# Gopal Krishna Srivastava v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 668
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-31
- **Case number:** Civil Misc. Writ Petition No. 53798 of 2006
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopal-krishna-srivastava-v-state-of-u-p-and-others-41413
- **Pages:** 6

## Headnote

Sri K.R. Sirohi
Sri Saurabh Singh
Sri Neeraj Upadhyay
S.C.

Subordinate
Civil
Courts
Ministerial
Establishment Rules 1947-Rule-20 (3)-
Appointment of Sadar Munsrim-should
be done only by way of promotion
seniority cum suitability-strictly from
clerical staff-if suitable candidate if
clerical staff not available-promotion of
stenographer
can
be
consideredpromotion of stenographer without prior
approval of High Court ignoring senior
most ministerial staff-illegal.

Held: Para 14

The claim of respondent no. 3 could have
been considered by District Judge for
promotion to the post of Sadar Munsarim
only where it is found that no incumbent
in clerical staff is suitable for promotion.
Even at the time when the respondent
no.
3
was
made
Incharge
Sadar
Munsarim it does not appear from the
record that the claim of all the clerical
staff was considered at that time and
any recommendation was made finding
no clerical staff working in the next
2 All] Gopal Krishna Srivastava V. The State of U.P. and others

669
lower grade suitable for promotion to
the post of Sadar Munsarim.
Case law discussed:
1975(1) SLR 699, 1989(2) UPLBEC 569,
2000(1) AWC 249, Writ Petition No. 1267 of

## Text

668 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

14. The investigating officer has
ample power under the Code of Criminal
Procedure to collect relevant material
during the investigation and to arrive on a
conclusion independent of any extraneous
reasons but he is not in any way precluded
in law to seek legal opinion which may
assist
him
in
forming
a
definite
conclusion.
This
power
of

the
investigating officer has been upheld in R.
Sarala's case (supra). It is equally well
settled that the investigating officer can
not be given any direction by the court to
seek legal opinion either of the Public
Prosecutor or any other legal expert for
filling the final report or the charge sheet.
In R. Sarala's case (supra) the legality of
the order of the High Court giving
direction to the investigating officer to
take opinion of the Public Prosecutor for
filling the charge sheet was in issue
before the Apex Court and that question
was considered and answered against the
verdict of the High Court and it was held
that there was no compulsion on the part
of the investigating officer to seek legal
opinion and the High Court had not power
to issue such direction. In my opinion, R.
Sarala's case (supra) instead of supporting
the case of the applicants, supports the
facts of the investigating officer in
seeking legal opinion on the final report.

15. The application under section
482 Cr.P.C. has no merit. It is accordingly
dismissed with costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.08.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 53798 of 2006

Gopal Krishna Srivastava
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Nar Singh Dixit
Sri Siddhartha Srivastava
Sri Himanshu Srivastava

Counsel for the Respondents:
Sri K.R. Sirohi
Sri Saurabh Singh
Sri Neeraj Upadhyay
S.C.

Subordinate
Civil
Courts
Ministerial
Establishment Rules 1947-Rule-20 (3)-
Appointment of Sadar Munsrim-should
be done only by way of promotion
seniority cum suitability-strictly from
clerical staff-if suitable candidate if
clerical staff not available-promotion of
stenographer
can
be
consideredpromotion of stenographer without prior
approval of High Court ignoring senior
most ministerial staff-illegal.

Held: Para 14

The claim of respondent no. 3 could have
been considered by District Judge for
promotion to the post of Sadar Munsarim
only where it is found that no incumbent
in clerical staff is suitable for promotion.
Even at the time when the respondent
no.
3
was
made
Incharge
Sadar
Munsarim it does not appear from the
record that the claim of all the clerical
staff was considered at that time and
any recommendation was made finding
no clerical staff working in the next
2 All] Gopal Krishna Srivastava V. The State of U.P. and others

669
lower grade suitable for promotion to
the post of Sadar Munsarim.
Case law discussed:
1975(1) SLR 699, 1989(2) UPLBEC 569,
2000(1) AWC 249, Writ Petition No. 1267 of
1988.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Siddharth Srivastava
learned counsel for the petitioner. Despite
the case having been called in revised list,
none
has
appeared
on
behalf
of
respondents no. 2 and 3 though the names
of Sri Saurabh Singh and Sri K.R. Sirohi
are shown in the cause list as counsels for
the
respondents.
Learned
Standing
Counsel representing respondent no. 1 is
present.

2. The grievance of petitioner is that
the respondent no. 3 was working in the
cadre
of
Stenographer
in
District
Judgeship, Deoria and, therefore, could
not have been promoted either as Sadar
Munsarim or as Senior Administrative
Officer since the said posts were available
for clerical staff only and in absence of
suitable clerical staff, the persons working
on the post of Stenographer could have
been considered for such promotion but
any such promotion could not be made
without prior approval of the High Court.
It is submitted that a selection committee
was constituted by District Judge for
regular promotion on the post of Sadar
Munsarim
and
the
said
committee
selected one Sri Sukhu Prasad for
promotion to the post of Sadar Munsarim
who was admittedly senior to the
petitioner and it is in that view of the
recommendation that the petitioner could
not be promoted to the post of Sadar
Munsarim. However instead of promoting
Sri Sukhu Prasad, the District Judge
passed order dated 15.09.2005 observing
that the respondent no. 3, Sri Deen
Bandhu Prasad working as Incharge Sadar
Munsarim
and
Incharge
Senior
Administrative Officer he shall draw
salary
against
the
post
of
Sadar
Munsarim. The order further says that it
shall not create any right to Sri Deen
Bandhu Prasad to confirm his claim on
the post of Sadar Munsarim or Senior
Administrative Officer as the matter is
pending before the selection committee.
Thereafter, he passed another order on
27.05.2006 appointing Sri Deen Bandhu
Prasad as Sadar Munsarim on regular
basis with all consequential benefits.

3. It is contended that Sri Deen
Bandhu Prasad being not a member of
clerical staff, and, a suitable candidate for
promotion to the post of Sadar Munsarim
from clerical staff was available, Sri Deen
Bandhu Prasad could not have been
appointed as Sadar Munsarim and the
impugned order passed by the District
Judge is wholly illegal and contrary to
law.

4. On behalf of respondent no. 2 a
counter affidavit has been filed wherein it
has been said in para 5 that the petitioner
is wrong in saying that he is senior to
respondent no. 3. However, instead of
showing seniority list of the petitioner qua
respondent no. 3, the District Judge in
para 5 further says that the petitioner is
junior to Sri Sukhu Prasad as per report of
the selection committee dated 01.04.2006.
He further says that under Rule 20(3) of
the Subordinate Civil Courts Ministerial
Establishment Rules, 1947 (hereinafter
referred to as the "1947 Rules") the post
of Sadar Munsarim is a selection post,
promotion to which shall be based on
"merit with the due regard to seniority". It
is said that the case of petitioner for the
670 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

post of Sadar Munsarim was considered
by the committee on 29.07.2004 which
did not find him suitable for promotion to
the post of Sadar Munsarim and,
therefore, the petitioner cannot claim any
promotion
on
the
post
of
Sadar
Munsarim. It further says that against the
order of District Judge dated 31.07.2003,
by which the respondent no. 3 was made
Incharge Sadar Munsarim, no objection
was filed by Sri Sukhu Prasad who was
senior to petitioner. It further says that the
order of District Judge directing the
respondent no. 3 to continue to the work
as Incharge Sadar Munsarim does not
confer any right upon him since according
to Rule inchargeship does not confer any
right to the person concerned. But then it
is said the order dated 27.05.2006 has
been passed in consonance with the report
dated 01.04.2006 submitted by the
selection committee and thereafter the
respondent no. 3 has been further
promoted
to
the
post
of
Senior
Administrative Officer on 28.07.2006.

5. A separate counter affidavit has
been filed by respondent no. 3 stating that
he was initially appointed on the post of
clerk and thereafter he was promoted on
the
post
of
Stenographer
on
the
recommendation of the then Civil Judge,
Deoria in absence of a suitable candidate.
In respect to the other aspects he has
reiterated what has been stated in the
counter affidavit of respondent no. 2.

6. Having considered the submission
of learned counsel for the petitioner and
perusing the record it appears that the
respondent no. 3 was appointed as
Stenographer long back and that letter of
appointment was never challenged by
him.

7. Rule 3 of 1947 Rules provides
strength of ministerial staff and reads as
under:

"3.
Strength
of
Ministerial
Establishment.--(1)
The
ministerial
establishment of a Judgeship shall form a
unit; but the stenographers shall form a
separate cadre.
Provided
that
a
stenographer
recruited from regular line may, with the
previous approval of the High Court, be
reverted to the regular line subject to the
condition that he is given a place in the
gradation list which he would have
occupied in ordinary course had he not
been appointed a stenographer-

Scale of Pay, if No suitable Clerk is
Available for-Note
1. The claim of a stenographer
working in the Judgeship may also be
considered for appointment to a selection
post
in
Grade
I
in
the
revised,
(1947)/scale of pay, if no suitable clerk is
available for promotion to such post,
provided that no such appointment shall
be made without the previous approval of
the High Court.

2. The sanctioned strength of the
ministerial establishment of a judgeship
shall consist of such posts as may be
sanctioned by Government from time to
time in the proposition statement of the
judgeship-

Provided that the District Judge may
from time to time with the concurrence of
the High Court or the Chief Court as the
case may be, leave unfilled or the
Governor may hold in abeyance or
abolish any vacant post without entitling
any person to any compensation."
(emphasis added)
2 All] Gopal Krishna Srivastava V. The State of U.P. and others

671
8. A perusal of Rule 3 makes it clear
that though the cadre of Stenographer
constitute
part
of
ministerial
establishment of the judgeship but it is a
separate
cadre
than
the
remaining
ministerial staff which are normally
known as "clerical staff".

9. Rule 15 of 1947 Rules talks of
appointments
and
provides
that
all
appointments of ministerial staff shall be
made to the lowest post subject to
provision of Rule 12 and other posts in
higher grade are promotional posts but
there is an exception in respect to
Stenographer.

10. Rule 20 of 1947 Rules provides
for promotion and reads as under:

"20. Promotion.--(1) The posts in a
judgeship reserved for clerks in that
judgeship and promotion to higher posts
shall be made from amongst them. If,
however, no suitable clerk is available in
the
judgeship
for
promotion
to
a
particular post, promotion as a special
case may be made from another judgeship
with the sanction of the High Court or the
Chief Court, as the case may be.
(2) Except in cases of Amins,
promotion shall be made according to
seniority subject to efficiency up to Rs. 80
grade in the case of persons getting pre1931 scale of pay and the scale of Rs. 704-90 (Callas III) in the case of persons
getting pay in the post-1931 scale of Rs.
85-6-145 in the case of persons drawing
the revised 1947 scale.
(3) Posts other than those mentioned
in clause (2) above, for persons in the pre
1931
scale
on
post
1931
scale
respectively shall be treated as selection
posts, promotion to which shall be based
on merit with the due regard to seniority.
Note-In passing over a person for
inefficiency as well as promotion for a
selection post due weight shall be given to
his previous record of service and
seniority should be disregarded only
when the junior official promoted is of
outstanding merit as compared with his
seniors.
(4) Promotions to the posts of
Central Nazir or Central Nazirs from one
grade to another in the provinces of Agra
shall be made according to the rules
made from time to time by the High
Court.
(5) In courts subordinate to the High
Court, promotion of Amins from the
second to the first grade shall, as a rule,
be made within the local jurisdiction of a
judge upon the ground of superiority of
general qualifications, irrespective of
more length of service.
(6) Promotions or appointments to
the posts of Amins in court shall ordinary
be confined to persons who satisfy the
District Judge that they have a competent
knowledge of-

(i) Urdu and Hindi.
(ii) Arithmatic.
(iii) Mensuration.
(iv) Elementary
land
surveying
and
mapping.
(v) Order XXVI of Act No. V of 1908.
(vi) Rules in general Rules (Civil relating
to the work and duties of the Amins. In
exceptional circumstances the District
Judge may exempt an official from such
qualifications if he is satisfied that the
official concerned is otherwise fit to hold
the appointment.
(7) An official once promoted to the
post of Amin shall not, for purposes of
promotion to other posts in the general
office be entitled to claim seniority by
reasons of such promotion over other
672 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

clerks who were senior to him before his
promotion as Amin."

11. A perusal of the aforesaid Rules
make it clear that in the ministerial cadre
after initial appointment in the lowest
cadre further appointment in higher post
are made by way of promotion by
considering persons working in the lower
grade though the criteria for promotion
depends on the garde. To some cadre the
criteria for promotion is seniority subject
to efficiency and in higher grade it is for
selection i.e. merit with due regard to
seniority. To the Stenographers, their
promotion against a post in ministerial
cadre is not completely prohibited. It
provides that when suitable clerical staff
is not available for promotion, the claim
of Stenographer may be considered for
appointment to a selection post in Grade I
but such an appointment shall not be
made without previous approval of the
High Court. Once it is clear that the
respondent no. 3 was appointed and
working in the cadre of Stenographer, he
had no right or occasion to be considered
on the post of Sadar Munsarim, which is a
selection grade post in Grade I and liable
to be filled in by promotion amongst the
clerical staff working in the next lower
grade. Rule 20(3) of 1947 Rules initially
came up for consideration before a
Division Bench of this Court in Hari
Mohan Lal Vs. Satya Deo Singh and
others, 1975(1) SLR 699 and it was held
that for making promotion to a selection
post the seniority is to prevail if the junior
is not of outstanding merit as compared to
the senior. Mere higher merit to senior
would
not
be
sufficient
but
the
requirement is that of outstanding merit
qua senior otherwise it is the senior who
has to be given promotion if he is
otherwise fit i.e., not found unfit. In para
6 of the judgment the Court says that if
the record of service of two officials is of
the same category of the record of junior
is slightly better than the senior that
would not entitle the authority concerned
to promote junior ignoring the senior one.

12.

Another
Division
Bench
(Lucknow
Bench)
of
this
Court
considering the above Rule in Iqbal
Bahadur Srivastava Vs. District Judge,
Sultanpur
and
another,
1989(2)
UPLBEC 569 in para 5 of the judgement
categorically observed that the post of
Munsarim is a promotion post reserved
for the members of clerical cadre and the
promotion is to be made on merit with
due regard to seniority.

13. The above authorities were
followed by a Single Judge in Syyed
Muttaqui Raza Vs. District Judge,
Banda and others, 2000(1) AWC 249
where also this Court held:

"A reading of Rule 20(3) makes it
clear that the post of Sadar Munsarim is a
post reserved for members of clerical
cadre and the promotion is to be made on
consideration of merit with due regard to
seniority."

14. The claim of respondent no. 3
could have been considered by District
Judge for promotion to the post of Sadar
Munsarim only where it is found that no
incumbent in clerical staff is suitable for
promotion. Even at the time when the
respondent no. 3 was made Incharge
Sadar Munsarim it does not appear from
the record that the claim of all the clerical
staff was considered at that time and any
recommendation was made finding no
clerical staff working in the next lower
grade suitable for promotion to the post of
2 All] Anil Kumar V. State of U.P. and others

673
Sadar Munsarim. The entire counter
affidavit filed by respondents no. 2 and 3
nowhere show as to how and in what
circumstances the respondent no. 3 could
be
appointed
as
Sadar
Munsarim
particularly
when
there
was
no
recommendation that a suitable clerk is
not available for promotion to the post of
Sadar Munsarim. On the contrary, it
appears that the selection committee
found one Sri Sukhu Prasad who was
senior most person in clerical staff
working in the next lower grade suitable
for promotion to the post of Sadar
Munsarim but despite that the District
Judge was chose to make respondent no. 3
as
Incharge
Sadar
Munsarim
and
thereafter made him permanent on the
post of Sadar Munsarim and later on
promoted him on the post of Senior
Administrative
Officer.
This
is
a
circuitous way adopted by the District
Judge to promote and confirm respondent
no. 3 with undue benefit to give him
promotion on the post of Sadar Munsarim
as well as Senior Administrative Officer
though it was not permissible under the
Rules. The question as to when a
Stenographer can be considered for
promotion to the post of Grade I has been
considered by Lucknow Bench of this
Court in Civil Misc. Writ Petition No.
1267 of 1988, Balwant Singh Vs. State
of U.P. and others and the Court held
that promotion to the post of Sadar
Munsarim is confined to clerical staff but
when the clerical staff is not found
suitable for promotion to the post of Sadar
Munsarim only then a Stenographer may
be considered and that promotion also
cannot
be
made
without
previous
approval of the High Court.

15. I, therefore, do not find that the
promotion of respondent no. 3 has been
made in accordance with law. In the
circumstances,
the
writ
petition
is
allowed. The impugned orders dated
31.07.2004 and 27.05.2006 (Annexures-6
& 7 to the writ petition) are hereby
quashed. The District Judge shall proceed
to make promotion to the post of Sadar
Munsarim
in
accordance
with
law
expeditiously. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2009

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 44384 of 2009

Anil Kumar

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

Counsel for the Petitioner:
Sri D.P. Singh
Smt. Archana Singh
Sri S. Niranjan

Counsel for the Respondents:
Sri K. Ajit
S.C.

U.P. Recognised Basic School (Junior
High School) Recruitment and Condition
Service of Teachers Rules 1978-Rule-28Temporary appointment of Head master
by management-could be extended 6
months only-term expired in the month
of May 2009-come to an end on 30.6.09No further extension permissible.

Held: Para 9

Consequently
this
Court
holds
that
petitioner is not entitled to any further
extension, inasmuch as period of six
months
subsequent
to
temporary
appointment would expire in the month
of May, 2009 and since the academic