# Dr. Deepak Bhatiya and Others v. State Of U.P. & Others

- **Citation:** (2010) 2 ILRA 859
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-15
- **Case number:** Civil Misc. Writ Petition No. 2842 of 2010
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-deepak-bhatiya-and-others-v-state-of-u-p-others-41702
- **Pages:** 3

## Text

2 All] Dr. Deepak Bhatiya and others V.State of U.P. and others
859
jurisdiction to award compensation to the
petitioner which it has done.

11. For the aforementioned reasons
there is no error or illegality in the
impugned award.

12. The writ petition has no merit. It
is accordingly dismissed.

13. No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.07.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 2842 of 2010

Dr. Deepak Bhatiya and Others ...Petitioner
Versus
State Of U.P. & Others ...Respondent

Counsel for the Petitioner
Sri N.L. Pandey

Counsel for the Respondents
Sri Satish Chaturvedi (Addl. Advocate General.)
Sri A.K. Yadav
C.S.C.

Constitution
of
India-Art.226
appointment
on
post
of
principalcommission excluded those teachers
working
in
self
finance
institutionwithout verifying the fact regarding
mode of full time or part time workingheld-illegal-teachers working full time
basis even in un-aided institutions are
qualified for consideration for the post of
principal in aided intermediate college.

Held Para 7

This Court holds that the Commission
has not justified in excluding such
teachers who are working in self finance
institutions en masse. The Board must
scrutinise
the
application
of
the
candidates concerned working in such
self financed recognized institutions and
satisfy itself as to whether they are part
time teachers or full part time teachers.
All full time teachers appointed in
accordance with rules applicable to such
institution
are
within
the
zone
of
consideration and the Selection Board
shall
take
appropriate
action
accordingly.

(Delivered by Hon'ble Arun Tandon,J. )

1. Heard learned counsel for the
petitioner and learned counsel for the
State-respondents.

Petitioners had been working as full
time teacher in institutions which are
affiliated from the Central Board for
Secondary Education, New Delhi, is
recognised Intermediate Colleges which
have been granted recognition under selffinance. The petitioners have made
applications for being considered for the
post of Principal available in various High
School
and
Intermediate
Institutions
recognised by the Madhyamik Shiksha
Parishad in terms of the advertisement
published by U.P. Secondary Education
Services Selection Board established
under
U.P.
Act
No.
5/1982.
The
application of the petitioners have not
been considered by the Selection Board
because the petitioners have been working
in self financing institution and they were
not being giving salary from the State
exchequer.

2. Counsel for the petitioner has
placed reliance upon the judgement of the
Apex Court in the case of Mohd. Altaf &
Ors. vs. Public Service Commission &
Anr. in C.A. No. 961-962 of 1999 as also
upon the judgement of the Apex Court in
860 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Contempt Petition (c) No. 372/2002 in
C.A. No. 962/1999 Shamim Khanam vs.
K.B. Pandey & another, it is submitted
that teachers working in self-financed
institution cannot, as a class, be excluded
from consideration. Relevant portion of
the order of the Supreme Court relied
upon by the petitioner is quoted herein
below:

"Part
time
teachers
would
be
excluded from consideration. However, it
is made clear that there cannot be a class
of exclusion of teachers who are working
in self-financed institutions. Any exclusion
of a candidate on the basis that he or she
is a part time teacher must be made only
in
individual
cases
after
proper
verification."

3. On behalf of the petitioner, it is
contended that from the aforesaid, it is
clear that there cannot be an en masse
exclusion of teachers working it selffinanced institution in the matter of
consideration for the post of Principal of
Intermediate College. The controversy,
therefore, stands settled in favour of the
petitioners.

4. Shri Satish Chatirvedi, Additional
Advocate General could not dispute the
correctness of the law as flows from the
judgement of the Apex Court noticed
above.

5. Full time teachers working in self
financing
institutions
have
due
recognition from statutory boards cannot
be excluded if they satisfy all other
conditions, it is only the part time teachers
who on examination of individual cases
can be excluded from such consideration.

6. So far as teachers working in
recognized Intermediate Colleges having
recognition under section 7A of the
Intermediate
Education
Act
are
concerned; this Court may notice that
since 1986 all Intermediate and High
Schools have been granted recognition
under self finance only i.e. under Section
7A. The teachers are appointed for such
institutions under Section 7AA read with
Government
order
dated
16.4.2004.
Although termed as part time they in fact
are required to work as full time
teachers. Therefore, their claim also
cannot be excluded en masse.

7. This Court holds that the
Commission
has
not
justified
in
excluding such teachers who are working
in self finance institutions en masse. The
Board must scrutinise the application of
the candidates concerned working in
such self financed recognized institutions
and satisfy itself as to whether they are
part time teachers or full part time
teachers. All full time teachers appointed
in accordance with rules applicable to
such institution are within the zone of
consideration and the Selection Board
shall take appropriate action accordingly.

8. In view of the aforesaid the
circular issued by the State Government
dated 16.4.2004 has to read accordingly.

9. Let consequential action be taken
in the matter of selection of Principle's
by the Selection Board pending before it
by the Selection Board accordingly.

10. Writ Petition stands disposed
of.
---------
2 All] Dinesh Kumar Soni and others V State of U.P. and another
861
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2010

BEFORE
THE HON'BLE S.C. AGARWAL, J.

Criminal Revision No. - 3017 Of 2010

Dinesh Kumar Soni and others

 ...Revisionists
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Sudhir Shandilya

Counsel or the Respondent:
A.G.A.

Criminal
Revision-Magistrate
taken
cognigance-on affidavit filed on Protest
Petition-without
considering
any
material of case diary-held-either of
procedure prescribed by Division Bench
Case of Pakhando Case-not followed by
Magistrate-order wholly illegal.

Held Para 6

The Magistrate has not adopted any of
the four courses detailed above but
proceeded to take cognizance on the
basis of affidavits. The cognizance of
the offence cannot be taken on the
basis
of
affidavits.
Either
the
Magistrate should have passed the
order on the basis of material present
in the case diary or should have treated
protest petition as a complaint. The
course adopted by learned Magistrate
is absolutely illegal. Therefore, the
impugned order cannot be sustained
and is liable to be set aside.
Case Law Discussed:
2001 (43) ACC 1096

(Delivered by Hon'ble S.C. Agarwal,J.)

1. Heard learned counsel for the
revisionists and learned AGA for the
State.

2. The instant revision is directed
against the order dated 26.6.2010 passed
by the J.M. Ist, Mahoba in Criminal Case
No. 82 of 2010, State Vs. Dinesh Kumar
Soni & others, under Sections 457, 380
IPC, P.S. Mahobkanth, District-Mahoba,
whereby the revisionists were summoned
to face trial under Sections 457, 380 IPC.

3. Since the matter is being
remanded to the learned Magistrate, there
is no need to issue notice to the
complainant-opposite party no. 2.

4. FIR was lodged by the
complainant against unknown persons in
respect of theft. The police submitted
final report. The protest petition was filed
by the complainant and affidavits of
opposite party no. 2 and his witnesses
were filed before the Magistrate. Learned
Magistrate took cognizance on the basis
of
affidavits
and
summoned
the
revisionists to face trial under Sections
457, 380 IPC. It was further directed that
the case shall proceed as a State case.

5. It is submitted by learned counsel
for the revisionists that there was no
material on the case diary against the
revisionists and therefore, the Magistrate
was not justified in summoning the
revisionists. It is further submitted that the
protest petition filed by opposite party no.
2 was not treated as a complaint, nor
statements
of
complainant
and
his
witnesses were recorded under Sections
200 and 202 Cr.P.C. It is further
contended that the cognizance was taken