# Israr Ali v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 1567
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-15
- **Case number:** Writ-A No. 19152 of 2021
- **Bench:** J.J.Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/israr-ali-v-state-of-u-p-ors-51299
- **Pages:** 6

## Headnote

A. Service Law - UP Power Corporation's
order dated 05.07.2011 - Honorarium -
Entitlement of regularly appointed driver
- St. denied payment on the ground that
the work of a driver was done through an
outsourcing agency as the petitioner was
seriously ill - Mandamus sought - Held,
mere fact that a person has suffered a
medical condition related to the heart or
his lungs, for which he has received
treatment, cannot ipso facto lead to a
conclusion that he has become disabled to
function as a driver - There is, thus, no
basis or warrant for this Court to infer that
the petitioner, during the relevant period
of nine years, has not been performing the
duties of a driver so as to disentitle him to
honorarium during every financial year,
equivalent to his basic pay, in accordance
with
the
Corporation's
order
of
05.07.2011. (Para 15 and 16)

Writ petition allowed. (E-1)

## Text

2 All. Israr Ali Vs. State of U.P. & Ors.
1567
(including any scheme of administration)
or relating to the property belonging to or
vested in the institution."

(emphasis added)

11. In view of above, the District Inspector
of Schools could not have entertained such
application and, therefore, notice issued to the
petitioner dated 29.08.2017 is held per se bad. The
Court finds that District Inspector of Schools has
stayed the recovery by its order dated 8th March,
2018 and that he has rightly done so.

12. In view of above, writ petition succeeds
and is allowed. The order of notice dated
29.08.2017 issued by the District Inspector of
Schools is hereby quashed. However, leaving it
open for the contesting private respondent nos, 6,7
and 8 to pursue the remedy by moving appropriate
application before appropriate forum. Regarding
already recovered amount, it will be open for the
petitioner to get it adjusted against maintenance
amount, which he was liable to be pay under the
order passed by the Principal Judge, Family Court,
in appropriate proceedings.
----------
(2024) 2 ILRA 1567
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2024

BEFORE

THE HON'BLE J.J.MUNIR, J.

Writ-A No. 19152 of 2021

Israr Ali ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shamim Uddin Khan

Counsel for the Respondent:
C.S.C., Sri Manoj Kumar Srivastava

A. Service Law - UP Power Corporation's
order dated 05.07.2011 - Honorarium -
Entitlement of regularly appointed driver
- St. denied payment on the ground that
the work of a driver was done through an
outsourcing agency as the petitioner was
seriously ill - Mandamus sought - Held,
mere fact that a person has suffered a
medical condition related to the heart or
his lungs, for which he has received
treatment, cannot ipso facto lead to a
conclusion that he has become disabled to
function as a driver - There is, thus, no
basis or warrant for this Court to infer that
the petitioner, during the relevant period
of nine years, has not been performing the
duties of a driver so as to disentitle him to
honorarium during every financial year,
equivalent to his basic pay, in accordance
with
the
Corporation's
order
of
05.07.2011. (Para 15 and 16)

Writ petition allowed. (E-1)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition has been
instituted by the petitioner, praying that a
mandamus
be
issued,
ordering
the
Superintending Engineer, Electricity Works
Division, Purvanchal Vidyut Vitran Nigam
Limited, Prayagraj, to pay arrears of salary
due to the petitioner on account of his
entitlement to receive the equivalent of one
month's basic pay every year of his service
as honorarium, in accordance with the UP
Power Corporation's order dated 5th July,
2011, making provision in that behalf for
regular drivers.

2. The short case of the petitioner is
that he was a permanent driver in the
employ of the UP Power Corporation Ltd.
(for short, 'the Corporation') and working
under the immediate control of the
Purvanchal Vidyut Vitran Nigam Limited,
Vidyut
Madhyamik
Karya
Khand,
Prayagraj. He retired from service on
1568 INDIAN LAW REPORTS ALLAHABAD SERIES
30.06.2019 upon attaining the age of
superannuation. The UP Power Corporation
issued an order, bearing Letter No. 622कानविी एवं वे0प्र0-29/पाकानल/11-5-पी/90 (टीसी-ब)
dated 5th July, 2011, making provision for
the payment of a month's extra salary in
every financial year as honorarium to
regular drivers of the Corporation attached
to a vehicle. The sum of money payable on
this account was directed to be the
equivalent of the driver's basic pay for a
month. This provision was made, bearing in
mind the difficult services rendered by
drivers as a class. The Corporation's order
of 5th July, 2011 was made applicable from
the then current financial year 2010-11. The
petitioner retired on 30.06.2019, but was
never paid the aforesaid honorarium,
equivalent to a month's basic pay. He
represented the matter to the respondents
thrice: once on 17.02.2021, and again on
28.09 to 2021 and 18.10.2021.

3. In response to these demands, the
petitioner states that a memo dated
01.11.2021 was issued by an Executive
Engineer on behalf of the Chief Engineer
(Distribution), Purvanchal Vidyut Vitran
Nigam Limited, Prayagraj, addressed to the
Superintending Engineer, Electricity Works
Division, Prayagraj, bringing to his notice
the fact that the petitioner has not been paid
his honorarium equivalent to a month's
basic pay each year in terms of the
Corporation's
order
dated
05.07.2011,
which he has claimed. The letter mentions
that the Executive Engineer has been
instructed to say that the petitioner's claim
for a month's extra pay should be dealt with
according to rules. The petitioner's case
further is that despite the aforesaid
instructions issued from the office of the
Chief
Engineer
(Distribution),
the
Superintending Engineer, respondent No.3,
has failed to make good the petitioner's
arrears
on
account
of
his
unpaid
honorarium.

4. A counter affidavit has been filed
on behalf of respondent Nos.2 and 3 by the
Executive Engineer, Electricity Works
Division, Purvanchal Vidyut Vitran Nigam
Limited, Prayagraj. The petitioner's claim,
which works out to nine month's extra
salary, as the Executive Engineer says, has
been denied as misconceived. The reason
pleaded in Paragraph No.6 of the counter
affidavit is that the petitioner is not entitled
to draw extra salary as honorarium for nine
month's, because he was suffering from
heart disease as well as lung ailments, and
on that account, did not work as a driver on
his own request. He was assigned office
work as a record keeper. It is pleaded that it
was for the said reason that the driver's
work was undertaken through outsourcing
with the respondents entering into a
contract with a certain Prakhar Enterprises.
A copy of the agreement with Prakhar
Enterprises has been annexed to the return
filed on behalf of respondent Nos.2 and 3.

5. In Paragraph No.9 of the counter
affidavit, it is averred that from 2010 to
2019, the work of a driver was done
through an outsourcing agency as the
petitioner was seriously ill with his heart
ailment and lung disease. It is also averred
that for the said reasons, the petitioner's
request was accepted on humanitarian
grounds, assigning him office work, where
he had to maintain record. It is also pleaded
in the same paragraph that the petitioner
was paid medical reimbursement worth
Rs.1,39,600/- for the treatment of his heart
disease from 05.07.2013 to 18.07.2013,
when he was hospitalized at the Heartline
Cardiac Care Centre, Prayagraj. A copy of
the relative bill along with the medical
certificates is annexed as Annexure CA-2
2 All. Israr Ali Vs. State of U.P. & Ors.
1569
to the return filed on behalf of the
respondents. The case of the respondents,
therefore, is that the petitioner never
worked as a driver during the relevant
period of time, and on his own request, was
assigned to office duties. The driver's work
was outsourced.

6. In the rejoinder affidavit, the
petitioner has disputed the respondents'
stand. In Paragraph No.6, it is averred that
the petitioner was appointed a driver and
retired as such. He has asserted that according to the
Corporation's order dated 05.07.2011 vide Paragraph
No.2, it has been clarified that all regular drivers
would be entitled to payment of a sum of money
equivalent to a month's salary, every financial year. It
is averred that the petitioner was never detailed to
office work. He performed the duties of a driver. He
was a Corporation employee, serving as a driver. So
far as the agreement for outsourcing is concerned, the
petitioner has nothing to do with it, as that is a matter
between the Corporation and the contractor. It is
averred in Paragraph No.9 of the rejoinder that
during the course of his service, he needed treatment
for once alone, which was reimbursed under the
medical scheme by the respondents. The petitioner
has averred that he was hospitalized for fifteen days
and the fact that he received medical reimbursement
for the treatment that he received in those fifteen
days, is a matter of right for him under the medical
scheme. It is specifically averred in Paragraph No.10
of the rejoinder affidavit that the petitioner has
worked as a permanent driver, and his payslip,
appended as Annexure-RA1, shows that he has
received his salary as a driver.

7. Heard Mr. Shamim Uddin Khan, learned
Counsel for the petitioner, Mr. Manoj Kumar
Srivastava, learned Counsel for respondent Nos. 2
and 3 and Ms. Amrita Singh, learned Additional
Chief Standing Counsel on behalf of the State.

8. This Court finds upon hearing learned
Counsel for the parties that there is no issue about the
entitlement of a regularly appointed driver of the
Power Corporation, or one who is assigned to a
Distribution Corporation, to receive in every financial
year a sum of money as honorarium, which is
equivalent to his basic pay. This provision, which
virtually entitles a driver to be paid thirteen months of
salary during the course of a year, that has twelve
months, has been made bearing in mind the difficulty
level of a driver's job and the fact that it may involve
working outside normal working hours. It may also
involve working extra duty hours. This, the Court
supposes, is the basis for providing a month's extra
emoluments during the course of a year to regular
drivers, serving in the respondents establishment.

9. A perusal of the Corporation's order
dated 05.07.2011, which is the source for
this entitlement for drivers, serving either
the Power Corporation or a Distribution
Corporation, shows in the first paragraph
that the entitlement to a month's extra
emoluments is provided for regular drivers,
who are actually assigned to vehicles. In
the second paragraph, which is clarificatory
in nature and appears to have been
necessitated on account of answering queries
or removing difficulties in the application of
this extra payment scheme, it is said in
unequivocal words that all working and
regular drivers, whether a vehicle is allotted
to them or not, are entitled to the honorarium.

10. The first paragraph of the Corporation's
order of 5th July, 2011 would seem to suggest
that the entitlement to honorarium, equivalent
to a month's extra salary in a year, is
admissible to those regular drivers alone, who
are attached to a vehicle, but the clarification
makes it evident that all regular drivers of
Corporation's vehicles, who are working, are
entitled to the equivalent of a month's extra
salary during each financial year.

11. There is no dispute on facts that
the petitioner was a regular and permanent
1570 INDIAN LAW REPORTS ALLAHABAD SERIES
driver in the employ of the respondent
Corporation.
The
intent
of
the
Corporation's order of 5th July, 2011
appears to be that regular drivers, who are
working as such or driving vehicles, are
entitled to be paid honorarium as envisaged
in the said order.

12. This Court thinks that a regular
driver must be presumed to be assigned
driving duties, unless the contrary is proved
by
the
employer,
the
respondent
Corporation here. One of the possible
cases, that could be pleaded and proved by
the Corporation to say that a driver, like the
petitioner, did not have to drive at all, is
that the Corporation did not have a vehicle
at all in the establishment, which he could
drive. Here, this is not the respondents'
case. What the respondent Corporation
pleads
is
that
they
have,
through
outsourcing, hired a vehicle together with
the driver on contract to work for the
Executive Engineer for reason that the
petitioner was ailing and could not drive
due to his ill-health. It is not at all pleaded
that there was no vehicle belonging to the
Corporation available with them, during the
period of time the petitioner was posted in
the particular establishment. The case that a
vehicle along with the driver was taken on
contract through outsourcing does not show
anywhere, the purpose why outsourcing
was resorted to. It is nowhere mentioned in
the contract or any other document,
preceding the decision to outsource and
hire a vehicle along with the driver, that the
measure had to be taken because the
petitioner, who was unwell, could not drive.
In the absence of something, at least on
record, prior to the decision to outsource, as
the respondents say, to show that the
petitioner was unwell, on account of which
he could not drive and that was the reason
for the respondent Corporation to outsource
the services of a driver together with a
vehicle, it cannot be inferred or even
assumed that the outsourcing of a vehicle
together with a driver, was a result of the
petitioner's physical or medical disability to
work as a driver.

13. There is another reason for this
Court to think so. Considering the
circumstantial angle, if it was a sick
petitioner, who could not function as a
driver, the respondents would not have
hired a vehicle on contract along with the
driver. They would have simply hired the
services of a driver on contract through
outsourcing, as it is done these days,
utilizing what has been lately called the
facility of a service provider. A driver hired
through a service provider would then have
been posted on the establishment's vehicle
to drive it in the face of the regular driver's
physical
or
medical
inability.
Much
contrary to what the respondents endeavour
to suggest, the hiring of a vehicle along
with a driver, seems to suggest that the
Corporation were in the need of an extra
vehicle, where instead of buying one, they
secured one through outsourcing along with
the driver on contract.

14. Quite apart, to dispel the
presumption that a regular driver was not in
a position to discharge his duties as such,
there would be orders and record to show
the fact. There would be orders of
arrangement made, assigning the petitioner
to office duties, or as it is called 'light
duty'. No such order, office memorandum
or other record, has been mentioned in the
return filed by the respondents, much less
annexed to it, that may establish that the
petitioner was assigned to office duties on
account of his failing health. This was
particularly imperative for the respondents
in the face of a clear denial by the
2 All. Israr Ali Vs. State of U.P. & Ors.
1571
petitioner in his rejoinder that he was never
assigned office duties because he was
unable to drive on account of ill health. The
petitioner's stand is that he was once
hospitalized for a heart condition, for
which he was treated. The fact, that
this involved medical reimbursement
of expenses, is quite irrelevant to
determine the issue that the petitioner
has become a disabled driver.

15. What has been placed on
record, would show that the petitioner
was hospitalized for a heart ailment in
the year 2013 from 05.07.2013 to
18.07.2013, a period of fourteen days.
The mere fact that a person has
suffered a medical condition related to
the heart or his lungs, for which he
has received treatment, cannot ipso
facto lead to a conclusion that he has
become disabled to function as a
driver.
This
Court
has
already
remarked that for the said fact to be
proved, the respondents would have to
show some orders assigning light
duties to the petitioner or office
duties,
as
they
plead.
There
is
absolutely no record or material about
assignment of duties to the petitioner
away from his job as a driver and in
the office, as the respondents say. The
respondents could also establish the
fact that the petitioner had become a
disabled
driver
by
producing
a
medical certification of the fact - the
result
of
a
test
employees
of
Government
owned
establishments
often undergo to assess their ability to
discharge the kind of duties originally
assigned to them. There is no medical
certification on record produced by
the respondents in support of their
case that the petitioner has, in any
manner, become disabled to function
as a driver. There is nothing either, as
earlier remarked to show, that he has
actually been relieved of his duties as
a driver and assigned some other
work.

16. On this state of facts,
material and evidence, it is difficult to
accept the respondents' case that the
petitioner has not been discharging his
duties as a driver. It is not even a
possibility,
in
the
face
of
the
presumption that the petitioner, a
regular driver, would be discharging
those duties. There is, thus, no basis
or warrant for this Court to infer that
the petitioner, during the relevant
period of nine years, has not been
performing the duties of a driver so as
to disentitle him to honorarium during
every financial year, equivalent to his
basic pay, in accordance with the
Corporation's order of 05.07.2011.
The respondents are obliged to pay the
petitioner honorarium for the period
of nine years, that is to say, from the
financial year 2010-11, as mentioned
in the order dated 5th July, 2011 itself
until the year of his retirement. The
payment of the said sum of money,
which has been unlawfully withheld
by
the
respondents,
would
carry
simple interest at the rate of 6% per
annum from the date it fell due until
realization.

17. In the result, this petition
succeeds and is allowed. A mandamus
is
issued
to
the
Superintending
Engineer, Electricity Works Division,
Prayagraj, ordering him to pay the
petitioner arrears of honorarium from
the financial year 2010-11 until the
financial year till he retired, in
accordance with the Corporation's
1572 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 5th July, 2011 together
with 6% interest due from the date
that each year's honorarium fell due until
payment.

18. There shall be no order is to costs.
----------
(2024) 2 ILRA 1572
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-C No. 9952 of 2023

Hakimuddin ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajesh Kumar Srivastava

Counsel for the Respondent:
C.S.C.

Civil Law-Constitution of India, 1950Article 226 - Rules 15 and 16 of the Arms
Rules
2016-cancellation
of
the
arms
license on the grounds of not obtaining a
unique
identification
number
as
per
government notification dated 22 january,
2020-petitioner license was issued in
1987 and last renewed in 2018, was
wrongfully cancelled because the licensing
authority failed to generate the UIN-The
court held that Rules 15 and 16 assign the
responsibility of generating the UIN to the
licensing authority, not the license holderHence, the cancellation was illegal and the
directions issued to the authority to
generate the UIN within four weeks and
imposed exemplary costs of Rs.25000 on
the State.(Para 1 to 22)
The petition is allowed.( E-6)

List of cases cited:
1. Subrata Roy Sahara Vs U.O.I.(2014) 8 SCC
470

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard the learned counsel for the
petitioner and learned Standing counsel
appearing
on
behalf
of
the
Staterespondents.

2. Instant writ petition has been filed
praying for the following main reliefs:-

"1. Issue a writ, order or direction in
the nature of Certiorari thereby quash
impugned order dated 07.10.2023 annexed as
Annexure No. 7 to this petition.

2. Issue a writ, order or direction in
the nature of mandamus commanding the
opposite parties specially opp. Party No. 2/
District Magistrate to restore and renew arm
license No. 838/ADM/City/87 of the petitioner
and also generate Unique Identification
Number. "

3. The contention of learned counsel for
the petitioner is that the petitioner was having
an arms license which was issued on
19.06.1987 from Rajasthan and subsequently
was transferred to Uttar Pradesh. The last
renewal of the license took place on 06.06.2018
by which it was renewed upto 17.05.2021 by
the competent authority in District- Pratapgarh.
Copy of the renewal is annexure 3 to the writ
petition.

4. Subsequent thereto, the respondent no.
2 i.e District Magistrate, Pratapgarh vide
impugned order dated 07.10.2023, a copy of
which is annexure 7 to the petition has
cancelled the arms license of the petitioner
placing reliance on a report dated 29.09.2023
and Government orders issued from time to
time per which it has been indicated that as
the petitioner failed to get a Unique