# Jokhu Lal v. The D.I.O.S., Allahabad and others

- **Citation:** (2009) 2 ILRA 707
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-04
- **Case number:** Special Appeal No.1118 of 2009
- **Bench:** C.K. Prasad, C.J. A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jokhu-lal-v-the-d-i-o-s-allahabad-and-others-41433
- **Pages:** 3

## Headnote

High Court Rules-Chapter VIII Rule-5Special Appeal-against the order passed
by learned Single Judge-petition filed
against the order passed by election
Tribunal-u/s 12-C of U.P. Punchayat Raj
Act-recounting already taken place-not
challenged-under
this
background
petition
dismissed
with
liberty
to
challenge final order if so advised-heldagainst the order passed by TribunalSpecial Appeal not maintainable.

Held: Para 6

We find substance in the submission of
Mr. Pipersenia, learned Additional Chief
Standing Counsel and following the
aforesaid two Division Bench judgments,
hold
that
the
Prescribed
Authority
exercising the power under Section 12-C
of the U.P. Panchayat Raj Act, is a
Tribunal. Once it is held so, the appeal
under Chapter VIII Rule 5 of the
Allahabad High Court Rules, is not
maintainable.
Case law discussed:
(1999) 1 UPLBEC 697, (2008) 1 UPLBEC 538.

## Text

2 All] Jokhu Lal V. The D.I.O.S., Allahabad and others

707
appointment of the petitioner as Clerk in
Junior High School in 1977 the provisions
of U.P. Intermediate Education Act were
not applicable, hence they have no
relevance to the appointment of the
petitioner.

13. For all the reasons stated above,
the impugned order is quashed and the
writ petition is allowed. Since the
petitioner has already been paid his salary
w.e.f. 9.1.98 vide order dated 10.4.2003.
The only direction remains regarding
payment of salary to the petitioner of
clerk in Intermediate College from 23rd
December, 1991 on which it has been
stopped.
The
DIOS,
Allahahabd
is
accordingly, directed to pay arrears of
salary of the petitioner w.e.f. 23rd
December, 1991 till 8.1.98 i.e. the date
from which he is being paid his salary
with interest at the rate of 6% per annum
along with all consequential benefits.

No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2009

BEFORE
THE HON'BLE C.K. PRASAD, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal No.1118 of 2009

Smt. Ramawati

...Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri Deo Dayal
Sri Amulya Ratna Srivastava

Counsel for the Respondents:
Sri Awadhesh Kumar Singh
Sri M.S. Pipersenia, Addl. C.S.C.
Sri R. Yadav

High Court Rules-Chapter VIII Rule-5Special Appeal-against the order passed
by learned Single Judge-petition filed
against the order passed by election
Tribunal-u/s 12-C of U.P. Punchayat Raj
Act-recounting already taken place-not
challenged-under
this
background
petition
dismissed
with
liberty
to
challenge final order if so advised-heldagainst the order passed by TribunalSpecial Appeal not maintainable.

Held: Para 6

We find substance in the submission of
Mr. Pipersenia, learned Additional Chief
Standing Counsel and following the
aforesaid two Division Bench judgments,
hold
that
the
Prescribed
Authority
exercising the power under Section 12-C
of the U.P. Panchayat Raj Act, is a
Tribunal. Once it is held so, the appeal
under Chapter VIII Rule 5 of the
Allahabad High Court Rules, is not
maintainable.
Case law discussed:
(1999) 1 UPLBEC 697, (2008) 1 UPLBEC 538.

(Delivered by Hon'ble C.K. Prasad, CJ.)

1.

Writ
petitioner-appellant,
aggrieved by order dated 30.6.2009
passed by a learned Single Judge in Civil
Misc. Writ Petition No.29110 of 2008,
has preferred this appeal under Rule 5 of
Chapter VIII of the Allahabad High Court
Rules.

2. Short facts giving rise to the
present special appeal are that the writ
petitioner, a successful candidate in the
election of the office of the Gram Pradhan
challenged the order dated 12.6.2008,
whereby the Prescribed Authority in
exercise of the power under Section 12-C
of the U.P. Panchayat Raj Act, had
summoned the ballot papers. In the light
708 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

of the aforesaid order, the ballot papers
were produced and its recounting had
taken place on 19.6.2008. Writ petitionerappellant had not challenged the order
dated 19.6.2008.

3. Taking into account the aforesaid
facts, the learned Single Judge declined to
interfere in the matter and has observed as
follows:-

"Having considered the submissions
made by the learned counsel for the
parties and having perused the records of
the present writ petition, I am of the
considered opinion that this writ petition
does not warrant any interference by this
Court at this stage. Writ proceedings
initiated against the order dated 12th June,
2008 have lost all efficacy in view of the
recount of votes, which has taken place,
more so when order dated 19th June,
2008, has not been challenged.
However, order passed today by this
Court shall not prejudice the rights of the
petitioner to challenge the final order
passed in the election petition by the
Election Tribunal, if the same is found
adverse to him including challenge to the
order dated 12th August, 2008, whereby
recounting has been directed, by way of
revision under Section 12-C of the U.P.
Panchayat Raj Act."

4. We have heard Mr. Amulya Ratan
Srivastava
for
the
appellant,
Mr.
Awadhesh Kumar Singh for respondent
no.3 and Mr. M.S. Pipersenia, learned
Additional Chief Standing Counsel for
respondents 1 and 2.

5.

Mr.
Pipersenia,
raises
a
preliminary objection in regard to the
maintainability of this appeal. He points
out that the order passed by the Prescribed
Authority under Section 12-C of the U.P.
Panchayat Raj Act, 1947 was assailed
before the learned Single Judge, and the
same having been dismissed, on the face
of the language of Chapter VIII Rule 5 of
the Allahabad High Court Rules, the
appeal shall not be maintainable. He
points out that the Prescribed Authority is
nothing, but a Tribunal within the
meaning of Chapter VIII Rule 5 of the
Allahabad High Court Rules. In this
connection, he has drawn our attention to
the Division Bench judgements of this
Court in Jai Prakash Agarwal Vs.
Prescribed Authority (Sub-Divisional
Magistrate), Sadar, District Deoria and
others, reported in (1999) 1 UPLBEC
697 and Mohd. Talib Khan Vs. State of
U.P. & Others, reported in (2008) 1
UPLBEC 538.

6. We find substance in the
submission of Mr. Pipersenia, learned
Additional Chief Standing Counsel and
following the aforesaid two Division
Bench
judgements,
hold
that
the
Prescribed Authority exercising the power
under Section 12-C of the U.P. Panchayat
Raj Act, is a Tribunal. Once it is held so,
the appeal under Chapter VIII Rule 5 of
the Allahabad High Court Rules, is not
maintainable.

7. Even otherwise also, as observed
by the learned Single Judge, if the result
of the election petition goes adverse to
her, she has liberty to prefer a revision
against that.

We do not find any merit in the
appeal and it is dismissed accordingly.
---------
2 All] Smt. Ramawati V. State of U.P. and others

709

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2009

BEFORE
THE HON'BLE C.K. PRASAD, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal No.1112 of 2009

Mahendra Kumar Gond
...Appellant
Versus
District Inspector of Schools, Azamgarh
and others

 ...Opposite Parties

Counsel for the Appellant:
Sri Ranjeet Asthana

Counsel for the Opposite Parties:
Sri Indra Raj Singh
S.C.

U.P. Intermediate Education Act, 1921
Section 16-G-Chapter III Regulation -2Promotion-Quota-vacancy of Class III
post occur in Intermediate College-under
50%
Quota
No
SC/S.T.
candidates
available in the institution-all the posts
occupied
by
General
candidates
appointment by direct recruitment-heldproper.

Held: Para 15

Therefore, we do not find any substance
in the submission of Mr. Singh.

Mr. Singh, lastly attempted to assail the
appointment of the appellant. As the
selection of the appellant is under
consideration
of
the
Regional
Committee, we do not want to express
any opinion in this regard. However, we
hasten to add that the writ petitionerrespondent no.5, is not a member of the
Scheduled Caste category and, therefore,
is not eligible to be promoted to the
post, which has been reserved for the
Scheduled Caste category. This is an
additional
reason
why
we
are
not
inclined to entertain the said submission.
Case law discussed:
AIR 2007 SC 71.

(Delivered by Hon'ble C.K. Prasad, CJ.)

1.

Respondent
no.5-appellant,
aggrieved by order dated 29.6.2009
passed by a learned Single Judge in Civil
Misc. Writ Petition No.4380 of 2007, has
preferred this special appeal under Rule 5
Chapter VIII of the Allahabad High Court
Rules.

2. Shorn of unnecessary details, the
facts giving rise to the present appeal are
that the writ petitioner-respondent no.5, is
a Class-IV employee of Moti Lal Nehru
Smarak Inter College (hereinafter referred
to as 'the College'), which receives grantin-aid. On 28.2.2003, a vacancy of Clerk
in the College occurred due to the
retirement of the incumbent. There are
three posts of Clerks including the post of
Head Clerk out of which two are occupied
by the members of the General category.

3. Regulation 2 of Chapter III of the
Regulations made in exercise of the
power under Section 16-G of the U.P.
Intermediate Education Act, 1921, inter
alia, provides that 50% of the sanctioned
posts of Head Clerk and Clerk shall be
filled up by promotion from Class IV
employees.
Undisputedly,
respondent
no.5 does not belong to the reserved
category.
As
no
candidate
of
the
Scheduled Caste was available, the
District Inspector of Schools by order
dated 15.4.2005 took a decision to fill up
the post by direct recruitment from
amongst the members of the Scheduled
Caste and in the light of the aforesaid, an
advertisement was published in the