondents, petitioner could
have been placed in the main select list,
prepared on the criteria of merit-cumoption, since number of candidates selected
therein have secured marks lesser than
petitioner. Therefore, so far as petitioner, as
an individual is concerned, he lack, neither
eligibility nor efficiency nor physical
capability needed for appointment in an
organization like CPOs, as above, nor his
academic and otherwise merit is inferior to
any of those who are already selected and
appointed. The only reason for denial of
such selection and appointment, comes
from the fact that respondents in their own
wisdom decided to consider candidates who
are otherwise eligible and possess requisite
merit but have failed to fill in column no. 17
of application form, for the purpose of only
reserve list and not the select list. This
differentiation, in my view, is patently
irrational, illogical and does not disclose
any rational classification vis-à-vis object
sought to be achieved.

18. Article 14 forbids class legislation
but
permits
reasonable
classification
provided that it is founded on an intelligible
differentia which distinguishes persons or
things that are grouped together from those
that are left out of the group and the
differentia has a rational nexus to the object
sought to be achieved by the legislation in
question. In re the Special Courts Bill, 1978
(1979) 1 SCC 380, Chandrachud, C.J.,
speaking for majority of the Court adverted
to large number of judicial precedents
involving interpretation of Article 14 and
culled out several propositions including the
following:

(i) The State, in the exercise of its
governmental power, has of necessity to
make laws operating differently on
different groups or classes of persons
within its territory to attain particular ends
in giving effect to its policies, and it must
possess for that purpose large powers of
distinguishing and classifying persons or
things to be subjected to such laws.

(ii) The constitutional command to
the State to afford equal protection of its
laws sets a goal not attainable by the
invention and application of a precise
formula. therefore, classification need not
be constituted by an exact or scientific
exclusion or inclusion of persons or
things. The courts should not insist on
delusive exactness or apply doctrinaire
tests for determining the validity of
classification
in
any
given
case.
Classification is justified if it is not
palpably arbitrary.

(iii) The principle underlying the
guarantee of Article 14 is not that the
same rules of law should be applicable to
all persons within the Indian territory or
that the same remedies should be made
available
to
them
irrespective
of
differences of circumstances. It only
means
that
all
persons
similarly
circumstanced shall be treated alike both
in privileges conferred and liabilities
imposed. Equal laws would have to be
applied to all in the same situation, and
there should be no discrimination between
one person and another if as regards the
subject-matter of the legislation their
position is substantially the same.

(iv) By the process of classification,
the State has the power of determining
who should be regarded as a class for
purposes of legislation and in relation to a
law enacted on a particular subject. This
power, no doubt, in some degree is likely
to produce some inequality; but if a law
deals with the liberties of a number of
well defined classes, it is not open to the
3 All] Bindhyachal Kumar Singh Vs. Union of India & Ors.
1469
charge of denial of equal protection on the
ground that it has no application to other
persons.
Classification
thus
means
segregation in classes which have a
systematic relation, usually found in
common properties and characteristics. It
postulates a rational basis and does not
mean herding together of certain persons
and classes arbitrarily.

(v) The law can make and set apart
the classes according to the needs and
exigencies of the society and as suggested
by experience. It can recognise even
degree of evil, but the classification
should never be arbitrary, artificial or
evasive.

(vi) The classification must not be
arbitrary but must be rational, that is to
say, it must not only be based on some
qualities or characteristics which are to be
found in all the persons grouped together
and not in others who are left out but
those qualities or characteristics must
have a reasonable relation to the object of
the legislation. In order to pass the test,
two conditions must be fulfilled, namely,
(1) that the classification must be founded
on an intelligible differentia which
distinguishes those that are grouped
together from others and (2) that that
differentia must have a rational relation to
the object sought to be achieved by the
Act.

19. In Roshan Lal Tandon Vs.
Union of India AIR 1967 SC 1889, one of
the questions fell for consideration was
whether the promotees and direct recruits
who formed one class in Grade 'D' could
thereafter be classified again depending
upon the source from which they were
drawn for the purpose of promotion to the
next higher Grade 'C'. This Court
observed:

"In our opinion, the constitutional
objection taken by the petitioner to this
part of the notification is well-founded
and must be accepted as correct. At the
time when the petitioner and the direct
recruits were appointed to Grade 'D', there
was one class in Grade 'D' formed of
direct recruits and the promotees from the
grade of artisans. The recruits from both
the sources to Grade 'D' were integrated
into one class and no discrimination could
thereafter be made in favour of recruits
from one source as against the recruits
from the other source in the matter of
promotion to Grade 'C'. To put it
differently, once the direct recruits and
promotees are absorbed in one cadre, they
form one class and they cannot be
discriminated for the purpose of further
promotion to the higher Grade 'C'."

20. The ratio of the decision in
Roshan Lal Tandon (supra) was reiterated
in State of Jammu and Kashmir v. Shri
Triloki Nath Khosa and Ors. 1974 (1)
SCC 19 in the following words:

44.The key words of the judgment
are: "The recruits from both the sources to
Grade 'D' were integrated into one class and
no discrimination could thereafter be made in
favour of recruits from one source as against
the recruits from the other source in the
matter of promotion to Grade 'C', (emphasis
supplied). By this was meant that in the
matter of promotional opportunities to Grade
'C', no discrimination could be made between
promotees and direct recruits by reference to
the source from which they were drawn.
That is to say, if apprentice train examiners
who were recruited directly to Grade 'D' as
train examiners formed one common class
with skilled artisans who were promoted to
Grade 'D' as train examiners, no favoured
treatment could be given to the former
1470 INDIAN LAW REPORTS ALLAHABAD SERIES
merely because they were directly recruited
as train examiners and no discrimination
could be made as against the latter merely
because they were promotees. This is the true
meaning of the observation extracted above
and no more than this can be read into the
sentence next following: "To put it
differently, once the direct recruits and
promotees are absorbed into one cadre, they
form one class and they cannot be
discriminated for the purpose of further
promotion to the higher Grade 'C'." In terms,
this was just a different way of putting what
had preceded.

21. Referring to above authorities,
Apex Court in B. Manmad Reddy and
Ors. Vs. Chandra Prakash Reddy and Ors.
AIR 2010 SC 1001 observed:

"There
is
no
gainsaying
that
classification must rest on a reasonable
and intelligible basis and the same must
bear a nexus to the object sought to be
achieved by the statute. By its very nature
classification can and is often fraught with
the danger of resulting in artificial
inequalities which make it necessary to
subject the power to classify to restraints
lest the guarantee of equality becomes
illusory on account of classifications
being fanciful instead of fair, intelligible
or reasonable." (emphasis added)

22.

Despite
repeated
query,
respondents could not tell as to why the
candidates like petitioners, who did not
fill in column no. 17 of the application
form, with respect to preference, ought
not have been considered for the main
select list by treating all those applications
to have given preference in order of the
codes, i.e., A, B, C, D or 1, 2, 3, 4, as the
case may be, which they have applied
admittedly,
by
considering
these
candidates, while preparing reserve list,
for the reason that this fault on the part of
candidates like petitioner has not been
treated fatal, so as to result in rejection of
candidature or the application form, but
treating this fault to be a mere irregularity,
a default deemed option clause has been
applied by respondents, but confined only
for reserve list and not the select list. The
approach of respondents, therefore, is
patently arbitrary and violative of Articles
14 and 16 (1) of the Constitution of India.

23. The view, I am taking above,
would obviously vitiate the process of
preparation of final result by the respondents
in its entirety, but since recruitment in
question pertains to thousand of candidates
and against 49 thousand and odd vacancies,
44 thousand and odd have been declared
successful as long back as in 2011, leaving
sufficient number of vacancies unfilled,
therefore, I am confining relief in this case to
the present petitioner only and direct
respondents to treat petitioner's preference/
option in respect to CPOs in order of A, B,
C, D for the purpose of select list and thereby
consider whether amongst the general
category candidates, and the post(s) for which
petitioner has applied, he is entitled to be
declared successful. If a person securing lesser
marks to him has been declared successful
and included in select list, petitioner shall also
be declared successful and further steps for his
appointment/ sending for training, as the case
may be, shall be taken without any further
delay. This exercise, in any case, shall be
completed within two months from the date of
production of a certified copy of this
judgment.

24. It is also made clear that in case
petitioner is appointed, his appointment
shall relate back to the date on which
person next lower to him in merit was
3 All] Karm Raj Dubey Vs. The State of U.P. & Anr.
1471
appointed, with all consequential benefits
for the purpose of pay fixation, seniority,
increment etc. except of actual arrears of
salary, which shall be paid to petitioner
from the date he is actually appointed.

25. The writ petition is allowed in the
manner, as above.

26. The petitioner shall also be
entitled to cost, which I quantify to Rs.
5,000/- (Rupees five thousand).
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.10.2013

BEFORE
THE HON'BLE SAAED-UZ-ZAMAN SIDDIQI, J.

U/S 482/378/407 No. 4823 of 2013

Karm Raj Dubey

 ...Applicant
Versus
The State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Karm Raj Dubey(In-Person)

Counsel for the Opposite Party:
G.A.
Criminal Revision-Dismissal-as not pressedwithout opposition-held-once revision filed
against-can be decided either way only on
its merit-such order of dismissal-is no order
-in eye of law.

Held: Para-15&16
15. In view of these authorities, it
appears that the concerned Revisional
Court has adopted obviously less tedious
approach in dismissing the revision only
because the application was moved that
the revision may be dismissed as not
pressed.

16. In either case, a criminal revision or
a criminal appeal has to be disposed of
by the Revisional Court/Appellate Court
on merits and not otherwise. Neither it
may be dismissed in default nor it can be
dismissed as the revisionist/appellant
did not wish to proceed with the
revision/appeal.

Case Law discussed:
(2007) 7 SCC 623; (2004) 4 SCC 158; (1978) 1
SCC 579; S.L.P. (Cri.) No. 9816 of 2009; 1992
Supp. 2 SCR 305; 1993(3)SCALE 312; (1996)
9 SCC 372; AIR 1987 SC 1500; AIR 1938 Sind
171; (1996) 4 SCC 720.

(Delivered by Hon'ble Saeed-Uz-Zaman
Siddiqi, J.)

1. By means of this petition, the
petitioner has prayed for quashing of the order
dated 13.08.2013 passed by the Learned
Sessions Judge,
Faizabad
in Criminal
Revision No. 265 of 2011, by which the
revision has been dismissed as not pressed.

2. I have heard learned counsel for
the petitioner as well Learned AGA.

3. Brief facts of the case are that the
petitioner and opposite party no. 2 are
closely related with each other and a large
number of civil disputes are pending
between
them
before Civil
Courts.
Opposite party no. 2 initiated a criminal
proceeding against the petitioner and his
two sons and another person. There was a
cross-case for which FIR No. 235 of 2011
was also lodged at P.S.- Kotwali Nagar.
Writ petition no. 6426 (DB) of 2011 was
also filed which was dismissed vide order
dated 03.05.2011. The learned Judicial
Magistrate, Faizabad passed order on
27.08.2011,
which
was
challenged
through
the
revision,
which
was
numbered as Criminal Revision No. 265
of 2011. The copy of order dated
13.08.2013 shows that an application was
moved by the revisionist that he wishes to
withdraw the revision as not pressed,