# Civil Misc. Writ Petition No. 39672 of 2000 v. K Srivastava

- **Citation:** (2002) 2 ILRA 565
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-02-11
- **Case number:** Civil Misc. Writ Petition No. 39672 of 2000
- **Bench:** M. Katju, Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/civil-misc-writ-petition-no-39672-of-2000-v-k-srivastava-39852
- **Pages:** 6

## Headnote

Constitution
of
India,
Article
226Promotion from clerical cadre to officer
cadre promotion policy dated 23.10.92
providing cut off date 1.12.97 awarding
2 additional marks in each year to those
who were actually working in rural areas
on the prescribed dated held arbitrary-
an employee having working experience
in rural areas entitled for 2 additional
marks
for
each
years
subject
to
maximum 10 marks.

Held- Para 20
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
566
Further held that an employee who has
experience of working on the cut off date
in the rubal branches is entitled to be
awarded two marks for every year of
service subject, to maximum of 10
marks irrespective of whether on the cut
off date he is working in a rural branch
or not.
Case law discussed:
(2000) 5, SCC.346.
(1987) 3, Sec 279.

## Text

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2 All] Dy. Director General (N.C.C.) and another V. Sanjai Kumar
565
For the respondents: Shri S. P. Kesarwani

1. This Special appeal is directed
against judgment of Learned Single Judge
dated
11.2.2002
allowing
the
writ
petition, where the Learned Singh Judge
held that the appointment of writ
petitioner
having
been
made
on
compassionate ground, the same cannot
be treated to be a temporary appointment
and as such the order dated 5.12.1996
terminating has services under U.P.
Temporary
Government
Servants
(Termination of Service) Rules of 1975 is
set aside.

2. It is not in dispute that before
passing the termination order, no show
cause notice was served on the petitioner
nor
the
petitioner
was
given
any
opportunity to explain his misconduct, if
any,
irregularity
and
unauthorized
absence. It is true that if the appointment
is confirmed, there cannot be simplicitor
termination. On the allegation against the
petitioner which has been noted by
Learned Single Judge in his judgment of
court in 1999 (2) A.W.C. 976 Ravi Karan
Singh Versus State of U.P. & Others. The
Division Bench in the aforesaid case has
held that an appointment under the Dying
in Harness Rules has to be treated as
permanent appointment otherwise if such
appointment is treated to be a temporary
appointment, then it will be followed that
soon after appointment, the services can
be permanent and this will nullify the
very purpose of Dying in Harness Rules.

3. We are of the opinion that the
Judgement of Learned Single Judge
which is based on Division Bench
Decision in Ravi Karan Singh's case
needs no interference in this appeal.
However, it will be open to the appellants,
if so advised to proceed in accordance
with law. The petitioner respondent no.1
shall be reinstated in service forthwith and
shall be entitled to pay including .all
consequential benefits as already directed
by the Learned Singh Judge.

4. Accordingly, we are of the view
that there is no merit in this special
appeal, Special appeal fails and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 39672 of 2000

V. K Srivastava

...Petitioner
Versus
Union Bank of India through General
Manager and others
 ...Respondents

Counsel for the Petitioner:
Shri Ashok Bhushan
Shri Anil Bhushan

Counsel for the Respondents:
Shri Vivek Ratan

Constitution
of
India,
Article
226Promotion from clerical cadre to officer
cadre promotion policy dated 23.10.92
providing cut off date 1.12.97 awarding
2 additional marks in each year to those
who were actually working in rural areas
on the prescribed dated held arbitrary-
an employee having working experience
in rural areas entitled for 2 additional
marks
for
each
years
subject
to
maximum 10 marks.

Held- Para 20
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
566
Further held that an employee who has
experience of working on the cut off date
in the rubal branches is entitled to be
awarded two marks for every year of
service subject, to maximum of 10
marks irrespective of whether on the cut
off date he is working in a rural branch
or not.
Case law discussed:
(2000) 5, SCC.346.
(1987) 3, Sec 279.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard Sri Anil Bhushan, learned
counsel for the petitioner and Sri Vivek
Ratan,
Learned
Counsel
for
the
respondents and perused the counter and
rejoined affidavits.

2. By this writ application, the
petitioner has claimed promotion from
clerical cadre to Officer cadre on the
ground that he is entitled to the marks
allotted for experience of working in rural
branches, which according to him have
been denied by the respondents on
arbitrary ground i.e. the cut off date
mentioned in the Circular dated 23-10-92
was 1-12-97. On this date, according to
the Bank, petitioner was not actually
working in rural branch and as such was
not entitled to marks for working in rural
branch. The petitioner has assailed that
Circular dated 23.10.92 as being unfair,
arbitrary and on the ground that it
provides a handle to the respondents to
pick and choose or manipulate
consideration of candidates for depriving
them from being considered for
promotion. He has alleged that though he
has experience of working in rural branch
of the Bank. He has not been awarded two
additional marks.

3. The grievance of the petitioner is
that the respondent Bank has rejected the
representation of the petitioner dated 3rd
February, 1999 and has denied the marks
to the petitioner for working in the rural
branches. It has been alleged that the cut
off date was 1.12.1997 for promotion.
Clause 3,4 of the promotion policy
provides that
two additional marks
candidates for two years service in the
rural branches will be given to such
candidates. This clause is as under:

"3.4 All those employees posted at a
rural branch on the specified cut off date
for each promotion process will be
granted two additional marks for each
completed year of service in rural
branch(e s) subject to maximum of 10
marks."

4. Clause 3.4 of the promotion
policy Staff Circular No.4274 dated 4-596 was struck down by the Punjab and
Hariyana High Court in the case of
Narwal Singh Vs Union Bank of India
and others on 14-1-2000 in C.W.P.
No.1768 of 1999. It was, however
clarified that this judgment shall operate
prospectively and shall not affect the
promotions already made.

5. The brief facts of the case are that
the petitioner was appointed as clerkcum-Typist in the Bank on 16-4-79.
Promotion policy was circulated by the
Bank on 23-10-92 for giving promotion
from clerical cadre to officer cadre. The
cut off date mentioned in the Circular
dated 23-10-92 was 1-12-97 at the
relevant time. On 1-12-97 the petitioner
was not working in any rural branch.
However, he was called for interview by a
letter dated 27.7.98. The promotion policy
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2 All] V.K. Srivastava V. Union Bank of India through G.M. and others
567
dated 23-10-92 was to be given effect
with effect from 1.9.98.

6. The petitioner appeared in the
interview on 5th October, 1998 and
obtained 89 marks out of total 150 marks.
The petitioner made a representation to
the Bank claiming weightage marks for
working in rural area in promotion on the
ground that he worked in Marchhalishahr
Branch, which lies in rural area branch.
The representation of the petitioner was
rejected on 3rd February, 1999 on the
ground that Machhlishahr Branch of the
Bank is a semi urban branch and as such
the petitioner is not entitled to weightage
marks for working in rural area.

7. The petitioner submitted a fresh
representation on August 01, 2000. In
view of the Circular dated 18th July, 2000
issued by the Union Bank of India
claiming that he should be given marks of
working in the rural branch. According to
the petitioner, all those employees who
served in the rural branch are entitled to
the marks of working in the rural area
branches. He further stated that the cut off
date has no relevance and has no nexus to
the object. It is averred that giving marks
to only those persons, who were in the
rural branches on a particular date is
arbitrary and gives undue advantage to
such employees as employees are liable to
be transferred from one branch to other
branch. It is experience of working which
is relevant and not working on a particular
date i.e. the cut off date for working in
rural area, is arbitrary.

8. It is argued that the petitioner is
entitled for marks for service in rural area
for promotion in Officer cadre with effect
from 1-9-98 and non- promotion of the
petitioner is arbitrary and illegal. The
petitioner would have been promoted, had
marks for his working in the rural
branches been awarded to him. Hence the
respondents should be directed to give
promotion to the petitioner w.e.f. 1.12.98
by awarding him ten marks as he has
experience of working in rural branch.

9. The respondent Bank vide letter
dated
3.10.2000
rejected
the
representation
dated
1.8.2000.
The
Circular dated 3.10.2000 was brought on
record by the means of an amendment
vide court's order dated 18.2.2002. By the
amendment
the
petitioner
has
also
challenged the letter dated 3.10.2000, by
which the petitioner was informed that he
is not entitled for the benefit of rural
service in view of the decision of Punjab
and Hariyana High Court.

10. The learned counsel for the
respondents has contested the claim of the
petitioner
on
the
ground
that
the
employees, who were posted in rural
branch of the Bank on the specified cut
off date i.e. 1.12.97 only were eligible for
two marks for each completed year of
service in rural branches subject to a
maximum of 10 marks. It was submitted
that since the petitioner was not working
at any rural branch of the Bank on the cut
off date, he is not entitled to any
weightage of working in the rural branch.
It is also submitted that the bank filed
S.L.P. No. (civil) C.C. 3860 of 2000
before the Hon'ble Supreme Court against
the judgment and order, dated 14.1.2000
of Punjab and Hariayna. High Court ,
which is still pending and notices have
been issued.

11. Sri Vivek Ratan, learned counsel
for the respondents urged that the
Judgment dated 14.1.2000 of Punjab and
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
568
Hariyana High Court has made it
absolutely
clear
that
quashing
of
paragraph 3.4 of the promotion was
prospective and hence the present writ
petition is misconceived and is not
maintainable. He further submitted that
the petitioner has an alternative and
efficacious remedy by way of appeal
before the General Manager of Union
Bank of India.

12. We have given our anxious
consideration to the controversy. In our
view the whole purpose of giving
weightage of two marks per year for
service in rural area is for benefit of
experience of the candidate in rural areas.
It will be wholly unjust to lay down that
the candidate must be actually working on
the cut off date in the rural branch
Suppose a person had experience of
working in a rural branch for five years,
but ten days before the cut off date he is
transferred to an urban branch, he will
then loose ten marks for no fault of his. It
would be very unfair and unjust to
deprive him of his marks. Such an
interpretation is against equity and has to
be avoided. Purposive interpretation is
well known method in law. The literal
interpretation will defeat the purpose of
the rule, hence the marks have to be
awarded to advance justice. Reference
can be made to (2000) 5 S.C. C. 346
"Tata Engineering & Locomotive Co.
Ltd. Vs. State of Bihar and another. In
the said case the Apex Court held:

"15 Statutes, it is often said, should
be construed not as theorems of Euclid but
with some imagination of the purposes
which lie behind them and to be too literal
in the meaning of words is to see the skin
and miss the soul. The method suggested
for adoption, in cases of doubt as to the
meaning of the words used is to explore
the intention of the legislature through the
words, the context which gives the Colour,
the context, the subject matter, the effects
and consequences or the spirit and reason
of the law. The general words and
collocation or phrases, howsoever wide or
comprehensive in their literal sense are
interpreted from the context and scheme
underlying in the text of the Act. The
decision in Utkal Contractors and
joinery (P) Ltd. Case also emphasises the
need to construe the words in a provision
in the context of the scheme underlying
the other provisions of the act as well,
which ultimately was considered to be in
tune with the object set out in the
statement of the Objects and Reasons and
in the preamble. Apart from the fact that
the observations contained in the decision
have to be understood in the light of the
issue raised and exercise undertaken by
the Court therein, the fallacy in the
submission on behalf of the appellant lies
though
not
in
the
principles
of
construction to be adopted but in the
assumption of the counsel to confine or
restrict and construe the law in question to
be one made to regulate the trade."

13. The question that cut off date
provided in the order, is arbitrary came up
before the apex court in the case of
"Utkal Contractors and joinery Pvt.
Ltd. And others Vs State of Orissa and
others, 1987 (3) S.C.C. 279" The Apex
Court also emphasized:

"It is settled that the words of an
enactment are important as the context
that general words are used in a statute is
not in itself a conclusive reason why
every case falling literally within them
should be governed by that statute and the
context of an Act may well indicate that
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2 All] V.K. Srivastava V. Union Bank of India through G.M. and others
569
wide or general words should be given a
restrictive meaning. (Halsbury 4th edn.
Vol 44 page 874)

14. In Attorney General V. H.R. H.
Prince
Ernest
Augustus,
Viscount
Simonds said that:

"Words and particularly general
words, cannot be read in isolation, their
colour and content are derived from their
context."

15. In Maunsell Vs Olins, it has
been observed that:

"all general words are open to
inspection, many general words demand
inspection, to see whether they really bear
their widest possible meaning."

16. It was further observed that:

"Then rules of construction are relied
on. They are not masters. They are aids to
construction, presumptions or pointers.
Not infrequently one ' rule' points in one
direction, another in a different direction.
In each case we must look at all relevant
circumstances and decide as a matter of
judgment what weight is attached to any
particular 'rule'

17. We are of the view that
providing cut off date for considering the
experience of working in any rural branch
has no relevance. It is the experience that
is necessary and not working on a
particular date. Weightage of working in
the rural branches under clause 3.4 of the
Circular has to be given irrespective of
the fact whether on cut of date he was
posted in a rural branch or not. The
interpretation of this clause has to be
purposive and not literal or narrow. Such
interpretation defeats the object and
purpose and results in injustice to many,
and hence such an interpretation has to be
avoided.

18. We do not think that relegating
the petitioner to alternate remedy will
serve any purpose in this case, as we are
deciding the controversy finally on merits.

19. We, therefore, hold that the
words posted in a rural branch on the
specified cut off date mean that the
employee has acquired the experience of
working in rural area by the cut off date,
avoiding the literal meaning to give the
employee benefit of his experience.

20. We further hold that an
employee who has experience of working
on the cut off date in the rural branches, is
entitled to be awarded two marks for
every year of service subject to maximum
of 10 marks irrespective of whether on the
cut off date he is working in a rural
branch or not.

21. In this view, we allow the writ
petition and direct the respondents to
award the benefit of 2 marks for each
year to the petitioner working in rural
area and allow him promotion, if he is
entitled in the light of the ratio laid down
in this judgement.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
570
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2002

BEFORE
THE HON'BLE R. K. DASH, J.

Criminal Misc. Application No. 3875 of 2000

Gurcharan Singh

...Applicant
Versus
State of U.P. and another
 ...Opposite parties

Counsel for the Applicant:
Sri R.R. Singh

Counsel for the Respondents:
Sri Satish Trivedi
Sri K. B. Srivastava
Sri Ashish Kumar Singh
Sri R. K. Jain
A.G.A.

Negotiable Instrument Act- Section 138-
complaint made by unregistered firm
whether can be maintained.Held- 'Yes'

Held-Para 9

A criminal prosecution is neither for
recovery of money nor for enforcement
of any security etc. Section 138 of the
act is a penal provision the commission
of which offence entails a conviction and
sentence on proof of the guilt in duly
conducted criminal proceedings. Once
the
offence
under
section
138
is
completed, the prosecution proceeding
can be initiated not for recovery of the
amount covered by the cheque but for
brining the offender to penal liability.
Case law discussed:
2000 SCC (Ga) 538
1999 I.S.J. (Bombay) 701
AIR 1975 Kerala -144 distinguished

Words and phrases-'Suit' -means a
process instituted in a court for recovery
or protection of right, enforcement of a
claim or to redress and civil injuries.
Held-para 7

It is, therefore, desirable to refer to 'Law
of
Lexicon'
and
the
judicial
pronouncements to ascertain the true
meaning of word 'Suit' in the legal
context.
'Suit'
means
a
proceeding
instituted in civil court by presentation
of a plaint. The word 'Suit' ought to be
confined to such proceedings as, under
that description, are directly dealt with
in the code of civil procedure, or suchas
by the operation of the particular Act
which regulates them are treated as
suits (See Law of Lexion) 1997 Edition).
The word 'Suit' in common parlances
means a process instituted in a court for
recovery
or
protection
of
a
right,
enforcement of a claim, or to redress
civil injuries.

(Delivered by Hon'ble R.K. Dash, J.)

1. M/s Sterling Novelty Products,
Moradabad (U.P.) is a partnership firm of
which Mrs. Jagdish Kaur W/o Gurbaksh
Singh, Mrs. Jasleen Kaur W/o Arvinder
Pal Singh and Master Uvraj Singh are the
partners. The aforesaid firm is engaged in
export business in handicrafts, brass
wares, textiles and aluminum items at
Moradabad since 1992. International Gifts
Ltd is a company at Ontario, Canada and
Gurcharan Singh, petitioner herein is the
President of the said company. M/s.
Sterling Novelty Products through its
partner Uvraj Singh represented by his
natural guardian Arvinder Pal Singh filed
a complaint before the court of Chief
Judicial Magistrate, Moradabad bearing
case no.852/9 of 1999 under Section 138
of
Negotiable
Instruments
Act.
(hereinafter referred to as "the Act") and
Sections 406 and 420 I.P.C. arraying
International Gifts Ltd and its President
Gurcharan Singh as accused.