# Brij Raj Dwivedi v. State of U.P. and others

- **Citation:** (2010) 1 ILRA 17
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-01-08
- **Case number:** Civil Misc. Writ Petition No. 645 of 2010
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-raj-dwivedi-v-state-of-u-p-and-others-41542
- **Pages:** 5

## Headnote

Constitution Of India Art.226- SalaryPetitioner working as Principal-Sanskrit
Madhyamic Vidyalaya After retirement of
regular
Principal
on
15.03.2002-
signature also attested by D.I.O.S.-No
appointment letter following procedure
as contained in section 25 of U.P. Board
of Secondary Sanskrit Education Act,
2000-Produced-attesting signature for
administrative purpose-can not be the
basis for payment of salary.

Para:-6 & 7

In Selva Raj (supra), the case relied by
the petitioner, the Court found that
when the petitioner (Selva Raj) was
allowed to discharge duties of Secretary
(Scouts), his salary was also drawn
against the post of Secretary (Scouts)
under GPR 77, yet he was not paid the
salary. In these factual circumstances,
the Apex Court found when he was
allowed to work on a higher post, though
in temporary and officiating capacity and
his salary was drawn during that time
against the post of Secretary (Scouts),
on the principle of quantum merit, the
respondents-authorities
should
have
paid him the emoluments of the post of
Secretary (Scouts). In para 4 the Apex
Court further clarified that the payment
made under the order of the Apex Court
shall not be treated as if any promotion
was given to the appellant Selva Raj on
the post of Secretary (Scouts). Besides,
the order by which he was posted is also
quoted in the judgment of the Apex
Court and it shows that by the order
passed by the competent authority,
Selva Raj was specifically attached to
look
after
the
duties
of
Secretary
(Scouts) with a further condition that his
salary shall be drawn against the post of
Secretary (Scouts) under GPR 77. In the
case in hand there is no order of
appointment of the petitioner in any
manner but it appears that on the death
of the Principal, the petitioner was
allowed to officiate and his signatures
were
attested
for
administrative
purposes. He was never appointed at any
point of time on the post of Principal.

In the case of Bhagwat Prasad Pandey
(supra), this Court as such has not
decided any issue but has referred to the
earlier
judgment
of
this
Court
in
Narmedeshar Misra Vs. District Inspector
of Schools, Deoria & others 1982 UPLBEC
171 which has been considered by the
Division Bench (in which I was also a
member) in Daljeet Singh (supra) and in
view of the discussion made therein, I do
not find that the same, in any manner,
help the petitioner.
Case Law Discussed
AIR 1999 SC 838, Writ Petition No. 64399 of
2009 decided on 27.11.2009, 2007(2) ESC
987, 1991 Supple (2) SCC 733, 2007(7) ADJ
117, 1982 UPLBEC 171.

## Text

1 All] Brij Raj Dwivedi V. State of U.P. and others
17
fundamentally changes the nature and
character of the case ? and
(6) As a general rule, the Court
should decline amendment s if a fresh suit
on the amended claims would be barred
by limitation on the date of application.

68. These are some of the important
factors which may be kept in mind while
dealing with application filed under
Order VI Rule 17. These are only
illustrative and not exhaustive.
69. The decision on an application made
under Order VI Rule 17 is a very serious
judicial exercise and the said exercise
should never be undertaken in a casual
manner.
70. We can conclude our discussion by
observing
that
while
deciding
applications for amendments the courts
must not refuse bonafide, legitimate,
honest and necessary amendments and
should never permit mala fide, worthless
and/or dishonest amendments."

9. The trial court has recorded
categorical finding that by the amendment
the defendants intended to resile with the
admission made in the written statement,
which is not permissible in law. The apex
Court in the case of Gautam Sarup (supra)
has held that under Order 6 Rule 17 the
party cannot be permitted to resile from
the admissions made in the earlier written
statement
by
moving
amendment
application.

It is also necessary to examine Order
6 Rule 17 which reads as follows :

"The court may at any stage of the
proceedings allow either party to alter or
amend his pleading in such manner and
on such terms as may be just, and all such
amendments shall be made as may be
necessary for the purpose of determining
the real questions in controversy between
the parties :

Provided that no application for
amendment shall be allowed after the trial
has commenced, unless the court comes to
the conclusion that in spite of due
diligence, the party could not have raised
the matter before the commencement of
trial."

10. In the present case the evidence
of both the parties have been closed and
the suit was fixed for final hearing and,
therefore, the trial had commenced. No
reason has been given that inspite of the
due diligence the applicant could not have
raised the plea taken in the amendment
application
in
the
earlier
written
statement. In the circumstances, the
petitioner is not entitled for the benefit of
the proviso to Order 6 Rule 17.

11. On the facts and circumstances
stated above, I am of the view that the
trial court has rightly exercised its
discretion
in
not
entertaining
the
amendment application. In the result the
revision fails and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2010

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 645 of 2010

Brij Raj Dwivedi

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

Counsel for the Petitioner:
Sri Ashok Kumar Dwivedi
18 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Counsel for the Respondents:
C.S.C.

Constitution Of India Art.226- SalaryPetitioner working as Principal-Sanskrit
Madhyamic Vidyalaya After retirement of
regular
Principal
on
15.03.2002-
signature also attested by D.I.O.S.-No
appointment letter following procedure
as contained in section 25 of U.P. Board
of Secondary Sanskrit Education Act,
2000-Produced-attesting signature for
administrative purpose-can not be the
basis for payment of salary.

Para:-6 & 7

In Selva Raj (supra), the case relied by
the petitioner, the Court found that
when the petitioner (Selva Raj) was
allowed to discharge duties of Secretary
(Scouts), his salary was also drawn
against the post of Secretary (Scouts)
under GPR 77, yet he was not paid the
salary. In these factual circumstances,
the Apex Court found when he was
allowed to work on a higher post, though
in temporary and officiating capacity and
his salary was drawn during that time
against the post of Secretary (Scouts),
on the principle of quantum merit, the
respondents-authorities
should
have
paid him the emoluments of the post of
Secretary (Scouts). In para 4 the Apex
Court further clarified that the payment
made under the order of the Apex Court
shall not be treated as if any promotion
was given to the appellant Selva Raj on
the post of Secretary (Scouts). Besides,
the order by which he was posted is also
quoted in the judgment of the Apex
Court and it shows that by the order
passed by the competent authority,
Selva Raj was specifically attached to
look
after
the
duties
of
Secretary
(Scouts) with a further condition that his
salary shall be drawn against the post of
Secretary (Scouts) under GPR 77. In the
case in hand there is no order of
appointment of the petitioner in any
manner but it appears that on the death
of the Principal, the petitioner was
allowed to officiate and his signatures
were
attested
for
administrative
purposes. He was never appointed at any
point of time on the post of Principal.

In the case of Bhagwat Prasad Pandey
(supra), this Court as such has not
decided any issue but has referred to the
earlier
judgment
of
this
Court
in
Narmedeshar Misra Vs. District Inspector
of Schools, Deoria & others 1982 UPLBEC
171 which has been considered by the
Division Bench (in which I was also a
member) in Daljeet Singh (supra) and in
view of the discussion made therein, I do
not find that the same, in any manner,
help the petitioner.
Case Law Discussed
AIR 1999 SC 838, Writ Petition No. 64399 of
2009 decided on 27.11.2009, 2007(2) ESC
987, 1991 Supple (2) SCC 733, 2007(7) ADJ
117, 1982 UPLBEC 171.

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

1. Heard Sri Ashok Kumar Dwivedi
for the petitioner.

2. The grievance of the petitioner is
that he was allowed to discharge duties of
Principal after attesting his signature by
the District Inspector of schools on
officiating basis on 3.7.2003 but has not
been paid salary payable on the post of
Principal and instead he has continuously
been paid salary of the post he holds on
substantive
basis
which
is
illegal,
arbitrary and violative of principle of
'equal pay for equal work'. He placed
reliance on the Apex Court decision in
Selva Raj Vs. Lt. Governor of Island,
Port Blair AIR 1999 SC 838 and a single
Judge decision of this Court in Writ
Petition No. 64399 of 2009 (Bhagwat
Prasad Pandey Vs. state of U.P. &
others) decided on 27.11.2009.
1 All] Brij Raj Dwivedi V. State of U.P. and others
19
3. However, I find no force in
submission. From the record, it is evident
that the post of Principal in Sanskrit
Madhyamik Vidyalaya, Sonaha, District
Basti (hereinafter referred to as "College")
fell vacant on 15.3.2002 as a result
whereof the petitioner was allowed to
look after the duties of the Principal as
officiating Principal and his signature was
attested by the Deputy Inspector (Sanskrit
Pathshala),
Gorakhpur
Mandal,
Gorakhpur by letter dated 3.7.2002. No
letter of appointment of the petitioner
appointing
him
even
as
officiating
Principal has been placed on record.
Learned counsel for the petitioner, even
otherwise, could not show any provision
under which the Management could have
appointed the petitioner on officiating
basis as Principal of the College. Whether
a person, who is allowed to look after the
duties of the higher post can be treated to
be a person appointed on the post in order
to claim salary is a question considered by
a Division Bench of this Court in Smt.
Vijay Rani Vs. Regional Inspectress of
Girls Schools Region-I, Meerut &
others 2007 (2) ESC 987 and this Court
observed as under:

"The aforesaid documents cemented
the
conclusion
that
the
PetitionerAppellant was only required to look after
and discharge the duties of the officiating
Principal
but
was
never
promoted/appointed on the said post. In
other words, it can be said that the
Petitioner-Appellant
was
given
only
current duty charge in addition to her
substantive post and this arrangement did
not result in promotion to the post of
which, the current duty charge was
handed over. In State of Haryana Vs.
S.M. Sharma AIR 1993 SC 2273, the
Chief
Administrator
of
the
Board
entrusted Sri S.M. Sharma, with the
current duty charge of the post of
Executive
Engineer,
which
was
subsequently withdrawn as a result of his
transfer to other post. He challenged the
said order stating that it amounts to
reversion. The Apex Court held that Sri
Sharma was only having current duty
charge of the Executive Engineer and was
never promoted or appointed to the
aforesaid post and therefore, on transfer
to some other post, it did not result in
reversion from the post of Executive
Engineer.
A
somewhat
similar
situation
occurred in Ramakant Shripad Sinai
Advalpalkar Vs. Union of India and
others, 1991 Supple (2) SCC 733 and the
Apex Court observed as under:-

"The distinction between a situation
where a government servant is promoted
to a higher post and one where he is
merely asked to discharge the duties of
the higher post is too clear to require any
reiteration. Asking an officer who
substantively holds a lower post merely
to discharge the duties of a higher post
cannot be treated as a promotion."

It was further held that such
situations
are
contemplated
where
exigencies of public service necessitate
such
arrangements
and
even
consideration of seniority do not enter
into it sometimes. However the person
continues to hold substantive lower post
and only discharges duties of the higher
post
essentially
as
a
spot-gap
arrangement. A further contention was
raised that if such an arrangement
continued for a very long period it would
give some kind of right to continue on the
post but negativing such contention, it
was held that an in-charge arrangement
20 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
is neither recognition nor is necessarily
based on seniority and therefore, no
rights, equities and expectations can be
built upon it.
In this view of the matter, the
Petitioner-Appellant has miserably failed
to show that the management ever
appointed her as officiating Principal of
the College and, therefore, we hold that
she was only allowed to discharge duties
of the office of officiating Principal, but
was never appointed/promoted by the
management as officiating Principal of
the College. The question no. 1 is
answered and decided accordingly."

4. Besides above, there is another
aspect of the matter. The petitioner was
working in a Sanskrit College. After the
enforcement of U.P. Board of Secondary
Sanskrit Education Act, 2000 (hereinafter
referred to as "2000 Act"), the institutions
imparting Sanskrit education upto Uttar
Madhyama
are
governed
by
the
provisions of the said Act. Section 25 of
2000
Act
provides
procedure
for
appointment of Head of the institution,
teachers and other employees and reads as
under:

"25. Procedure for appointment of
Head of institution, teachers and other
employees.- Subject to the provisions of
this Act, the Head of institution and
teachers and other employees of an
institution
shall
be
appointed
in
accordance with the regulations."

5. Neither any regulation nor any
material has been shown to this Court to
fortify that the petitioner was ever
appointed
in
accordance
with
the
procedure prescribed for appointment for
the post of Principal. The question where
no appointment whatsoever has been
made, whether an incumbent can be
directed to be paid salary of the higher
post though he is substantively holding
another post was also considered at length
by this Court in Daljeet Singh Vs. State
of U.P. & others 2007 (7) ADJ 117 and
negatived therein.

6. In Selva Raj (supra), the case
relied by the petitioner, the Court found
that when the petitioner (Selva Raj) was
allowed to discharge duties of Secretary
(Scouts), his salary was also drawn
against the post of Secretary (Scouts)
under GPR 77, yet he was not paid the
salary. In these factual circumstances, the
Apex Court found when he was allowed
to work on a higher post, though in
temporary and officiating capacity and his
salary was drawn during that time against
the post of Secretary (Scouts), on the
principle
of
quantum
merit,
the
respondents-authorities should have paid
him the emoluments of the post of
Secretary (Scouts). In para 4 the Apex
Court further clarified that the payment
made under the order of the Apex Court
shall not be treated as if any promotion
was given to the appellant Selva Raj on
the post of Secretary (Scouts). Besides,
the order by which he was posted is also
quoted in the judgment of the Apex Court
and it shows that by the order passed by
the competent authority, Selva Raj was
specifically attached to look after the
duties of Secretary (Scouts) with a further
condition that his salary shall be drawn
against the post of Secretary (Scouts)
under GPR 77.

In the case in hand there is no order
of appointment of the petitioner in any
manner but it appears that on the death of
the Principal, the petitioner was allowed
to officiate and his signatures were
1 All] Jai Prakash Singh V. State of U.P. and others
21
attested for administrative purposes. He
was never appointed at any point of time
on the post of Principal.

7. In the case of Bhagwat Prasad
Pandey (supra), this Court as such has
not decided any issue but has referred to
the earlier judgment of this Court in
Narmedeshar
Misra
Vs.
District
Inspector of Schools, Deoria & others
1982 UPLBEC 171 which has been
considered by the Division Bench (in
which I was also a member) in Daljeet
Singh (supra) and in view of the
discussion made therein, I do not find that
the same, in any manner, help the
petitioner.

8. In view of the above discussions,
I find no merit in the writ petition.
Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2010

BEFORE
THE HON'BLE PRADEEP KANT, J.

Civil Misc. Writ Petition No. 1015 of 2008

Jai Prakash Singh Yadav
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Someshwari Prasad
Sri A.S. Dubey
Sri Vijay Kumar Gautam

Counsel for the Respondents:
Sri Tirath Raj Shukla
C.S.C.

U.P. Police Officer Subordinate Rank
(Punishment
&
appeal
Rule
1991-
Section
Rule
8(2)(b)-
Dismissal
by
dispense with. enquiry- petitioner a
police constable- after facing selection
process
appointed
-at
the
time
of
appointment date of birth recorded as
1.7.86- Subsequently it is alleged that as
per information given by Board -the date
of birth is 1.7.87 and not 1.7.86- even in
counter affidavit not disclosed that as to
how this entry made? who permitted to
correct- the authorities not only acted
negligently and carelessly but devised
novel method by getting report about
date of birth to dismiss its petitioner -
furnishing High School Certificate with
incorrect date of birth-why could not be
inquired ? Dismissal order quashed with
cost of Rs.50,000/- recoverable from
erring officer.

Para: 21, 22, & 24.

Notice is also taken in the present case
of the fact that the charge against the
petitioner in the instant case was that he
furnished a forged certificate of High
School examination where the date of
birth was recorded as 1.7.1986 but it
was found on verification from the Board
that it was actually 1.7.1987. Why for
such a charge the inquiry was not
possible or why it was not reasonable
and practicable to hold such inquiry
against the employee has not been
disclosed at all. It was a simple case
where a person who was selected and
later on appointed, was charged of
furnishing the high school certificate
which incorrectly recorded his date of
birth. Such a charge could have been
very well enquired into by holding
departmental inquiry.

This
Court
is,
therefore,
of
the
considered opinion that Rule 8(2) (b)
could not have been attracted in the
instant case and, therefore, the order of
dismissal is per se bad in law.

In the given facts and circumstances of
the case, the writ petition deserves to be
allowed with compensatory cost as the
petitioner has been ousted from service