# Dinesh Kumar v. State of U.P

- **Citation:** (2024) 9 ILRA 552
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-23
- **Case number:** Writ A No. 15654 of 2017
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-v-state-of-u-p-54678
- **Pages:** 4

## Headnote

C.S.C.

A. Legal proceeding - Counter Affidavit to
be filed on behalf of the St., as the
contesting party - GO dated 25.09.2018,
14.03.2022 and 12.06.2023 - Officer, who
can file it - Duty of Government Counsel
explained - In matters, where the St.
Government is a contesting party, then
counter affidavit or any pleading should
be got vetted by the Additional Chief
Secretary / Principal Secretary and the
counter affidavit should be prepared on
the basis of the narrative vetted by the
said Officer - Every Government Counsel,
whether he be the Standing Counsel or
A.G.A., or known by any other designation
in the High Court, when he prepares a
counter
affidavit,
objection
or
any
pleading of any sort on behalf of the St.
Government or where the St. Government
is a party, then he shall first of all satisfy
himself as to whether the aforesaid
Government Orders have been complied
or not? Only thereafter, such affidavit of
pleading
shall
be
finalized,
so
that
unnecessary time of the Court is not
wasted. (Para 5 and 6)

Writ petition kept pending. (E-1)

## Text

552 INDIAN LAW REPORTS ALLAHABAD SERIES
been done by the Government Order dated
30.12.2005 and 13.06.2006 and of Writ
petition No.2811 of 2004 (Dr. Rajendra and
others Vs. State of U.P. and others) having
been decided by Hihg Court on 10.11.2005
with the observation that only notional
promotion can be given and pension
refixation can be done alongwith other
retiral benefits but arrears of salary cannot
be given on the principle of "No work No
pay."

28. The reasons given in the
impugned order for rejecting the case of the
petitioners for grant of notional promotion
are arbitrary in the face of observations
made by Division
Benches of this Court in the case of Gulab
Chandra and Dr. Ramji Pandey (Supra).

29. The Division Benches of this
Court in the aforesaid two judgments have
allowed the writ petitions with the direction
to the respondents to grant benefit of
notional promotion to the writ petitioners to
the post of Additional Director and
Director as and when it fell due in
accordance with rules as notified in August,
2004 and the pay scale was to be refixed
and teh arrears of salary were to be
recalculated and to be paid within three
months from the date of passing of the
order. Consequential benefits of refixation
of pension, gratuity and other post retiral
benefits were also to be made available to
the writ petitioners and if such payment
was delayed beyond three months, the
same was to accrue 6% simple interest
from the date of judgment to the date of
payment.

30. Similar orders have been passed
by Hon'ble the Supreme Court in Civil
Appeal No.3041 of 2010 as have been
mentioned above.

31. In view of the above, these writ
petitions are allowed in same terms as the
decision taken by this Court on 31.08.2017
in Writ-A No.3334 of 2009; Ramji Pandey
Vs. State of U.P.

32. Let appropriate order be passed by
opposite parties making them subject to
decision in S.L.P. with Diary No.33951 of
2018; State of U.P. Vs. Ramji Pandey.

33. A direction is issued to the
respondents to grant notional benefits of
promotion to the petitioners as Additional
Director and Director as and when it falls
due in accordance with rules as notified on
11.08.2004 and the pay shall be refixed and
payment of arrears of salary on such
recalculation
shall
be
made
as
expeditiously as possible, preferably within
three
months
from
today.
The
consequential benefits of pension, gratuity
and other retiral dues shall also be available
to the petitioners. In the event the payment
is delayed beyond three months, the same
shall carry 6% simple interest from the date
of this judgment to the date of payment.
----------
(2024) 9 ILRA 552
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 15654 of 2017

Dinesh Kumar ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner
Km. Vishwa Mohini, Devashish Bhatt,
Rajesh Kumar
9 All. Dinesh Kumar Vs. State of U.P.
553
Counsel for the Respondents:
C.S.C.

A. Legal proceeding - Counter Affidavit to
be filed on behalf of the St., as the
contesting party - GO dated 25.09.2018,
14.03.2022 and 12.06.2023 - Officer, who
can file it - Duty of Government Counsel
explained - In matters, where the St.
Government is a contesting party, then
counter affidavit or any pleading should
be got vetted by the Additional Chief
Secretary / Principal Secretary and the
counter affidavit should be prepared on
the basis of the narrative vetted by the
said Officer - Every Government Counsel,
whether he be the Standing Counsel or
A.G.A., or known by any other designation
in the High Court, when he prepares a
counter
affidavit,
objection
or
any
pleading of any sort on behalf of the St.
Government or where the St. Government
is a party, then he shall first of all satisfy
himself as to whether the aforesaid
Government Orders have been complied
or not? Only thereafter, such affidavit of
pleading
shall
be
finalized,
so
that
unnecessary time of the Court is not
wasted. (Para 5 and 6)

Writ petition kept pending. (E-1)

(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Om Prakash Shukla, J.)

1. Heard Km. Vishwa Mohini, learned
Counsel for the petitioner, Shri Shailendra
Kumar Singh learned Chief Standing
Counsel & Shri Prashant Singh Atal,
learned C.S.C. - I, for the State.

2. After seeking instructions, this
Court has been informed by the learned
Chief Standing Counsel that in fact, the
affidavit filed after the passing of the order
dated 19.05.2023 was duly vetted by the
Additional
Chief
Secretary
of
the
department i.e. Rural Engineering Services.
However, in this very context we find, that
in Public Interest Litigation No. 338 of
2022, in response to our order dated
30.08.2024, filed in the said petition as to
who is authorized to file an affidavit on
behalf of the Government, a Government
Order dated 26.04.2001 was brought on
record according to which, such responses
on behalf of the State Government are to be
filed by an officer not below the rank of
Joint Secretary/Deputy Secretary, however,
in exceptional circumstances, the same can
also be filed by the Deputy Secretary or
Section Officer concerned.

3. We had not expressed any opinion
on this issue in the said matter. Today, we
found that in the order dated 19.05.2023,
there is a reference to four Government
Orders on the subject which are dated
23.06.2010, 25.09.2018, 14.03.2022 and
08.07.2022. None of these Government
orders were brought to our notice in P.I.L.
No. 338 of 2022. Moreover, it is also
informed that after 19.05.2023, another
Government order dated 12.06.2023 was
issued by the Chief Secretary for strict
compliance of the Governement Orders
dated 23.06.2010, 25.09.2018, 14.03.2022
and 08.07.2022. There is no reference
therein to the order dated 26.04.2001 which
was placed before us in P.I.L. No. 338 of
2022.

4. We have gone through the
aforesaid Government Orders and we find
that in the Government Order dated
23.02.2010, it was provided that wherever
the State Government is a party in any
proceedings before the High Court, then the
narrative should be got vetted by the
Principal Secretary / Secretary and the
counter affidavit should be prepared and
filed based on the said vetted narrative.
However, this Government Order was
554 INDIAN LAW REPORTS ALLAHABAD SERIES
further considered and another Government
Order
dated
23.06.2010
was
issued,
according to which in matters where the
State Government was merely a proforma
party / remote party, then the narrative
pertaining to such matters for the purposes
of filing counter affidavit should contain an
endorsement by a Group A Officer of the
administrative department concerned on the
prescribed format of the Law Department
that the counter affidavit in the matter is
required to be filed by the Head of
Department or Head of the Office i.e. not
by the State Government. However, if in a
particular matter, certain paragraphs of the
writ
petition
pertain
to
the
State
Government, in that case, the narrative
pertaining to the said paragraphs should be
got vetted / approved by the Principal
Secretary / Secretary / Special Secretary of
the Government. The Principal Secretary
can delegate his powers / obligations in this
regard which would obviously mean a
delegation to the Secretary / Special
Secretary. Thereafter, another G.O. dated
25.09.2018 was issued reiterating what had
been stated in the G.O. dated 23.06.2010,
so far as, filing of affidavits on behalf of
the
State
Government
is
concerned.
Another G.O. was issued on 14.03.2022
dealing with various issues pertaining to
legal proceedings before the High Court
wherein the State is a party or not a party.
However, so far as, the issue with which
we are concerned i.e. the officer who is
authorized and should file the affidavit on
behalf of the State Government, the said
G.O. also reiterated what was stated in the
G.O. dated 25.09.2018. Paragrpah 2 (?) (2)
of the said G.O. dated 14.03.2022 reads as
under:-

"उपयुफक्त्‌
वादों्‌
के्‌
सांबांध्‌
में्‌
प्रनतशपथ्‌ पत्र्‌ तैयार्‌ कराते्‌ समय्‌ तथ्यों्‌
की्‌
पुजष्ट्‌
सदहत्‌
तथ्यपरक्‌
प्रस्तरवार्‌
आख्या्‌ तैयार्‌ करने्‌ के्‌ उपरान्त, उसका्‌
सम्यांक्‌
परीक्षण्‌
पवभागाध्यक्ष्‌
एवां्‌
कायाफलयाध्यक्ष्‌ के्‌ स्तर्‌ पर्‌ ककया्‌ जाय्‌
तथा्‌ न्याय्‌ पवभाग्‌ के्‌ उपयुफक्त्‌ सांदशभफत्‌
शासनादेश्‌ ददनाांक्‌ 25 शसतम्बर्‌ 2018 के्‌
पररप्रेक्ष्य्‌
में्‌
यह्‌
स्पष्ट्‌
रूप्‌
से्‌
मत्‌
जस्थर्‌ ककया्‌ जाय्‌ कक्‌ क्या्‌ प्रश्नगत्‌ बाद्‌
में्‌ शासन्‌ प्रोर्ामाफ्‌ पाटी्‌ है्‌ अथवा्‌ कक्‌
शासन्‌ के्‌ ककसी्‌ आदेश्‌ /्‌ नीनत/ननयम्‌
को्‌ चुनौती्‌ दी्‌ गयी्‌ है।्‌ यदद्‌ शासन्‌ के्‌
ककसी्‌ आदेश/नीनत/ननयम्‌ को्‌ चुनौती्‌ दी्‌
गई्‌
है्‌
तो्‌
उसके्‌
सांबांध्‌
में्‌
प्रत्त्तरवार्‌
आख्या्‌ तैयार्‌ कराकर्‌ व्‌ पुजष्ट्‌ स्वरूप्‌
सक्षम्‌
प्रागधकारी्‌
के्‌
हस्ताक्षर्‌
सदहत,
अनुमोदन्‌
हेतु्‌
शासन्‌
को्‌
उपलब्ध्‌
कराया्‌
जाना्‌
सुननजश्चत्‌
ककया्‌
जाय्‌
तथा्‌
यदद्‌
सांबांगधत्‌
बाद्‌
में्‌
शासन्‌
प्रोर्ामाफ्‌ पाटी्‌ के्‌ रूप्‌ में्‌ पक्षकार्‌ है्‌ तो्‌
न्याय्‌
पवभाग्‌
के्‌
उक्त्‌
शासनादेश्‌
में्‌
ददये्‌ गये्‌ ननदेशों्‌ व्‌ सांक्षक्षप्त्‌ प्रनतशपथ्‌
पत्र्‌ के्‌ सांलग्न्‌ मॉडल्‌ प्रारूप्‌ के्‌ अनुसार्‌
ही्‌ सांक्षक्षप्त्‌ प्रपत्तशपथ्‌ पत्र्‌ तैयार्‌ कराकर्‌
उपलब्ध्‌ कराया्‌ जाय।"

5. There is another Government Order
dated 08.07.2022 but it does not dwell on
the issue with which we are concerned, at
least, no provision could be pointed out by
the Chief Standing Counsel in this regard.
By the G.O. dated 12.06.2023 issued by the
9 All. Commissioner, Kendriya Vidyalaya Sangathan & Ors. Vs. Central Administrative Tribunal,
 Allahabad & Anr.
555
Chief Secretary, strict compliance of the
G.O.'s
dated
23.06.2010,
25.09.2018,
14.03.2022 and 08.07.2022 was reiterated
with reference to the orders passed in this
petition on 19.05.2023. In the aforesaid
G.O. dated 12.06.2023, in Paragraph 3
thereof, again, the Chief Secretary has
reiterated that in matters where the State
Government is a contesting party, meaning
thereby, where it has an active role in the
matter, then then counter affidavit or any
pleading should be got vetted by the
Additional Chief Secretary / Principal
Secretary and the counter affidavit should
be prepared on the basis of the narrative
vetted by the said Officer.

6. In view of the above, we hereby
provide that every Government Counsel,
whether he be the Standing Counsel or
A.G.A., or known by any other designation
in the High Court, when he prepares a
counter affidavit, objection or any pleading
of any sort on behalf of the State
Government
or
where
the
State
Government is a party, then he shall first of
all satisfy himself as to whether the
aforesaid Government Orders have been
complied or not ? Only thereafter, such
affidavit of pleading shall be finalized, so
that unnecessary time of the Court is not
wasted when the pleadings have already
been filed and this error or omission is
pointed out to it. The Chief Standing
Counsel and the Government Advocates
shall
take
cognizance
and
ensure
compliance thereof. In fact, if a narrative or
the counter affidavit is required to be vetted
by a senior officer of the Government in
terms of the aforesaid Government Order,
then a counter affidavit prepared in terms
of the said narrative shall contain a specific
paragraph that the said counter affidavit has
been prepared on the basis of the narrative
vetted by the concerned Officer, whose
name and designation should be mentioned,
and also, that this has been prepared in
compliance of the aforesaid Government
order.

7. Shri Sanjay Verma, Additional
L.R. is present from the office of Legal
Remembrancer,
U.P..
He
expresses
apology for non-production of the other
Government Orders in the P.I.L. referred
herein above.

8. Two weeks time is granted to the
petitioner for filing rejoinder affidavit to
the affidavit filed on behalf of the State.

9. List/put up this case after two
weeks.

10. Let a copy of this order be sent to
the Legal Remembrancer, U.P., the Chief
Secretary, Government of U.P., Lucknow,
as also, to the Chief Standing Counsel and
Government Advocate of this Court at
Lucknow & at Allahabad. A copy thereof
be also sent to the learned Advocate
General for his information.
----------
(2024) 9 ILRA 555
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2024

BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ A No. 16078 of 2018

Commissioner,
Kendriya
Vidyalaya
Sangathan & Ors. ...Petitioners
Versus
Central Administrative Tribunal, Allahabad
& Anr. ...Respondents

Counsel for the Petitioners