# Jitendra Singh v. District Judge, Etah and another

- **Citation:** (2003) 1 ILRA 157
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-01-31
- **Case number:** Special Appeal No. 58 of 2003
- **Bench:** A.K. Yog, Ghanshyam Das
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-singh-v-district-judge-etah-and-another-40048
- **Pages:** 4

## Headnote

158 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Constitution
of
India,
Article
226-
Termination order- appointment on the
post of steno without facing selection
process- District Judge appointed just
prior
15
days
from
his
date
of
retirement- No one shall be permitted to
take benefit of his own wrong "NEL
PRENORA ADVANTAGE DEFENDANT SON
TORI
DENESEN"
applicable
held-
termination order justified.

## Text

http://www.allahabadhighcourt.nic.in
1All] Jitendra Singh V. District Judge, Etah and another 157
Act on rational and reasonable principles.
For example, the Commissioner can in his
circular grade the various varieties of
stone ballast which are known in the
market in various grades e.g. Grade-I for
the best quality, Grade-II for the next
best, Grade III for the next, etc. according
to the price of these various grades in the
market, and the cash security for Form 31
should be demanded accordingly. It is
inappropriate and arbitrary to demand
cash security only on the basis of the
highest grade or quality of stone ballast,
as has been done in the present case.

22. We make it clear that we are not
directing the Commissioner to issue his
circular in a particular manner. This Court
is not an expert in such matters and hence
such matters should be left to the
Commissioner to decide after consulting
experts. The Commissioner while issuing
the circular under section 8C (3A) can
adopt any reasonable and rational method
so that the cash security is demanded of
an amount which is reasonable having
nexus to the amount of tax which would
be payable. In this way the interest of the
State and that of the dealers would be
balanced.

23. In paragraph 13 of the counter
affidavit the price of the best quality stone
ballast is mentioned as Rs.660/- per cubic
metre, but no material has been stated in
the counter affidavit as to on what basis
this figure has been reached. The Railway
purchases the stone ballast at Rs.247/- per
cubic metre. It may also be mentioned
that the prices of commodities keep on
changing from time to time and hence this
factor
should
also
be
taken
into
consideration by the Commissioner when
issuing the circular (or circulars) as
suggested by us.
24. Moreover, in M/s Vinod Coal
Syndicate v. CST 1988 UPTC 218 it was
held by the Supreme Court that freight
charged separately is not part of the
turnover. The definition of turnover in
section 2 (i) Explanation II Clause (i)
excludes the cost of freight if separately
charged. Annexure-1 to the writ petition
clearly shows that freight has been
separately charged. Hence we direct the
Commissioner that when he issues the
circular under section 8C(3A) he should
fix the cash security on a basis which
excludes the freight wherever separately
charged.

25. In the circumstances the writ
petition
is
allowed.
The
impugned
Circular dated 26.6.99 is quashed. The
Commissioner Trade Tax UP is directed
to re-fix the rate of cash security for
issuance of Form 31 on stone ballast in
the light of the observations made above.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.1.2002

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE GHANSHYAM DAS, J.

Special Appeal No. 58 of 2003

Jitendra Singh

...Petitioner
Versus
District Judge, Etah and another

 ...Respondents

Counsel for the Appellant:
Sri V.K. Singh
Sri M.N. Singh

Counsel for the Respondents:
S.C.
http://www.allahabadhighcourt.nic.in
158 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Constitution
of
India,
Article
226-
Termination order- appointment on the
post of steno without facing selection
process- District Judge appointed just
prior
15
days
from
his
date
of
retirement- No one shall be permitted to
take benefit of his own wrong "NEL
PRENORA ADVANTAGE DEFENDANT SON
TORI
DENESEN"
applicable
held-
termination order justified.

(Delivered by Hon'ble A.K. Yog, J.)

1. We have perused the impugned
judgment and order dated 19.12.2002
passed by learned Single Judge in Writ
Petition No. 54389 of 2002 giving rise to
the present Special Appeal. By means of
the
said
judgment,
aforesaid
Writ
Petitionk has been dismissed.

2. We have perused the record of the
Special Appeal, which includes copy of
the writ petition as well.

3. Petitioner was appointed on the
post of Stenographer in Fast Track Court
in the judgeship of Etah on 27.8.2002,
copy of appointment letter has been filed
as Annexure 1 to the affidavit filed in
support of the Stay application. The
appointment letter, particular page 18 to
the paper book, itself mentions 'You are
hereby temporarily appointed as Steno.....
for a period till the Fast Track Courts run.
It is made clear that as soon as Track
courts cease to run your services shall
also cease accordingly....."

4. The appointment letter itself
mentions
that
appointment
of
the
petitioner was temporary'. It also indicates
that the appointment of the petitioner was
for fixed term i.e. co-existing with the
Fast Track Court.

5. The impugned judgment dated
27.11.2002, passed by the concerned
District Judge, takes cognizance of the
complaint made to the then Hon'ble
Administrative
Judge
by
one
S.K.
Srivastava, as a consequence of which an
enquiry was conducted on 20.9.2002 and
the then Special Judge (SC & ST Act)
Etah, required the petitioner to undergo a
test for assessing his skill as Stenographer
and the said test revealed that he was not
suitable/competent to hold the post.

6. The impugned order further takes
notice of the fact that the then District
Judge, Sri Brijendra Singh, ignoring the
said report of then Special Judge (Sri
Abhimanyu
Kumar)
appointed
the
petitioner.

7. Another circumstances, creating
serious doubt about the fairness' in the
matter is that the then District Judge Sri
Brijendra Kumar made this appointment
only 14 days before his retirement. The
impugned
order
contains
serious
allegations against the then District
Judge- Sri Bijendra Singh.

8. We have no doubt, considering
the circumstances mentioned in the
impugned order, that the then District
Judge was guilty of meddling and
tampering the record which warranted
serious action against him for the charge
of gross abuse of his authority/office.

9. The District Judge, Etah, while
passing the order, did consider the
contention of the petitioner that he was
given no notice before passing the
impugned order EX DOLO MALO NON
ORITUPACTIO"- A right of action does
not arise out of fraud is the answer to the
aforesaid contention of the petitioner.
http://www.allahabadhighcourt.nic.in
1All] Jitendra Singh V. District Judge, Etah and another 159
10.

Concept
of
fairness
in
administrative action, at one stage in the
past became an issue and subject matter
of considerable judicial debate but there
has been total unanimity on the basic
element, viz. it is dependent upon facts
and circumstances of each case pending
scrutiny before a court and that no straight
jacket formula can be laid down with
precision.

11. Menace of corruption cannot be
permitted to be hidden under the carpet of
legal technicalities. In the cases of K.
Karunakaran versus State of Karela
and another reported in 2000 (3) SCC
761
(para
8)
and
United
India
Insurance Company Limited versus
Rajendra Singh and others, 2000 (3)
SCC 581 (para 3) the Apex Court has
reaffirmed that fraud and justice never
dwell
together
"FRAUS
ET
JUS
NUNQUAM COHABITANI"

12. There is another principle, i.e., no one
shall take advantage of his own wrong
"NEL
PRENORA
ADVANTAGE
DEFENDANT SON TORT DEMESEN".

13. It is noted in the impugned order
that the test report was taken out of record
by the then District Judge. In such a
situation court will be justified to proceed
on the basis that everything should be
presumed against the wrong doer- vis, the
test report was taken off the record by
then
District
Judge
for
extraneous
consideration in order to confer certain
benefit in an illegal manner, which were
not
otherwise
available,
upon
the
petitioner.

14. In our opinion, the District Judge
committed no illegality.
15. We have no doubt that a person,
who has been given an appointment in an
extra ordinary manner, can be dispensed
with from service in similar fashion by
resorting to extra ordinary procedure. In
view of the Test report- petitioner could
never be appointed.

16. We take judicial notice of the
fact that serious irregularities are being
perpetuated in all the District Judgeships
barring a few as exception in the matter of
appointments of Class III and Class IV
posts.

17. We observe that whenever in
such matters, some enquiry is initiated it
is seldom allowed to arrive at logical
conclusion and never in past, such
illegally appointees are removed or
discharged.
The
general
explanation
offered by the concerned District Judges,
without
exception,
is
that
such
appointments are under pressure of such,
whom they cannot afford to annoy. Be
that as it may, a procedure, which is
transparent
and
eliminates
arbitrary
appointments (not conforming to the rules
or test of fairness) is prescribed by the
concerned authority.

18. We have no doubt that if
malpractice' is to be checked and
arbitrariness is to be avoided, it is high
time that the persons and the authorities
should come forward to show their bona
fide and provide modalities/ procedure
wherein elements of nepotism, corruption,
arbitrariness etc. are ruled out.

19. In our opinion, that we have said
enough and no more is required to be
commented. Record of the case shall be
placed before Hon'ble the Chief Justice
http://www.allahabadhighcourt.nic.in
160 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
for such action as may be deemed
appropriate.

20. Special Appeal has no merit. It is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.2.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 7453 of 2003

Bhagwati Prasad Chaudhari ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.S. Singh
Sri G.N. Kanaujiya

Counsel for the Respondents:
S.C.

Constitution of India, Article 226- No
confidence motion- against Chairman
District Cooperative Bank- S.D.M. being
director held due to lack of requisite
majority- no confidence motion illegal-
High Court by judgement dated 3.1.03
had already held- the no confidence
motion as valid one- by impugned order
District Magistrate adjourn the meeting
on
the
pretext
that
the
Registrar
Cooperative Society has held the S.D.O.
as appropriate authority while High
Court
has
directed
that
District
Magistrate held- due to ulter motive the
District Magistrate adjourn the meeting .
Suo moto contempt proceeding initiated
- necessary direction issued to hold no
confidence motion on particular day
without any adjournment.

Held- Para 6

Thus,
it
appears
that
the
District
Magistrate is of the opinion that the
Registrar's order is contrary to the view
expressed by this Court in its judgment
dated 3.1.2003. We fail to understand
how a senior officer like the District
Magistrate is of the opinion that the
Registrar, Cooperative Society's order
will prevail over the opinion expressed
by this court in its judgment. Prima facie
it seems to us that it was with ulterior
motive that the District Magistrate,
Mirzapur has passed the impugned order
to adjourn the meeting of no confidence
on some flimsy pretext. Thus, he appears
to have committed gross contempt of the
order of this Court dated 3.1.2003.

(Delivered by Hon'ble M. Katju, J.)

1. Standing counsel is granted one
week's time to file counter affidavit. List
peremptorily on 25th February, 2003.

2. This case illustrates how the
executive authorities have now started
disobeying the orders of this Court by
giving scant regard to the same.

3. The dispute in this case is
regarding no confidence motion against
the Chairman of the District Cooperative
Bank Limited, Mirzapur.

4. The controversy came up before
this court in writ petition no. 55526 of
2002, Ranjan Jaiswal vs. The Registrar,
Cooperative Societies, UP Lucknow and
others, which was decided on 3.1.2003,
vide Annexure 1 to the writ petition. A
Division Bench of Hon'ble S. Rafat Alam
and Hon'ble D.P. Singh, JJ allowed the
writ petition in which the District
Magistrate, Mirzapur as well as the Sub
Divisional Magistrate Sadar, Mirzapur as
also
the
Director
of
the
District
Cooperative Bank Limited, Mirzapur