# Jagdishwar Prasad Lekhpal and others v. D.M., Allahabad and others

- **Citation:** (2000) 2 ILRA 50
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdishwar-prasad-lekhpal-and-others-v-d-m-allahabad-and-others-39454
- **Pages:** 4

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000

50
some business till he gets some independent
business, that will not deprive his to get a
separate accommodation for carrying on
independent business. In Smt. Ramka Bai vs.
Hazari Mal Dholak Chandak, A.I.R. 1999
S.C. 3089, where the landlady required the
premises to set up one of her sons in grocery
business but subsequently his son started
work of contractor, it was held that his need
did not extinguish merely because he started
some work. His son cannot be expected to
remain unemployed till the suit is finally
decided.

8. Lastly, it was urged by learned counsel
for the respondent that the tenant will suffer a
greater hardship. Admittedly, the tenant owns
three shops besides the disputed shop which
he has taken on rent. In one of the shops he
has printing business, the other two shops are
alleged to be on rent. In Bega Begum vs.
Abdul Ahad Khan, A.I.R. 1979 S.C. 272, it
has been held that the comparative hardship is
to be considered keeping in view all the facts
and circumstances of the case. The mere fact
that the tenant is to be evicted itself is no
ground to hold that the application is to be
rejected. On the one hand, his son requires to
set up his independent business and on the
other hand, the tenant has sufficient financial
status. The matter is to be examined keeping
in view all these facts.

9. In view of the above the writ petition is
allowed.
The
impugned
order
dated
21.12.1989 is hereby quashed. Respondent
no.1 is directed to decide the appeal afresh,
keeping in view the above observation and in
accordance with law within three months
from the date of production of a certified copy
of this order before his.

10. The parties shall bear their own costs.

Petition Allowed.

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2All] Jagdishwar Prasad Lekhpal and others V. D.M., Allahabad and others
51
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By the Court

1. There petitioners, Jagdishwar Prasad,
Shesh Narain Pandey and Om Prakash
preferred this petition against impugned order
dated 26th July, 1997 (Annexure-2 to the Writ
Petition ) rejecting Petitioners' representation
claming right of consideration of their
candidature for the post of Assistant Registrar
Kanoongo on the basis of eligibility list (said
to have been prepared in the year 1982) ,
(copy filed as Annexure 1 to the petition).

2. Learned counsel for the Respondents
raised
preliminary
objection
regarding
alternative remedy of appeal contemplated
under statutory rule 9 (3) -U.P. Avar Rajsaw
Lipik (Registrar Kanoongo and Assistant
Registrar Kanoongo) Sewa Niyamaali, 1958,
hereinafter called Rules, 1958.

3. The preliminary-objection regarding
availability of alternative remedy cannot be
entertained for two reasons.

One, it is now too late to ask the parties to
go back to avail alternative remedy as the
parties have already exchanged counter and
rejoinder affidavits and there appears to be no
disputes on facts required to be considered for
deciding the writ petition.

See JT. 1995 (1) SC 471; (1999) 2
UPLBEC 982; 1971 SC 33 and (1993)2
UPLEBC 1313 (Para 7) .

Otherwise also alternative remedy is not an
absolute bar (1998) 8 SCC 1 and 1991 All
Civil Journal 392.

4. Second, hearing of the appeal will be
mere formality in the facts of the instant case
inasmuch
as
decision
of the appellate
authority is foreclosed since the impugned
order/decision
is
as
a
consequence
of
Government order dated 4.10.1994 - a
mentioned in the impugned order (dated 26th
July, 1997, Annexure-2 to the Writ Petition)
itself.

In 1979 UPTC AN 837 (para 4) and 1979
UPTC 517 (para 5) this Court observed that
alternative remedy will not be a bar when
Government view is already known.

5.
The
submission
regarding
maintainability
of
the
writ
petition-as
preliminary objection of the Respondents -has
no force.

Writ Petition is, therefore, after hearing
the learned counsel for the parties, decided on
merits.

Learned counsel for the petitioners submits
that once the names of the petitioners were in
the eligibility list 9Annexure-1 to the Writ
Petition) they ought to have been considered
and
appointed
as
Assistant
Registrar
Kanoongo.

6. Mere fact that name of a person find
place in the eligibility list, (from which
promotion is to be made) does not confer a
vested legal right ( enforceable by a law
court) when there is no such conferment in the
relevant rules. Relevant Rules, 1958 (placed
by the learned counsel for the petitioner and
disputed by the other side to be amended up to
date) shows that the list is not sacrosanct in
the sense that names of the persons included
in the said eligibility list are liable to be
removed and/or altered. I am. Hence, not in
agreement with the petitioners.

7. Name of Mustaq Ahmad and two others
(in respect of which it is alleged that they
were promoted from the said list) are at Sl.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

52
No. 1,2 and 3 in the list. There is no
arbitrariness on the part of the Respondents on
this score No case of arbitrary action by
concerned authority is made out. Petitioners
then contend that then names are not being
ignored arbitrarily for no valid cause.

8. Copy of the Government Order dated
4.10.94 has been filed as Annexure-2 to the
Respondents' Counter Affidavit. The said
Government
order
does
not
re
quire
cancelling of the statutory eligibility list as
contemplated under aforementioned Rule,
1958. No subsequent Government order or
amendment of Rule has been p laced on
record on behalf of the Respondent to indicate
that the list became non existent on expiry of
certain period. Rules 1958 also do not
contemplate that list will become non-existent
on expiry of a certain period.

9. There is no logical explanation or
material to justify for not making promotion
from the eligibility list. More so, when it is
not the stand of the Respondents that posts of
Assistant Registrar Kanoongo had not fallen
vacant and were/are not available.

10. The statutory eligibility list prepared
cannot be given goodbye b 'Executive
Instruction' as has been sought to be done in
the present case by placing reliance upon
Government Order dated 17.6.94 and Board
of Revenue order dated 4..10.1994 referred to
in the impugned order dated 26.7.1992
(Annexure-2 to the Writ Petition) If such a
situation is allowed to prevail or perpetuate, it
would
encourage
Respondents
and
its
authorities to make appointment of their
choice one, according to merit but ignore
others who may not be for reasons (non
conducive and relevant for the purpose) in
good book of these authorities.

11. Secondly, Respondents cannot be
permitted to avoid or escape the statutory
Rules and from accepting the eligibility list
and give effect to the same provided posts of
Assistant Registrar Kanoongo are available.

12. No appointment from outside the list,
in the past (or in future), could /can be made
unless list stood exhausted (after eliminating
over age etc.) As otherwise there is no
purpose in preparing the list or having the
Rules 1958. It gives scope for arbitrary pick
and choose may be eliminating those lower in
merit-and subsequently opening flood gate for
back door entry-like Daily Wager, Muster
Roll, StopGap Adhoc, and purely Temporary
Officiating work charge etc. See 1997 (3)
Education & Service cases 1579.

13. Petitioners and all similarly situated
persons n the eligibility list shall be entitled to
similar treatment as the Petitioners and they
shall all be given seniority above all who have
been appointed from outside the list against
vacancies which existed when list was
prepared or thereafter and said tenure shall be
reckoned for post retrial benefit if it becomes
relevant. They shall not, however, be entitled
to the difference of pay, if any, for non
working period on the post of Asstt. Registrar
Kanoongo.

14. Order dated 26th July, 1997 (Annexure2 to the Writ Petition) is quashed and
respondent no. 1 and concerned authorities are
directed to make appointment n accordance
with Statutory Rules against the vacant posts
of Asstt. Registrar Kanoogo, which were
existing when eligibility list was prepared and
those which came into existence thereafter
unless the said list s being exhausted (deleting
the names under Rules 1958 and particularly
Rule 9 (3) of said Rules 1958) in accordance
with the merit of the list in question.

Within three weeks from the date of
receiving of a certified copy of this order
before Respondent nos. 1 and 5 the competent
authority shall ensure to process compliance
of this Judgment.
2All] Sanjay Kumar Singh V. State of U.P. and another
53
Writ petition stands allowed subject to the
direction and observation made above.

Petition Allowed.

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By the Court

1. Petitioner Sanjay Kumar Singh has
come to this court under Article 226 of the
Constitution of India with the prayer that the
impugned order dated 30.06.1997/10701997
passed
by
the
U.P.
Public
Service
Commission,
Allahabad,
for
short
commission, copy of which has been filed as
Annexure-XI to this petition.

2. Sanjay Kumar Singh is shuttling
between good and bad luck, good for the
favourable result in the P.C.S. examination
declared in his favour by the Commission,
and bad because by the impugned order that
result stoods cancelled. Again good because
by an interim order one post has been kept
reserved which continues till date.

3. Petitioner's forefather belonged to old
Nagaulaong, Village-Post office paren, B.P.O.
Tening, District Kohima, Nagaland and
belongs to a sect known as Zeme Naga
amongst Naga Tribe citizens. This Naga Tribe
is a scheduled tribe in tening Nagaland and a
certificate to that effect was issued to the
petitioner
(Annexure-1).The
Additional
Deputy Commissioner, Peren, Nagaland also
issued a certificate dated 27.6.1997 to that
effect. Similarly village council Nagaland also
issued a certificate to that effect on 10.4.1996
(Annexure-III). The petitioner than applied
for a Scheduled Tribes certificates from the
District Magistrate, Allahabad who issued a
certificate dated 18.1.1996 based upon the
report
and
certificate
from
Tehsildar,
Allahabad indicating that he is presently a
resident of Allahabad. It has been pleaded that