# Dwarika Singh / v. State of U.P. and another

- **Citation:** (2010) 2 ILRA 449
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-21
- **Case number:** Special Appeal No. 1223 of 2006
- **Bench:** Vijay Manohar Sahai, Raj Mani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dwarika-singh-v-state-of-u-p-and-another-41579
- **Pages:** 4

## Headnote

Sri K.R. Sirohi
C.S.C.

Financial Hand Book: Vol-II Para 2 to 4Rule
56(C)
compulsory
retirementconstitution of Screening committeefound not proper-impugned Order of
450 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
retirement based upon recommendation
of such committee can not be held
proper-order set-a-side.
Held: Para 7

The Administrative Judge had found that
the committee had committed glaring
mistake
while
taking
decisio
of
compulsory retirement of Syed Imam
Raza. If the constitution of committee
was not proper as against Syed Imam
Raza then how it could be treated to be
proper
as
against
the
appellantpetitioner. Since the appeal of Raza has
been allowed by the Administrative
Judge interalia on the ground that the
formation of the committee by the
District Judge, Ballia was not proper,
therefore, the recommendation of the
committee for compulsory retirement of
the employees can not be said to be
proper. The Special Appeal, therefore,
deserves to be allowed on this score
alone and the impugned order dated
11.7.2006 passed by the District Judge,
Ballia regarding compulsory retirement
of
the
appellant-petitioner
on
the
recommendation
of
the
screening
committee and the order of the learned
Single Judge dated 29.8.2006 deserve to
be set aside.

## Text

2 All] Lala @ Abdul Gaffar V. State of U.P.
449
incorporated in the FIR although PW-2
Nanhai alias Mustafa when confronted he
stated not to have told anything to PW-1
about the occurrence.

3. It is also the case of prosecution
that after killing the deceased on a cot his
body was dragged to considerable length
and was left in open place but surprisingly
there is no dragging mark on the body of
the deceased. Although the incident is of
July 1996 there is no other eye-witnesses
count except PW-2 who is said to have
seen the occurrence even his testimony is
shaky.
Thus
while
evaluating
the
prosecution evidence, we find that the
court below has committed a manifest
error in convicting the appellants and on
the same set of evidence acquitting coaccused Zafar and Naim. In other words,
learned
counsel
for
the
appellant
submitted that if inclusion of names of
two persons were found to be false, how
for conviction of the appellants on the
basis of same evidence can be said to be
justified.

4. It has further been submitted that
appellants were on bail during trial and
they did not misuse the liberty of bail
granted to them. It has also been
submitted that the appeal will take
considerable long time for reaching on its
logical conclusion.

5. Learned counsel for the appellants
relies upon the judgment reported in 2009
(3) SCC 767 and paras 23 & 24 of which
is the base of his argument.

Taking into consideration overall aspect
of the matter and without commenting
any further on merits of the case, we find
it a fit case for bail.

Let appellants-Lala @ Abdul Gaffar,
Sabir and Bakridi convicts in Session
Trial No. 437 of 1996, 213 of 2000 and
518 of 1999 be released on bail on their
furnishing personal bond and two sureties
each in the like amount to the satisfaction
of the court concerned.

6. Realization of half of the fine is
stayed and remaining half of the fine shall
be deposited by the appellants within one
month from the date of their release on
bail.

7. The court below is directed to
transmit
to
this
Court
forthwith
photocopies of bond and sureties filed by
appellants to be preserved in the record
maintained here.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.4.2010

BEFORE
THE HON'BLE VIJAY MANOHAR SAHAI, J.
THE HON'BLE RAJ MANI CHAUHAN, J.

Special Appeal No. 1223 of 2006

Dwarika Singh ...Petitioner/Appellant
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Nawal Kishore Mishra
Sri K. Shahi

Counsel for the Respondents:
Sri K.R. Sirohi
C.S.C.

Financial Hand Book: Vol-II Para 2 to 4Rule
56(C)
compulsory
retirementconstitution of Screening committeefound not proper-impugned Order of
450 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
retirement based upon recommendation
of such committee can not be held
proper-order set-a-side.
Held: Para 7

The Administrative Judge had found that
the committee had committed glaring
mistake
while
taking
decisio
of
compulsory retirement of Syed Imam
Raza. If the constitution of committee
was not proper as against Syed Imam
Raza then how it could be treated to be
proper
as
against
the
appellantpetitioner. Since the appeal of Raza has
been allowed by the Administrative
Judge interalia on the ground that the
formation of the committee by the
District Judge, Ballia was not proper,
therefore, the recommendation of the
committee for compulsory retirement of
the employees can not be said to be
proper. The Special Appeal, therefore,
deserves to be allowed on this score
alone and the impugned order dated
11.7.2006 passed by the District Judge,
Ballia regarding compulsory retirement
of
the
appellant-petitioner
on
the
recommendation
of
the
screening
committee and the order of the learned
Single Judge dated 29.8.2006 deserve to
be set aside.

(Delivered by Hon'ble V. M. Sahai, J.)

1. We have heard Sri K. Shahi,
learned counsel for the appellant and Sri
S.P. Singh appearing for the respondents.

2. This intra court appeal has been
filed challenging the order of learned
Single Judge dated 29.8.2006 passed in
Civil Misc. Writ Petition No.41874 of
2006.

3. The relevant facts giving rise to
the present special appeal in brief are that
the appellant-petitioner was appointed as
peon in Judgeship Ballia on 1.2.1985 and
thereafter he continued so in service. Sri
sarvesh Kumar Pandey on 04.06.2006
became District Judge, Ballia and he in
view of the provision under Fundamental
Rules of the Financial Hand Book
Volume-2
constituted
a
committee
consisting of one Additional District
Judge as Chairman and Civil Judge
(Junior Division) as member for screening
of class-IV and class-III employees, who
had lost their utility to the judgeship. The
committee after screening the list found as
many as eight employees, out of which
three were class-III employees and five
were class-IV employees, who could be
retired compulsorily. Consequently the
committee recommended for compulsory
retirement of those eight employees. The
appellant-petitioner was one of them. The
District
Judge
agreeing
with
the
recommendation of the committee and
exercising the powers under Fundamental
Rules 56(C) of the Financial Hand Book
Volume-2 para-2 to 4 ordered for
compulsory retirement of all the eight
employees
vide
its
order
dated
11.07.2006.

4.

The
appellant-petitioner
challenged his compulsory retirement by
filing Civil Misc. Writ Petition No. 41784
of 2006, Dwarika Singh Versus State of
U.P.
through
legal
Remembrances
Secretary
Law
U.P.
Lucknow
and
another.
The
learned
Single
Judge
dismissed his writ petition vide judgment
and order dated 29.8.2006. The appellantpetitioner
being
aggrieved
by
the
judgment and order passed by the learned
Single Judge has preferred the present
Special Appeal.

5. The only point urged by the
learned counsel for the petitioner is that
one Syed Imam Raza, the then Senior
Administrative Officer (SAO) was also
ordered to be compulsory retired by the
2 All] Dwarika Singh V. State of U.P. and another
451
District
Judge.
He
had
preferred
departmental appeal before the High
Court
challenging
his
compulsory
retirement. His appeal was allowed by
Hon'ble Mr. Justice D.V. Sharma, the then
Administrative Judge, Ballia inter-alia on
the ground that the District Judge Ballia
had constituted the screening committee
consisting of an Additional District Judge
as Chairman and a Civil Judge (Junior
Division) as member. The Civil Judge
(Junior Division) was an unexperienced
officer, who could not travel against the
direction of the District Judge. He had got
no administrative experienced too. The
District Judge was expected to constitute
a committee of senior most Additional
District Judges, who were having long
experience of judicial and administrative
work so that they could exercise their well
considered and independent views while
recommending compulsory retirement of
the
employees.
In
this
way
the
Administrative Judge for screening of the
employees was not proper and up to the
mark. Accordingly the Administrative
Judge allowed the appeal of Syed Imam
Raza. Since the administrative judge has
already
held
that
the
committee
constituted by the District Judge for
screening the class-III and class-IV
employees not well experienced and
proper,
therefore,
the
compulsory
retirement of the appellant-petitioner on
the basis of the recommendation of the
committee was also illegal and the special
appeal deserves to be allowed on this
ground alone.

6. We have summoned the record of
the High Court which contains the
decision of the Administrative Judge in
the matter of Syed Imam Raza, the then
Senior Administrative Officer (SAO),
who had been ordered to be compulsory
retired and whose departmental appeal
had
been
allowed
by
the
then
Administrative Judge. The Administrative
Judge in para-7 of the order has made the
following
observation
about
the
constitution
of
screening
committee,
which is being extracted below:

"In
the
matter
of
compulsory
retirement
the
screening
committee
should have been constituted comprising
some senior most judicial officers, but the
District Judge constituted the screening
committee consisting of an Additional
District Judge and a Civil Judge (Junior
Division). It also does not appeal to
reason as to why senior most officers
were not inducted in the screening
committee.
A
Civil
Judge
(Junior
Division) who has no administrative
experience , not well versed with
Government Orders etc. may fall in the
line of the District Judge and might have
not gone against wishes of the District
Judge, otherwise such a glaring error
would not have been committed."

7. The Administrative Judge had
found that the committee had committed
glaring mistake while taking ٛ
etailed of
compulsory retirement of Syed Imam
Raza. If the constitution of committee was
not proper as against Syed Imam Raza
then how it could be treated to be proper
as against the appellant-petitioner. Since
the appeal of Raza has been allowed by
the Administrative Judge interalia on the
ground that the formation of the committee
by the District Judge, Ballia was not proper,
therefore, the recommendation of the
committee for compulsory retirement of the
employees can not be said to be proper. The
Special Appeal, therefore, deserves to be
allowed on this score alone and the
impugned order dated 11.7.2006 passed by
452 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the
District
Judge,
Ballia
regarding
compulsory retirement of the appellantpetitioner on the recommendation of the
screening committee and the order of the
learned Single Judge dated 29.8.2006
deserve to be set aside.

8. The Special Appeal is allowed and
the impugned judgement and order of the
learned Single Judge dated 29.08.2006
passed in Civil Misc. Writ Petition No.
41874 of 2006(Dwarika Singh Versus State
of U.P. and others) is set aside and the civil
misc. writ petition detailed above is allowed
and the order of the learned District Judge,
Ballia
dated
11.7.2006
retiring
the
appellant-petitioner compulsorily from his
service is set aside and the appellantpetitioner will be reinstated in service with
all consequential service benefits forthwith.
---------
APPELLATE JUISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2010

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Second Appeal No.1574 of 1984

Shrimati Anjuman ...Plaintiff-Appellant
Versus
Sri Shabbir

 ...Opposite Party

Counsel for the Petitioner:
Sri M.A.Qadeer
Sri Ravi Kiran Jain
Sri M.Islam
Sri R.K. Awasthi
Sri Shamim Ahmad

Counsel for the Respondent:
Sri H.S.Nigam
Sri Ashfaq Ahmad Ansari
Sri Mohd. Arif
Sri Virendar Kumar

Code of Civil Procedure-Section 100- Suit
for specific Performence-agreement to
sale-executed
on
31.7.75-defendent/
Respondent encouraged the appellant to
invest
more
money
in
raising
constructions-one of the condition of
agreement was to obtain permission
before
execution
of
sale
deed-no
permission obtained as yet-Trail Court
decreed the suit-first appellate court
dismissed
the
suit
as
barred
by
limitation-only in October, 1980 refused
to execute the sale-suit filed in 1981well within time-Substantial question of
law regarding erroneous approach of
Appellate court decided affirmatively.

Held: Para 11

It appears from the record that after
taking
advance
of
Rs.1,000/-the
defendant
respondent
executed
agreement to sell dated 31.7.1975. He
had not objected to raise construction by
the plaintiff appellant, rather he had
encouraged her to raise construction.
This does not amount to refusal for
giving rise to cause for filing the suit in
October,
1980,
the
defendant
respondent
inadvertently
refused
to
execute the sale-deed in pursuance of
agreement dated 31.7.1975 giving rise
to cause of action to the plaintiff
appellant for filing the suit as such the
suit was well within time.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. The case is taken up in the revised
list. None has appeared on behalf of
defendant respondent. Heard Sri M.A.
Qadeer, learned counsel for the plaintiff
appellant and perused the record.

2. This second appeal arises out
against the judgment and decree dated
9.5.1984 passed by the Civil Judge,
Saharanpur in Regular Civil Appeal No.
118 of 1982 arising out of Original Suit