# Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Ltd

- **Citation:** (2020) 12 ILRA 705
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-25
- **Case number:** Service Single No. 22483 of 2020
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/commissioner-income-tax-rajkot-v-saurashtra-kutch-stock-exchange-ltd-45504
- **Pages:** 3

## Headnote

A. Service Law - Suspension - It is necessary
to attach a suspended delinquent outside the
district of his current posting. It would be better
to keep in mind that the attachment is not made
at a place which itself may appear to be kind of
punishment and oppressive. And it may also
generally be bore in mind that the delinquent
may be able to conveniently attend the place
where enquiry is to be held and not at a place
where it may become difficult for delinquent to
properly participate and defend himself in the
enquiry proceedings. (Para 9)

In the instant case, the petitioner was being attached
at Mumbai from Gorakhpur and the enquiry was
being conducted at Gorakhpur. (Para 8)

Writ Petition allowed. (E-10)

## Text

12 All. Devi Saran Yadav Vs. Khadi & Vill. Indus. Commission & Ors.
705
Commissioner, Income Tax, Rajkot v.
Saurashtra Kutch Stock Exchange Ltd.
reported in (2008) 14 SCC 171 as under:-

"35. In our judgment, it is also well settled that
a judicial decision acts retrospectively. According to
Blackstonian theory, it is not the function of the court
to pronounce a ?new rule? but to maintain and
expound the ?old one?. In other words, Judges do not
make law, they only discover or find the correct law.
The law has always been the same. If a subsequent
decision alters the earlier one, it (the later decision)
does not make new law. It only discovers the correct
principle of law which has to be applied
retrospectively. To put it differently, even where an
earlier decision of the court operated for quite some
time, the decision rendered later on would have
retrospective effect clarifying the legal position which
was earlier not correctly understood."

"36. Salmond in his well known work
states:

The theory of case law is that a judge does
not make law; he merely declares it; and the
overruling of a previous decision is a declaration
that the supposed rule never was law. Hence any
intermediate transactions made on the strength of
the supposed rule are governed by the law
established in the overruling decision. The
overruling is retrospective, except as regards
matters that are res judicatae or accounts that have
been settled in the meantime. (emphasis
supplied)"

"37. It is no doubt true that after a historic
decision in Golak Nath v. State of Punjab [AIR
1967 SC 1643: (1967) 2 SCR 762] this Court
has accepted the doctrine of? prospective
overruling?. It is based on the philosophy:

The past cannot always be erased by a
new judicial declaration.

It may, however, be stated that this is
an exception to the general rule of the
doctrine of precedent."

13. Even otherwise the rejection order
has been passed in the year 2019 while the
judgment has been rendered in Smt. Vimla
Srivastava(supra) in the year 2015. Even by that
consideration, petitioner's candidature was kept
alive by opposite parties themselves till the year
2019 and even by prospective application of
aforesaid judgment, petitioner's candidature
could not have been rejected on that ground.

14. In view of aforesaid facts, impugned
order dated 04.04.2019 is clearly unsustainable
and is quashed by issuance of a writ in the nature
of Certiorari. Opposite party no.2, District Basic
Education Officer, Unnao is directed to consider
the claim of petitioner for compassionate
appointment afresh considering her eligibility for
the same in terms of aforesaid Rules of 1974 and
her candidature shall not be rejected or excluded
from consideration only on the ground of her
marital status. Aforesaid consideration shall be
done by said opposite party by a reasoned and
speaking order within a period of six weeks from
the date a copy of this order is produced before
said authority.

15. Consequently, the writ petition
stands allowed at the admission stage with
consent of the parties.

16. The petitioner shall be at liberty to
approach the said authority with regard to
any pending pensionary dues of her late
father. The same shall also be considered
within aforesaid time period.
----------
(2020)12ILR A705
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.11.2020

BEFORE

THE HON'BLE MANISH KUMAR, J.

Service Single No. 22483 of 2020

Devi Saran Yadav ...Petitioner
Versus
Khadi & Vill. Indus. Commission & Ors.
 ...Respondents
706 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Akash Dikshit

Counsel for the Respondents:
--

A. Service Law - Suspension - It is necessary
to attach a suspended delinquent outside the
district of his current posting. It would be better
to keep in mind that the attachment is not made
at a place which itself may appear to be kind of
punishment and oppressive. And it may also
generally be bore in mind that the delinquent
may be able to conveniently attend the place
where enquiry is to be held and not at a place
where it may become difficult for delinquent to
properly participate and defend himself in the
enquiry proceedings. (Para 9)

In the instant case, the petitioner was being attached
at Mumbai from Gorakhpur and the enquiry was
being conducted at Gorakhpur. (Para 8)

Writ Petition allowed. (E-10)

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard learned counsel for the
petitioner and Sri Anil Kumar for the
respondents.

2. The present writ petition has been
preferred for quashing the impugned order
dated 06.03.2020, passed by the Opposite
party No.1, by which the petitioner has
been placed under suspension and attached
at Mumbai Office during suspension
period.

3. Learned counsel for the petitioner
has submitted that the petitioner has
challenged the impugned order dated
06.03.2020 to the limited extant of
attachment of the petitioner at Mumbai and
the same has been averred in Para 2 of the
writ petition, but by mistake it has been left
to be mentioned in the prayer clause, so the
prayer has been confined only to the extent
to consider the case of the petitioner as far
as it relates to the attachment of the
petitioner from Gorakhpur to Mumbai.

4. It is further submitted that the
petitioner is a Class IV employee and very
recently got operated for Gall Bladder
Stone and is not keeping good health.
Attaching the petitioner at Mumbai is very
harsh action on the part of the opposite
parties.

5. On the other hand, learned counsel
for the respondents has submitted that the
petitioner bullies and misbehaves with the
Superior Officer and the Offices in U.P. are
not ready to take the petitioner in their
office.

6. After hearing learned counsel for
the parties, it is found that the petitioner is
a Class IV employee. The inquiry is still
pending and the charges are not proved.
Attaching a Class IV employees during the
disciplinary inquiry from Gorakhpur to
Mumbail is undoubtedly a harsh decision
on the part of the opposite parties, specially
when the petitioner could be accommodate
within the state of U.P. The order has been
passed without application of mind that
how a Class IV employee could manage
two establishments in his meager salary,
one at the place where his family resides
and second where the petitioner has been
attached i.e. at a place like Mumbai. The
inquiry will conducted at Gorakhpur.

7. In view of the uncontroverted
situation with regard to the status of the
petitioner being a Class IV employee, the
present writ petition is being decided at the
admission stage itself.

8. The decision of the Opposite Party
No.1 by passing the impugned order dated
12 All. Devendra Singh Vs. Chairman State Cane Service Auth. Lko/Cane Comm. U.P. & Ors. 707
6.3.2020 attaching the petitioner from
Gorakhpur to Mumbai is very harsh and not
sustainable. It is not necessary that in every
case
of
suspension,
the
delinquent
employee is to be attached to a place other
than the place of his current posting and if
there is any such necessity to replace the
delinquent employee from the place of
posting of which the enquiry has been
initiated, then the attachment should be at
nearest place from where the delinquent
employee could participate in the inquiry
proceedings. Attaching the petitioner at
Mumbai from Gorakhpur and the inquiry is
to be conducted at Gorakhpur is an
arbitrary exercise of power by Opposite
party No.1.

9. It may be observed where the
authorities find it necessary to attach a
suspended delinquent outside the district of
his current posting it would be better to
kept in mind that the attachment is not
made at a place which itself may appear to
be kind of punishment and oppressive. And
it may also generally be bore in mind that
the delinquent may be able to conveniently
attend the place where enquiry is to be held
and not at a place where it may become
difficult
for
delinquent
to
properly
participate and defend himself in the
enquiry proceedings.

10. Under these circumstances, the
impugned order dated 6.3.2020 is hereby
quashed to the limited extent of attachment
of the petitioner at Mumbai. It will be open
to Opposite Party No.1 to pass an order of
attachment of the petitioner at near
Gorakhpur district keeping in view the
observation made above.

11. With the observation made
hereinabove, the Writ Petition is Allowed.
----------
(2020)12ILR A707
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 23008 of 2015

Devendra Singh ...Petitioner
Versus
Chairman State Cane Service Auth. Lko/Cane
Comm. U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rishi Kant Singh

Counsel for the Respondents:
Sri Ravindra Singh

A. Service Law - Payment of Salary - The
issue involved in this petition is about payment
of salary to the petitioner, a part-time clerk with
the Sahkari Ganna Vikas Samiti Ltd., Dhaulana,
District - Hapur, in accordance with the
recommendations of the 6th Pay Commission.
(Para 4)

The validity of an order under challenge
before the Court can be judged by the
reasons that it carries. Nothing can be added
to the reasons, on which the impugned order is
founded by way of affidavits, much less
submissions made during the hearing. (Para 11)

Court observed that the sole reason assigned by
the Cane Commissioner, U.P., Lucknow to pass
the order impugned, declining the petitioner's
claim is the non-submission of a proposal to
implement
the
6th
Pay
Commission
recommendation by the Sahkari Ganna Vikas
Samiti Ltd., Dhaulana, Hapur. The claim has
been declined with a remark that as and when
the said proposal is received, a decision to
implement it would be taken. It was found that
a
proposal
(dated
10.02.2011)
by
the
Cooperative Societies, Dhaulana has already
been made, which ought not only be available
with the Cane Commissioner, U.P., Lucknow,