# Hemant Kumar and another v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 681
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-10
- **Case number:** Civil Misc. Writ Petition No. 39558 of 2009
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hemant-kumar-and-another-v-state-of-u-p-and-others-41420
- **Pages:** 5

## Headnote

U.P. Intermediate Education Act 1921Chapter III Reg. 101-Appointment on
class IV post-procedure for appointmentin absence of specific provision-by order
dated 1.6.01 issued by Director-same
procedure of U.P. Direct Recruitment on
Group D posts Rule 1985 are applicableby virtue of U.P. Direct Recruitment
inclusion
of
Nominee
of
District
Magistrate participation of Nominee of
D.M.
in
selection
committee-held
mandatory
otherwise
constitution
of
selection
committee
itself
irregularDirection for fresh selection issued.

Held: Para 9 & 12

It may also be clarified that so far as the
Rules of 2006 are concerned, the same
made the nominee of District Magistrate
is the Selection Committee for Group 'D'
posts mandatory the said amendment
has to be read along with the Rules of
1985 which have been incorporated by
reference under Government order as
per the letter of the Director 1.6.2001 for
appointment on class III and class IV
post
in
Recognized
Intermediate
Colleges. There is no challenge to the
competence
of
State
to
issue
the
direction as per the letter of the director
at 9.6.2000 in the present writ petition.
682 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

In these set of the circumstances of the
Court is of the opinion and selection
committee constituted for Class IV posts
in the Institution in question is not in
accordance
with
the
procedure
prescribed as per the letter of the
Director dated 1.6.2001 and therefore
any recommendation made by such
Selection
Committee
need
no
consideration by the Education Authority
under Regulation 101 of Chapter III of
the
Regulation
framed
under
the
Intermediate Education Act.
Case law discussed:
2008(3) E.S.C., page 1584 (Alld)
2003(2) SCC 111
AIR 2008 SCW 5817.

## Text

2 All] Chandrajeet Ram V. The State of U.P. and another

681
2.2.2008 i.e. exactly after 35 years. If the
petitioner had waited for one more year,
limitation to file suit for recovery of
possession would have expired thrice. In
such matters First Information Report
must be lodged against such claimants for
manufacturing the documents otherwise
this menace would not be checked.
However, the court is not issuing any
particular direction in respect of the
petitioner of this writ petition. The
consolidation authorities/courts and other
revenue authorities/courts of each district
particularly Collector should be vigilant
in future.

3. It is also the experience of the
court that Rule 109-A is being utterly
mis-used. It is not meant for rampant use.
It cannot be invoked after notification
under Section 52 of the Act to enforce
orders passed before the notification.

4. During dictation of this judgment
learned counsel for the petitioner prayed
for dismissal of the writ petition as not
pressed. However, the court is not
inclined to grant that prayer.

5. The court is not at all convinced
that any order was passed in favour of
petitioner on 21.7.1973 hence this writ
petition is dismissed.

6. Office is directed to supply a copy
of this order free of cost to Shri N.P.
Pandey, learned standing counsel.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2009

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 39558 of 2009

Hemant Kumar and another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Vashistha Tiwari

Counsel for the Respondents:
S.C.

U.P. Intermediate Education Act 1921Chapter III Reg. 101-Appointment on
class IV post-procedure for appointmentin absence of specific provision-by order
dated 1.6.01 issued by Director-same
procedure of U.P. Direct Recruitment on
Group D posts Rule 1985 are applicableby virtue of U.P. Direct Recruitment
inclusion
of
Nominee
of
District
Magistrate participation of Nominee of
D.M.
in
selection
committee-held
mandatory
otherwise
constitution
of
selection
committee
itself
irregularDirection for fresh selection issued.

Held: Para 9 & 12

It may also be clarified that so far as the
Rules of 2006 are concerned, the same
made the nominee of District Magistrate
is the Selection Committee for Group 'D'
posts mandatory the said amendment
has to be read along with the Rules of
1985 which have been incorporated by
reference under Government order as
per the letter of the Director 1.6.2001 for
appointment on class III and class IV
post
in
Recognized
Intermediate
Colleges. There is no challenge to the
competence
of
State
to
issue
the
direction as per the letter of the director
at 9.6.2000 in the present writ petition.
682 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

In these set of the circumstances of the
Court is of the opinion and selection
committee constituted for Class IV posts
in the Institution in question is not in
accordance
with
the
procedure
prescribed as per the letter of the
Director dated 1.6.2001 and therefore
any recommendation made by such
Selection
Committee
need
no
consideration by the Education Authority
under Regulation 101 of Chapter III of
the
Regulation
framed
under
the
Intermediate Education Act.
Case law discussed:
2008(3) E.S.C., page 1584 (Alld)
2003(2) SCC 111
AIR 2008 SCW 5817.

(Delivered by Hon'ble Arun Tandon, J.)

1. Petitioners before this Court seeks
a writ of mandamus directing the
respondents to approve the appointment
of the petitioners and to provide salary
from the State Exchequer. Facts in short
are as follows:

2. Two vacancies on Class IV post
in Hindu Inter College, Koshikala,
Mathura are said to be available. The
vacancies were advertised with the
permission
of
District
Inspector
of
Schools. The petitioners applied in
response to it. A selection Committee was
constituted and the petitioners were
selected one of them is a general category
candidate and other is of backward class
category. Papers seeking approval qua the
petitioners selection were transmitted to
the District Inspector of Schools vide
letter dated 12.02.2008. No orders have
been passed by the authority hence this
petition. Normally this Court would have
required the District Inspector of Schools
to pass orders on the papers received qua
appointment on class IV posts in the
recognized Intermediate College in view
of the provisions of Chapter 3 of the
Regulation framed under the Intermediate
Education Act. However, such a course is
not being adopted in the facts of this case
for following reasons:

3. It is admitted on record that the
selection
committee
which
was
constituted
for
the
purpose
of
appointment on class IV post in the
Institution did not include the nominee of
the District Magistrate.

4. Counsel for the petitioner
vehemently argued that under letter dated
1.6.2001 it has been provided that the
procedure prescribed for appointment on
class
IV
post
in
Government
establishments would be applied for the
purpose of selection on Class IV post in
Intermediate
Colleges.
However
the
requirement of the nominee of District
Magistrate stands excluded as per the
letter dated 28th August 2008 as also in
view of law laid down by this Court in the
case of Smt. Shiksha and Another Vs.
State of U.P. and others, reported in
2008(3) E.S.C., page 1584 (Alld)

5. It is not in dispute that Regulation
101 to 107 of Chapter III framed under
the Intermediate Education Act provide
for appointment on Class III and Class IV
posts in recognized intermediate Colleges.
Regulation 101 provide for prior approval
of District Inspector of Schools before
making
any
appointment.
Other
regulations
deal
with
compassionate
appointment etc. None of the regulations
lay down the procedure which is to be
adopted
for
appointment
by
direct
recruitment against substantive vacancy in
Intermediate Colleges on Class III and
Class IV posts. It is for this reason that an
order was issued under the signature of
2 All] Hemant Kumar and another V. State of U.P. and others

683
the
Director
Education
U.P.
dated
1.06.2001
which
provides
that
the
procedure for appointment on Class III
and Class IV posts by direct recruitment
in recognized Intermediate Colleges shall
be the same as that applicable qua
appointment on group D post in the
employment
of
the
Government
establishment. It has been provided that
U.P. Direct Recruitment on Group D
posts Rule 1985 (hereinafter referred to as
Rules 1985) would be applicable. It is not
in dispute that under the aforesaid 1985
Rules the vacancies have to be advertised
in newspaper. The Selection Committee
would include amongst others a nominee
of the District Magistrate. For ready
reference the letter dated 1.6.2001 is
quoted below:

izs"kd]
f'k{kk funs'kd] mRrj izns'k]
f'k{kk lkekU; 1⁄411⁄2r`rh; vuqHkkx]
lsok es]
e.Mh; la;qDr f'k{kk funs'kd]
mRrj izns'kA

i=kad lkekU; 1⁄411⁄2r`rh; @1044&1169@2001&02 fnukad
1&6&2001

fo"k;% v'kkldh; lgk;d izkIr ek/;fed fo|ky;ksa esa prqFkZ
Js.kh deZpkfj;ksa dh fu;qfDr dh izfdz;k ds lEcU/k esaA

egksn;]

mi;ZqDr fo"k; dh vksj vkidk /;ku vkdf"kZr djrs
gq, fuosnu gSa fd 'kklu us vius i= la[;k%
693@15&12&2001&1601
1⁄47931⁄2@2000
fnukad
11&5&2001 }kjk ;g funsZ'k fn;k gSa fd ek/;fed f'k{kk
la'kksf/kr vf/kfu;e 1921 ds v/;k;&rhu&fofu;e&21⁄411⁄2 esa
;g O;oLFkk nh x;h gS fd v'kkldh; ekU;rk izkIr@lgk;rk
izkIr mPprj ek/;fed fo|ky;ksasa ds prqFkZ Js.kh deZpkfj;ksa
dh U;wure 'kSf{kd ;ksX;rk ogh gksxh] tks jktdh; mPprj
ek/;fed fo|ky;ksa ds led{kh; deZpkfj;ksa ds fy, le;
ij fu/kkZfjr dh x;h gSa] fdUrq vf/kfu;e esa prqFkZ Js.kh
deZpkfj;ksa ds fjDr inksa ds Hkjus dh izfdz;k Li"V :i ls
of.kZr ugh dh x;h gSaA ;g Li"V gSa fd v'kkldh; lgk;rk
izkIr ek/;fed fo|ky;ksa esa 'kklu dh mDr vf/klwpuk
la[;k& dzkfeZd&2&2017&1986&& 21⁄411⁄2] y[kuÅ 8
flrEcj] 1986 }kjk iz[;kfir lewg ^^?k^^ 1⁄4deZpkjh lsok
izFke la'kks/ku1⁄2 fu;ekoyh& 1986 ds izkfo/kku izHkkoh gSA

vr%
'kklu
ds
i=
la[;k
693@15&12&2001&1601
1⁄47931⁄2@2000
fnukad
11&5&2001 esa fn;s x;s mDr funZs'kkuqlkj dk;Zokgh
lEHkkfor djk;s rFkk iz'uxr fu;ekoyh esa fn;s x;s izkfo/kkuksa
ds foijhr dh x;h fu;qfDr;ksa dks fdlh Hkh n'kk esa ekU; u
fd;k tk;s rFkk fu;ekoyh esa l'kks/ku djds fu;qfDr djus
okys izcU/kd @iz/kkukpk;Z ds fo:) dk;Zokgh lqfuf'pr dh
tk;sA
Hkonh;
1⁄4fe= yky1⁄2
vij f'k{kk funs'kd1⁄4ek/;fed1⁄2
mRrj izns'k

6. By means of U.P. Direct
Recruitment Inclusion Of Nominee Of
District
Magistrate
In
Selection
Committee Rule 2006 the nominee of the
District Magistrate in the selection
committee has been made mandatory. It is
with reference to the said Rules of 2006
that the Single Judge of this Court in the
case of Shiksha and others (supra) has
held that Rules of 2006, has been framed
in exercise of power under Article 309 of
the Constitution of India and, therefore,
will not to applicable qua the procedure to
be followed for appointment on class III
and class IV posts under the Intermediate
Education Act. It has been held that the
Regulations 101 to 107 operate in
different field vis-a-vis the Rules of 2006.

7. I have examined the judgment in
the case of Shiksha and others (supra) and
have considered Government order dated
1.6.2001 which provides that the Rules
relating to appointment on Group D post
in the State Government would be
followed for appointment on Class III and
Class IV post in recognized Intermediate
College.
684 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

8. It is not in dispute that no
procedure for direct recruitment on class
III and Class IV post has been provided
for under the Regulation framed under the
Intermediate Education Act. It is for this
reason that for filling up the vacuum that
the State Government has by reference
incorporated the Rules of 1985 as per the
letter at 1.6.2001. This order of the State
Government is also referable to Section 9
of the Intermediate Education Act.
Therefore all appointment on Class III
and Class IV posts in recognized
Intermediate College have to be made
after following the procedure prescribed
for appointment on Group D posts in the
employment of the State Government i.e.
Rules 1985. The aforesaid aspect of the
matter has not been examined in the
judgment in the case of Smt. Shiksha
(supra). This Court is, therefore, not
included to follow the same.

9. It may also be clarified that so far
as the Rules of 2006 are concerned, the
same made the nominee of District
Magistrate is the Selection Committee for
Group 'D' posts mandatory the said
amendment has to be read along with the
Rules
of
1985
which
have
been
incorporated
by
reference
under
Government order as per the letter of the
Director 1.6.2001 for appointment on
class III and class IV post in Recognized
Intermediate
Colleges.
There
is
no
challenge to the competence of State to
issue the direction as per the letter of the
director at 9.6.2000 in the present writ
petition.

10. I am of the considered opinion
that all the judgments relied upon in the
judgment and order of the learned Single
Judge were clearly distinguishable. The
Hon'ble Supreme Court in the case of
Bhavnagar
University
vs.
Palitana
Sugar Mills (Pvt.) Ltd. & Ors.,
reported in 2003(2) SCC 111, has held as
follows:
"It is well settled that a little
difference in facts or additional facts may
make
a
lot
of
difference
in
the
precedential value of a decision."

11. The said judgment has been
followed in the recent judgment of the
Hon'ble Supreme Court in the case of Dr.
Rajbir Singh Dalal vs. Chaudhari Devi
Lal University, Sirsa & Anr., reported in
AIR 2008 SCW 5817.

12. In these set of the circumstances
of the Court is of the opinion and
selection committee constituted for Class
IV posts in the Institution in question is
not in accordance with the procedure
prescribed as per the letter of the Director
dated
1.6.2001
and
therefore
any
recommendation made by such Selection
Committee need no consideration by the
Education Authority under Regulation
101 of Chapter III of the Regulation
framed under the Intermediate Education
Act.

13. Accordingly, this writ petition is
dismissed.

14. At this stage counsel for the
petitioner prayed that this Court may
leave it open to the Principal of the
Institution
to
constitute
a
Section
Committee in accordance with the letter
of the Director including the nominee of
the District Magistrate and to complete
the process of selection subsequent to the
advertisement published earlier afresh.
Such liberty prayed is always available to
the appointing authority.
2 All] Hemant Kumar and another V. State of U.P. and others

685
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2009

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.

Civil Misc. Writ Petition No.37400 of 2006

Arvind Kumar Rai

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Awadh Narain Rai

Counsel for the Respondents:
Sri Arvind Kumar
SC

Arms Act Section-14-Grant of license of
Non
Prohibited
fire
arms-licensee
authority endorsed single word-refused
without
disclosing
any
reason
for
refusal-held-arbitrary exercise of powereven administrative authority is bound to
record reasons.

Held: Para 18

It is a basic principle of rule of law in a
democratic society that a person against
whom an adverse order is passed by
administrative
or
quasi-judicial
authorities, it must be reasoned so that
the person must be aware of the grounds
on which he has been denied his
statutory right.
Case law discussed:
AIR 1978 SC 597, AIR 1991 SC 101, AIR 1978
Supreme Court 851.

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel
and perused the record.

2. With the consent of the parties'
counsel, the writ petition is finally
disposed of at admission stage.

3. The petitioner Arvind Kumar Rai
has applied for grant of fire arm licence to
the District Magistrate, Ghazipur. The
application has been rejected, hence the
present writ petition.

4. In brief, the petitioner has applied
for grant of fire arm licence (revolver)
along with a certificate given by the
Pradhan of his village with regard to grant
of licence. The application was kept
pending by the respondents without
taking a decision. Hence, the petitioner
had approached this Court under Article
226 of the Constitution of India by
preferring writ petition No2001 of 2006
which was decided finally vide judgment
and order dated 11.5.2006. A mandamus
was issued to the District Magistrate,
Ghazipur
to
decide
the
petitioner's
application for grant of fire arm licence
within one week.

5. In pursuance to the judgment of
this
Court,
the
District
Magistrate,
Ghazipur had considered the petitioner's
application and rejected the application by
impugned order dated 29.4.2006. A
perusal of the impugned order indicates
that a report was submitted by the
Superintendent of Police and revenue
authorities indicating therein the criminal
cases which were pending against the
petitioner's uncles and father. The report
indicates that the family members of the
petitioner were involved in serious
offences. It appears that the District
Magistrate without recording a finding at
his end made an endorsement on the said