# Brahmapal Singh v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 1174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-16
- **Case number:** Civil Misc. Writ Petition No. 67878 of 2009
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brahmapal-singh-v-state-of-u-p-and-others-41423
- **Pages:** 3

## Headnote

U.P. Secondary Selection Board Act,
1982-appointment of principal petitioner
claiming his right to be interviewed
being senior most lecturer-G.O. dated
25.10.2000 provide benefit of lecturer to
Physical
Education
Training
teacherbenefit extended on 8.7.2006-benefit of
salary can not be ground to treat the
status of lecturer prior to 08.07.2006held-petitioner did have any experience
"as a lecturer" prior to that-in view of
lack of experience of four years-can not
claim for interviewed.

Held: Para 6 & 7

The petitioner therefore did not have any
experience "as a lecturer" prior to
08.07.2006.
The
petitioner
can
be
treated to have been acknowledged as a
lecturer only after the said date and his
experience has to be counted in this
capacity.

Accordingly,
the
petitioner
after
08.07.2006 does not have a minimum
experience of four years as held by the
Apex Court in Balbir Kaur's case (supra).
Case law discussed:
2008 (3) ESC 409,

## Text

1174 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
no stage of filing application under
Section 5 of the Limitation Act."

15. According to learned counsel for
the petitioner, the State of U.P. and the
Gaon Sabha were expected to act with a
lightening
speed
and
instantly
approaching the revisional court.

16. The Hon'ble Apex Court has
also observed that in the matter of State
litigation, it takes some time in taking a
decision to challenge an order in Appeal
or Revision, therefore, the Courts must
not take a rigid view while condoning the
delay.

17. In the present case, as it appears
from the ordersheet, the Deputy Director
of Consolidation has merely entertained
the revision and as such it is still open for
the petitioner to raise any objection,
factual or legal, whatever he desires and if
the same is raised it can be dealt with by
the revisional authority. In fact, no cause
of action has accrued to the petitioner for
filing the present writ petition under
Article 226 of the Constitution of India.

18. In view of the discussions made
above, the writ petition, being devoid of
merits, is dismissed with costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 67878 of 2009

Brahmapal Singh

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

Counsel for the Petitioner:
Sri A.B. Saran
Sri Vinod Kumar Rai

Counsel for the Respondents:
Sri Ashok Khare
Sri S.P. Singh
Sri A.K. Yadav
C.S.C.

U.P. Secondary Selection Board Act,
1982-appointment of principal petitioner
claiming his right to be interviewed
being senior most lecturer-G.O. dated
25.10.2000 provide benefit of lecturer to
Physical
Education
Training
teacherbenefit extended on 8.7.2006-benefit of
salary can not be ground to treat the
status of lecturer prior to 08.07.2006held-petitioner did have any experience
"as a lecturer" prior to that-in view of
lack of experience of four years-can not
claim for interviewed.

Held: Para 6 & 7

The petitioner therefore did not have any
experience "as a lecturer" prior to
08.07.2006.
The
petitioner
can
be
treated to have been acknowledged as a
lecturer only after the said date and his
experience has to be counted in this
capacity.

Accordingly,
the
petitioner
after
08.07.2006 does not have a minimum
experience of four years as held by the
Apex Court in Balbir Kaur's case (supra).
Case law discussed:
2008 (3) ESC 409,

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Shri A.B. Saran, learned
Senior Counsel for the petitioner assisted
by Shri Vinod Kumar Rai, Advoate, Shri
Ashok Khare, learned Senior Counsel for
the respondent no. 6 assisted by Shri S.P.
Singh, Advocate and the learned standing
counsel.
3 All] Brahmapal Singh V. State of U.P. and others
1175
2. The contention of the petitioner is
that he deserves to be interviewed as a
senior most lecturer keeping in view the
fact that he has teaching experience of
Class 11 and 12 in the institution and
therefore in terms of the Rules framed
under the U.P. Secondary Services
Selection Boards Act, 1982, the petitioner
has to be called for interview.

3. Shri Ashok Khare has taken a
preliminary objection to the said claim of
the petitioner on the ground that the
petitioner does not have an experience in
the lecturer grade in view of the law laid
down in the case of Balbir Kaur and
another Vs. U.P. Secondary Education
Services Selection Board, Allahabad and
others reported in 2008 (3) ESC 409. He
submits that in the absence of requisite
teaching experience as defined under the
aforesaid judgment of the Apex Court, the
petitioner is not entitled for being
interviewed.

4. The matter was adjourned on
14.12.2009 to enable the learned counsel
for the petitioner to substantiate his claim
of
teaching
experience
and
a
supplementary affidavit has been filed
today bringing on record the Government
Order dated 25th October, 2000, under
which the petitioner was granted the
benefit of the pay scale of a lecturer. The
petitioner was admittedly a Physical
Education Training teacher. The said
cadre was extended benefits of pay scale
in the lecturers grade under the relevant
Government Orders. There are certain
queries with regard to the status of such
teachers, which came to be clarified under
the
Government
Order
dated
25th
October, 2000. The said Government
Order in Clause 7 specifically recites that
a person claiming such benefit would be
entitled to the same after he assumes
charge as a lecturer upon being granted
the said benefit. It is further provided
therein that any service rendered prior to
such grant would be treated to be in the
L.T. Grade and seniority also cannot been
claimed by such a teacher.

5. It is undisputed that the petitioner
has been extended the benefit under the
said order dated 8th July, 2006, a copy
whereof is annexure 2 to the writ petition.
The said order recites that the petitioner
was being extended the benefit under the
Government Order dated 25.10.2000 and
he is entitled to the said pay scale in view
of his having completed 10 years. The
said pay scale was being given w.e.f.
29.01.2001.

6. In view of the aforesaid position,
it is clear that the petitioner has been
extended the benefit under the order dated
8th July, 2006 and therefore he can claim
experience as a lecturer only with effect
from the said date and not any date prior
to that. Apart from this, the benefit under
the Government Order dated 25.10.2000
does not appear to bring a teacher so
benefited, within the regular cadre of
lecturers. The post however gets upgraded
for being converted into the lecturers
grade later on. This transitory nature of
the post therefore cannot confer any
benefit as lecturer so long as an order is
not passed, as in the present case, on
08.07.2006. The petitioner therefore did
not have any experience "as a lecturer"
prior to 08.07.2006. The petitioner can be
treated to have been acknowledged as a
lecturer only after the said date and his
experience has to be counted in this
capacity.
1176 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
7. Accordingly, the petitioner after
08.07.2006 does not have a minimum
experience of four years as held by the
Apex Court in Balbir Kaur's case (supra).

8. The writ petition therefore lacks
merit and is accordingly dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2009

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE K.N. PANDEY, J.

Special Appeal No.1748 of 2009

U.P. Cement Vetanbhogi Sahkari Rin
Samiti Ltd.

...Appellant
Versus
Official Liquidator & another...Respondents

Counsel for the Petitioner:
Sri W.H. Khan
Sri J.H. Khan
Sri Ravi Prakash Srivastava

Counsel for the Respondents:
Sri Ashok Mehta

High Court rules-Chapter VIII, Rule-5Special Appeal-order passed by Single
Judge under Section 438 of companies
Act-exercising
Appellate
jurisdictionclearly bar under Section 100-A C.P.C.-
law laid down in K.K. Dutta's Case by
Apex
Court-fully
applicable-Special
Appeal-held-not maintainable.

Held: Para 20 & 22

In view of the foregoing discussion, it is
clear that even if under Section 483,
there was no condition prohibiting an
appeal against an order of the learned
Single
Judge
passed
in
appellate
exercise
of
jurisdiction,
the
said
exclusion has been now specifically
provided in by the Legislature under
Section 100-A C.P.C. The judgment of
the Apex Court in Kamal Kumar Dutta
(supra) applies with full force in the
facts of the present case.

The application moved for correction in
the
order
passed
in
the
appellate
exercise of jurisdiction by the learned
Single Judge clearly bars further appeal
under Section 483 of the Companies Act,
as well as Letters Patent as laid down by
the Apex Court in the case of Kamal
Kumar Dutta (supra).
Case law discussed:
AIR 1965 SC, 507; AIR 1988 SC, 325, AIR
2004 Bombay, 38, 2004 (11) SCC 672, 2006
(7) SCC 613.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Shri W.H. Khan, learned
Senior Advocate assisted by Shri J.H.
Khan for the appellant and Shri Ashok
Mehta for the respondents.

2. This Special Appeal under
Chapter VIII Rule 5 of the High Court
Rules has been filed against the judgment
and order of the learned Single Judge of
this Court dated 26/5/2009 deciding the
Application for Correction in an earlier
order dated 27/4/2007 passed by learned
Single Judge in Civil Misc. Company
Appeal/Objection
No.85/2007
in
Company Application No. 4/97. The
application has been rejected by a learned
Single Judge vide its order dated
26/5/2009. The order dated 27/4/2007 was
passed by learned Single Judge under
Rule 164 of the Companies (Court) Rules,
1959 (hereinafter called the "Rules
1959"). In the matter of the report of the
Official
Liquidator,
Uttar
Pradesh
adjudicating on the ''proof of debts' and
proposing to distribute the sale proceeds
of the assets of the ''U.P. State Cement