# Dev Shankar Singh v. State Of U.P. & Ors - **Citation:** (2016) 4 ILRA 283 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-04-05 - **Bench:** Arun Tandon, Amar Singh Chauhan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dev-shankar-singh-v-state-of-u-p-ors-43584 - **Pages:** 6 ## Headnote This special appeal is directed against the judgment and order of the Hon'ble Single Judge dated 11.02.2016 passed in Writ Petition No. 168 of 2011 Dev Shankar Singh vs. State of U.P. and others. Held: Para- 284 INDIAN LAW REPORTS ALLAHABAD SERIES Case Law discussed: ## Text 4 All. Dev Shankar Singh Vs State Of U.P. & Ors. 283 after affording an opportunity of hearing, the said application was allowed and Smt. Shyama Devi was impleaded as party in additional written statement. Plea of limitation was raised and in that regard issue no. 7 was framed, which was discussed and decided against the plaintiffs then the appeallant was specifically raised on this point of limitation. The arguments of both the parties were heard, first appellate court had specifically discussed the points of limitation of suit on account of belated impleadment of Smt. Shyama Devi, and after considering the arguments of learned counsel for the parties gave it's specific finding rejected the contention of learned counsel for the defendants-respondents of first appeal. By this finding, the first appellate court had recorded its satisfaction that original suit was not time-barrred and that finding of first appellate court appears legal and correct. During discussions of first substantial question of law, this court has also held that the suit was not time barred. Therefore, on this second substantial question of law, the contention of learned counsel for the appellant in second is found not acceptable and accordingly this second substantial question of law is decided against appeal in favour of respondents-plaintiffs. 15. On the basis of above discussion, I am of the opinion that from the evidences adduced in Trial Court, the plaint case was proved and judgement of first appellate court suffers from nonillegality, infirmity or irregularity. So both the substantial question of law were decided against the appellant. None of the contention of learned counsel for the appellant are found acceptable, therefore this second appeal is hereby dismissed. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 05.04.2016 BEFORE THE HON'BLE ARUN TANDON, J. THE HON'BLE AMAR SINGH CHAUHAN, J. Special Appeal No.- 226 Of 2016 Dev Shankar Singh ...Appellant Versus State Of U.P. & Ors. ...Respondents Counsel for the Appellant: Rajesh Kumar, Satish Kumar Singh Counsel for the Respondents: C.S.C., D.P. Singh This special appeal is directed against the judgment and order of the Hon'ble Single Judge dated 11.02.2016 passed in Writ Petition No. 168 of 2011 Dev Shankar Singh vs. State of U.P. and others. Held: Para- 284 INDIAN LAW REPORTS ALLAHABAD SERIES Case Law discussed: (Delivered by Hon'ble Arun Tandon, J. & Hon'ble Amar Singh Chauhan, J.) 1. This special appeal is directed against the judgment and order of the Hon'ble Single Judge dated 11.02.2016 passed in Writ Petition No. 168 of 2011 Dev Shankar Singh vs. State of U.P. and others. 2. Facts leading to the present special appeal are as follows: 3. The petitioner-appellant Dev Shankar Singh was employed as Cadre Secretary in Sadhan Sahakari Samiti, Jaunpur. It is admitted to the petitioner-appellant that the services of Cadre Secretary including that of the petitioner are regulated by the U.P. Primary Agricultural Cooperative Credit Societies Centralised Service Rules, 1976 (hereinafter referred to as Rules, 1976) as well as by the U.P. Primary Agricultural Co-operative Credit Society Centralised Service Regulations 1978 (hereinafter referred to as Regulations, 1978). 4. Regulations of 1978 have been framed in exercise of powers under Section 30 of the Rules, 1976, which confers a power upon the State Cadre Authority of Primary Agriculture Cooperative Society to frame regulations with the prior approval of the Registrar, Cooperative Societies U.P. for member of the centralised services on their service matter, which may inter alia including conduct and discipline, penalty, disciplinary proceedings and appeals. 5. Rule 29 of Rules, 1976 provides for age of retirement of the member of the centralised service as 58 years. Proviso to Rule 29 confers a power upon the appointing authority to compulsorily retire a member of the centralised service after he has attained the age of 50 years, if it is necessary to do so in public interest, by giving a notice in writing of a period of three months or pay in lieu thereof. 6. For ready reference Rule 29 is being quoted herein below: "29. Age of Retirement.- The age of superannuation of Members of Centralised Service shall be 58 years: Provided that any member of the Centralised Service may be retired compulsorily after attaining the age of 50 years, if it is considered necessary so to do in public interest by the appointing authority by notice in writing for a period of three months or pay in lieu thereof." 7. The records reflect that the petitioner-appellant, who was cadre secretary and member of the aforesaid centralized service cadre, was compulsorily retired under a resolution of the District 4 All. Dev Shankar Singh Vs State Of U.P. & Ors. 285 Administrative Committee, Jaunpur dated 28.11.2005. This order was made in exercise of power under Rule 29 quoted above. 8. Not being satisfied with the order of compulsorily retirement the petitioner-appellant filed Writ Petition No. 64735 of 2006 with the following prayers: "i. Issue a writ, order or direction in the nature of CERTIORARY QUASHING THE IMPUGNED ORDER DATED 28.11.2005. ii. Issue a writ, order or direction in the nature of MENDAMUS directing the respondent 2 and 3 to provide the original charge as secretary of co-operative societies ltd. Lodasar Khurd Dobbi, Jaunpur to the petitioner with immediate effect. iii. Issue a writ, order or direction in the nature of MENDAMUS directing the respondent 2 and 3 to pay/relies the salary along with arrears of salary, yearly increments, bonus and due payments to the petitioner. iv. ..... v. ..... vi. ......." 9. The writ petition was got dismissed as withdrawn as per order dated 29.11.2010. The order of the Hon'ble Single Judge, dismissing the writ petition as withdrawn, is being quoted herein below: "Learned counsel for the petitioner states that the writ petition be dismissed as withdrawn and to the same effect an application no. 332172 of 2010 has also been filed along with the affidavit of the petitioner. Sri D.P. Singh, learned counsel for the respondent no. 3 and learned Standing Counsel for the respondents no. 1 and 2 have no objection to the aforesaid request. The writ petition is accordingly dismissed as withdrawn." 10. From the aforesaid order it is apparent that neither any liberty to file fresh was prayed for nor any such liberty was granted. 11. In the year 2001 the petitioner-appellant filed second Writ Petition No. 168 of 2011 with the following prayers: "A. Issue a writ, order or direction in the nature mandamus commanding the respondent to make payment of his salary and other consequential service benefit 2002 till the date of retirement. 286 INDIAN LAW REPORTS ALLAHABAD SERIES B. Issue a writ order or direction in the nature of mandamus commanding the respondents to decide the representation of the petitioner which is pending before him. C. To issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case, so that justice be done. D. To award the cost of the proceeding of the writ petition to the Petitioner." 12. This writ petition has been dismissed by the Hon'ble Single Judge under order giving rise to the present special appeal. 13. The Hon'ble Single Judge has returned a finding that the order so heavily relied upon by the counsel for the petitioner dated 07.08.2014 passed by the Member Secretary, State Cadre Authority is without jurisdiction and therefore a nullity. He has thereafter gone on to hold that the second writ petition for the relief as prayed for was not maintainable especially when the dismissal of the earlier writ petition was without liberty to file afresh. 14. Challenging the finding so returned by Hon'ble Single Judge, counsel for the appellant submitted before us that a fresh cause of action has arisen to maintain the second writ petition, inasmuch as on 07.08.2014 an order was made by the Member Secretary, State Cadre Authority. The operative portion whereof reads as follows: याची द्वारा प्रस्तुत पक्ष, अपील में उल्लिल्लित तथ्यों व सदस्य सचचव चिला प्रशासचिक कमेटी िौिपुर द्वारा प्रस्तुत आख्या व अन्य अचिलेिें का उपसचमचत द्वारा चवस्तृत अवलयकि चकया गया व पाया गया चक याची के प्रकरण में अपर चिला सहकारी अचिकारी द्वारा िय िाोंच की गयी है उसके अिुसार याची के चवरूद्व सचमचत का कयई पाविा शेष िहीों है। चिला सहायक चिबन्धक िौिपुर िे िी पत्र चदिाोंक 24-12-05 द्वारा चिला प्रशासचिक कमेटी द्वारा याची के अचिवायय सेवाचिवृचि चवषयक आदेश से असहमचत व्यक्त की गयी थी। अतः उपरयक्त तथ्यों कय दृल्लिगत रिते हुये उपसचमचत द्वारा चवचारयपरान्त याची के अचिवायय सेवाचिवृचि चवषयक आदेश सोंख्या 988-97 चदिाोंक 28-11-05 िय चबिा चकसी ठयस आिार के पाररत चकया गया था, कय चविल्लित चकये िािे का सवयसम्मचत से चिणय चलया गया। च ोंचक इस अवचि में याची द्वारा कयई कायय िहीों चकया गया है, अतः अचिवायय सेवाचिवृि की चतचथ से वास्तचवक सेवाचिवृचि की चतचथ तक कयई वेति आचद का िुगताि याची कय देय िहीों हयगा। अतः उपसचमचत द्वारा चलये गये उपरयक्त चिणयािुसार श्री देव शोंकर चसोंह, सेवाचिवृि पैक्स सचचव की अपील चदिाोंक 21-09-2012 एतद्द्वारा चिस्ताररत की िाती है। (एस0सी0 चद्ववेदी ) सदस्य सचचव 15. It is contended that under the order dated 07.08.2014 the Member Secretary had set aside the order of compulsory retirement but he refused to provide the arrears of salary for the period the appellant was out of employment. Hence the petitioner-appellant filed a representation which has not been decided, hence he has approached this Court by means of second writ petition. 16. Counsel for the petitioner-appellant submits that the second writ petition is based on different cause viz-a-viz the first writ petition. 4 All. Dev Shankar Singh Vs State Of U.P. & Ors. 287 17. We have heard learned counsel for the parties and have gone through the records. 18. The reliance placed by the counsel for the appellant on the order of the Member Secretary dated 07.08.2014 for justifying the filing of the second writ petition appears to be wholly misconceived. 19. From the reading of the prayers made in the two writ petitions it is apparent that prayer no. 1 in the writ petition filed in the year 2011, giving rise to the present special appeal, is more or less identical to the prayer no. 2 of the first petition. Once the first writ petition was got dismissed as withdrawn without any liberty to file a fresh, no second writ petition could have been filed for the same relief. As already noticed above, the second writ petition was filed in the year 2011 i.e. nearly 3 years prior to the order dated 07.08.2014, with reference to which the counsel for the appellant tried to justify the filing of the second writ petition. 20. We fail to appreciate as to how the appellant could foresee three years earlier that an order could be made in his favour by the Member Secretary on 07.08.2014 setting aside the order of compulsory retirement. Such contention, as raised on behalf of the petitioner-appellant in support of the maintainability of the second writ petition is, therefore, rejected. 21. We may also deal with the finding returned by the Hon'ble Single Judge qua the order of the Member Secretary dated 07.08.2014 being without jurisdiction and therefore nullity. 22. From a simple reading of the order of the Member Secretary dated 07.08.2014, quoted above, it is apparent that he is alleged to have exercised appellate power for the purposes of setting aside the decision of the District Administrative Committee, Jaunpur dated 28.11.2005. 23. The order of compulsory retirement was made under Rule 29 of the Rules, 1976. Neither the Rules of 1976 nor the Regulations framed in exercise of power under Rule 30 of the Rules of 1976 provide for any appeal against the order of compulsory retirement made under Rule 29. 24. It is settled law that right of appeal is an statutory right and unless a statute confers a right of appeal, it cannot be inferred. Therefore, we have no hesitation to record that the order made by the Member Cadre Secretary dated 07.08.2014 in alleged exercise of appellate power is a nullity as no appeal is maintainable before him against the order of the compulsory retirement. 25. We may record that Regulations of 1978 provide for an appeal under Regulation 60 only against an order of punishment and not against the order of compulsory retirement. 26. Counsel for the appellant refers to Rule (8)((1)(x) of Rules, 1976, which reads as follows: 288 INDIAN LAW REPORTS ALLAHABAD SERIES "8.(1) The Authority shall be the chief policy making body for the Centralised Service. The Authority shall have following powers, duties and responsibilities:- (x)..... to hear appeals against the orders passed by the District Administrative Committee." 27. From the aforesaid provision it is clear that the power to hear the appeal has been conferred upon the State Cadre Authority and not only upon its Secretary, whose powers are defined under Rule 9. This rule only describes/identifies the appellate authority competent to hear appeals against the orders of District Level Committee. 28. The Authority/Member Secretary can hear and decide only such appeals which are statutorily provided for. The identification of the appellate authority will not mean that the Authority/Member Secretary on his own can entertain appeals which are not statutorily provided. 29. What applies to the Authority applies with more rigor to the Member Secretary of the Authority as he has no power beyond that conferred upon the Authority itself. 30. As already noticed above, against the order of compulsory retirement made in exercise of powers under Rule 29, no appeal under the Rules, 1976 or under the Regulation, 1978 has been provided for. Therefore, the Member Secretary, could not have entertained the appeal filed by the petitioner appellant against the decision of compulsory retirement dated 28.11.2005. 31. For all the aforesaid reasons, we do not find any illegality in the order of the Hon'ble Single Judge. The present special appeal has no merit. It is dismissed. ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 03.03.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Second Appeal No.- 233 Of 2016 Ajmer Singh & Ors. ...Appellants Versus Maulvi Zahoor Ahmad & Ors. ...Respondents Counsel for the Appellants: Sri Ashfaq Ahmed Ansari Counsel for the Respondents: Sri Manoj Kumar Rai