# Dr. Manju Verma v. State of U.P. and others

- **Citation:** (2002) 2 ILRA 444
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-05-03
- **Case number:** Civil Misc. Application No. 15589 of 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-manju-verma-v-state-of-u-p-and-others-39946
- **Pages:** 10

## Headnote

Sri N.P.Srivastava
Sri R.K. Srivastava
Sri K.C. Sinha
Sri H.K. Misra
Sri Balram Singh

Amalgamation Order- Clause 14 - It does
not take away the power of the Chief
Justice, to exercise his discretion and
pass orders in any case or class of cases
arising within the area on Oudh to be
heard
at
Allahabad-
the
power
to
exercise the discreation vested in the
Chief Justice under the second proviso to
paragraph 14 of the order shall be so
exercised as to direct that the present
writ petition, which has been instituted
and filed at Lucknow Bench be directed
to be heard at Allahabad. (Held in
paragraph nos. 31 and 32)

This is a fit and appropriate case, where
order should be made for hearing of the
writ petition at Allahabad. The petition
under Clause 14 of the Amalgamation
Order is allowed and the writ petition,
being writ petition no. 1678 (SB) of
1998, Dr. Manju Verma vs. State of UP
and others, which has been filed at
Lucknow
Bench
is
directed
to
be
transferred to Allahabad for hearing,
which shall be listed for hearing before
the appropriate court.
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2 All] Dr. Manju Verma V. State of U.P. and others
445
Case law discussed:
AIR 1964 SC 993, AIR 1970 SC 331, 1995 (4)
SCC 738, 1994 LCD 1181.

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
444
may not be interlocutory, albeit may not
be final either. Surely, it will be a case
decided, as pointed out by this Court in
some decisions, within the meaning of S.
115 of the Code of Civil Procedure. We
think it would be just and proper to apply
the same kind of test for finding out the
real
meaning
of
the
expression
'interlocutory order' occurring in S. 397
(2).

15. In view of what we have
discussed hereinabove, office report is
hereby overruled and it is held that the
present appeal is maintainable. A copy of
the order passed today be placed before
Stamp Reporter to avoid inconvenience to
the Bar on the aforesaid issue in future.

Heard the learned counsel for the
appellant on merits at admission stage.

Admit.

Issue notice.

16. Meanwhile the execution and
implementation of the exparte decree
dated 3.5.2001 passed by Family Court in
Case No. 604 of 2002 between the parties
shall remain stayed till further order of
this Court.

17. After dictation of judgement the
members of the Bar present in Court
made a request to make the judgement
reportable. The request is allowed and
judgement is made reportable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD JANUARY 23, 2002

BEFORE
THE HON'BLE S.K. SEN, C.J.

Civil Misc. Application No. 15589 of 2001

Dr. Manju Verma

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Assem Chandra

Counsel for the Respondents:
Sri N.P.Srivastava
Sri R.K. Srivastava
Sri K.C. Sinha
Sri H.K. Misra
Sri Balram Singh

Amalgamation Order- Clause 14 - It does
not take away the power of the Chief
Justice, to exercise his discretion and
pass orders in any case or class of cases
arising within the area on Oudh to be
heard
at
Allahabad-
the
power
to
exercise the discreation vested in the
Chief Justice under the second proviso to
paragraph 14 of the order shall be so
exercised as to direct that the present
writ petition, which has been instituted
and filed at Lucknow Bench be directed
to be heard at Allahabad. (Held in
paragraph nos. 31 and 32)

This is a fit and appropriate case, where
order should be made for hearing of the
writ petition at Allahabad. The petition
under Clause 14 of the Amalgamation
Order is allowed and the writ petition,
being writ petition no. 1678 (SB) of
1998, Dr. Manju Verma vs. State of UP
and others, which has been filed at
Lucknow
Bench
is
directed
to
be
transferred to Allahabad for hearing,
which shall be listed for hearing before
the appropriate court.
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2 All] Dr. Manju Verma V. State of U.P. and others
445
Case law discussed:
AIR 1964 SC 993, AIR 1970 SC 331, 1995 (4)
SCC 738, 1994 LCD 1181.

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

1. This is an application under Order
14 of United Provinces High Courts
(Amalgamation) Order 1948. The facts
inter alia involved in this writ petition
namely, Civil Misc. Writ Petition no.
1678 (S/B) of 1998 are that the petitioner
Dr. Manju Verma, (hereinafter referred to
as the first petitioner) was appointed as an
adhoc
lecturer
in
Obstetrics
and
Gynaecology in State Medical College,
Jhansi . In Februrary 1978 she was
transferred as adhoc lecturer by the State
Government to Motilal Nehru Medical
College, Allahabad where while working
as Adhoc lecturer, she was regularized as
lecturer under the provisions of the
Regularisation of Adhoc Appointment
Rules 1979. She was promoted in
December 1980 as adhoc Reader in
Obstetrics and Gynecology Department
and was posted at Baba Raghav Das
Medical College, Gorakhpur, but on
account of the death of her father-in-law
she was unable to join at Gorakhpur and
continued to work as a lecturer at
Allahabad.

2. It is alleged that while the
petitioner was working as a lecturer at
Allahabad,
the
post
of
Reader
in
Obstetrics & Gynaecology (Post Partem
Programme) were advertised by the
Public
Service
Commission,
U.P.
Allahabad in response to which she
applied for appointment to the said post. It
may be noted here that the posts of
Reader in Obstetrics and Gynaecology
advertised
by
the
Public
Service
Commission, UP, Allahabad were to be
filled in by direct recruitment. As appears
from Annexure-1 to the writ petition, the
notification dated 9.6.1982 notified by the
Public
Service
Commission,
U.P.
Allahabad,
on
the
basis
of
recommendation of Selection Committee,
I) Dr. (Smt.) Veena Mathur, ii) Dr. (Smt.
Meera Agnihotri, iii), Dr. (Smt.) Sadhana
Kala (Upraiti) iv) Dr. (Smt.) Manju
Verma (Srivastava) were selected in order
of merit and Dr. (Smt. Sandhya Agarwal
was placed in the waiting list. It is also
alleged that the candidate recommended
at Sl. No. 3 i.e. Dr. (Smt.) Sadhana Kala
(Upraiti) did not join as Reader in
obstetrics and Gynaecology in pursuance
of the recommendations of the Public
Service Commission, U.P. Allahabad and
consequently the first petitioner who was
at Sl. No. 4 moved to the position at Sl.
No. 3 and Dr. Smt. Sandhya Agarwal,
who was in the waiting list, came to the
4th position.

3. It is alleged that the State
Government did not issue appointment
letters to the candidates selected by the
Public Service Commission and before
that in November 1982 and May 1985,
arbitrarily appointed, on adhoc basis Dr.
Radha Jina, Dr. Kumkum Srivastava and
Dr. Barun Sarkar as adhoc Readers in
Obstetrics and Gynecology in State
Medical Colleges.

4. It has been alleged that on
19.1.1983 Dr. (Smt.) Veena Mathur and
Dr.
Meera
Agnihotri
were
offered
appointment
as
Regular
Reader
in
Obstetrics and Gynaecology in the State
Medical Colleges but the first petitioner
even on 19.1.1983 arbitrarily was not
given appointment as Reader in pursuance
of the recommendation of the Public
Service Commission, UP Allahabad and it
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
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was on 14.8.1986 that she was appointed
as Reader in Obstetrics and Gynaecology
on the basis of the recommendations of
Public
Service
Commission,
UP
Allahabad and posted at the State Medical
College, Jhansi vide the Photostat Copy
of the appointment letter dated 14.8.1986,
Annexure- 2 to the writ petition.

5. It is further alleged that in August
1986 Dr.(Smt.) Veena Mathur working as
Reader in Obstetric and Gynaecology at
Allahabad was given adhoc promotion as
Professor and posted at Medical College,
Agra.
In
these
circumstances
the
petitioner submitted a representation to
the State Government that as post of
Reader in Obstetrics and Gynaecology
has fallen vacant at Allahabad on account
of adhoc promotion of Dr. Veena Mathur,
the first petitioner's posting may be
changed from Jhansi to Allahabad. On
31.8.1986 she made a representation to
the effect that she may be given posting at
Allahabad due to her husband being
posted at Allahabad Medical College
since a vacancy on the post of Reader
(Obstetric and Gynaecology) was likely to
occur on account of promotion of Dr.
Veena Mathur as Professor, Obstetrics
and
Gynaecology
at
S.N.
Medical
College, Agra. A photo state copy of the
representation dated 31.8.1986 made by
her for her posting to Allahabad has been
annexed as Annexure -2A to the writ
petition. It is alleged that on 3.4.1987 the
State
Government
posted
the
first
petitioner as Reader in Obstetrics and
Gynaecology at Allahabad in supersession
of the posting at Jhansi. A copy of the
order dated 3.4.1987 has been annexed as
Annexure -3 to the writ petition.

6. It has been further alleged that the
seniority mentioned in the seniority list
dated 10.4.1992 and the seniority list of
1991 were similar but both the seniority
lists were prepared arbitrarily showing the
first
petitioner
below
Dr.
Sandhya
Agarwal, Dr. Barun Sarkar and Dr. (Smt.)
Gauri Ganguli. On coming to know of the
wrong preparation of the seniority list in
the year 1991, which was repeated on
10.4.1992, she made a number of
representations for the correction of the
seniority list commencing from 1992 to
1997. Four of such representations have
been annexed as Annexure 5 to 8 to the
writ petition.

7. It is also alleged in the writ
petition that the Secretary, and the
Director of Medical Education. UP
Government Lucknow repeatedly assured
the first petitioner's husband Dr. A.N.
Verma, presently posted as Professor in
Orthopaedics
at
Medical
College,
Allahabad that the seniority list would be
corrected but did not do so in spite of
their assurances.

8. The contention of the first
petitioner is that in spite of her being
senior to Dr. Sandhya Agarwal, Dr. Barun
Sarkar and Dr. (Smt.) Gauri Ganguli, she
was denied promotion as Professor in
Obstetrics and Gynaecology while Dr.
Sandhya Agarwal and Dr. (Smt.) Gauri
Ganguli were made as adhoc and
promoted professor in the year 1996 and
1990 respectively. It has been claimed
that the first petitioner is senior as Reader
in Obstetrics and Gynecology to Dr.
Sandhya Agarwal, Dr. Barun Sarkar and
Dr. (Smt.) Gauri Ganguli and she was
entitled to be promoted as Professor in
Obstetrics and Gynaecology prior to Dr.
Sandhya Agarwwal, Dr. Barun Sarkar and
Dr. (Smt.) Gauri Ganguli and that she is
entitled to be regularised after giving
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2 All] Dr. Manju Verma V. State of U.P. and others
447
retrospective promotion as Professor and
she can not be subjected to any further
discrimination as she has already suffered
immensely for she is being deprived of
the promotion as Reader since 14.1.1983.

9. It is alleged that on 2.12.1998 the
State
Government
passed
an
order
rejecting the representation of the first
petitioner for her being placed above Dr.
(Smt.) Sandhya Agarwal, Dr. Barun
Sarkar and Dr. (Smt.) Gauri Ganguli,
although a perusal of the said order dated
2.12.1998 shows that the case of the first
petitioner claiming seniority over Dr.
Sandhya Agarwal and Dr. Barun Sarkar
has not been adverted to at all and the
seniority has been determined only qua
Dr.(Smt.) Gauri Ganguli. A Photostat
copy of the order dated 2.12.1998 passed
by the State Government rejecting the
representations of the first petitioner has
been annexed as Annexure -14 to the writ
petition.

10. It is also the contention of the
first petitioner that on 18.10.2000 the
Director Medical Education and Training,
UP by means of letter dated 18.10.2000
published
provisional
seniority
list
inviting objections to the same and the
first petitioner as well as Dr. (Smt.) Gauri
Ganguli filed objections to the same. The
first petitioner on 21.10.2000 submitted
her representation mentioning therein that
she was selected by the Public Service
Commission, U.P. Allahabad during the
year 1981-82 and Dr. (Smt.) Gauri
Ganguli was rejected by the Commission
but appointment in favour of the first
petitioner was purposely delayed and it
was on 14.8.1986 that the first writ
petitioner was issued the letter of
appointment, true copy of which is
annexure-2 to the writ petition. So far as
Dr. (Smt.) Gauri Ganguli is concerned,
her adhoc appointment was regularised on
12.1.1990
under
the
provisions
of
Regularisation of Adhoc Appointment
Rules 1988 and as such she is junior to
the first petitioner.

11. It is further contended in the writ
petition that in her representation dated
21.10.2000 (Dr. (Smt.) Gauri Ganguli has
alleged that her date of substantive
appointment was 9.9.1986 and that the
date of her substantive appointment
shown as 12.1.1990, is not correct and the
first petitioner's date of substantive
appointment as 14.8.1986 was not correct
in as much as the first petitioner
according to Dr.(Smt.) Gauri Ganguli was
on that date working as Lecturer at the
Medical College, Allahabad and that in
pursuance of the Government order dated
3.4.1987 the first petitioner joined on
4.4.1987 on the post vacated by Dr.
(Smt.) Gauri Ganguli and Dr. (Smt.)
Gauri Ganguli, therefore desired that the
State Government should amend the dates
mentioned in the provisional seniority list.

12. The first petitioner has taken
several other points alleging irregularity
and
illegality
in
the
matter
of
determination of her seniority and under
the circumstances she has prayed for the
following reliefs:

i)
Issue a writ of mandamus or a writ,
order or direction in the nature of
mandamus requiring the opposite parties
to dispose of the representations of the
petitioner regarding seniority.

ii)
Issue a writ or mandamus or a writ ,
order or direction in the nature of
mandamus
restraining
the
opposite
parties from holding the departmental
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
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promotion committee on 12.11.1998 or
any
other
subsequent
date
without
correcting the seniority list of the Readers
in Obstetrics and Gynecology in the State
Medical Colleges.

iii) Issue a writ of mandamus, or a writ
order or direction in the nature of
mandamus requiring the opposite parties
to give promotion to the petitioner as
Professor in Obstetrics and Gynecology
from the date /dates her juniors Dr.
Sandhya Agarwal and Dr. Gauri Ganguli
were given promotion.

iv) Issue any other Writ, Order or
direction for which the petitioner is
entitled to under law.

iv a) Issue a Writ of Certiorari or a writ,
order or direction in the nature of
Certiorari to quash the order dated
2.12.1998 (Annexure-14) passed by the
State Government holding the petitioner
junior to Dr. Smt. Gauri Ganguli.

V) Award costs to the petitioner against
the opposite parties.

V-a) Quash
the
office
order
dated
30.11.2000 (Annexure-15 to the writ
petition) passed by the State Government.

13. A Writ petition being Civil
Misc. Writ Petition No. 1945 of 2000 was
also filed on behalf of Dr. Smt. Gauri
Ganguli, in the Lucknow Bench of this
Court wherein she has also prayed for the
following reliefs.

i)
Issue a writ, order or direction in the
nature of quo- warranto not allowing the
respondent no. 3 to continue on the post
of regular Reader in Motilal Nehru
Medical College Allahabad in Obstetrics
and Gynecology under Post Partem
Programme.

ii)
Issue a writ, order or direction in the
nature
of
certiorari
quashing
the
paragraph no. 3 of the order dated
3.4.1987 issued by respondent no. 1
(annexure 5 to the writ petition).

iii) Issue a writ, order or direction in the
nature
of
mandamus,
directing
the
respondent no. 1 to delete the name of the
respondent no. 3 Dr. Smt. Manju Verma
from the final seniority list dated
30.11.2000 which was issued fixing the
seniority of members in Obstetrics and
Gynecology of Medical Colleges.

iv) Issue any other writ, order or
direction as this Hon'ble Court may deem
proper; and

v)
Award costs of petition in favour of
petitioner. "

14. The said writ petition was
directed by order- dated 15.12.2001
passed by a Division Bench consisting of
Hon'ble Jagdish Bhalla and Hon. R.D.
Mathur JJ that the Lucknow Bench has no
jurisdiction and the writ petition was to be
filed at Allahabad. Accordingly, the same
was filed in Allahabad.

15. It appears that the petitioner is
resident of Allahabad. Private respondents
No. 4, 5 and 6 are at Allahabad. UP
Public Service Commission, which has to
determine
the
seniority
is
also
at
Allahabad. Only the representations were
rejected by Secretary Medical Education,
UP and Director Medical Education, U.P.
to whom the representations were made,
are
at
Lucknow.
Accordingly,
the
question arises if the matter should be
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2 All] Dr. Manju Verma V. State of U.P. and others
449
transferred to Allahabad? However, Mr.
Umesh Chandra, learned Senior Advocate
has strongly referred to Clause 14 of the
UP High Court (Amalgamation) Order
1948
and
has
submitted
that
the
proceedings may be transferred at the
hearing stage only and not otherwise. In
the instant case according to him since
hearing has been concluded the question
of sending the matter to Allahabad from
Lucknow does not arise.

16. He has further submitted that the
provisions similar to Chapter VII Rule 1
of the Rules of Court 1952 are to be found
in order XX Rule 1 CPC, and the
Supreme Court has held in the case of
Arjun Singh Vs. Mohinder Kumar (AIR
1964 SC 993) that after hearing is
concluded, application for setting aside
the hearing under Order IX Rule VII CPC
does not lie and a decree must be passed.
Reason
for
transfer
mentioned
in
paragraphs 14 to 20 and 27 and 28 of the
application under Paragraph 14 of the
Amalgamation Order is that the counsel
of the parties will have to come from
Allahabad. There is no question of the
counsel coming from Allahabad, when
hearing has concluded and judgement
reserved. Moreover, counsel for Dr.
Manju Verma, writ petitioner is from
Lucknow.

17. It is also contended on behalf of
applicant that part of cause of action arose
at Lucknow because of the passing of the
impugned order dated 2.12.1998 and
30.11.2000 at Lucknow and therefore, the
writ petition was rightly entertained at
Lucknow. The residences of Dr. Smt.
Gauri Ganguli and Dr. Smt. Manju Verma
are at Allahabad and their being posted at
Medical College Allahabad, is of no
consequence.
18. In support of his case the learned
counsel has relied upon the cases of
Arjun Singh Vs. Mohinder Kumar and
others (AIR 1964 SC 993), Nasiruddin
Vs. S.T.A. Tribunal (AIR 1970 SC 331),
UP Rashtriya Chini Mill Adhikari
Parishad, Lucknow Vs. State of UP and
others (1995) 4 SCC, 738 and Nityanand
Tewari Vs. State of UP and others
(1994 LCD 1181).

19. Learned counsel for Dr. Smt.
Gauri Ganguli has urged that the question
involved is with regard to seniority of
both the persons who are at Allahabad
and both are also residing at Allahabad.
Further according to her, hearing was also
not in fact concluded. Since the counsel
for the writ petitioner Dr. Manju Verma
could only make his submissions and the
Senior Counsel for Dr. Smt. Gauri
Ganguli Sri K.C. Sinha being absent
adjournment was prayed on his behalf and
no submission could be made on behalf of
Dr. Smt. Gauri Ganguli. However, the
finding that the Division Bench has
passed orders that the hearing has been
concluded, application has also been
made for recall of the said order. Under
such circumstances, it is not correct to say
that the hearing has been concluded. In
fact there is scope for further hearing of
the matter.

20. Sri Rajeev Sharma, learned
Standing Counsel submits that since on
the same cause of action another writ
petition filed by Dr. Gauri Ganguli, being
Writ petition no. 1945 S/B of 2000 was
returned
to
her
vide
order
dated
15.12.2000 with liberty to file a fresh writ
petition at Allahabad that this Court
(Lucknow Bench) has no jurisdiction with
the matter, in view of the fact that claim
of the post of Reader and Head of
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
450
Department
of
Gynaecology
is
at
Allahabad Medical College, both the
parties are residing at Allahabad and no
issue has arisen within the territorial area
of Oudh except that the order has been
passed at Lucknow, the writ petition 1678
S/B of 1998 should be transferred to
Allahabad.

21. I have considered the respective
submissions of the parties.

22. It is apparent from the writ
petition that the writ petitioner has been
working
in
Motilal
Nehru
Medical
College, Allahabad and on the basis of her
claim for seniority as made in her
representation she prayed for a mandamus
directing the opposite party no. 1 to give
promotion to the petitioner as Professor in
Obstetrics and Gynaecology whereas Dr.
Smt. Gauri Ganguli in her writ petition
no. 1945 (SB)/2000 has prayed for not
allowing the respondent no. 3 to continue
on the post of regular Reader in Motilal
Nehru Medical College, Allahabad in
Obstetrics and Gynecology. She has also
prayed for a direction to respondent no. 1
to delete the name of respondent no. 3 Dr.
Smt. Manju Verma from the final
seniority list dated 30.11.2000, which was
issued fixing seniority of the Readers in
Obstetrics and Gynaecology of Motilal
Nehru
Medical
College,
Allahabad.
Therefore, both the writ petitions, one
filed by first writ petitioner Dr. Smt.
Manju Verma and the other by Dr. Smt.
Gauri Ganguli relate to determination of
seniority whereas Dr. Smt. Manju Verma
claims her seniority against Dr. Smt.
Gauri Ganguli and also the post which is
now being held by Dr. Smt. Gauri
Ganguli
at
Motilal
Nehru
Medical
College, Allahabad.

23. Dr. Smt. Gauri Ganguli in her
writ petition in effect claims the same
relief for a direction not to allow said Dr.
Smt. Manju Verma to continue in the post
of regular Reader as according to her she
is not entitled to hold the post in
accordance with her seniority, while in
the writ petition of Dr. Smt. Gauri
Ganguli being writ petition no. 1945 (SB)
of 2000 it was argued that the High Court,
Lucknow Bench has no jurisdiction to
entertain the said petition and it had to be
filed
at
Allahabad,
High
Court.
Accordingly, the said writ petition was
filed at Allahabad. There is no reason to
take a different stand in the writ petition
filed by Dr. Smt. Manju Verma when the
consequential effect of both the writ
petitions are the same. That apart, both
the writ petitioners i.e. Dr. Smt. Manju
Verma and Dr. Smt. Gauri Ganguli are
residents of Allahabad. Other private
respondent no. 4,5 and 6 are also at
Allahabad,
the
UP
Public
Service
Commission, which has to determine the
placement and seniority is also at
Allahabad. There is no reason for
proceeding with the matter of the writ
petitioner at Lucknow Bench when the
other writ petition which is of the same
nature, has already been directed to be
filed at Allahabad.

24. The submission of Mr. Umesh
Chandra, learned Senior Counsel that
hearing was concluded, does not appear to
be correct. In fact prayer for adjournment
was made on behalf of Dr. Smt. Gauri
Ganguli since her Senior Counsel Sri K.C.
Sinha was not available on that date
because of illness of his family member.
Learned Judge, however, only heard Mr.
Umesh Chandra, Senior Advocate and
reserved the judgement and thereafter an
application was made on behalf of Dr.
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2 All] Dr. Manju Verma V. State of U.P. and others
451
Smt. Gauri Ganguli for recalling of the
said order. The matter is still open for
adjudication and in the event recall order
is passed the submission has to be made
and the matter has to be heard. For proper
ascertainment and determination of the
scope of Clause 14, of the Amalgamation
Order, the same is set out herein below:

"14. The new High Court, and the
judges and division courts thereof, shall
sit at Allahabad or at such other places in
the United Provinces as the Chief Justice
may, with the approval of the Governor of
the United Provinces, appoint.

Provided that unless the Governor of
the
United
Provinces
with
the
concurrence
of
the
Chief
Justice,
otherwise directs, such judges of the new
High Court, not less than two in number,
as the Chief Justice, may, from time to
time nominate, shall sit at Lucknow in
order to exercise in respect of cases
arising in such areas in Oudh, as the
Chief Justice may direct, the jurisdiction
and power for the time being vested in the
new High Court.

Provided further that the Chief
Justice may in his discretion order that
any case or class of cases arising in the
said areas shall be heard at Allahabad.

25. In my view Clause 14 of the
Amalgamation Order does not take away
the power of the Chief Justice, to exercise
his discretion and pass orders in any case
or class of cases arising within the area of
Oudh to be heard at Allahabad. The
interpretation given by Mr. Umesh
Chandra learned senior Counsel does not
appear to be correct. That apart, in the
instant case hearing on behalf of one of
the parties is concluded, the scope of
hearing on behalf of other party still
remains. It appears that both the cases
really relate to the areas not covering
Oudh but falls within the jurisdiction of
Allahabad. The decisions cited by Mr.
Umesh Chandra learned Senior Counsel
as mentioned above do not really assist
him.

26. The decision in the case of
Arjun Singh Vs. Mohinder Kumar AIR
1964 SC 993, relied upon by Sri Umesh
Chandra has no application to the facts
and circumstances of the present case as
the same relates to the scope of Order 9
Rule 7 CPC for setting aside the hearing.
The said provisions are quite distinct from
the scope and meaning of Clause 14 of the
Amalgamation Order and the Proviso
thereto. In the aforesaid decision, there
were three suits between the parties. In
one suit plaintiff was present and the
defendant was absent. Counsel for the
defendant had no instructions and the case
proceeded
ex
parte.
The
plaintiff
examined his witness and the evidence
was closed and the argument concluded
with the words ' judgement reserved'. In
the second suit, plaintiff was absent and
the defendant with his counsel was
present. Counsel for the plaintiff had no
instructions. The suit was dismissed as
per order passed separately. The third suit
was also decreed ex parte. So, the three
applications were filed in the aforesaid
three suits for setting aside the ex parte
order and decree and all the three
applications were disposed of by a
common judgement and order of the Civil
Judge, who held that the story of the
illness of the appellant which had been
put
forward
as
affording
sufficient
reasons for not being present in Court,
was false. Thus in the case referred to
above, the Supreme Court has dealt with
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
452
the question of setting aside ex parte
orders which have no relevance to the
facts of the present case.

27.

The
Supreme
Court
in
Nasiruddin Vs. T.A. Tribunal AIR 1976
SC 331, inter alia held as follows:

'The word ' heard' means that case
which have already been instituted or
filed at Lucknow may in the discretion of
the Chief Justice under the second proviso
to paragraph 14 of the Order be directed
to be heard at Allahabad. '

Considering the facts and circumstances
of the case it appears to me that the power
to exercise the discretion vested in the
Chief Justice under the second proviso to
paragraph 14 of the order shall be so
exercised as to direct that the present writ
petition, which has been instituted and
filed at Lucknow Bench, be directed to be
heard at Allahabad. In my view the
judgement in Nasiruddin 's case (Supra)
does not in any way come in the aid of the
writ petitioner although relied upon by his
counsel Mr. Umesh Chandra.

28. The case of U.P. Rashtriya
Chini Mill Adhikari Parishad Vs. State
of Uttar Pradesh and others (supra),
relied upon Mr. Umesh Chandra, Senior
Advocate may also be taken note of. The
aforesaid decision has no application to
the facts of the case since in the aforesaid
decision
before
the
High
Court
Notification
issued
by
the
U.P.
Government at Lucknow was challenged,
so it was held that the petitioner had been
aggrieved only from the issuance of the
Order/Notification which arose from
Lucknow. In the instant writ petition the
position is quite different as already stated
herein before. In my view the present writ
petition is quite distinguishable and as
such the case referred to above does not
assist the writ petitioner.

29. In the case of Nityanand
Tewari Vs. State of UP and others
(supra) two questions came up for
consideration before the Full Bench :

1.
Whether writ petition against an
order passed by an authority outside the
Oudh area can be entertained by this
Court at Lucknow, if some order or the
Act passed by a person or the Legislature
in the areas of Oudh is also challenged in
order to provide a ground for challenging
the said order of the authority ?

2.
Whether Lucknow Bench will have
jurisdiction to interfere with the order
passed by an authority outside Oudh
areas either by way of interim order or by
way of final order, if any proceeding in
the form of appeal, revision or a
representation is pending aginst it before
an authority within Oudh areas, even
though appeal or revision or represention
has not been decided and the order of the
original authority has not yet merged with
the order of the higher authority within
Oudh areas ?'

30. The questions raised for
determination in the aforesaid decisions
has
no
bearing
to
the
facts
and
circumstances of the present case. The
principles on which the said two questions
were
answered
cannot
be
doubted.
However, no such issue or question arises
in the instant writ petition and as such the
said decision cannot also come to aid in
support of the case of the writ petitioner.
In view of aforementioned reasons. I am
of the view that it shall be appropriate for
me to exercise the discretion as Chief
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2 All] Malkhan Singh V. D.M., Fatehpur and others
453
Justice to direct the writ petition, which
has been instituted at Lucknow to be
transferred to Allahabad.

31. Considering the aforesaid
glaring
situation
and
facts
and
circumstances of the case, I am of the
opinion that this is a fit and appropriate
case where order should be made for
hearing of the writ petition at Allahabad.

32. Accordingly, the petition under
Clause 14, of the Amalgamation Order is
allowed and the writ petition, being writ
petition no. 1678 (SB) of 1998,Dr. Manju
Verma Vs. State of U.P. and others,
which has been filed at Lucknow Bench,
is directed to be transferred to Allahabad
for hearing, which shall be listed for
hearing before the appropriate Court.

33. Office is directed to transmit the
necessary records forthwith to Allahabad
High Court.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.7.2002

BEFORE
THE HON'BLE S.K. AGARWAL, J.
THE HON'BLE K.K. MISRA, J.

Habeas Corpus writ petition no. 324 of 2002

Malkhan Singh

...Petitioner
Versus
District Magistrate, Fatehpur and others

 ...Respondents

Counsel for the Petitioner:
Sri Jagdish Singh Sengar
Sri Ajit Kumar Singh Solanki

Counsel for the Respondents:
Sri A.K. Tripathi
A.G.A.
National Security Act 1980- Section 3
(2)- Detention Order simply based on
apprehension
that
detune
shall
be
allowed on bail- and if allowed on bail
there shall be possibility of Public Order-
not simply illogical but also unsound-
detention
order
being
passed
on
mechanical manner quashed.

Held - para 11

In this connection the learned counsel
also submitted that since the detenu was
already in custody in connection with a
heinous murder case no reasonable
person can arrive at the conclusion that
he was likely to be released on bail and
the statement of the detaining authority
in the ground that the detenu is likely to
be released on bail or he is released on
bail there is possibility of public order
being in danger is not only simply
illogical but also unsound.
Case law discussed:
JT 1994 (I) ASC 350

(Delivered by Hon'ble K.K. Misra, J.)

1. Heard Mr. J.S. Sengar, learned
counsel for the petitioner and Mr. A.K.
Tripathi, appearing for the State.

2. The petitioner Malkhan Singh
Thakur has filed this Habeas Corpus
petition for being set at liberty and
quashing of the order of detention dated
27.2.2001 annexed as Annexure-1 to the
writ petition passed under section 3 (2) of
the National Security Act, 1980 (in short
theAct)
by
the
District
Magistrate,
Fatehpur.

3.

The
petitioner
made
a
representation which was made in the
month of November 2001. Precise date
cannot be known since it is not dated. It
was rejected. The State Government
approved the order of detention on
30.10.2001, i.e. within 12 days from the