# Hem Kant v. State of U.P. & Ors. 1384 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 4 ILRA 1383
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-12
- **Case number:** Writ -C No. 2214 of 2024
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hem-kant-v-state-of-u-p-ors-1384-indian-law-reports-allahabad-series-51810
- **Pages:** 7

## Headnote

C.S.C.

Caste certificate-Where a public functionary -
is required to perform a public function within a
time frame-same will be held to be directory
unless the consequences are specified-time
provided is merely directory - appeal is not
decided within the prescribed time- remedy of
approaching High Court for obtaining suitable
direction -but merely because the appeal is not
decided within the time prescribed- no further
appeal can be preferred to the higher authority
as has been done in the present case- District
Level Committee shall consider and decide the
same expeditiously.

Petition disposed. (E-9)

List of Cases cited:

## Text

4 All. Hem Kant Vs. State of U.P. & Ors.
1383
(vii) that she, having been given in
marriage by her father or other guardian
before she attained the age of fifteen years,
repudiated the marriage before attaining
the age of eighteen years
: Provided that the marriage has
not been consummated;
(viii) that the husband treats her
with cruelty, that is to say, ?
(a) habitually assaults her or
makes her life miserable by cruelty of
conduct even if such conduct does not
amount to physical ill-treat
(b) associates with women of evil
repute or leads an infamous life, or
(c) attempts to force her to lead an
immoral life, or
(d) disposes of her property of
prevents her exercising her legal rights
over it, or
(e) obstructs her in the observance
of her religious profession or practice, or
(f) if he has more wives than one,
does not treat her equitably in accordance
with the injunctions of the Qoran;
(ix) on any other ground which is
recognized as valid for the dissolution of
marriages under muslim law :
Provided that ?
(a) no decree shall be passed on
ground (iii) until the sentence has become
final;
(b) a decree passed on ground (i)
shall not take effect for a period of six
months from the date of such decree, and
if the husband appears either in person
or through an authorized agent within
that period and satisfies the Court that he
is prepared to perform his conjugal
duties, the Court shall set aside the said
decree;
and
(c) before passing a decree on
ground (v) the Court shall, on application
by the husband, make an order requiring
the husband to satisfy the Court within a
period of one year from the date of such
order that he has ceased to be impotent,
and if the husband so satisfies the Court
within such period, no decree shall be
passed on the said ground"

15. While applying the principles
laid down in various pronouncements by
Hon'ble
the
Apex
Court,
it
gives
guidelines to the fact that couple must be
of legal age to marry and qualified to enter
into
legal
marriage
including
being
unmarried and they must be akin to spouse
for significant period of time. Petitioner
No.1 could have applied for dissolution of
her previous marriage on the ground
mentioned in the Dissolution Of Muslim
Marriages Act, 1939, however, she chose
to solemnize another marriage from
another person. Petitioner No.1 is still
legally wedded wife of respondent No.4
and she has not obtained any decree of
divorce.

16. In view of the discussions as
above, it is not considered desirable that
relationship of the petitioners be protected
in contravention of the statutory provisions
of law passed by legislature, hence, petition
has no force and is liable to be dismissed
and is dismissed accordingly.
----------
(2024) 4 ILRA 1383
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.03.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ -C No. 2214 of 2024

Hem Kant ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
1384 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Vipul Shukla

Counsel for the Respondents:
C.S.C.

Caste certificate-Where a public functionary -
is required to perform a public function within a
time frame-same will be held to be directory
unless the consequences are specified-time
provided is merely directory - appeal is not
decided within the prescribed time- remedy of
approaching High Court for obtaining suitable
direction -but merely because the appeal is not
decided within the time prescribed- no further
appeal can be preferred to the higher authority
as has been done in the present case- District
Level Committee shall consider and decide the
same expeditiously.

Petition disposed. (E-9)

List of Cases cited:

1. Kumari Madhuri Patil and another Vs.
Additional Commissioner, Tribal Development
and others (1994) 6 SCC 241

2. C. Bright v. Distt. Collector, (2021) 2 SCC 392

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Vipul Shukla, learned
counsel for the petitioner as well as learned
Standing
counsel
on
behalf
of
the
respondents.

2. It has been submitted by learned
counsel for the petitioner that the petitioner is
a B.Sc. graduate and after his graduation
applied for his caste certificate through online
portal vide application No.211470030073241
before the Tehsildar, Tehsil Sadar, Firozabad
on 21.5.2021. It has been submitted that the
said application was rejected by means of
order dated 25.5.2021.

3. Being aggrieved by the order of
the Tehsildar the petitioner filed an
application before District Level Caste
Scrutiny
Verification
Committee
on
16.6.2021. It is stated that the said
application was filed in terms of the
Government Order dated 28.2.2011 where
it is provided that the said verification of
the caste be done within fifteen days. The
petitioner waited for fifteen days and on
expiry of the said period as the application
was not decided he approached the
Divisional
Level
Caste
Verification
Committee
vide
application
dated
21.7.2021. It is submitted that as per the
Government Order dated 27.1.2011 clause
5 provides for thirty days? time to decide
the application preferred against the order
of
District
Level
Caste
Verification
Committee but it is stated that despite
expiry of a period of one month the
application was not decided by Divisional
Level committee. After waiting for two
months the petitioner approached the State
Level Caste Verification Committee by
filing application on 30.9.2021. It is
submitted that as per the Government
Order dated 5.1.1996 under sub clause 5 of
of clause 6 two months? time has been
provided to the State Level to decide
application. It is further submitted that even
after expiry of two months? time no order
was passed by the State Level Caste
Verification and in these circumstances the
petitioner has approached this Court by
filing writ petition bearing Writ A No.875
of 2024 which was disposed of vide order
dated 6.2.2024 directing the State Level
Caste Verification Committee to decide the
application of the petitioner within a period
of ten days from the date a certified copy of
the is submitted to them. It is in compliance
of the order of this Court passed in Writ A
No.875 of 2024 that the State Level
Committee has rejected the appeal of the
petitioner on the ground that the said appeal
is not in accordance with the rules in as
4 All. Hem Kant Vs. State of U.P. & Ors.
1385
much as there is no decision taken by the
District Level Committee against which the
application has been filed and, therefore,
held that such an application was not
maintainable.

4. Learned counsel for the
petitioner while assailing the impugned
order dated 14.2.2024 has submitted that
the time period prescribed in various
government orders which have been passed
in pursuance of the judgment and order of
Supreme Court in the case of Kumari
Madhuri Patil and another Vs. Additional
Commissioner, Tribal Development and
others (1994) 6 SCC 241 is mandatory and
once the time period has expired and no
decision is passed on the application
preferred by the aggrieved person then he
will have the right of approaching higher
forum and accordingly submits that the
State Level Committee should have dealt
with the case of the petitioner on merits. It
has been submitted by learned counsel for
the petitioner that during pendency of the
appeal before the State Level Committee a
vigilance report was also obtained as per
the direction of the judgment of Supreme
Court in the case of Madhuri Patil (supra)
and the said report was submitted on
28.4.2022. It is further submitted that once
Vigilance Cell report was brought on
record the matter ought to have been
decided
on
merits
and
accordingly
remanding the matter back to the District
Level
Committee
by
means
of
the
impugned order is illegal and arbitrary and
requires interference.

5. Learned Standing counsel, on
the other hand, has opposed the writ
petition. It has been submitted that the
appeal preferred by the petitioner has
neither been decided by the District Level
Committee nor by the Divisional Level
Committee and without waiting for the
decision of the authorities the petitioner has
rushed and filed his appeal before the State
Level Committee. He submits that appeals
can be considered only once there is an
order in existence which can be affirmed or
set aside by the appellate authority and in
absence of any order by the District Level
Committee or by the Divisional Level
Committee the appeal preferred by the
petitioner before State Level Committee
was a mere empty formality. It is further
stated that though time period has been
prescribed by various Government Orders
for completion of the proceedings of the
application/appeal before the District Level
Committee or Divisional Level Committee
as well as State Level Committee is
directory. He submits that there is no
explanation
provided
in
the
said
Government Order as to whether on expiry
of the said time period prescribed for
deciding the said appeal an aggrieved
person should wait or directly approach
higher forum without waiting for the
decision of the appeal.

6. It is further submitted that by
the State Level Committee a Vigilance Cell
report was obtained but when the matter of
the petitioner was examined on merits it
was found that orders have yet not been
passed by the District Level or Divisional
Level Committees and in the facts and
circumstances of the case the appeal
preferred before the State Level Committee
was not maintainable and it has rightly
been rejected. Before the District Level and
Divisional Committees the appeal of the
petitioner is still pending.

7. Learned counsel for the
petitioner does not dispute the objection
raised by counsel for the respondents on
facts but on the other hand submits that the
1386 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner has applied for the post of
Revenue Lekhpal conducted by U.P.
Subordinate
Services
Selection
Commission,
Lucknow
and
as
the
petitioner claims to be belonging to
reserved category he has to upload caste
certificate it is necessary for him to obtain
caste certificate and upload the same within
the time prescribed so that his case can be
considered against reserved quota of post.
He submits that the petitioner has already
cleared both the stages of examination and
has got provisional selection in the final
merit list /result which was declared on
30.12.2023 by U.P. S.S.S. Commission and
now the petitioner has been directed to
appear before the Selection Commission on
7.2.2024 for verification of academic and
other related documents.

8. Learned counsel for the
petitioner submits that it was, therefore,
necessary for the petitioner to produce his
certificate with regard to his caste before
the Selection Commission and before the
said date and if he is unable to produce the
said certificate he will have no option
except to give up the post. He further
submits that there is no fault of the
petitioner but merely on account of delay in
deciding the appeal of the petitioner he will
be made to suffer.

9. In these circumstances, this
Court has also considered the observations
of Supreme Court in the case of Kumari
Madhuri Patil (Supra) on the aspect of
delay in deciding the applications/appeals
by the various Caste Scrutiny Committees
wherein in para 13 (10) it has been held as
under:-

"In case of any delay in finalising
the proceedings, and in the meanwhile the
last date for admission into an educational
institution or appointment to an officer
post, is getting expired, the candidate be
admitted by the Principal or such other
authority competent in that behalf or
appointed on the basis of the social status
certificate already issued or an affidavit
duly
sworn
by
the
parent/guardian/candidate
before
the
competent officer or non- official and such
admission or appointment should be only
provisional, subject to the result of the
inquiry by the Scrutiny Committee."

10. Merely on account of the delay
by the State in taking decision the
opportunity which has come to the
petitioner in the form of selection for the
post of Revenue Lekhpal should not be lost
and accordingly the petitioner is at liberty
to move application before Uttar Pradesh
State Services Selection Commission in
light of the observations made by the
Supreme Court provided for in para 10 of
the said judgment.

11. The next issue which arises for
consideration is the maintainability of
applications/appeals before the next higher
forums in case the application/appeal is not
decided within the time prescribed in
various Government Orders. Here, it would
be pertinent to refer to the case of C. Bright
v. Distt. Collector, (2021) 2 SCC 392 ,
where Hon'ble Supreme Court has observed
as under:

"9. The question as to whether, a
time-limit fixed for a public officer to
perform a public duty is directory or
mandatory has been examined earlier by
the courts as well. A question arose before
the
Privy
Council
in
respect
of
irregularities
in
the
preliminary
proceedings for constituting a jury panel.
The Municipality was expected to revise the
4 All. Hem Kant Vs. State of U.P. & Ors.
1387
list of qualified persons but the jury was
drawn from the old list as the Sheriff
neglected to revise the same. It was in these
circumstances, the decision of the jury
drawn from the old list became the subjectmatter of consideration by the Privy
Council. It was thus held that it would
cause greater public inconvenience if it
were held that neglecting to observe the
provisions of the statute made the verdicts
of all juries taken from the list ipso facto
null and void so that no jury trials could be
held until a duly revised list had been
prepared [Montreal Street Railway Co. v.
Normandin, 1917 SCC OnLine PC 3 : AIR
1917 PC 142] .
10. The Constitution Bench of this
Court held that when the provisions of a
statute relate to the performance of a public
duty and the case is such that to hold acts
done in neglect of this duty as null and
void,
would
cause
serious
general
inconvenience or injustice to persons who
have no control over those entrusted with
the duty, the practice of the courts should
be to hold such provisions as directory
[Dattatraya Moreshwar Pangarkar v. State
of Bombay, (1952) 1 SCC 372 : AIR 1952
SC 181 : 1952 Cri LJ 955] . In a sevenBench
judgment,
this
Court
was
considering as to whether the power of the
Returning Officer to reject ballot papers is
mandatory
or
directory.
The
Court
examined
well-recognised
rules
of
construction to observe that a statute
should be construed as directory if it
relates to the performance of public duties,
or if the conditions prescribed therein have
to be performed by persons other than
those on whom the right is conferred [Hari
Vishnu Kamath v. Syed Ahmad Ishaque,
AIR 1955 SC 233] .
11. In a judgment reported as
Remington Rand of India Ltd. v. Workmen
[Remington Rand of India Ltd. v. Workmen,
AIR 1968 SC 224] , Section 17 of the
Industrial Disputes Act, 1947 came up for
consideration. The argument raised was
that the time-limit of 30 days of publication
of award by the Labour Court is
mandatory. This Court held that though
Section 17 is mandatory, the time-limit to
publish the award within 30 days is
directory inter alia for the reason that the
non-publication of the award within the
period of thirty days does not entail any
penalty.
12.
In T.V.
Usman
v.
Food
Inspector, Tellicherry Municipality [T.V.
Usman v. Food Inspector, Tellicherry
Municipality, (1994) 1 SCC 754 : 1994
SCC (Cri) 187] , the time period during
which report of the analysis of a sample
under Rule 7(3) of the Prevention of Food
Adulteration Rules, 1955 was to be given,
was held to be directory as there was no
time-limit prescribed within which the
prosecution had to be instituted. When
there was no such limit prescribed then
there was no valid reason for holding the
period of 45 days as mandatory. Of course,
that does not mean that the Public Analyst
can ignore the time-limit prescribed under
the Rules. He must in all cases try to
comply with the time-limit. But if there is
some delay, in a given case, there is no
reason to hold that the very report is void
and, on that basis, to hold that even
prosecution cannot be launched.
13.
This
Court
distinguished
between failure of an individual to act in a
given time-frame and the time-frame
provided to a public authority, for the
purposes
of
determining
whether
a
provision was mandatory or directory,
when this Court held that it is a well-settled
principle that if an act is required to be
performed by a private person within a
specified time, the same would ordinarily
be
mandatory
but
when
a
public
1388 INDIAN LAW REPORTS ALLAHABAD SERIES
functionary is required to perform a public
function within a time-frame, the same will
be held to be directory unless the
consequences
therefor
are
specified
[Nasiruddin v. Sita Ram Agarwal, (2003) 2
SCC 577] .
14. In P.T. Rajan v. T.P.M. Sahir
[P.T. Rajan v. T.P.M. Sahir, (2003) 8 SCC
498] , this Court examined the effect of
non-publication of final electoral rolls
before the time of acceptance of nomination
papers. The Court held as under : (SCC p.
516, para 48)
"48. Furthermore, even if the
statute specifies a time for publication of
the electoral roll, the same by itself could
not have been held to be mandatory. Such a
provision would be directory in nature. It is
a well-settled principle of law that where a
statutory functionary is asked to perform a
statutory duty within the time prescribed
therefor, the same would be directory and
not mandatory. (See Shiveshwar Prasad
Sinha v. District Magistrate [Shiveshwar
Prasad Sinha v. District Magistrate, 1965
SCC OnLine Pat 43 : AIR 1966 Pat 144 :
ILR 45 Pat 436] , Nomita Chowdhury v.
State of W.B. [Nomita Chowdhury v. State
of W.B., 1999 SCC OnLine Cal 235 :
(1999) 2 Cal LJ 21] and Garbari Union
Coop. Agricultural Credit Society Ltd. v.
Swapan Kumar Jana [Garbari Union Coop.
Agricultural Credit Society Ltd. v. Swapan
Kumar Jana, 1996 SCC OnLine Cal 209 :
(1997) 1 CHN 189] .)"

12. A perusal of the above renditions
of the Hon'ble Supreme Court would put the
issue out of the ambit of any confusion, that
where a public functionary is required to
perform a public function within a time
frame, the same will be held to be directory
unless the consequences are specified. The
relevant Government Orders do not provide
for
any
consequences
in
case
the
applications/appeals are not decided within
the time frame. In these circumstances, this
Court is of the considered opinion that the
time provided in various government orders
constituting District Level, Divisional Level
and State Level Committees is merely
directory and in case appeal is not decided
within the prescribed time the petitioner has
remedy of approaching High Court by filing
a writ petition for obtaining suitable direction
to the concerned committee to decide the
matter expeditiously but merely because the
appeal is not decided within the time
prescribed no further appeal can be preferred
to the higher authority as has been done in the
present case. An appeal would only be
maintainable against a decision of a
committee and in absence of any decision no
further application/appeal can be preferred.
An appeal is a challenge to an order and in
absence of any order the appeal would be an
empty formality and even otherwise the
appellate authority does not decide any issue
on merits at the first instance but merely
looks into validity of the order passed by the
subordinate authority.

13. In light of the above, this Court
does not find any infirmity in the impugned
order.

14. Considering the fact that the
matter has been referred to the District
Level Committee, it is expected that the
District Level Committee shall consider
and decide the same expeditiously and
while deciding the application of the
petitioner it shall take due note of the
Vigilance Cell report which has been
obtained by State Level Committee and
will consider the case of the petitioner.

15. It is also noticed that the
observations of Supreme Court has already
been incorporated in Government Order
4 All. Indradev Vs. Shri Umesh Singh & Ors.
1389
dated 5.1.1996 where opportunity has been
given to the applicants to move appropriate
application
before
the
Selection
Commission in case there is any delay in
taking decision taken by the Committees.

16. Considering that the appeal
preferred by the petitioner is pending for
substantially long length of time, the
District Level Committee shall make all
endevour to conclude the proceedings
within a period of three weeks from the
date a certified copy of this order is
produced before him in accordance with
law and communicate the decision to the
petitioner.

17. With aforesaid observations
and directions the petition stands disposed
of.
----------
(2024) 4 ILRA 1389
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.04.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ -C No. 2288 of 2024

Indradev ...Petitioner
Versus
Shri Umesh Singh & Ors. ...Respondents

Counsel for the Petitioner:
Sharad Pathak, Lalta Prasad Misra

Counsel for the Respondents:
Ashok Kumar Srivastava, Arun Kumar Singh
Parihar, Avinash Srivastava, B/R0135, Raj Kumar
Upadhyaya(R.K. Upadhyaya), Sudeep Srivastava

Election Petition-Opposite party no.1 had
filed the election petition -was a candidate in
the election held for the post of member of Zila
Panchayat- alleged in the election petition that
serious
irregularities
were
committed
in
preparation of the voters list- District Judge has
committed a patent error of law in holding that
the election petition was not a regular Civil Suit-
and it has to be decided keeping in view the
principles of natural justice only- Election of a
returned candidate can only be set aside on the
proof of illegalities affecting the purity of
election-it cannot be interfered lightly remanded
to for passing appropriate orders for preparation
of
a
correct
calculation
sheet-impugned
judgment quashed.

Writ Petition allowed. (E-9)

(Delivered by Hon'ble Subhash Vidyarthi J.)

1. Heard Sri Sharad Pathak, the
learned counsel for the petitioner, Sri
R.K.Upadhyaya, learned counsel for the
opposite party no.1, Sri Ashok Kumar
Srivastava, learned counsel for the opposite
party no.10 and Sri Sudeep Srivastava,
learned counsel for the opposite parties no.
2, 3, 4, 5, 7, 8, 11 to 16.

2. By means of the writ petition
filed under Section 226 of the Constitution
of India, the petitioner has challenged the
validity of the judgment and order date
27.02.2024 passed by the District Judge,
Pratapgarh in Election Petition No. 01 of
2021 filed under Section 27(2) Uttar
Pradesh Kshettra Panchayat and Zila
Panchayat Adhiniyam, 1961.

3. The opposite party no.1 had
filed the aforesaid election petition inter
alia stating that he was a candidate in the
election held for the post of member of Zila
Panchayat, Kshetra Mangraura III, Ward
No. 11, Development Block Mangraura,
Pargaana
and
Tehsil
Patti,
District
Pratapgarh and he was allotted Polling
symbol Axe. The opposite parties No. 1 to
17 in the election petition i.e. the petitioner
and opposite parties no. 2 to 17 in this writ
petition, were also candidates in the