# Cane Commissioner, U.P. & Ors v. Adalat Singh

- **Citation:** (2020) 6 ILRA 778
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-03
- **Case number:** Special Appeal Defective No. 179 of 2020
- **Bench:** Biswanath Somadder, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/cane-commissioner-u-p-ors-v-adalat-singh-45795
- **Pages:** 7

## Headnote

A. Constitution of India - Article 226 -
Writ - Delay - Jurisdiction of Court -
Inordinate delay in approaching the writ Court
for reasons of want of bona fides or inaction
or negligence would deprive a party from his
rights
of
invoking
the
extraordinary
discretionary jurisdiction of the Court - The
exercise of jurisdiction under Article 226 is
essentially discretionary in nature and in a
case of negligence or deliberate gross inaction
or lack of bona fides on part of the party
6 All. Cane Commissioner, U.P. & Ors. Vs. Adalat Singh 779
approaching the Court, it may not be
appropriate to exercise such discretionary
jurisdiction - An explanation which is ex facie
concocted and based on fanciful grounds,
would be liable to be rejected. (Para 17 and
18)
Special Appeal allowed; Writ Petition
dismissed (E-1)
Cases relied on :-

## Text

778 INDIAN LAW REPORTS ALLAHABAD SERIES
cases
that
in
spite
of
satisfactory
performance, the authority may desire to
compulsorily retire an employee in public
interest, as in the opinion of the said
Authority, the post has to be manned by a
more efficient and dynamic person and if
there is sufficient material on record to
show that the employee "rendered himself
a liability to the institution", there is no
occasion for the court to interfere in the
exercise of its limited power of judicial
review."

20. The provisions contained under
Regulation 2 (b) and Regulation 2 (c) of
the Regulations 1975 being in similar
terms as Fundamental Rule 56 (j) of the
Fundamental
Rules
as
also
the
Fundamental Rule 56 (c) of the U.P.
Fundamental Rules, the legal principles,
which have evolved in terms of judicial
precedents on the point of compulsory
retirement under the Fundamental Rules,
would squarely apply.

21. In the facts of the present case, the
records of the case clearly reflect that the
order of compulsory retirement has been
passed as per the provisions contained under
the Regulations, 1975, in terms of the Board
Order dated 22.02.1991 and as per the
Screening Committee recommendation dated
07.10.1994 on the basis of adverse reports in
the character rolls, gross negligence of duties
and indiscipline. The subjective satisfaction,
having thus been recorded by the appropriate
authority under the statutory regulations, the
order cannot be said to be without basis or
having been passed on extraneous reasons or
without there being any material to support
the same so as to render it arbitrary.

22. The judgment of the learned Single
Judge whereunder the order of compulsory
retirement has been set aside by stating the
reason that the same has been passed without
any material to support it and nothing in that
regard had been referred to in the counter
affidavit, thus cannot be supported from the
facts which are evident from the records.

23. The judgment of the learned Single
Judge is thus legally unsustainable and is
therefore set aside.

24. The Special Appeal is accordingly
allowed.

25. The writ petition stands dismissed.
----------
(2020)06ILR A778
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE
THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal Defective No. 179 of 2020

Cane Commissioner, U.P. & Ors.
 ...Appellants
Versus
Adalat Singh ...Respondent

Counsel for the Appellants:
Sri Ravindra Singh

Counsel for the Respondent:
Sri Hari Nath Tripathi

A. Constitution of India - Article 226 -
Writ - Delay - Jurisdiction of Court -
Inordinate delay in approaching the writ Court
for reasons of want of bona fides or inaction
or negligence would deprive a party from his
rights
of
invoking
the
extraordinary
discretionary jurisdiction of the Court - The
exercise of jurisdiction under Article 226 is
essentially discretionary in nature and in a
case of negligence or deliberate gross inaction
or lack of bona fides on part of the party
6 All. Cane Commissioner, U.P. & Ors. Vs. Adalat Singh 779
approaching the Court, it may not be
appropriate to exercise such discretionary
jurisdiction - An explanation which is ex facie
concocted and based on fanciful grounds,
would be liable to be rejected. (Para 17 and
18)
Special Appeal allowed; Writ Petition
dismissed (E-1)
Cases relied on :-
1. Esha Bhattacharjee Vs Raghunathpur Nafar
Academy & ors. (2013) 12 SCC 649
(Delivered by Hon'ble Biswanath
Somadder &
Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. This Special Appeal arises in
respect of a judgment and order dated
29th May, 2019, passed by a learned
Single Judge in Writ-A No.29775 of 2000
(Adalat Singh Vs. Cane Commissioner
and others).

2. By the impugned judgment and
order, the learned Single Judge was
pleased to allow the writ petition by
setting aside the impugned order dated
22nd
February,
1990
with
the
observations that the writ petitioner was
entitled to all consequential benefits.

3. The appellants before us are the
Cane
Commissioner,
Uttar
Pradesh,
Lucknow and others.

4. The facts of the case reveal that
the writ petitioner was appointed as a
Class-IV employee at Sahkari Ganna
Vikas Samiti Ltd. Dhaulana, District
Ghaziabad in terms of an appointment
order dated 3rd January, 1984. This
appointment order which is annexed to
the papers before us, reveals that his
engagement was purely temporary and
adhoc in nature. Thereafter on 22nd
February, 1990 for reasons stated in the
order issued on that date, his services
were terminated.

5. For convenience, the said order
dated 22nd February, 1990 is reproduced
hereinbelow along with the official
English translation:-

^^lgdkjh xUuk fodkl lfefr fy0

/kkSykuk] ftyk xkft;kckn

jftLVMZ

fnukad 22-02-90

i=kad 559@60

vkns'k

Jh vnkyr flag

nSfud LVksj eSu

tksuy xUuk lsok izkf/kdkj.k dh
cSBd fnukad 1-12-90 ds izLrko la[;k 6 ds
vuqlkj vkidh lsok;sa yEch vof/k ls viuh
M~;wVh ls vuqifLFkr jgus o vuq'kklu ghurk
cjrus ds dkj.k fnukad 01-08-89 ls gh lekIr
dh tkrh gSA

g0v0@22-02-90

 lfpo

lgdkjh xUuk fodkl

 lfefr fy0

/kkSykuk 1⁄4xkft;kckn1⁄2

dk;kZy; lgdkjh xUuk fodkl lfefr
fy0 /kkSykuk 1⁄4xkft;kckn1⁄2

i=kad--- fnukd%---
780 INDIAN LAW REPORTS ALLAHABAD SERIES

izfrfyfi%& 1- ftyk xUuk vf/kdkjh
xkft;kckn dks lwpukFkZ tksuy xUuk lsok
izkf/kdkj.k ds izLrko la[;k 6 dh lR; izfrfyfi
lfgr izsf"krA

lfpo

lgdkjh xUuk fodkl

 lfefr fy0

/kkSykuk 1⁄4xkft;kckn1⁄2

1⁄4lR; izfrfyfi1⁄2**

(English Translation)--

"Cooperative Sugarcane
Development Societies Ltd.

Dhaulana, District Ghaziabad

Registered

Date-22/02/90

Letter No.559/60

Order

Sri Adalat Singh

Daily Store man

As per resolution no.6 of the meeting
of Zonal Sugarcane Service Authority
held on 01.12.90, your service is
terminated w.e.f. 01.08.89 itself due to
being absent from duties for a long period
and lack of discipline.

Sd/Illegible/22.02.90

Secretary

Cooperative
Sugarcane Development Societies Ltd.

Dhaulana (Ghaziabad)

Office of the Cooperative Sugarcane
Development Societies Ltd. Dhaulana
(Ghaziabad).

Letter No... Date:...

Copy to:- 1. Forwarded to the
District Sugarcane Officer, Ghaziabad for
information along with the copy of
resolution no.6 of Zonal Sugarcane
Service Authority.

Secretary

Cooperative
Sugarcane Development

Societies Ltd.

Dhaulana (Ghaziabad)

(True copy)"

6. The writ petitioners filed the writ
petition on 11th July, 2000. The principal
prayers made in the writ petition are as
follows:-

(i) Issue a writ, order or
direction in the nature of mandamus
directing the respondent no.5 and 6 to pay
the entire payment of the petitioner w.e.f.
Nov. 1998 to May 1998 and also the
bonus, allowances etc. and also direct the
respondent no.6 to pay the current
payments of the petitioner alongwith
revised pay scale and increments.

(ii) Issue a writ, order or
direction in the nature of Mandamus
6 All. Cane Commissioner, U.P. & Ors. Vs. Adalat Singh 781
directing the respondent no.3 to promote
the petitioner on the post of Clerk and to
pay the Pay Scale of Clerks as admissible
on the rules.

Prayer (after amendment)

(iv) To issue a writ, order or
direction in the nature of Certiorari
quashing the impugned termination order
dated 22.02.1990 passed by respondent
no.5 already attached as C.A.-4 in counter
affidavit filed on behalf of respondent
no.5."

7. The learned Single Judge upon
considering the respective contentions of
the parties as well as pleadings on record,
proceeded to allow the writ petition by
setting aside the order of termination
dated 22nd February, 1990, with a further
observation that the petitioner shall be
entitled to all consequential benefits. The
reasoning assigned by the learned Single
Judge to support the order, is in the
following terms:-

"4. For the purpose of present
case, whether petitioner is 'temporary'
or 'permanent' employee, the facts
remains that by means of impugned
order, he has been terminated with
allegation
that
he
has
been
unauthorizedly absent and therefore, has
committed misconduct.

5. If that be so, such a
termination
is
not
a
termination
simplicitor but punitive in nature and such
termination cannot be made without
holding inquiry in accordance with Rules
i.e. Rules 84 and 85 of U.P. Co-operative
Societies Employees Service Regulations,
1975
(hereinafter
referred
to
as
"Regulations, 1975".

x x x

9. The termination of petitioner,
therefore,
is
founded
on
alleged
misconduct hence punitive in nature and
without holding any inquiry. Hence, order
of termination passed by respondents
authorities cannot be sustained.

10. In the result, writ petition is
allowed.
Impugned
order
dated
22.02.1990 (Annexure 25 to writ petition)
is hereby set aside. The petitioner shall be
entitled to all consequential benefits."

8. A plain reading of the impugned
judgment and order dated 29th May, 2019
reveals that the learned Single Judge did
not go into the moot question as to
whether discretionary jurisdiction of this
Court
under
Article
226
of
the
Constitution of India is available to a
person who sleeps over his rights for a
considerably long period of time.

9. This answer is not forthcoming
from a plain reading of the impugned
judgment and order. While it is true that
even a temporary servant may be entitled
for protection if his/her services are
sought to be terminated on account of
misconduct, negligence, inefficiency or
like, such a protection can only be
afforded to a person who demonstrates
palpable bona fides while approaching the
writ Court.

10. The records of the case reflect
that the writ petition was initially filed for
the purpose of seeking a direction upon
the respondent authorities for payment of
his dues from November, 1989 to May,
1998, which was based on pleadings to
the effect that payments had not been
made to him from the month of August,
1989 onwards. To support the aforesaid
contention, a copy of a representation
782 INDIAN LAW REPORTS ALLAHABAD SERIES
addressed to the Cane Commissioner,
U.P.,
was
appended
as
annexure-2
wherein a claim was stated to have been
made for payment of salary and other
dues from the month of August, 1989.

11. A counter affidavit dated 9th
August, 2004 on behalf of the respondent
no.5-Secretary, Sahkari Ganna Vikas
Samiti Ltd. Dhaulana, District Ghaziabad,
was filed wherein it was stated that the
petitioner had been terminated by means
of an order dated 22nd February, 1990, in
terms of a resolution passed by Sahkari
Ganna Samiti and a copy thereof had
been sent to him under a registered cover
on the same date.

12. After a considerable lapse of
time, an amendment application dated
14th July, 2017, came to be filed by the
petitioner wherein it was stated that the
counter affidavit dated 9th August, 2004
filed by the respondent no.5 indicated that
his services stood terminated on 22nd
February, 1990 and accordingly necessary
amendments were being sought in the
pleadings and the prayer clause so as to
raise a challenge to the said termination
order dated 22nd February, 1990.

13. The stand taken by the petitioner
that he was not aware of passing of the
termination order dated 22nd February,
1990, does not appear to be plausible. The
non-payment of salary and other dues
from November, 1989 onwards, which
was set up as the basis for filing of the
writ petition, seems to have a connection
to the fact that the services of the
petitioner stood terminated in the year
1990. The various representations, stated
to have been submitted before the
authorities, in the year 1998, raising a
claim in respect of dues for the period
1989 onwards appear to have been made
in order to create cause of action for filing
of the petition.

14. Even if one goes by the
pleadings in the writ petition, there is no
explanation whatsoever as to why the
petitioner chose to remain silent for a
considerably long period of time before
setting up a challenge to the termination
order passed in the year 1990. The
amendment sought by the petitioner
seeking to incorporate the relief raising a
challenge to the termination order was
some time in the year 2017, whereas, as
per the own case of the petitioner, the
counter
affidavit
enclosing
the
termination order had been received by
him in the year 2004 itself.

15. The stand taken by the petitioner
with
regard
to
knowledge
of
the
termination order is ambivalent. On the
one hand it is stated in paragraph 31 of
the affidavit filed by the petitioner
alongwith the first amendment application
dated 14th July, 2017 that he became
aware of the order of termination dated
22nd February, 1990, after the same was
received by his counsel on 9th August,
2004, and on the other, it has been sought
to be contended in paragraph 42 of the
same affidavit that prior to 14th July,
2017 the petitioner was not aware of the
termination order.

16. This apart, the principal relief as
sought by the writ petitioner at the time of
filing of the writ petition having been
founded on pleadings to the effect that he
had not been made any payment by the
Sahkari Samiti in question since August
1989
onwards,
and
the
petitioner
choosing to raise a grievance in that
regard by filing a writ petition in the year
6 All. Cane Commissioner, U.P. & Ors. Vs. Adalat Singh 783
2000, also does not inspire confidence as
to the bona fides of the petitioner.

17. Inordinate delay in approaching
the writ Court for reasons of want of bona
fides or inaction or negligence would
deprive a party from his rights of
invoking the extraordinary discretionary
jurisdiction of the Court. We may refer to
the broad principles laid down in this
regard in the decision in the case of Esha
Bhattacharjee v Raghunathpur Nafar
Academy and others1, which are being
extracted below:-

"21.5. (v) Lack of bona fides
imputable to a party seeking condonation
of delay is a significant and relevant fact.

21.7. (vii) The concept of liberal
approach
has
to
encapsulate
the
conception of reasonableness and it
cannot be allowed a totally unfettered free
play.

21.8.
(viii)
There
is
a
distinction between inordinate delay and
a delay of short duration or few days,
for to the former doctrine of prejudice is
attracted whereas to the latter it may not
be attracted. That apart, the first one
warrants strict approach whereas the
second calls for a liberal delineation.

21.9.
(ix)
The
conduct,
behaviour and attitude of a party relating to
its inaction or negligence are relevant
factors to be taken into consideration. It is
so as the fundamental principle is that the
courts are required to weigh the scale of
balance of justice in respect of both parties
and the said principle cannot be given a
total go by in the name of liberal approach.

21.10. (x) If the explanation
offered is concocted or the grounds urged
in the application are fanciful, the courts
should be vigilant not to expose the other
side unnecessarily to face such a litigation.

22.4.
(d)
The
increasing
tendency to perceive delay as a nonserious matter and, hence, lackadaisical
propensity
can
be
exhibited
in
a
nonchalant manner requires to be curbed,
of course, within legal parameters."

18. The exercise of jurisdiction under
Article 226 is essentially discretionary in
nature and in a case of negligence or
deliberate gross-inaction or lack of bona
fides on part of the party approaching the
Court, it may not be appropriate to
exercise such discretionary jurisdiction.
An
explanation
which
is
ex
facie
concocted and based on fanciful grounds,
would be liable to be rejected. Lack of
bona fides imputable to a party would be a
relevant and material consideration while
granting
reliefs
to
the
party
who
approaches the writ Court.

19. We do not find from the
judgment and order impugned before us
any discussion or consideration on this
aspect of the matter.

20. As such, the impugned judgment
and order cannot be sustained and is
liable to be set aside and is accordingly
set aside.

21. Consequentially, the writ
petition is liable to be dismissed and is,
accordingly, dismissed.

22. This Special Appeal stands
allowed.
----------
784 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)06ILR A784
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.04.2020
BEFORE
THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 187 of 2020

Dhruv Kumar Pandey & Anr. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Sri Radha Kant Ojha, Sri Shivendu Ojha

Counsel for the Respondents:
Sri Ankit Gaur

A. Civil Law - Intermediate Education
Act, 1921 - Regulations framed under
Act of 1921 - Regulation 101 - Appointment
of Class III and Class IV Employees - Prior
Approval of DIOS - Where selection is made
by direct recruitment by the Principal or the
Committee of Management, prior approval of
the DIOS would be mandatory and would be a
condition precedent before issuance of an
appointment order to the selected candidate.
(Para 19 and 24)

B. Civil Law -Intermediate Education Act,
1921 - Regulations framed under Act of
1921 - Regulation 101 to 107
-
Appointment of Class III and Class IV
Employees - Intimation of vacancy to DIOS -
Regulation 102 is specifically enjoined upon
the appointing authority, which as per
Regulation
100
is
the
Committee
of
Management for the clerical posts and the
Principal/Head Master for Class IV posts, to
intimate the Inspector regarding occurrence of
vacancy - The provisions do not contemplate
that the Principal or the Committee of
Management, upon occurrence of a vacancy
against nonteaching post, would straight away
proceed to initiate the selection process for
direct recruitment without any intimation to
the DIOS - Such action, if permitted, would
frustrate the very scheme as provided for
under Regulations 101 to 107. (Para 22 and
25)
C. Interpretation of Statute - Purposive
Construction - The object of interpretation of
a set of statutory rules/regulations is to
ascertain the intent of the rule making
authority and to ensure that the provisions are
interpreted so as to subserve the intent -
There is a general presumption that the
statutory provisions have to be given a
purposive construction that best gives effect
to the purpose for which the provision had
been made. (Para 33)
Special Appeal dismissed (E-1)
Cases relied on :-
1. Dingur Vs D.I.O.S. Mirzapur & ors. (1997) 2
UPLBEC 1250

2. Jagdish Singh Vs St. of U.P. & ors. (2006)
3 UPLBEC 2765

3. R (on the application of Quintavalle) Vs
Secy. of St. for Health (2003) UKHL 13, (2003)
2 AC 687, (2003) 2 All ER 113

4. Pollen Estate Trustee Co. Ltd. Vs Revenue &
Customs Comm. (2013) EWCA Civ 753
(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. The present intra court appeal has
been filed against the judgment and order
dated 29.11.2019 passed in Writ A No.
59653 of 2015 (Dhruv Kumar Pandey and
another Vs. State of U.P. and others), in
terms of which the writ petition has been
dismissed.

2. The writ petitioners are the
appellants before us.

3. The records of the case reflect
that the writ petition had been filed
primarily seeking to challenge an order