# Judge of this Court in Qamrul Huda v. Chief

- **Citation:** High Court of Judicature at Allahabad #39706
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1997-02-26
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/judge-of-this-court-in-qamrul-huda-v-chief-39706
- **Pages:** 3

## Text

28 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
24.12.1999 Annexures 8&9 to the writ
petition.

3. The petitioner applied for appointment
as
Mazdoor
in
the Central Ordinance
Department, Kanpur and thereafter he was
interviewed and selected on the post of
Mazdoor by letter dated 7.1.1989 Annexure 2
to the petition. However, in the relevant form
the petitioner did not mention that he was
facing
a
criminal
case
under
Section
147/323/352/504 I.P.C. which was later
converted into Section 307 I.P.C. Hence his
selection was cancelled vide Annexure 3 to
the petition. In that Criminal case he was
acquitted wide judgment dated 7.7.1989 true
copy of which is Annexure 4 to the writ
petition. Hence he made representation dated
4.8.1999 vide Annexure 5 to the writ petition
stating that he has been acquitted in the
criminal case and hence he should be
permitted to join duty. He made another
representation dated 5.9.1989 vide Annexure
6 but he was informed by letter dated
12.10.1990 that he can be considered as a
fresh candidate as and when the vacancies are
released. The petitioner has alleged that there
is no other case pending against him. He filed
a petition before the Central Administrative
Tribunal which was dismissed and the review
application was also dismissed. Hence this
writ Petition. In our opinion when the
petitioner was acquitted in the criminal case it
has to be deemed in law that in fact he was
never involved in any criminal case. It is
settled law that every statute ordinarily
operates prospectively (unless expressly made
retrospective) where every judgment of a
court of law operates retrospectively (unless
expressly made prospective). The only
material against the petitioner was the
criminal case in which be was acquitted.
Since he has been selected he must now be
allowed to join duty.

4. A similar view was taken by a Single
Judge of this Court in Qamrul Huda Vs. Chief
Security Commissioner 1997 (2) UPLBEC
1201 and we fully agree with the aforesaid
decision. In the circumstances this petition is
allowed.
The
impugned
orders
dated
26.2.1997 and 24.12.1999 are quashed. A
mandamus is issued to the respondents to
appoint the petitioner as Mazdoor within six
weeks of production of a certified copy of this
order in accordance with law in pursuance of
selection letter dated 7.1.1989.
Petition Allowed.

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2ALL Raja Ram Singh V. The District Magistrate, Gorakhpur and others 29
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By the Court

1. By means of this petition filed under
Article 226 of the constitution of India,
Petitioner challenges the validity of order
dated
11.1.2000
whereby
the
financial
administrative powers of the petitioner, who is
holding office of Pradhan, have been ceased
by the Competent Authority, i.e. District
magistrate Gorakhpur

2. Learned counsel for the petitioner
submitted that before passing of said order the
petitioner has not given an opportunity of
hearing, therefore, the said order is illegal and
is liable to be set aside. It is not disputed by
the learned counsel for the petitioner that the
petitioner was also holding the post of tubewell operator, but it was contended that he
was a part-time tube-well operator, therefore,
he does not come within the purview of
clause-A, Section-5 of the Act. It was urged
that the petitioner not being a full-time tubewell operator was legally entitled to hold the
office of Pradhan and his financial and
administrative powers could not be ceased by
the District Magistrate.

3. I have considered the submissions made
by the learned counsel for the petitioner and
also gone through the material on the record.

4. The charge against the petitioner was
that he was holding the post of tube-well
operator which is an office of profit under the
State Government of U.P., therefore, he was
disqualified in terms of Section-5-A© read
with Section-6 of U.P. Panchayat Raj Act,
1947 for short the Act, to act as pradhan and
ceased to hold the said office.

5. Section-5-A( C ) and Section-6 of the
Act provide as under:

5-A:
Disqualification of Membership: a
person shall be disqualified for being chosen
as, and for being, the Pradhan or a Member
of a Gram Panchayat, if he-

(c) holds any office of profit under a
State Government or the Central Government
or a local body, other than a Gram Panchayat
or Nyaya Panchayat ora Board, body of
corporation owned or controlled by a state
Government or the Central Government;

6. Cessation of Membership: (1) A member of
a Gram Panchyat shall cease to be such
member if the entry relating to that member is
deleted from the electoral roll for a territorial
constituency of Gram Panchayat;

(2) where any person ceases to be a
member of Gram panchyat under Section (1)
he shall also cease to hold any office to which
he may have been elected, nominated or
appointed by reason of his being a member
thereof.

6. Even the part-time tube-well operators
are
paid
their
salaries
by
the
State
Government, therefore, it cannot be said that
the post of part-time tube-well operator is not
an
office
of
profit
under
the
State
Government. The petitioner having incurred
disqualification for being chosen as and for
being the Pradhan and a member of Gram
Panchayat and he in terms of Sub-section (2)
of Section-6 of Act also cease to hold the
office of Pradhan to which he was elected.
The district Magistrate, Gorakhpur was thus
right to serve upon him a notice under
Section-95
(1)(g)
of
the
Act
and
simultaneously to cease his financial powers
by the impugned order.

7. Submissions made by the learned
counsel for the petitioner to the contrary
therefore cannot be accepted. I do not find any
illegality or infirmity in the impugned order
passed by the District Magistrate the writ
petition has got no merit, the same fails and is
dismissed in limine.
30 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
8. A copy of the said order may be
communicated to the District Magistrate,
Gorakhpur, by the office.
Petition Allowed.

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By the Court

1. After hearing Sri S.K. Verma counsel
for the applicant and Sri Vivek Mishra,
Counsel for the respondent it appears that the
suit for divorce which was originally in
Allahabad was transferred to Mainpuri. Mr.
Verma contended that the entire bar was
supporting the respondent and therefore he
could not get any lawyer to contest the case at
Mainpuri ultimately it was dismissed in
default and thereafter the application for
restoration was also dismissed All records
have been made untraceable He contends that
the farther of the respondent was one of the
leading
lawyer
and very influential in
Mainpuri and that two brothers of the
respondent are also practising lawyer in
Mainpuri and therefore it was not possible for
the applicant to get assistance at Mainpuri
even any lawyer who had appeared on behalf
of the applicant at Mainpuri was also
threatened. Therefore in such situation the
present suit No.83of 1993 filed under the
Hindu Adoption and Maintenance Act by the
respondent should be transferred to Allahabad
since it is not possible for the applicant go and
contest the suit at Mainpuri. He has also
contended that the suit is not maintainable
since there has been a decree of divorce
between the parties. After the decree of
divorce the suit under the Hindu Adoption and
Maintenance act is not maintainable since it is
the wife who can maintain the suit. After the
decree of divorce the respondent cannot be
treated as wife of the applicant to maintain
such suit. He had also raised the question
regarding the maintainability of the suit no.83
of 1993.

2. Mr. Vivek Mishra counsel for the
respondent on the other hand contended that
the father of the respondent is no more and
two other brothers are living separately from
the respondent. In the counter affidavit all
such allegations raised a non-availability of
counsel are denied. He has also pointed but
that initially two of the counsel were
representing the applicant. He has also
contended it is not on account of nonavailability of lawyer the divorce suit was
dismissed. On the other hand according to
him the petitioner had discontinued the suit