# Chandrahas v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 800
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-06
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandrahas-v-state-of-u-p-and-others-41219
- **Pages:** 4

## Headnote

Constitution
of
India-Art.
226termination of Service-on the ground
appointment made during ban periodpetitioner joined as Junior Clerk on
6.11.97 ban imposed by G.O. 3.11.97
termination
order
passed
12.11.97subsequent
advertisement
of
same
vacancy
on
9.8.07-held-when
the
petitioner
got
selected
prior
to
enforcement
of
ban,
joining
date
immaterial
being
ministerial
taskhowever in view of law as developedwhen
the
ban
lifted-the
selected
candidate
entitled
to
join
with
all
consequential benefit, except salaryfresh selection held-contrary to law.

Held: Para 9

In view of the aforesaid, it is clear that
the appointments of the petitioners were
cancelled in consequence of the ban
order.
Since
no
irregularity
in
the
selection process was found by the
respondents, and since the ban order has
now been lifted, the petitioner, who was
earlier given the appointment letter, is
now
liable
to
be
issued
a
fresh
appointment
on
the
basis
of
the
selection held in the year 1997.
Case law discussed:
2004 (1) ESC 438, 2007 (7) ADJ 355,

## Text

800 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Held: Para 4

Under
these
circumstances,
when
reconstruction of the record is not
possible and when retrial is also not
possible in the absence of the basic
documents, there is no other alternative
but to allow this appeal and acquit the
accused as laid down by the Hon'ble
Apex Court in the aforesaid ruling in the
case of Abhay Raj Singh (Supra).
Case law discussed:
2004 SCC Crl. 901

(Delivered by Hon'ble Amar Saran, J.)

1. The facts relevant for disposal of
this appeal are that the appellant and two
others named Ram Kumar and Uttam
were charged under Section 302/34 IPC
and tried for the offence. The trial court,
after hearing of the case, came to the
conclusion
that
the
charge
was
sufficiently proved against Uttam. Hence,
Uttam was acquitted of the charge but
Ram Kumar and Nanku were convicted
under Section 302/34 IPC and sentenced
to life imprisonment. Aggrieved with that
judgment and order Nanku filed this
appeal.

2. When the record of the trial court
was summoned for hearing of this appeal,
it was reported that the record had been
burnt in the incident of fire in the Record
Room of the District Court. Thereafter
steps were taken for reconstruction of the
record but the record could not be
reconstructed as no documents were
available either with the prosecution, or
with the accused or with the police or
with the complainant. As reported by Sri
S.K. Pandey, District Judge, Bareilly vide
his letter No. 55 (v)-Cri. Dated 27.7.07
that reconstruction of the record is not
possible.

3. Thereafter directions were issued
to the Distt. and Sessions Judge to take
steps for retrial of the case in accordance
with the directions of the Hon'ble Apex
Court in the case of State of U.P. Vs.
Abhay Raj Singh 2004 SCC Crl. 901
vide order dated 2.11.07 In compliance
thereof a report has been received from
the District Judge, Bareilly vide Letter
No. 75/v-Crl. Dated 29.11.07 that no
document is available for retrial and so it
is not possible to conduct retrial of the
case.

4. Under these circumstances, when
reconstruction of the record is not
possible and when retrial is also not
possible in the absence of the basic
documents, there is no other alternative
but to allow this appeal and acquit the
accused as laid down by the Hon'ble
Apex Court in the aforesaid ruling in the
case of Abhay Raj Singh (Supra).

5. The appeal is, therefore, allowed
and the accused appellant is acquitted of
the charge under Section 302/34 IPC. He
is on bail and he need not to surrender.
His bail bonds are cancelled and his
sureties are discharged.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 45307 Of
2003

Chandrahas

...Petitioner
Versus
State of U.P. and others ...Respondents
3 All] Chandrahas V. State of U.P. and others
801
Counsel for the Petitioner:
Sri R.P. Tiwari

Counsel for the Respondents:
Sri P.C. Shukla
Sri Piyush Shukla
Sri Amit Sthalekar
S.C.

Constitution
of
India-Art.
226termination of Service-on the ground
appointment made during ban periodpetitioner joined as Junior Clerk on
6.11.97 ban imposed by G.O. 3.11.97
termination
order
passed
12.11.97subsequent
advertisement
of
same
vacancy
on
9.8.07-held-when
the
petitioner
got
selected
prior
to
enforcement
of
ban,
joining
date
immaterial
being
ministerial
taskhowever in view of law as developedwhen
the
ban
lifted-the
selected
candidate
entitled
to
join
with
all
consequential benefit, except salaryfresh selection held-contrary to law.

Held: Para 9

In view of the aforesaid, it is clear that
the appointments of the petitioners were
cancelled in consequence of the ban
order.
Since
no
irregularity
in
the
selection process was found by the
respondents, and since the ban order has
now been lifted, the petitioner, who was
earlier given the appointment letter, is
now
liable
to
be
issued
a
fresh
appointment
on
the
basis
of
the
selection held in the year 1997.
Case law discussed:
2004 (1) ESC 438, 2007 (7) ADJ 355,

(Delivered by Hon'ble Tarun Agarwala, J.)

1. It transpires that applications were
invited for appointment on the post of
Junior Clerk. The petitioner's name was
sponsored by the Employment Exchange.
The petitioner appeared in the written test
and
was
declared
successful,
and
thereafter, was called for the interview. A
select list was published, which included
the name of the petitioner, and the
respondents
thereafter,
issued
an
appointment letter dated 5th of November,
1997. The petitioner joined the services as
a Junior Clerk on 06.11.1997 and
discharged his duty till 12th of November,
1997, on which date, the services of the
petitioner was terminated on the ground
that the State Government has issued an
order dated 3rd of November, 1997
imposing a ban on all appointments in the
State of U.P., and therefore, the petitioner
could not be appointed pursuant to the
ban
order
issued
by
the
State
Government.
The
petitioner,
being
aggrieved by the said order, filed a Writ
Petition No. 38644 of 1997. The writ
Court, by a judgment dated 17th February,
2003, quashed the order of termination
and directed the respondents to pass a
fresh order after giving an opportunity of
hearing to the petitioner. Based on the
said direction, the respondents passed an
order
dated
16th
September,
2003,
rejecting
the
representation
of
the
petitioner, holding that it was not possible
to take back the petitioner in service
again. The petitioner, being aggrieved by
the said order, filed the present writ
petition, and during the pendency of the
writ petition, an interim order was issued
directing the authorities to pass a reasoned
and speaking order, since the impugned
order dated 16th September, 2003 did not
contain any reason. Based on the interim
order of the Court, the respondents passed
an order dated 23rd June, 2005 rejecting
the claim of the petitioner, holding that
the petitioner could not be appointed since
a ban was imposed by the State
Government by an order dated 3rd of
November, 1997.
802 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
2. In the meanwhile, the respondents
issued an advertisement on 6th of August
2002 and again on 9th of August, 2007,
inviting applications for the post of Junior
Clerk. These advertisements were stayed
by an interim order of the Court.

3. After hearing Shri R.P. Tiwari,
learned counsel for the petitioner and the
learned
Standing
Counsel
for
the
respondents, this Court is of the opinion
that the action taken by the respondents
cannot be sustained and the impugned
orders issued by the authorities from time
to time was liable to be quashed. In the
first place, the order of the State
Government dated 3rd November, 2007
imposing a ban on all appointments
appears to be an arbitrary exercise of
power by the State Government. No
reasons whatsoever has been disclosed in
the said order as to why such a drastic
decision had been taken by the State
Government imposing a ban on all
appointments in the State of U.P..
Appointments on a public post are made
pursuant to the provisions indicated in the
statute and the procedures evolved under
the said statute. The exercise of filling up
of posts cannot be stopped arbitrarily on
the whims and fancies of the State
Government, for oblique purposes.

4. In the present case, the Court
finds that the exercise for filling up the
vacancies was initiated much prior to the
issuance of the Government Order of 3rd
November, 1997, and only the ministerial
task of issuance of the appointment letter
by the competent authority was left and
which had been issued by the competent
authority on 5th of November, 1997.

5. In my opinion, assuming that the
State Government had the power to
impose a ban on all the appointments,
such imposition of a ban could only be
made prospectively and would not apply
where the selection process had already
been
initiated
and
was
nearing
completion.

6. Quite apart from the aforesaid, it
has come on record that the respondents
had issued an advertisement on 6th of
August, 2002, and again, on 9th of August,
2007, inviting applications for filling up
the post of Junior Clerks. The issuance of
the advertisement necessarily implies that
the State Government has lifted the ban.
Once the ban is lifted, the selection made
in the year 1997 was required to be
carried out.

7. In Excise Commissioner, U.P.,
Allahabad & Ors. Vs. Sanjay Kumar
Yadav & Anr., 2004 (1) ESC 438, a
Division Bench of the Court held that
once a ban has been lifted by the State
Government, it would mean that the stay
on issuance of such appointments on such
posts had been withdrawn, and therefore,
those candidates validly selected for
appointments on the said posts, would be
entitled
again
for
appointment
immediately on withdrawal of such ban.
The Court held as follows:-

"In the present case the only reason
given by the Government for not giving
appointment to the writ petitioners was
because of the Government Order dated
4.11.1997. By the said Government
Order, the appointments and joining of
the candidates had only been stayed. Once
the State Government has accepted that
the vacancies still exist and had even
issued fresh advertisement for filling up
such vacancies, it obviously means that
the
stay
on
the
issuance
of
the
3 All] Virendra Kumar Premi V. State of U.P. and another
803
appointment on such post had been
withdrawn. The writ petitioners who had
been validly selected for appointment on
such post would thus be entitled for
appointment
immediately
on
the
withdrawal of such stay/ban on the
appointments. Hence the writ petitioners
would be entitled for appointment in
pursuance of the selection held on the
basis of Advertisement No. 17701.
However, although they shall be entitled
to the seniority and other consequential
benefits but they shall be entitled for
payment of salary only from the date of
their appointment pursuant to this order.
The appellants shall give appointment to
the writ petitioners within a period of
three months and in case if such
appointment is not given, they shell be
entitled
for
payment
of
salary
immediately after expiry of three months
from today."

8. In Manoj Kumar & Ors. Vs.
State of U.P. & Ors., 2007 (7) ADJ 355,
pursuant to the select list, some of the
selected
candidates
were
issued
appointment letters, and based on that,
some
were
allowed
to
join,
but
subsequently, on the basis of the ban
order, the appointments were cancelled.
The Court held that once the ban order
was lifted and the selection procedure was
not found to be invalid, the cancellation of
the selection process and refusal to give
appointment to the selected candidates
was not justified. The Court directed the
respondents to issue appointment letters
on the basis of the selection held by them.

9. In view of the aforesaid, it is clear
that the appointments of the petitioners
were cancelled in consequence of the ban
order. Since no irregularity in the
selection process was found by the
respondents, and since the ban order has
now been lifted, the petitioner, who was
earlier given the appointment letter, is
now
liable
to
be
issued
a
fresh
appointment on the basis of the selection
held in the year 1997.

10. Consequently, the impugned
orders dated 12.11.1997, 16.09.2003 and
23.06.2005 passed by the respondents are
all quashed. The writ petition is allowed.
The advertisement dated 9th August,
2007, issued by the respondents will not
be given effect to, and the Court directs
the respondents to issue an appointment
letter to the petitioner pursuant to the
selection held by them in the year 1997
within four weeks from the date of the
production of a certified copy of this
order.
The
relief
for
consequential
benefits of service and salary from
12.11.1997 cannot be granted on the
principle of 'no work no pay'.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 33057 of 2006

Virendra Kumar Premi
...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri A.D. Saunders

Counsel for the Respondents:
S.C.

U.P. Police Officers subordinate Ranks
(Punishment & Appeal) Rule 1991-Rule8
(2)(b)-dismissal
without
enquirywithout
recording
any
reason
for