# Jitendra Kumar Sharma v. State Of U.P. & Ors

- **Citation:** (2016) 8 ILRA 210
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-02
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-kumar-sharma-v-state-of-u-p-ors-44237
- **Pages:** 6

## Text

210 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 210
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2016

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.

Writ A No.- 30763 Of 2016

Jitendra Kumar Sharma ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Seemant Singh

Counsel for Respondents:
C.S.C., Ashok Kumar Yadav, Santosh Kumar

Present writ is filed for quashing the impugned Government Order dated 13.5.2016, impugned Circular dated
17.5.2016 and impugned show cause notice dated 18.6.2016. 1932 candidates under the physically disabled
candidates quota, were selected for Special B.T.C. Training Course, 2007, Special B.T.C. Training Course,
2008 (Special Selection) and Special B.T.C. Training Course, 2008 out of which 1121 candidates appeared
before the Medical Board alongwith their original certificates for physical verification. The physical disability of
234 candidates were not found certified. The medical examination of 811 candidates were yet to be done but
in the meantime a WritA No.53152 of 2010 (Ravindra Kumar Sharma vs. State of U.P. and others) was filed in
which an order dated 3.8.2010 was passed dismissing the writ petition. The aforesaid order dated 3.8.2010
was challenged in Special Appeal No.811 of 2010 before the Lucknow Bench of this Court, which was disposed
of by order dated 9.9.2010. As a consequence of the order passed in the aforesaid Special Appeal, the
verification of certificates as well as physical verification were stopped. The aforesaid order dated 9.9.2010
passed in the Special Appeal was challenged by the State Government in Special Leave Petition No.8880 of
2011 (State of U.P. and others vs. Ravindra Kumar Sharma and others), which was allowed by Hon'ble
Supreme Court by order dated 3.2.2016.

Learned counsel for the petitioner admits that petitioner is one of the candidate amongst 234 candidates,
whose physical disability was not found certified as mentioned in the Government letter dated 13.5.2016.
However he submits that earlier the medical certificate of the petitioner was examined by the Basic Shiksha
Adhikari and no discrepancy was found. He submits that the Committee constituted under the Government
letter dated 13.5.2016, does not consists of any medical expert, and as such, the entire proceeding against
the petitioner is wholly arbitrary. The medical examination with regard to the physical discrepancy of the
petitioner was an arbitrary action of the State Government.

After considering the facts court observed that when the verification of disability certificate and medical
examination began and disability certificate of 234 candidates out of 1121 were not found certified and 811
candidates were yet to be examined, a Writ Petition No.53152 of 2010 was filed, which was dismissed by
order dated 3.8.2010. This order was challenged before the Division Bench of this Court in Special Appeal
No.811 of 2010, which was disposed of by order dated 9.9.2010. The order of the Division Bench was
challenged by the State Government before the Supreme Court in Special Leave Petition no.8880 of 2011,
8 All. Jitendra Kumar Sharma Vs State Of U.P. & Ors.
211
which was allowed by order dated 3.2.2016. The relevant portion of the aforesaid order of Hon'ble Supreme
Court has already been reproduced above, which clearly indicates that the action of the respondents is not in
conflict with the order of Hon'ble Supreme Court. The impugned show cause notice has been issued requiring
the petitioner to submit reply within 15 days. Admittedly, the petitioner, instead of submitting reply; has filed
the present writ petition.

It is settled law that normally a writ petition against a show cause notice is not maintainable. Proper course
for the noticee is to submit reply before the authority concerned. The exception is that if the show cause
notice itself is wholly without jurisdiction then a writ petition against it may be entertainable, which is not the
case of the petitioner. Under the circumstance, the writ petition is not entertainable.

The writ petition fails and is, therefore, dismissed.

(Delivered by Hon'ble Surya Prakash Kesarwani, J.)

1. Heard Sri Seemant Singh, learned counsel for the petitioner, Sri Avinash, learned
Standing Counsel for the respondent nos.1 to 4 and Sri Santosh Kumar, learned counsel for the
respondent nos.5 and 6.

2. This writ petition has been filed praying for the following reliefs:

a) Issue a writ, order or direction in the nature of Certiorari calling upon the
records of the case and to quash the impugned Government Order dated 13.5.2016 (Annexure
No.15 to the writ petition), impugned Circular dated 17.5.2016 (Annexure no.16 to the writ
petition) and impugned show cause notice dated 18.6.2016 (Annexure No.17 to the writ petition)
being illegal, arbitrary and in violation of principles of natural justice as the same are based on no
medical report which could have been prepared by the earlier Medical Board at the time of
examining the petitioner and the copy of which could have been supplied to the petitioner for
giving him a due opportunity under law to challenge the same before the other authorities under
law.

b) Issue any other suitable writ, order or direction as this Court may deem fit and
proper in the facts and circumstances of the case.

c) Award cost of petition to the petitioner.

3. Briefly stated facts of the present case are that 1932 candidates under the physically
disabled candidates quota, were selected for Special B.T.C. Training Course, 2007, Special B.T.C.
Training Course, 2008 (Special Selection) and Special B.T.C. Training Course, 2008 out of which
1121 candidates appeared before the Medical Board alongwith their original certificates for
physical verification. The physical disability of 234 candidates were not found certified. The
medical examination of 811 candidates were yet to be done but in the meantime a Writ-A
No.53152 of 2010 (Ravindra Kumar Sharma vs. State of U.P. and others) was filed in which an
order dated 3.8.2010 was passed dismissing the writ petition.
212 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The aforesaid order dated 3.8.2010 was challenged in Special Appeal No.811 of
2010 (Ravindra Kumar Sharma vs. Stat of U.P. and others) before the Lucknow Bench of
this Court, which was disposed of by order dated 9.9.2010. As a consequence of the order
passed in the aforesaid Special Appeal, the verification of certificates as well as physical
verification were stopped. The aforesaid order dated 9.9.2010 passed in the Special Appeal
was challenged by the State Government in Special Leave Petition No.8880 of 2011 (State
of U.P. and others vs. Ravindra Kumar Sharma and others), which was allowed by Hon'ble
Supreme Court by order dated 3.2.2016. The relevant portion of the order of Hon'ble
Supreme Court is reproduced below:

10. The Division Bench of the High Court has ignored and overlooked the
material fact that verification has already been done by the Medical Board and it has been
found that certificates of 21% were fraudulently obtained. The High Court has issued a
direction in the impugned order for physical verification of the candidate by the authorities
and in case he does not suffer from disability so certified candidate can be subjected to
fresh medical test. The High Court has overlooked that on mere physical verification it
may not be possible to know various kinds of disabilities such as that of eyes, ear
impairment etc. That can only be done by the medical examination and particularly when
the High Court itself has observed that in case there is genuine suspicion and fraud has
been committed medical certification can be reopened. Direction issued in this regard has
not been questioned by the respondents and in fact process of re-verification was already
over when High Court issued aforesaid directions.

11. In our considered opinion in the peculiar facts of this case of such a fraud
and genuine suspicion raised in the representation lodged by the Viklang Sangh and when
21% of such certificates have been found to be fraudulently obtained there was no scope
for the Division Bench to interfere and issue order to perpetuate fraud, writ is to be
declined in such a scenario and no equity can be claimed by the respondents.

12. In the circumstance we set aside the impugned judgment and order passed
by the Division Bench of the High Court and dismiss the writ petition. However before
taking any action against the individuals they shall be issued show cause in the matter and
thereafter decision will be rendered in accordance with law. Let this exercise be completed
within a period of four months. The appeal is allowed to the aforesaid extent.

5. After referring the above quoted paragraphs of the order of Hon'ble Supreme
Court, the State Government issued the impugned letter dated 13.5.2016 quoting therein
the relevant portion of the orders of the learned Single Judge and the Division Bench of
this Court as well as judgment of Hon'ble Supreme Court dated 3.2.2016 and directed the
authorities concerned to complete necessary exercise in respect of left over 811 candidates.
8 All. Jitendra Kumar Sharma Vs State Of U.P. & Ors.
213
6. Consequent to the aforesaid Government letter dated 13.5.2016, the Director,
State Council for Education Research and Training, U.P. Lucknow (respondent no.2)
issued the impugned letter dated 17.5.2016 to the authorities concerned for compliance.

7. It appears that thereafter the impugned show cause notice dated 18.6.2016 has
been issued to the petitioner by the Principal, District Education and Research Institute,
Shahjahanpur mentioning therein that in the verification report submitted by the Medical
Board, the physical disability of the petitioner has not been found certified. By the
aforesaid impugned show cause notice, the petitioner has been required to submit his reply
within 15 days.

8. Aggrieved with the aforesaid Government letter dated 13.5.2016, letter of
Director, State Council for Education Research and Training, U.P. Lucknow (respondent
no.2) dated 17.5.2016 and show cause notice dated 18.6.2016, the present writ petition has
been filed.

9. Learned counsel for the petitioner admits that petitioner is one of the candidate
amongst 234 candidates, whose physical disability was not found certified as mentioned in
the Government letter dated 13.5.2016. However he submits that earlier the medical
certificate of the petitioner was examined by the Basic Shiksha Adhikari and no
discrepancy was found, and as such, it was not open for the respondents to inquire into the
matter and to verify physical disability of the petitioner. He submits that the Committee
constituted under the Government letter dated 13.5.2016, does not consists of any medical
expert, and as such, the entire proceeding against the petitioner is wholly arbitrary. The
medical examination with regard to the physical discrepancy of the petitioner was an
arbitrary action of the State Government. The State Government has already taken decision
to punish the petitioner, and as such, the impugned show cause notice is wholly invalid.

10. It is admitted by the petitioner that the petitioner has not submitted any reply
pursuant to the impugned show cause notice.

11. Learned counsel for the respondents supports the impugned letters and the show
cause notice.

12. I have carefully considered the submissions of learned counsel for the parties.

13. I do not find any substance in the submission of learned counsel for the
petitioner. The Government letter dated 13.5.2016 merely refers to the orders passed by
Hon'ble Single Judge, the Division Bench of this Court and the order dated 3.2.2016 passed
by Hon'ble Supreme Court and issued certain directions, which are not in conflict with the
order of Hon'ble Supreme Court. The Committee, referred in the impugned Government
letter dated 13.5.2016, has been constituted for the purpose of considering and taking
214 INDIAN LAW REPORTS ALLAHABAD SERIES

decision on reply which may be submitted by candidates pursuant to show cause notices,
which is in compliance to the order of Hon'ble Supreme Court dated 3.2.2016.

14. The facts of the present case, as briefly noted above, clearly indicates that when
the verification of disability certificate and medical examination began and disability
certificate of 234 candidates out of 1121 were not found certified and 811 candidates were
yet to be examined, a Writ Petition No.53152 of 2010 was filed, which was dismissed by
order dated 3.8.2010. This order was challenged before the Division Bench of this Court in
Special Appeal No.811 of 2010, which was disposed of by order dated 9.9.2010. The order
of the Division Bench was challenged by the State Government before the Supreme Court
in Special Leave Petition no.8880 of 2011, which was allowed by order dated 3.2.2016.
The relevant portion of the aforesaid order of Hon'ble Supreme Court has already been
reproduced above, which clearly indicates that the action of the respondents is not in
conflict with the order of Hon'ble Supreme Court. The impugned show cause notice has
been issued requiring the petitioner to submit reply within 15 days. Admittedly, the
petitioner, instead of submitting reply; has filed the present writ petition.

15. It is settled law that normally a writ petition against a show cause notice is not
maintainable. Proper course for the noticee is to submit reply before the authority
concerned. The exception is that if the show cause notice itself is wholly without
jurisdiction then a writ petition against it may be entertainable, which is not the case of the
petitioner. Under the circumstance, the writ petition is not entertainable.

16. In view of the aforesaid, I do not find any merit in this writ petition.

17. The writ petition fails and is, therefore, dismissed.
-----------
8 All. Ayodhya Prasad Mishra Vs State Of U.P. & Ors.
215
(2016) 8 ILRA 215
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2016

BEFORE

THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE VIPIN SINHA, J.

Writ C No.- 11171 Of 2016
&
Connected With Other Cases

Ayodhya Prasad Mishra ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Syed Mohd. Fazal, S.G. Hasnain

Counsel for Respondents:
C.S.C.

In the present writ petition the petitioners have questioned the veracity of the Government Order dated 15th
October 2015 and its competence to demand royalty on minor minerals and cost of minor minerals to the
extent of five times the royalty which the contractors supply to the Government Department and public
undertakings pursuant to the contract entered between the parties. For facility, the facts of Writ-C No. 11171
of 2016 is being taken into consideration.

Submission made by the learned counsel for the petitioner is that the royalty is payable by the holder of the
mining lease as per the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to
as the Act of 1957) read with Uttar Pradesh Minor Minerals Concession Rules, 1963 (hereinafter referred to as
the Rules of 1963). The petitioner contends that he is neither a holder of the mining lease nor carrying any
mining operation and therefore, the realisation of royalty on purchase of minor minerals is wholly arbitrary
and illegal. Similarly the Government Order charging cost of the mineral equivalent to five times the royalty
was also illegal.

Court observed that it would be essential to dwell upon the impugned Government Order dated 15.10.2015.
The impugned Government Order states that earlier the Government Order dated 02.02.2001 directed all the
Principal Secretaries and Secretaries to the Government of U.P. to ensure that minor minerals supplied to the
Government Departments/public undertakings for use in construction works or are transported only after
payment of royalty and that the suppliers should ensure evidence of payment of royalty. The Government
Order further stated that in case the royalty was not paid, requisite amount of royalty would be deducted
from their bills and that the royalty amount would be deposited in the appropriate Government's head. The
impugned Government Order further states that it has come to the knowledge of the Government that the
contractors were still purchasing minor minerals from unauthorized sources without obtaining Form MM-11
and were getting the royalty deducted from their bills, which was in violation of Section 4 (1-A) of the Act of
1957 and Rule 3 of the Rules of 1963. The Government Order further indicates that the procedure adopted by