# Gopesh Chandra Saxena v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 1997
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-30
- **Case number:** Criminal Misc. Writ Petition No. 7132 of 2023
- **Bench:** Siddharth, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopesh-chandra-saxena-v-state-of-u-p-ors-51918
- **Pages:** 11

## Headnote

Art. 226 of the Constitution of India -F.I.R.
Quashing-Petitioner was initially appointed on
the temporary post of Stenographer -thereafter
the post of stenographer was abolishedtemporary post of camp clerk was created and
the Petitioner was appointed thereon-the said
post was discontinued-even after abolition of
aforesaid post the Petitioner continued on the
said post until his superannuation- F.I.R. lodgedFrom the evidences it transpires that at the time
of abolition of post of Camp Clerk on 26.12.1995
and thereafter, the petitioner did not hold the
post
of
Incharge
of
seat
(Patal)
of
establishment-no occasion for him to have the
custody of the letter which communicated the
discontinuance of such post-F.I.R. is misuse of
law-quashed.

W.P. Allowed. (E-9)

List of Cases cited:
1998 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

5 All. Gopesh Chandra Saxena Vs. State of U.P. & Ors.
1997

6. The aforesaid questions were
replied by the Larger Bench by order dated
25.5.2024, which reads as follows:

"(1) The Division Bench in
Ganesh (Supra) could not have issued any
direction
for
granting
the
general
directions of bail commanding the Chief
Judicial Magistrates to release convicts
whose
applications
for
remission/premature
release
have
remained pending beyond a particular
period, as interim measure, till disposal of
the said applications.
 (2) Learned AGA submits that
there is no power vested by the High Court
in the Chief Judicial Magistrates for grant
of bail. The said power is already exercised
by granting bail to all such persons and the
Chief Judicial Magistrate is directed only
to
release
such
person(s)
whose
applications
are
pending
beyond
a
particular
time
by
accepting
their
bail/surety bonds. However, we leave the
said question unanswered as in QuestionA, we have already held that the directions
of the Division in Ganesh (Supra) are not
as per law."

7. In view thereof, since the Larger
Bench has already held that the Division
Bench in Ganesh (supra) could not have
issued any direction for issuing general
directions of bail commanding the Chief
Judicial Magistrate to release the convicts,
the impugned order passed by the Chief
Judicial Magistrate, Gonda based upon the
said directions in the case of Ganesh (supra)
cannot stand.

8. Therefore, the impugned order dated
2.3.2024 cannot stand and is set aside.

9. The Registrar General is
directed to forthwith communicate a copy
of this order along with the order passed by
the Large Bench dated 25.5.2024 to all the
Judicial Officers.

10. With the aforesaid, present writ
petition is allowed.
----------
(2024) 5 ILRA 1997
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE SURENDRA SINGH-I, J.

Criminal Misc. Writ Petition No. 7132 of 2023

Gopesh Chandra Saxena ...Petitioner
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Petitioner:
Awadh Behari Singh

Counsel for the Opposite Parties:
G.A.

Art. 226 of the Constitution of India -F.I.R.
Quashing-Petitioner was initially appointed on
the temporary post of Stenographer -thereafter
the post of stenographer was abolishedtemporary post of camp clerk was created and
the Petitioner was appointed thereon-the said
post was discontinued-even after abolition of
aforesaid post the Petitioner continued on the
said post until his superannuation- F.I.R. lodgedFrom the evidences it transpires that at the time
of abolition of post of Camp Clerk on 26.12.1995
and thereafter, the petitioner did not hold the
post
of
Incharge
of
seat
(Patal)
of
establishment-no occasion for him to have the
custody of the letter which communicated the
discontinuance of such post-F.I.R. is misuse of
law-quashed.

W.P. Allowed. (E-9)

List of Cases cited:
1998 INDIAN LAW REPORTS ALLAHABAD SERIES
1. St. of Har. & ors. Vs Bhajan Lal & ors., 1992
Supp (1) SCC 335

2. Maratt Rubber Ltd. Vs J.K. Marattukalam,
(2000) 9 SCC 547

(Delivered by Hon'ble Surendra Singh-I, J.)

Heard Sri Awadh Behari Singh,
learned counsel for the petitioner and
learned A.G.A. for the State-respondents.

2. By means of this writ petition
filed under Article 226 of the Constitution
of India, the petitioner has made following
prayer :

I. to issue a writ, order or
direction in the nature of certiorari
quashing the impugned first information
report dated 16.04.2023 registered as
Case Crime No. 199 of 2023 under
Sections 409 and 420 I.P.C., Police
Station-
Colonelganj,
District-
Prayagraj.

II. to issue a writ, order or
direction in the nature of mandamus
directing the respondents not to arrest the
petitioner pursuant to the registration of
the
first
information
report
dated
16.04.2023 registered as Case Crime No.
199 of 2023 under Sections 409 and 420
I.P.C.,
Police
Station-
Colonelganj,
District- Prayagraj, till any credible
evidence is collected against the petitioner.

III. to issue a writ, order or
direction in the nature of mandamus
directing the respondents not to take any
coercive action against the petitioners till
the time any credible evidence is collected.

IV. to issue a writ, order or
direction which this Hon'ble Court may
deem fit and proper in facts and
circumstances of the case.

V. award the cost of the petition
to the petitioner.
3. The contents of the impugned
F.I.R., in brief, are as follows :

The
petitioner
was
initially
appointed on the temporary post of
Stenographer on 25.04.1979. The post of
stenographer
was
abolished
vide
Government Order No. 3067/ dated
16.07.1983, a temporary post of camp clerk
was created and the petitioner was
appointed thereon on 17.07.1983. In the
Government Order No. 3256/ dated
26.12.1995, continuation of post of camp
clerk was not mentioned. Thus, the post of
camp clerk was discontinued by aforesaid
Government Order. Even after abolition of
aforesaid post, the then Patal Prabhari
misused his post of Incharge of that seat and
kept
the
Chief
Development
Officer/Executive Director, Fish Farmers
Development Agency, Prayagraj, who had
the financial and administrative power of
department, in dark and from 26.12.1995,
without any Government Order extending
the continuance of the post, illegally
continued
on
the
post
of
Camp
Clerk/Senior Clerk till his date of
superannuation on 31.07.2015 and illegally
withdrew salary and allowances on that
post. The appellate authority, Deputy
Labour Commissioner, Prayagraj on the
appeal of respondent no. 3 vide order dated
22.12.2022 held that the petitioner is not
entitled for gratuity on the post as he has
illegally continued on the post of camp
clerk since 1995 to 2015. The Director
Fisheries, U.P., Lucknow vide letter no.
2054/स्था०शा०/कोटव के / dated 06.07.2022,
directed
the
Chief
Development
Officer/Executive Director, Fish Farmers
Development Agency, Prayagraj, to take
suitable action against the petitioner for his
continuing on the post of camp clerk from
1996 to 2015 although the post was
abolished on 26.12.1995. In compliance of
5 All. Gopesh Chandra Saxena Vs. State of U.P. & Ors.
1999
aforesaid order of the Director Fisheries,
U.P., Lucknow, the Chief Development
Officer, Prayagraj directed respondent no.
3 to take necessary action against the
petitioner for misuse of the office/seat
(patal). In compliance of aforesaid order of
Chief
Development
Officer/Executive
Director,
Fish
Farmers
Development
Agency, Prayagraj, the respondent no. 3
lodged
the
impugned
F.I.R.
dated
16.04.2023 against the petitioner.

4. It has been submitted by learned
counsel for the petitioner that impugned
first information report dated 16.04.2023
has been registered against the petitioner,
Gopesh Chandra Saxena, as Case Crime
No. 199 of 2023 under Sections 409 and
420 I.P.C., Police Station- Colonelganj,
District- Prayagraj, without any ground and
due to malafide. No case under the
aforesaid sections is made out against the
petitioner. It has been next submitted that
the petitioner was initially appointed as a
Stenographer on 25.04.1979. The post of
Stenographer was abolished on 16.07.1983
and further the post of Camp Clerk/Senior
Clerk was sanctioned. On the same day, the
petitioner was posted as camp clerk and
allowed to continue to work accordingly.
However, the post of camp clerk was not
extended and the petitioner was allowed to
continue on the post of Camp Clerk/Senior
Clerk sanctioned in the department. It has
further been submitted that the allegations
that keeping the authorities in dark, he
illegally continued on the post of camp
clerk from 1995 to 2015 is not supported
from
the
record
of
the
authorities
sanctioning the post. Therefore, no offence
u/s 409 and 420 I.P.C. is made out against
the petitioner. It has also been submitted
that in the judgement dated 20.12.2022 of
the appellate authority, i.e. Deputy Labour
Commissioner, Prayagraj, no consideration
of allegation about sanction of posts was
done as the case related merely to payment
of gratuity to the petitioner. The petitioner
who was appointed as Stenographer on
25.04.1979, after abolition of the post of
Stenographer
in
the
department
on
16.07.1983,
without
any
break
in
continuance was absorbed/posted on the
post of camp clerk. Since the post of camp
clerk was not extended after 26.12.1995,
hence, the petitioner was allowed to
continue on the post of Camp Clerk/Senior
Clerk in the department till the date of
retirement. After completing 10 years of
continuous satisfactory service on the post
of Camp Clerk/Senior Clerk, the petitioner
was provided next increment on the
recommendation of Samta Samiti vide
order dated 18.03.1991 (copy of the order
has been provided at Annexure No. 2 to the
instant writ petition). It has also been
submitted that vide Government Order
dated 03.06.1989, the petitioner was
provided the next promotional payscale on
27.01.1996
on
the
post
of
Camp
Clerk/Senior Clerk after completing six
years of continuous satisfactory service
(copy of the order has been provided at
Annexure No. 3 to the instant writ petition).
It is further submitted that Government
Order dated 28.12.1990 provided the
benefit of revised pay to the employees of
the department in which the post of camp
clerk has been shown to be Camp
Clerk/Senior
Clerk
(copy
of
the
Government Order dated 28.12.1990 has
been attached as Annexure No. 4 to the
instant writ petition). Since the post of
camp clerk was already sanctioned by the
department, hence, after abolition of the
post of Camp Clerk, the petitioner was
allowed to continue in the capacity of Camp
Clerk/Senior Clerk and provided the benefit
of revised pay accordingly. The order dated
20.12.2022
passed
by
the
appellate
2000 INDIAN LAW REPORTS ALLAHABAD SERIES
authority relates to payment of gratuity and
has not given any finding to the effect that
the petitioner kept the higher authorities in
dark and continued on the post which was
discontinued on 26.12.1995 (order of
appellate authority is annexed as Annexure
No. 5 to the instant writ petition). Since the
petitioner continued on the post of Camp
Clerk/Senior
Clerk
from
1995
till
retirement i.e. 31.07.2015, he has claimed
the benefit of assured career progression
(A.C.P.) scheme in his writ petition No.
3057 of 2019. The aforesaid writ petition is
till pending and this issue has not yet been
adjudicated by the High Court. Thus, the
F.I.R. on allegation of continuance of nonsanctioned posts cannot be lodged. The
appointing authority never questioned this
issue during his service period and it has
been raised after about 8 years of his
superannuation when he claimed postretiral benefits. It has been further
submitted that allegation in the first
information
report
with
regard
to
manipulation of petitioner working on the
seat (patal) of establishment is unfounded
and baseless. The petitioner was never
having
charge
of
seat
(patal)
of
establishment. In 1991, the charge of seat
of establishment was with one B.D. Vais.
Thereafter, in 1995, the charge of
establishment was with Smt. Geeta Sonkar.
In 2010, the charge of establishment was
with Smt. Tahasin Jahara, the senior clerk.
As such at no point of time, there was any
charge of seat of establishment with the
petitioner. Hence, there was no question of
manipulation with the higher authorities for
continuance of service (Copy of orders
dated
05.09.1991,
06.03.1995
and
24.12.2010 giving charge of seat of
establishment to the aforesaid employees is
attached as Annexure No. 6 to the instant
writ petition). It has also been submitted
that after 1995, the petitioner has been
allowed to continue in the service as a
Camp Clerk/Senior Clerk by the respondent
authorities and he has been paid the benefits
of 6th pay scale etc. mentioning the post of
Camp
Clerk/Senior
Clerk
by
the
respondents themselves (Copy of order
providing benefit of fixation of 6th pay
scale and annual increments sanctioned on
the post of Camp Clerk/Senior Clerk dated
05.07.2013 and 21.11.2012 is attached as
Annexure No. 7 to the instant writ petition).
It is further submitted that in compliance of
High Court's order dated 23.02.2015
passed in Writ Petition No. 10397 of 2015,
Gopesh Chandra Saxena Vs. State of U.P.
and 3 others, vide Government Order No.
1038/ िह-म-2015, 6-5(77)/2014 लखनऊ, दिनािंक
22 जून 2015, the government had raised the
retirement age of the petitioner from 58
years to 60 years and consequently in place
of date of superannuation on 31.07.2013, he
was permitted to continue on his post till his
date of superannuation on 31.07.2015. It
has also been submitted that since the
petitioner continued on the post of Camp
Clerk/Senior
Clerk
vide
aforesaid
government orders, therefore, it shall be
presumed that he was legally holding the
post till his date of superannuation on
31.07.2015. Since there was no entrustment
and no misappropriation, therefore, offence
u/s 409 and 420 I.P.C. are not attracted
against the accused.

5. Per contra, in the counter
affidavit on 07.08.2023, respondent no. 3
has reiterated the allegations made in the
first
information
report
against
the
petitioner that after abolition of the post of
Stenographer on 26.12.1995, the petitioner
keeping the higher authorities in dark,
illegally continued on the post of Camp
Clerk/Senior Clerk till his date of
superannuation
on
31.07.2015
and
withdrew the pay and his allowances
5 All. Gopesh Chandra Saxena Vs. State of U.P. & Ors.
2001
without any authority. The respondent no. 3
has attached Annexure No. C.A.1 to his
petition which is letter dated 16.07.1983
sent
by
Deputy
Secretary
of
U.P.
Government
to
Director,
Fisheries
Department, U.P., Lucknow to the effect
that vide G.O. No. 1347/12-ई-3-82, दिनािंक 20
अप्रैल, 1982 informing that earlier post
created in the payscale of Rs. 515-840/- of
17 temporary stenographers, is abolished.
In its place, 17 temporary posts of camp
clerks is created. The respondent no. 3 has
also denied the averment made in the
affidavit filed by the petitioner and has filed
Annexure
No.C.A.1
to
his
counter
affidavit. It has been submitted that the
petitioner has wrongly stated that after the
abolition of post of Stenographer on
16.07.1983, the post of Camp Clerk/Senior
Clerk was sanctioned whereas after
abolition of the post of Stenographer, the
temporary post of Camp Clerk was created.
No post of Senior Clerk was created as
alleged by the petitioner. It has also been
submitted
that
the
Deputy
Labour
Commissioner, Prayagraj has allowed the
Appeal No. 01 of 2022 filed by the
respondent no.3 and has held that the
petitioner is not entitled to payment of any
gratuity. In the counter affidavit, the
averment of petitioner has been denied that
the post of Camp Clerk was extended after
01.03.1996. It has been submitted by means
of Government Order dated 26.12.1995 that
the post of Camp Clerk was extended upto
01.03.1996 and thereafter, the said post of
Camp Clerk was not extended. Therefore,
petitioner was not entitled to continue on
the aforesaid post after 01.03.1996. It has
been denied that the petitioner was allowed
to continue on the post of Camp
Clerk/Senior Clerk. It is stated that the post
of Senior Clerk is a promotional post which
is filled up only and only by the deputed
government employees by the Deputy
Director in the office of Fish Farmers
Development Agency, Prayagraj. The
petitioner has played fraud at this juncture
because he being the Camp Clerk, was the
custodian of that particular file of
appointment
and
deputation.
The
Government Order dated 26.12.1995 was
earmarked to the petitioner and Smt. Geeta
Sonkar (Junior Clerk) by the Chief
Executive Officer to put up the same before
the Chief Development Officer/Executive
Director,
Fish
Farmers
Development
Agency, Prayagraj to implement the said
government order but the same was never
presented by them before the Executive
Director,
Fish
Farmers
Development
Agency, Prayagraj as both of them were
similarly
situated
on
an
absolutely
temporary post which was extended year to
year by means of respective government
orders. The petitioner was provided the
next increment on the recommendation of
Samta Samiti vide order dated 18.03.1991
while he was discharging duties as the
Camp Clerk and not the Senior Clerk which
is a promotional post and filled by the
deputed government employees only. The
respondent no. 3 has filed government letter
dated 28.05.1997 as Annexure No. C.A.2 to
the counter affidavit whereby various kinds
of 11 posts in Fisheries Department were
extended till 29.02.1996 and 28.02.1998
respectively. Smt. Geeta Sonkar was
directed by the respondent no. 3 to apprise
the Chief Development Officer about the
aforesaid government orders. It has been
submitted that earlier petitioner was
holding
seat
of
establishment
and
thereafter, Smt. Geeta Sonkar held that seat
and they illegally kept those documents for
more than 10 years in their possession and
did not hand over to the Chief Development
Officer/Executive Director, Fish Farmers
Development
Agency,
Prayagraj,
for
necessary action. The petitioner was never
2002 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed to continue as a Senior Clerk which
is a promotional post and filled only by
government deputed employees. Thus,
there is sufficient prima facie evidence that
the petitioner has committed the offence u/s
409 and 420 I.P.C. and the petitioner has
misappropriated Rs.37,65,013/- illegally as
salary and allowances for the post of Camp
Clerk/Senior Clerk to which he had no
authority to continue.

6. The petitioner in rejoinder
affidavit dated 12.07.2023 has denied the
averments made in the counter affidavit and
reiterated the averments made by him in his
petition and has submitted that he was
allowed by the competent authority to
continue as Camp Clerk/Senior Clerk and
he has not made any illegal withdrawal of
salary and allowances. He has also
submitted that since he has filed the writ
petition claiming payment of gratuity
allowance, the impugned F.I.R. was lodged
with malafide against him.

7. On 23.05.2023, following interim order
was passed by this Court :

 1. Heard Shri Awadh Behari
Singh, learned counsel for the petitioner
and Shri Sushil Jaiswal, learned State Law
Officer, appearing for the State.

2. The present writ petition has
been preferred with the prayer to quash the
impugned First Information Report dated
16.04.2023 registered as Case Crime No.
199 of 2023, under Sections 409 and 420
IPC, Police Station Colonelganj, District
Prayagraj
and
a
direction
to
the
respondent authorities not to arrest the
petitioner in pursuance of the impugned
first information report.

3. Submission of the learned
counsel for the petitioner is that no offence
whatsoever has been made out in the
present case. There is no dispute about the
fact that initial appointment of the
petitioner was absolutely valid and even as
per the first information report and
allegations in respect of the period of
starting from 1995 to 2015 it is submitted
that during this period the petitioner
continued on various posts to the full
satisfaction of the employer and a dispute
regarding gratuity was also raised in this
respect and it is only after eight years of his
retirement when he had claimed his dues
and this first information report has been
lodged. Submission, therefore, is that
ingredients of offence under Section 409
I.P.C. are not fulfilled.
 4. Matter requires consideration.

5. In view of the statement made
by learned counsel for the petitioner that
respondent no. 3 was represented by the
State in the civil matters, we direct the
learned A.G.A. to accept the notices on
behalf of respondent no. 3 as well and
represent respondent no. 3.

6. All the respondents may file
counter affidavit within four weeks. The
petitioner
shall
have
three
weeks,
thereafter, to file rejoinder affidavit.

7. List thereafter before the
appropriate Bench.

8. Till the next date of listing or
till submission of police report under
Section 173(2) Cr.P.C., whichever is
earlier, the respondents are restrained
from arresting the petitioner pursuant to
the aforesaid FIR subject to cooperation in
ongoing investigation.

8. From the averments made in the
impugned F.I.R., the pleadings of the
parties and arguments advanced on behalf
of the learned counsel for the petitioner and
learned A.G.A., the admitted fact emerges
that the petitioner, Gopesh Chandra
Saxena, was initially appointed on the
5 All. Gopesh Chandra Saxena Vs. State of U.P. & Ors.
2003
temporary
post
of
stenographer
on
25.04.1979 in Fish Farmers Development
Agency, Prayagraj. The post was continued
till 16.07.1983. Thereafter, the petitioner
continued on the temporary post of Camp
Clerk/Senior Clerk till 26.12.1995 and
thereafter he was allowed to continue on the
post of Camp Clerk/Senior Clerk till his
date of superannuation on 31.07.2015.

9. In State of Haryana and
Others Vs. Bhajan Lal and Others, 1992
Supp (1) SCC 335, the Hon'ble Apex
Court has narrated the categories of cases
wherein the extraordinary power under
Article 226 or the inherent powers under
Section 482 Cr.P.C. can be exercised by the
High Court either to prevent abuse of the
process of any court or otherwise to secure
the ends of justice :

 "...though it may not be possible
to lay down any precise, clearly defined
and
sufficiently
channelised
and
inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds
of cases wherein such power should be
exercised :

(1) Where the allegations made
in the first information report or the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused.

(2) Where the allegations in the
first
information
report
and
other
materials, if any, accompanying the F.I.R.
do not disclose a cognizable offence,
justifying an investigation by police
officers under Section 156(1) of the Code
except under an order of a Magistrate
within the purview of Section 155 (2) of
the Code.

(3) Where the uncontroverted
allegations made in the F.I.R. or
complaint and the evidence collected in
support of the same do not disclose the
commission of any offence and make
out a case against the accused.

(4) Where, the allegations in
the
F.I.R.
do
not
constitute
a
cognizable offence but constitute only
a
non-cognizable
offence,
no
investigation is permitted by a police
officer
without
an
order
of
a
Magistrate as contemplated under
Section 155(2) of the Code.

(5) Where the allegations
made in the FIR or complaint are so
absurd and inherently improbable on
the basis of which no prudent person
can ever reach a just conclusion that
there
is
sufficient
ground
for
proceeding against the accused.

(6) Where there is an express
legal bar engrafted in any of the
provisions
of
the
Code
or
the
concerned Act (under which a criminal
proceeding
is
instituted)
to
the
institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned Act, providing efficacious
redress for the grievance of the
aggrieved party.

(7)
Where
a
criminal
proceeding is manifestly attended with
malafide and/or where the proceeding
is
maliciously
instituted
with
an
ulterior
motive
for
wreaking
vengeance on the accused and with a
view to spite him due to private and
personal grudge.

10. In Maratt Rubber Ltd. Vs.
J.K. Marattukalam, (2000) 9 SCC 547,
the Apex Court has held that the power of
quashing criminal proceedings should be
exercised
stringently
and
with
circumspection. This inherent jurisdiction
2004 INDIAN LAW REPORTS ALLAHABAD SERIES
has to be cautiously exercised to prevent the
abuse of the process of Court or gross
miscarriage of justice and to secure the ends
of justice.

11.

While
considering
the
quashing of F.I.R., the Court is not bound
to consider only the averment made in the
F.I.R. but it can also take into consideration
the evidence collected during investigation
as well as other undisputed admitted
documentary evidence produced by the
petitioner and the respondent.

12. In the light of the law laid down
by the Apex Court and the pleadings of the
parties and arguments advanced by their
learned counsels, it is desirable to consider
the legality of impugned F.I.R. lodged
against the petitioner.

13. In the counter affidavit dated
22.06.2023 filed by Investigating Officer,
S.I. Rajendra Kumar, Annexure No. 1 is
attached which is CCTNS case report
regarding petitioner. From the perusal of
the report, it transpires that only one
criminal case is registered against him.

14. A counter affidavit dated
07.08.2023 has been submitted on behalf of
respondent no.3, Sri Irfanullah Khan, Chief
Development Officer/Executive Director,
Fish
Farmers
Development
Agency,
Prayagraj which consists of two annexures.
Annexure No. 1 attached to the counter
affidavit is letter dated 16.07.1983 by
Kumari
Neeta
Chaudhary,
Deputy
Secretary, Government of U.P. to Director,
Fisheries Department, U.P., Lucknow.
According to this letter vide G.O. No.
1347/12-ई-3-82,
दिनािंक 20
अप्रैल, 1982,
intimating that posts of 17 temporary
stenographers was discontinued and 17
temporary posts of Camp Clerks were
created. Annexure No. 2 is the letter dated
26.12.1995 issued by Satya Prakash
Sharma, Deputy Secretary, Government of
U.P. to Director Fisheries Department,
U.P., Lucknow. It mentions that vide G.O.
No. 2627/57-म-93-10-1-81 दिनािंक 30.9.93, 11
temporary posts including that of Senior
Clerk in the payscale of 1200-2040 has
been sanctioned for the year 1994-95 to
1995-96
which
shall
continue
till
29.02.1996. From the perusal of the
aforesaid two annexures attached to the
counter affidavit dated 07.08.2023, it
transpires that the temporary posts of
stenographers which were discontinued on
16.07.1983 were replaced by temporary
posts of Camp Clerks in Fish Farmers
Development Agency, District- Prayagraj
(then
Allahabad).
From
perusal
of
Annexure No. 2, it transpires that in 17
districts of U.P. including Allahabad, vide
Government Order dated 30.09.1993, the
government had sanctioned apart from
other posts, the posts of Senior Clerk in the
payscale of 1200-2040 to be continued till
29.02.1996. Thus, it appears that after
discontinuance of the post of stenographer,
the post of stenographer was replaced by
temporary post of Camp Clerk and Senior
Clerk in Prayagraj and the petitioner
continued on these newly created posts
after discontinuance of the post of
stenographer.

15. The petitioner has filed
Annexure Nos. 1 to 8 attached to the writ
petitions which are documents consisting of
certified
copy
of
impugned
F.I.R.
(Annexure No.1), office order dated March
18, 1991 issued by Chief Development
Officer/Executive Director, Fish Farmers
Development
Agency,
Prayagraj,
on
completion of 10 years satisfactory service
sanctioning pay scale of 1200-2040 w.e.f.
29.04.1989 to petitioner, Gopesh Chandra
5 All. Gopesh Chandra Saxena Vs. State of U.P. & Ors.
2005
Saxena, mentioning that the next increment
shall accrue to him on 01.07.1989
(Annexure No.2), office order dated
January 27, 1996 issued by Chief
Development
Officer/Office
Chairman
(Administration),
Fish
Farmers
Development Agency, Prayagraj, after six
years of satisfactory service promoting the
petitioner and sanctioning the next pay
scale of 1350-2200/- to the petitioner
(Annexure No. 3), government letter dated
28.12.1990 relating to fixation of pay scale
of 1200-2040/- to the post of Senior Clerk
of
Fisheries
Department
on
the
recommendation
of
Samta
Samiti
(Annexure
No.
4),
order
of
Chief
Development Officer/Executive Director,
Fish
Farmers
Development
Agency,
Prayagraj, fixing the payband and grade
pay of the petitioner from 01.01.2006 to
01.07.2012 on the basis of Government
Order No.वे०आ०-2-1318/10ग -59(एम)/2008
दिनािंक 08.12.2008, and Government Order
No. 2616/ िह-मा०-2012-10-5 (8)/98 टी० ी०
दिनािंक 21.11.2012 (िेय 21.11.2012 े), order
dated 05.07.2013 of Assistant Director,
Fisheries/Chief
Executive
Officer,
Fish
Farmers Development Agency, Prayagraj,
fixing payband of 5200-20200/- in the grade
pay of 2800/- w.e.f. 01.07.2013 to the
petitioner on the post of Camp Clerk/Senior
Clerk on the basis of Government Order No
2616/ िह-मा०-2012-10-5 (8)/98 टी० ी० दिनािंक
21.11.2012 (Annexure No. 7). The petitioner
has filed Annexure No. 6 to his writ petition
which consists of office orders dated
05.09.1991, 06.03.1995 and 24.12.2010 issued
by Chief Development Officer/Executive
Director, Fish Farmers Development Agency,
Prayagraj issuing counter to the staff of his
office on different seats.

16. From perusal of Annexure No.
4, it transpires that vide aforesaid
Government Order dated 08.12.1990, the
grade pay of 1200-2040/- was sanctioned
for the post of Camp Clerk/Senior Clerk.
From the perusal of aforesaid Annexure
No. 2, it transpires that on the basis of
recommendation of Samta Samiti, after 10
years continuous and satisfactory service,
the petitioner was sanctioned the grade pay
of 1200-2040/- from 01.07.1988. The next
increment was payable w.e.f. 29.04.1989.
From the perusal of Annexure No. 3, it
transpires that as per office order dated
January 27, 1996, after six years of
continuous and satisfactory service, the
petitioner was promoted to next grade pay
of 1350-2200/-. From the perusal of
aforesaid Annexure No. 7, it transpires that
in compliance of Government Order No.
वे०आ०-2-1318/10ग -59(एम)/2008
दिनािंक
08.12.2008 and Government Order No.
2616/ िह-मा०-2012-10-5 (8)/98 टी० ी० दिनािंक
21.11.2012 (िेय 21.11.2012 े), w.e.f.
01.01.2006, the petitioner was sanctioned
payband of Rs.12,790/- and grade pay of
2800/-
which
included
increments
admissible each year from 2006 to 2012.
From 01.07.2012, his payband was fixed as
Rs.16,410/- in the grade pay of 2800/-.
From Annexure No. 7, it is also
conspicuous
that
in
compliance
of
Government Order dated 2616/ िह-मा०2012-10-5 (8)/98 टी० ी० दिनािंक 21.11.2012
w.e.f. 01.07.2013, after increments, the
petitioner's payband was fixed as Rs. 520020200/- in the grade pay of 2800/-. In their
counter affidavits, the respondents have not
filed any documentary evidence in rebuttal
of aforesaid documents filed by the
petitioner as annexures to his writ petition.
Therefore, it can be concluded that after
discontinuance of the post of stenographer,
the petitioner was permitted to continue on
the post of Camp Clerk/Senior Clerk and he
was
sanctioned
various
scales
after
2006 INDIAN LAW REPORTS ALLAHABAD SERIES
completion of 10 years and after further
completion of six years of continuous and
satisfactory service, the petitioner's pay
scale was also revised as per Government
Order dated 08.12.1990 as per letter dated
28.12.1990 issued by Deputy Secretary,
U.P. Government to Director, Fisheries,
U.P. Lucknow.

17. From perusal of Annexure No.
8 to the writ petition, it transpires that vide
Government Order No. 1038/ िह-म-2015, 65(77)/2014 लखनऊ, दिनािंक 22 जून 2015, the
retirement age of the petitioner was
increased from 58 to 60 years and after his
retirement on 31.07.2013, he was permitted
to again continue on his post till
31.07.2015. Thus, it appears that petitioner
was
duly
authorized
by
competent
authorities to continue and draw salary on
the post of Senior Clerk till his date of
superannuation on 31.07.2015 when the
post of stenographer/Camp Clerk was
discontinued after 26.12.1995.

18. Averment has been made by
respondent no. 3 in his counter affidavit
that the petitioner was Incharge of the seat
(patal) of establishment and he received the
letter
regarding
discontinuance
and
abolition of the post of stenographer but he
did not bring these letters/orders in the
cognizance of the respondent no. 3, Chief
Development Officer/Executive Director,
Fish
Farmers
Development
Agency,
Prayagraj. Therefore, he misused his post
as Incharge of establishment and kept the
authorities in dark and thereby illegally
continued and drew salary and allowances
on the post of Camp Clerk/Senior Clerk.

19. The petitioner has filed work
distribution order dated 05.09.1991,
06.03.1995 and 24.12.2010 issued by
respondent no. 3, Chief Development
Officer/Executive Director, Fish Farmers
Development
Agency,
Prayagraj
as
Annexure No. 6 to the writ petition. From
the perusal of aforesaid order dated
05.09.1991, it transpires that from this
date, Sri B.D. Vais was made Incharge of
the seat (patal) of establishment and also
correspondence relating to establishment
and general administration. On perusal of
aforesaid order dated 06.03.1995, it
transpires that Smt. Geeta Sonkar, Junior
Clerk was made Incharge of the seat
(patal) of the establishment. On perusal
of the aforesaid order dated 24.12.2010, it
transpires that Smt. Tahasin Jahara, the
Senior Clerk was made Incharge of seat
(patal)
of
establishment.
Thus,
it
transpires that at the time of abolition of
post of Camp Clerk on 26.12.1995 and
thereafter, petitioner did not hold the post
of
Incharge
of
seat
(patal)
of
establishment. Therefore, there was no
occasion for him to have the custody of
the letter which communicated the
discontinuance/abolition of the post of
Camp Clerk. Therefore, there is no force
in the allegation of respondent no. 3 that
by not placing the aforesaid letter before
respondent no. 3, the petitioner illegally
continued on and drew salary and
allowances of the posts of Camp
Clerk/Senior Clerk, thus committing
cheating, fraud and misappropriation of
public money.

20. From the above discussion,
we are of the considered view that the
registration of impugned F.I.R. against
the petitioner is misuse of law and it is
liable to be quashed in the interest of
justice.

21.

The
impugned
first
information
report
dated
16.04.2023
registered as Case Crime No. 199 of 2023
5 All. Smt. Prabhpreet Kaur Vs. Jitendra Pal Singh
2007
under Sections 409 and 420 I.P.C., Police
Station- Colonelganj, District- Prayagraj, is
hereby quashed.

22. Accordingly, the writ petition
is allowed.
----------
(2024) 5 ILRA 2007
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2024

BEFORE

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

First Appeal No. 44 of 2021
Connected with
First Appeal No. 43 of 2021

Smt. Prabhpreet Kaur ...Appellants
Versus
Jitendra Pal Singh ...Respondent

Counsel for the Appellant:
Alok Verma, Prabh Jot Kaur, Ramesh
Chandra Pathak

Counsel for the Respondents:
Narendra Kumar Kashyap, Ratnoja @ Ratna
Singh, Sunita

Matrimonial
dispute-Hindu
Marriage
Act,
1955
-Section13-Love
marriagebickering between the parties-wife left the
matrimonial house-under police pressurecompromise-mutual divorce- but husband did
not appeared in the suit for divorce on mutual
consent-instead filed a suit u/s 9 of HMArestitution of conjugal rights-wife further filed
a petition seeking divorce u/s 13 of HMA on
ground of cruelty- such unilateral withdrawal
from divorce from mutual consent by husband
added to cruelty-parties living separately for
more than 11 years-matrimonial bond is
beyond repair- divorce granted on the ground
of cruelty.

Appeals allowed. (E-9)
List of Cases cited:

1. Rajiv Chikkara Vs Sandhya Mathur : 2016 SCC
OnLine Del 6224

2. Beena M.S. Vs Shino G. Babu , 2022 (2) KHC
11 :

3. Shreedharan Vs Asha (MAT Appeal No.c578 of
2015, decided on 18.09.2023),

4. Vidhyadhar Vs Manikrao: AIR 1999 SC 1441

5. Samar Ghosh Vs Jaya Ghosh : (2007) 4 SCC
511

6. Rajib Kumar Roy Vs Sushmita Saha : 2023
SCC OnLine SC 1221

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

(1) Heard Ms. Prabh Jot Kaur, learned
Counsel representing the appellant/wife
and Ms. Ratna Singh, learned Counsel
representing the respondent/ husband.

(2) Since these two appeals arise
out of a common order dated 22.02.2021
passed by the learned Additional Principal
Judge, Family Court-I, Lucknow based on
a common factual matrix, they have been
heard together and are being disposed of by
this common judgment.

(3) Both these appeals have been
filed under Section 19 (1) of the Family
Court Act, 1984 by the appellant/wife, inert
alia as follows:

 (A) First Appeal No. 44 of 2021
has been filed challenging the order passed
by Additional Principal Judge, Family
Court-I, Lucknow dated 22.02.2021 by
which Regular Suit No. 3300 of 2014 filed
by the husband/respondent under Section 9
of the Hindu Marriage Act, 1955 has been
allowed and learned Family Court has
directed the wife/Appellant for restitution