# Jyoti Sikka v. State of U.P

- **Citation:** (2022) 5 ILRA 500
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-08
- **Case number:** Spl. Appeal No. 23 of 2022
- **Bench:** Devendra Kumar Upadhyaya, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jyoti-sikka-v-state-of-u-p-48550
- **Pages:** 12

## Headnote

C.S.C.

A. Practice & Procedure - Joinder/ NonJoinder of Parties - The appellant does not
have any personal interest or concern with
the said dispute except that she has been
representing the writ petitioner before the
learned Single Judge. Thus the Court is of
the opinion that the parties in the writ
petition are not necessary parties to be
5 All. Jyoti Sikka Vs. State of U.P.
501
impleaded
in
this
Special
Appeal
considering the nature of prayer brought
before this Court. (Para 8)

B. Special Appeal - The Court observed that
the certain remarks contained in the order
under appeal passed by the Single Judge are
adverse and stigmatic and because of which
appellant have to face civil consequences. It is
also clear that before passing such an order the
appellant was not given any notice or an
opportunity of hearing. Therefore, this Court
opines that instead of approaching the forum of
Special Appeal, the appellant ought to have
moved appropriate application before the Single
Judge for redressal of her grievances. (Para 32
& 33)

C. The statement of facts as to what
transpired
at
the
time
of
hearing
recorded in the judgment or order of a
Court are to be treated to be conclusive
of the facts so stated and no one can be
permitted
to
contradict
such
statements
by
affidavit
or
other
evidence. (Para 26)

The appellant prayed to expunge the remarks
contained in specific paragraphs of the order
under appeal which allegedly are adverse
against and cast aspersions on the appellant.
The learned Single Judge also ordered that
copy of that said order be forwarded for
necessary action to the Principal Secretary
and
the
Additional
Chief
Secretary,
Government of U.P. in the Department of
Forest. (Para 17)
Special Appeal Disposed of. (E-10)

List of Cases cited:

## Text

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500 INDIAN LAW REPORTS ALLAHABAD SERIES
acquired the prescribed qualifications by
the prescribed date, they could not have
been treated on a preferential basis. Their
application ought to have been rejected at
the inception itself. This proposition is
indisputable and in fact was not doubted or
disputed in the majority Judgement. This is
also the proposition affirmed in Rekha
Chaturvedi
(Smt.)
v.
University
of
Rajasthan and others [1993 Suppl. (3)
S.C.C 168]. The reasoning in majority
opinion
that
by
allowing
the
33
respondents to appear for the interview, the
Recruiting Authority was able to get the
bests talent available and that such course
was in furtherence of public interest is,
with respect, an impermissible Justification
It is, in our considered opinion, a clear
error of low and an error apparent on the
face of the record. In our opinion, R.M.
Sahai, J. (and the Division Bench of the
High Court) was right in holding that the
33 respondents could not have allowed to
appear for interview."

14. In view of the above legal
position, we are of the opinion that the
learned Single Judge erred in law in
permitting the writ petitioners/ respondents
who admittedly did not possess the
minimum educational qualifications as
prescribed under Rule 8(a)(i)(ii) of the
Allahabad High Court Officers and Staff
(Conditions of Service and Conduct) Rules,
1976 as it stood on the date of the notice
inviting applications to appear in the
examination and also declare their results.
Since the writ petitioners/ respondents have
already appeared in the examination held
on 10.04.2022, we deem it appropriate to
modify the order of the learned Single
Judge by directing that the results of the
writ petitioner/respondents and all other
candidates who have been permitted to take
the examination dated 10.04.2022 pursuant
to the order of the learned Single Judge
dated 08.04.2022 shall not be declared and
shall abide by the outcome of the writ
petition. The results of all other candidates
may be declared by the High Court, if it so
desires, however, the results so declared
shall also abide by the outcome of the writ
petition. We have been informed that the
counter and rejoinder affidavits have been
exchanged
between
the
parties.
Accordingly, in the circumstances, we
request the learned Single Judge to proceed
to decide the writ petition on merits at the
earliest.

15. The Special Appeals are
disposed of accordingly.
----------
(2022)05ILR A500
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.05.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Spl. Appeal No. 23 of 2022

Jyoti Sikka ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Lalta Prasad Misra, Naveen Shukla

Counsel for the Respondents:
C.S.C.

A. Practice & Procedure - Joinder/ NonJoinder of Parties - The appellant does not
have any personal interest or concern with
the said dispute except that she has been
representing the writ petitioner before the
learned Single Judge. Thus the Court is of
the opinion that the parties in the writ
petition are not necessary parties to be
5 All. Jyoti Sikka Vs. State of U.P.
501
impleaded
in
this
Special
Appeal
considering the nature of prayer brought
before this Court. (Para 8)

B. Special Appeal - The Court observed that
the certain remarks contained in the order
under appeal passed by the Single Judge are
adverse and stigmatic and because of which
appellant have to face civil consequences. It is
also clear that before passing such an order the
appellant was not given any notice or an
opportunity of hearing. Therefore, this Court
opines that instead of approaching the forum of
Special Appeal, the appellant ought to have
moved appropriate application before the Single
Judge for redressal of her grievances. (Para 32
& 33)

C. The statement of facts as to what
transpired
at
the
time
of
hearing
recorded in the judgment or order of a
Court are to be treated to be conclusive
of the facts so stated and no one can be
permitted
to
contradict
such
statements
by
affidavit
or
other
evidence. (Para 26)

The appellant prayed to expunge the remarks
contained in specific paragraphs of the order
under appeal which allegedly are adverse
against and cast aspersions on the appellant.
The learned Single Judge also ordered that
copy of that said order be forwarded for
necessary action to the Principal Secretary
and
the
Additional
Chief
Secretary,
Government of U.P. in the Department of
Forest. (Para 17)
Special Appeal Disposed of. (E-10)

List of Cases cited:

1. St. of U.P. Vs Mohammad Naim AIR 1964 SC
703

2. Neeraj Garg Vs Sarita Rani & ors. (2021) 9
SCC 92

3. A.M. Mathur Vs Pramod kumar Gupta & ors.
(1990) 2 SCC 533

4. St. of Mah. Vs Ramdas Shrinivas Nayak & anr.
(1982) 2 SCC 463
5. Roop kumar Vs Mohan Thedani (2003) 6 SCC
595

6. Commissioner of Customs, Mumbai Vs Bureau
Veritas & ors. (2005) 3 SCC 265
(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

Order on C. M. Application No.1 of
2022

1. Office has reported delay of 18
days in filing the Special Appeal.

2. We have heard the learned counsel
for the appellant and learned Chief
Standing Counsel representing the sole
respondent and have also perused the
averments
made
in
the
application
supported by an affidavit.

3. We are satisfied that the delay has
sufficiently been explained.

4. Accordingly, the application is
allowed and the delay in preferring the
Special Appeal is hereby condoned.

Order on C. M. Application No.3 of
2022

1. Heard learned counsel for the
appellant and learned Chief Standing
Counsel and perused the averments made
in the application with the prayer to grant
leave of the Court to file Special Appeal
which is supported by an affidavit.

2. Though, the appellant is not a party
in the writ petition in which the order dated
02.03.2022 has been passed by the learned
Single Judge which is under appeal herein,
however, since the prayer in the Special
Appeal is confined to set aside only that
portion of the order where allegedly
502 INDIAN LAW REPORTS ALLAHABAD SERIES
aspersions have been cast and adverse
remarks has been made against the
appellant, the application is allowed and the
leave to appeal is granted.

Order on Special Appeal

1. This case presents somewhat
unusual facts before us.

2. The instant intra-court appeal seeks
to challenge the order dated 02.03.2022,
passed by the learned Single Judge in Writ
-C No.6208 of 2021 to the extent the order
allegedly casts aspersions and makes
adverse remarks against the appellant who
is a practicing lawyer of this Court and at
the relevant point of time was an Additional
Advocate General for State for Uttar
Pradesh and has been representing the State
in the cases brought before this Court.

3. Learned Chief Standing Counsel
has raised certain preliminary objections
about the maintainability of the Special
Appeal. It has been contended in this
regard by the learned Chief Standing
Counsel that in terms of the provision
contained in Chapter IX Rule 7 of the
Rules of the Court, all the parties who are
arrayed as either parties in the writ petition
wherein the order under appeal has been
passed, ought to have been arrayed as
respondents in this Appeal. It has also been
submitted by the learned Chief Standing
Counsel that the writ petition was filed by
the State of Uttar Pradesh not through the
Legal Remembrancer/Principal Secretary,
Department of Law but by the Department
of Forest through Divisional Forest Officer,
Lucknow. Thus, submission is that in the
instant Special Appeal, the State has been
arrayed not through the Forest Department;
rather
through
Legal
Remembrancer/
Principal Secretary, Department of Law and
as such description of the respondent is
defective.

4. On the aforesaid grounds, learned
Chief Standing Counsel has contended that
the Special Appeal suffers from the vice of
non-joinder of necessary parties and
description of State as respondent is also
defective.

5. In reply to the said objections,
learned counsel for the appellant has
submitted that appellant has no personal
concern with the adjudication of the dispute
in the writ petition and that she has only
been representing the writ petitioner before
the learned Single Judge and is aggrieved
only by the adverse remarks made by the
learned Single Judge, hence parties in the
writ petition are not necessary parties. He
further states that no relief is being claimed
by the appellant against the parties in the
writ petition, thus there is no defect in the
array of parties in this Special Appeal.

6. Therefore, it has been submitted
that the parties to the writ petition pending
before the learned Single Judge are not
necessary parties so far as the issue raised
in this Special Appeal is concerned. It has
also been argued that since it is believed by
the appellant that on the basis of the order
passed by the learned Single Judge, the
appellant has been discharged from the
office of Additional Advocate General of
State for Uttar Pradesh by the Law
Department, as such State of U.P. in this
appeal has been arrayed as respondent not
through Forest Department but through
Legal Remembrancer/Principal Secretary,
Department of Law.

7. Having considered the submissions
made by the learned counsel representing
the parties in respect of the preliminary
5 All. Jyoti Sikka Vs. State of U.P.
503
objections as to the maintainability of the
Special Appeal, we are unable to agree with
the submissions made by the learned Chief
Standing Counsel.

8. It is true that in the writ petition,
the dispute is in relation to certain land
between the Forest Department of the State
and certain individuals. The appellant does
not have any personal interest or concern
with the said dispute except that she has
been representing the writ petitioner before
the learned Single Judge. Thus, we are of
the considered opinion that the parties in
the writ petition are not necessary to be
impleaded
in
this
Special
Appeal
considering the prayer and the nature of
issue brought before us. The preliminary
objection as to the maintainability of the
Special Appeal, therefore, merits rejection,
which is hereby rejected.

9. Learned counsel for the appellant
in support of the prayer made in this special
appeal has argued that the adverse remarks
against the appellant in the order passed by
the learned Single Judge are capable of
visiting the appellant with adverse civil
consequences and that the remarks are so
serious that the same are capable of
resulting in adverse repercussions on the
professional carrier of the appellant as an
Advocate, which have been made without
affording any opportunity of hearing to the
appellant and hence the same need to be
expunged.

10. It has further been argued on
behalf of the appellant that there is no
recognized or prescribed procedure, in the
functioning of this Court, of taking
permission of the Court in case a counsel is
not in a position to appear in a case to be
called out during course of the day and
hence in this view of the matter as well, the
observations made by the learned Single
Judge in the order under appeal are
unwarranted. It has been submitted that on
3rd of March, 2022 when the order under
appeal
was
passed,
no
substantial
proceedings were to be drawn for the
reason that in the writ petition the person
arrayed as opposite party no.1 had died and
only a request for grant of time for making
an application seeking substitution of the
legal heirs of the deceased-opposite party
was to be made and as such presence of the
appellant, who was Additional Advocate
General of the State, was not required as
necessary assistance to the Court could
have been provided by the learned Standing
Counsel who was assisting her. It has also
been stated that the circumstance in which
the appellant could not appear in the case
before the learned Single Judge on
02.03.2022 was occasioned because of the
fact that the appellant had to leave the
Court to attend some medical emergency
and even otherwise also there was no
occasion for the learned Single Judge to
insist for her appearance in the case.

11. Unfolding the events and the
circumstances in which the order has been
passed by the learned Single Judge on
02.03.2022, in his submission learned
counsel for the appellant has stated that the
writ petition was instituted by the Forest
Department of State of Uttar Pradesh
through
Divisional
Forest
Officer,
Lucknow against one Har Charan Kaur Gill
and that the appellant was engaged to argue
the writ petition as an Additional Advocate
General for the State and on her argument
an interim order was passed in favour of
the State on 09.03.2021. It has also been
stated on behalf of the appellant that the
case was listed before the learned Single
Judge on 02.03.2022, however, in the
evening of March 1, 2022, learned counsel
504 INDIAN LAW REPORTS ALLAHABAD SERIES
representing the opposite party no.1 in the
writ petition informed the appellant that the
said opposite party had died on 27.12.2021
and accordingly the State Counsel assisting
the appellant, on the case being called out,
requested the learned Single Judge to grant
some time to move the application for
substitution of the legal heirs of the
deceased opposite party, however, the
learned Single Judge observed (as informed
to the appellant by the learned State
Counsel assisting her) that perhaps in the
case the appellant as Additional Advocate
General was appearing and therefore she be
sent for to appear and argue the case.
Learned counsel for the appellant further
states that after getting the case passed over
at about 12.30 p.m. the assisting counsel
telephonically informed the appellant that
the case was passed over and though he had
requested for grant of time in order to
enable the State to take steps for bringing
an application for substituting the legal
heirs of opposite party no.1, however,
learned Single Judge desired presence of
the appellant before the Court by stating
that the case was being conducted by the
appellant
and
enquired
about
her
whereabouts.

12. The appellant thereafter is said to
have told the learned State Counsel
assisting her that for seeking time for
moving application for substitution of the
legal heirs of the deceased opposite party,
her presence in the Court was not required.
In the sequence of events as disclosed in
this special appeal on behalf of the
appellant, it has further been stated that the
appellant also informed the learned State
Counsel assisting her that she had left the
premises of the Court in order to attend
some medical emergency. The case is said
to have been called out after lunch recess
and as per the appellant, learned counsel
assisting her informed the learned Single
Judge that the appellant could not appear as
she had gone to attend some medical
emergency,
however,
even
after
this
information was furnished to the Court, the
order under appeal has been passed by the
learned Single Judge.

13. It is also the case of the appellant
that after the order under appeal dated
02.03.2022 was passed by the learned
Single Judge, State Government has passed
an order on 12.04.2022 discharging her
from the office of Additional Advocate
General and that except the order dated
02.03.2022 passed by the learned Single
Judge no other material was available with
the State Government which may have
resulted in passing of the order discharging
the appellant from the office of Additional
Advocate General.

14. Stating the aforesaid facts, it has
been argued by the learned counsel for the
appellant that she was not given any
opportunity before passing the order under
appeal which contains unwarranted and
uncalled for remarks against her. Drawing
our attention specially to the observations
made in paragraphs 4 and 6 of the order
under appeal, it has been argued by the
learned counsel representing the appellant
that
it
is
not
only
that
the
said
remarks/observations
which
adversely
affect the appellant were made without
giving any opportunity of hearing or even
without putting the appellant to notice but
also that there is no prescribed procedure
which requires any counsel to seek leave of
the Court in a matter which is listed during
the course of the day, in case the counsel
has to leave the Court premises for
attending some medical emergency. It has
also been submitted that the facts and
circumstances of the case did not warrant
5 All. Jyoti Sikka Vs. State of U.P.
505
the order under appeal to have been sent to
the Principal Secretary, Law and the
Additional Chief Secretary, Department of
Forest for information and "necessary
action".

15. Emphasis of the learned counsel for
the appellant is that the learned Single Judge
ought not to have sent the copy of the said
order to the State Government for "necessary
action". It has thus, been argued that
discharge of the appellant from the office of
Additional Advocate General has precipitated
for no other reason but because of the fact
that the order dated 02.03.2022 was sent to
the State Government in the Department of
Law as well for "necessary action". The
submission,
thus,
is
that
the
remarks/observations contained in paragraphs
4 and 6 of the order under appeal were not
called for not only for the reason that the
appellant was neither given any opportunity
of hearing, nor was she put to any notice
before recording such remarks but also for
the reason that the factual background of the
case were also not correctly appreciated by
the learned Single Judge. The prayer thus is
that the order under appeal be set aside except
to the extent it fixes a date in the matter.

16.

We
have
considered
the
submissions made by the learned counsel
appearing for the appellant and have also
perused the records available before us on
this special appeal.

17. In this special appeal we have
essentially been called upon to expunge the
remarks contained in paragraphs 4 and 6 of
the order under appeal which allegedly are
adverse against and cast aspersions on the
appellant.

18. There are well recognized legal
principles which are to be followed while
considering a matter where consideration is
to be made by a Court of law to the prayer
for expunction of such remarks. Hon'ble
Supreme Court in the cases of State of U.P.
vs. Mohammad Naim, reported in AIR
1964 SC 703 had the occasion to cull out
the relevant considerations which should
weigh with a court while considering such
a matter. The Hon'ble Supreme Court in the
said case of Mohammad Naim (supra) had
observed as under:

"It has been judicially recognised
that in the matter of making disparaging
remarks against persons or authorities
whose conduct comes into consideration
before courts of law in cases to be decided
by them, it is relevant to consider (a)
whether the party whose conduct is in
question is before the court or has an
opportunity of explaining or defending
himself ; (b) whether there is evidence on
record bearing on that conduct justifying
the remarks; and (c) whether it is
necessary for the decision of the case, as
an integral part thereof, to animadvert on
that conduct. It has also been recognised
that judicial pronouncements must be
judicial in nature, and should not
normally depart from sobriety, moderation
and reserve. "
 (Emphasis supplied by Court)

19. Thus, the first and foremost
question to be considered in such a matter
is as to whether the party whose conduct is
in
question
had
an
opportunity
of
explaining or defending himself. The other
considerations to be made are as to whether
there is evidence on record justifying the
remarks and as to whether remarks are
necessary for decision of a case as an
integral part thereof. The Hon'ble Supreme
Court
while
culling
out
these
considerations to be made in such a matter
506 INDIAN LAW REPORTS ALLAHABAD SERIES
further goes on to say that judicial
pronouncements must be judicial in nature
and should not depart from sobriety,
moderation and reserve.

20. The judgment in the case of
Mohammad Naim (supra) has been
referred and followed by Hon'ble Supreme
Court in the case of Neeraj Garg vs.
Sarita Rani and others, reported in (2021)
9 SCC 92. The case of Neeraj Garg
(supra) also related to a lawyer practicing
in the Hon'ble High Court of Uttarakhand
and certain remarks and observations were
made by the said Court against the lawyer
without putting him to notice or providing
opportunity of hearing.

21. In the case of A. M. Mathur vs.
Pramod Kumar Gupta and others,
reported in (1990) 2 SCC 533, Hon'ble
Supreme Court while considering a matter
where certain derogatory remarks were
made by Hon'ble Madhya Pradesh High
Court against a Senior Advocate and Ex.
Advocate General of the State has noticed
the significance of avoidance of even the
appearances of bitterness which has been
held to be important in a judge and which
requires a judge not to cast aspersions on
the professional conduct of a person.

22. In para 10 of the case of A. M.
Mathur (supra) the Hon'ble Supreme
Court has quoted Justice Benjamin N.
Cardozo, the Former Judge of U. S.
Supreme Court and author of famous book
titled "The Nature of the Judicial
Process". In this case quoting justice Felix
Frankfurter and Justice Cardozo, Hon'ble
Supreme Court has observed that judicial
restraint and discipline are as important to
the administration of justice as they are to
the effectiveness of the army. Hon'ble
Supreme Court has also observed in the
said judgment that the Court has the
inherent power to act freely upon its own
conviction on any matter coming before it
for adjudication but it is a principle of the
highest
importance
for
proper
administration of justice that derogatory
remarks ought not to be made against
persons or authorities whose conduct
comes into consideration unless the same
becomes necessary for decision of the case.
We find it appropriate to extract paragraphs
10 to 14 of the judgment in the case of
A.M. Mathur (supra) which are as under:

"10. Justice Cardozo of course said:

"The great tides and currents which
engulf the rest of men, do not turn aside
in their course, and pass judges by. We
like to figure to ourselves the processes of
justice as coldly objective and impersonal.
The law, conceived of as a real existence,
dwelling apart and alone, speaks, through
the voices of priests and ministers, the
words which they have no choice except to
utter. That is an ideal of objective truth
toward
which
every
system
of
jurisprudence tends.... It has a lofty
sound; it is well and finely said; but it can
never be more than partly true.

11. Justice Felix Frankfurter, put it
with a different emphasis:

"Judges are men, not disembodied
spirits. Of course a judge is not free from
preferences or, if you will, biases."

12. It is true that the judges are flesh
and
blood
mortals
with
individual
personalities and with normal human
traits. Still what remains essential in
judging, Justice Felix Frankfurter said:

"First and foremost, humility and an
understanding of the range of the
problems and (one's) own inadequacy in
dealing with them, disinterestedness ...
and allegiance to nothing except the effort
to find (that) pass through precedent,
5 All. Jyoti Sikka Vs. State of U.P.
507
through policy, through history, through
(one's) own gifts of insights to the best
judgment that a poor fallible creature can
arrive at in that most difficult of all tasks,
the adjudication between man and man,
between man and state, through reason
called law."
13. Judicial restraint and discipline are as
necessary to the orderly administration of
justice as they are to the effectiveness of
the army. The duty of restraint, this
humility of function should be constant
theme of our judges. This quality in
decision making is as much necessary for
judges to command respect as to protect
the independence of the judiciary. Judicial
restraint in this regard might better be
called judicial respect, that is, respect by
the judiciary. Respect to those who come
before the court as well to other coordinate branches of the State, the
executive and the legislature. There must
be mutual respect. When these qualities
fail or when litigants and public believe
that the judge has failed in these qualities,
it will be neither good for the judge nor
for the judicial process.
14.
The
Judge's Bench is a seat of power. Not only
do judges have power to make binding
decision, their decisions legitimate the use
of power by other officials. The judges
have the absolute and unchallengeable
control of the court domain. But they
cannot
misuse
their
authority
by
intemperate comments, undignified banter
or scathing criticism of counsel, parties or
witnesses. We concede that the court has
the inherent power to act freely upon its
own conviction on any matter coming
before it for adjudication, but it is a
general
principle
of
the
highest
importance to the proper administration of
justice that derogatory remarks ought not
to be made against persons or authorities
whose conduct comes into consideration
unless it is absolutely necessary for the
decision of the case to animadvert on their
conduct. "

 (Emphasis supplied by Court)

23. Having noticed, the broad legal
principles to be followed while considering
the matter where the court is called upon to
deal with a prayer for expunction of
disparaging remarks against the person of
authority, as above, when we examine the
narration of the facts and circumstances
made on behalf of the appellant before us
which allegedly led to passing of the order
under appeal by Hon'ble Single Judge, what
we find is that the version of the facts as
noticed in the order under appeal passed by
the learned Single Judge is at variance with
the one put forth before us on behalf of the
appellant in this special appeal. Learned
Single Judge only records that the learned
State Counsel assisting the appellant put in
his appearance and in the first session
before lunch it was informed that the
appellant would appear in the matter and
that the matter may be taken up in the
revised call as she was busy in some other
court. Learned Single Judge further records
that on being asked as to where was the
appellant busy at that time, it was told by
learned State Counsel assisting her that she
was busy in some other Court. Further
learned Single Judge records in the order
that on a specific query as to which Court
the appellant was arguing, the learned State
Counsel assisting her did not have any
answer. In this background learned Single
Judge
records
that
learned
assisting
Counsel had the courage to tell complete lie
in the Court. Learned Single Judge
thereafter records that when the case was
taken up in the revised call the appellant
was not present and on being asked as to
where was she busy, it was told by learned
State Counsel assisting the appellant that
508 INDIAN LAW REPORTS ALLAHABAD SERIES
she had left the Court as she had to attend
some urgent work.

24. In the aforesaid background facts,
learned Single Judge, thus, has remarked in
paragraph 4 of the order under appeal that
appellant did not have the courtesy to come
and seek permission of the Court for
leaving the Court premises despite having
accepted the case when the case was kept
to be taken up in the revised call. The
learned Single Judge, thus, observed that
the Court does not approve of the conduct
of the appellant and also that of the learned
State Counsel assisting her. The learned
Single Judge also ordered that copy of the
said order be forwarded for information
and necessary action to the Principal
Secretary, Law and the Additional Chief
Secretary, Government of Uttar Pradesh in
the Department of Forest.

25. Thus, the facts and events as
narrated on behalf of the appellant which
we have recorded in this order are in
departure with the facts and events which
we find recorded in the order under appeal
passed by the learned Single Judge.

26. This Court is a Court of record
and thus records of the Court, which will
necessarily include an order passed by the
Court, has to be accorded utmost sanctity.
The statement of facts as to what transpired
at the time of hearing recorded in the
judgment or order of a Court are to be
treated to be conclusive of the facts so
stated and no one can be permitted to
contradict such statements by affidavit or
other evidence.

27. Hon'ble Suprerme Court in the
case of State of Maharashtra vs. Ramdas
Shrinivas Nayak and another, reported in
(1982) 2 SCC 463 has noted the aforesaid
legal position and has enunciated the
principle that the Court cannot launch an
enquiry as to what transpired in the Court
and further that matters of judicial record
are unquestionable. Paragraphs 4 and 8 of
the judgment in the case of Ramdas
Shrinivas Nayak (supra) are relevant to
be noted which are extracted herein below:

"4. When we drew the attention of
the learned Attorney-General to the
concession made before the High Court,
Shri A.K. Sen, who appeared for the State
of Maharashtra before the High Court
and led the arguments for the respondents
there and who appeared for Shri Antulay
before us intervened and protested that he
never made any such concession and
invited
us
to
peruse
the
written
submissions made by him in the High
Court. We are afraid that we cannot
launch into an enquiry as to what
transpired in the High Court. It is simply
not done. Public policy bars us. Judicial
decorum restrains us. Matters of judicial
record are unquestionable. They are not
open to doubt. Judges cannot be dragged
into the arena. "Judgments cannot be
treated as mere counters in the game of
litigation." We are bound to accept the
statement of the Judges recorded in their
judgment, as to what transpired in court.
We cannot allow the statement of the
Judges to be contradicted by statements at
the Bar or by affidavit and other evidence.
If the Judges say in their judgment that
something was done, said or admitted
before them, that has to be the last word
on the subject. The principle is well-settled
that statements of fact as to what
transpired at the hearing, recorded in the
judgment of the court, are conclusive of
the facts so stated and no one can
contradict such statements by affidavit or
other evidence. If a party thinks that the
5 All. Jyoti Sikka Vs. State of U.P.
509
happenings in court have been wrongly
recorded in a judgment, it is incumbent
upon the party, while the matter is still
fresh in the minds of the Judges, to call
the attention of the very Judges who have
made the record to the fact that the
statement made with regard to his conduct
was a statement that had been made in
error. That is the only way to have the
record corrected. If no such step is taken,
the matter must necessarily end there. Of
course a party may resile and an appellate
court may permit him in rare and
appropriate cases to resile from a
concession on the ground that the
concession was made on a wrong
appreciation of the law and had led to
gross injustice; but, he may not call in
question the very fact of making the
concession as recorded in the judgment.

8.
So
the
Judges'
record
is
conclusive. Neither lawyer nor litigant
may claim to contradict it, except before
the Judge himself, but nowhere else."

28. Referring to the judgment in the
case of Ramdas Shrinivas Nayak (supra),
Hon'ble Supreme Court in yet another case
that is, in the case of Roop Kumar vs.
Mohan Thedani, reported in (2003) 6
SCC 595 has reiterated the aforesaid legal
position. Paragraph 11 of the said judgment
is also relevant to be extracted which is as
under:

"11. It would be logical to first deal
with the plea relating to absence of forum
of appeal. It is to be noted that the parties
agreed before the High Court that instead
of remanding the matter to the trial court,
it should consider materials on record and
render a verdict. After having done so, it is
not open to the appellant to turn around
or take a plea that no concession was
given. This is clearly a case of sitting on
the fence, and is not to be encouraged. If
really there was no concession, the only
course open to the appellant was to move
the High Court in line with what has been
said in State of Maharashtra v. Ramdas
Shrinivas Nayak. In a recent decision
Bhavnagar University v. Palitana Sugar
Mill (P) Ltd. the view in the said case was
reiterated by observing that statements of
fact as to what transpired at the hearing,
recorded in the judgment of the Court, are
conclusive of the facts so stated and no
one can contradict such statements by
affidavit or other evidence. If a party
thinks that the happenings in court have
been wrongly recorded in a judgment, it is
incumbent upon the party, while the
matter is still fresh in the minds of the
judges, to call the attention of the very
judges who have made the record. That is
the only way to have the record corrected.
If no such step is taken, the matter must
necessarily end there. It is not open to the
appellant to contend before this Court to
the contrary."

29. In the case of Commissioner of
Customs, Mumbai vs. Bureau Veritas
and others, reported in (2005) 3 SCC 265,
Hon'ble Supreme Court again referred to
the judgment in the case of Ramdas
Shrinivas Nayak (supra) and observed
that the statements of facts as to what
transpired at the time of hearing recorded in
the judgment of the Court are conclusive of
the facts so stated and that no one can
contradict such statements by affidavit.
Paragraph 14 of the said judgment is
extracted herein below:

"14. After having agreed on some
point as recorded, it is not open to the
appellant to turn around or take a plea
that the position is different. If really there
was no agreement, the only course open to
510 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant was to move the Tribunal in
line with what has been said in State of
Maharashtra v. Ramdas Shrinivas Nayak.
In a recent decision Bhavnagar University
v. Palitana Sugar Mill (P) Ltd. the view in
the said case was reiterated by observing
that statements of fact as to what
transpired at the hearing, recorded in the
judgment of the court, are conclusive of
the facts so stated and no one can
contradict such statements by affidavit or
other evidence. If a party thinks that the
happenings in court have been wrongly
recorded in a judgment, it is incumbent
upon the party, while the matter is still
fresh in the minds of the judges, to call the
attention of the very judges who have
made the record. That is the only way to
have the record corrected. If no such step
is taken, the matter must necessarily end
there. It is not open to the appellant to
contend
before
this
Court
to
the
contrary."

30. It is not that in a situation where a
party thinks that the happenings in Court
have wrongly been recorded in a judgment
or order, then the party is remedy-less. As
held by Hon'ble Supreme Court in the cases
of Ramdas Shrinivas Nayak (supra) and
Roop Kumar (supra), in such an event the
party concerned must move the judge/court
calling the attention of that very judge who
is said to have recorded the facts relating to
his/her conduct. The principle that "judge's
record is conclusive" has a purpose and is
necessary to be followed for maintaining
the sanctity of the records of the Court,
specially the Court which is a Court of
record.

31. In view of the law laid down by
Hon'ble
Supreme
Court
in
the
aforementioned cases Ramdas Shrinivas
Nayak (supra) and Roop Kumar (supra),
the appropriate course available to the
appellant is to approach the learned Single
Judge who has passed the order under
appeal and to call his attention that the
facts, circumstances and events which led
the learned Single Judge to make the
alleged offending observations are not
correct and that such observations have
thus been made in error.

32. From the records available before
us what is indisputably clear is that before
recording the alleged offending remarks in
the order under appeal the appellant was
neither put to notice nor was she given any
opportunity
of
hearing.
It
is
also
indisputable that certain remarks contained
in the order under appeal passed by the
learned Single Judge are adverse and
stigmatic and thus visit the appellant with
adverse civil consequences.

33. For the discussions made and
reasons given above, we are of the opinion
that instead of approaching the forum of
special appeal, the appellant ought to have
moved appropriate application before the
learned Single Judge apprising him of the
facts and circumstances as narrated before
us in this special appeal and seek redressal
of her grievances.

34. The special appeal is, thus,
disposed of permitting the appellant to
approach the learned Single Judge calling
his attention to the facts narrated on her
behalf in this special appeal and seek
remedy concerning her grievances relating
to the aspersions cast and adverse remarks
made against her, as stated in this special
appeal.

35. We request the learned Single
Judge that in case any such application with
appropriate prayer is made by the appellant,
5 All. Bushra Firdaus Vs. State of U.P. & Ors.
511
the same shall be considered and decided
with expedition.

36. In the facts of the case there will
be no order as to costs.
----------
(2022)05ILR A511
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Spl. Appl. D No. 724 of 2021
with
Spl. Appl. 721 of 2021

Bushra Firdaus ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Ashok Khare (Senior Adv.), Sri Siddharth
Khare

Counsel for the Respondents:
Mrs. Archana Singh (Addl. C.S.C.)

A. Service Law - The appellant is challenging
the transfer order by which she was asked to
rejoin at her original place of posting. Appellant
had submitted application seeking her transfer
which was approved but on verification it was
found that incorrect information was furnished
for transfer. The order of rejoining at her original
place of posting is correct as interchange of
cadre was not permissible in the Order dated
2.12.2019. (Para 7)
Appeal Rejected. (E-10)

(Delivered by Hon'ble Piyush Agrawal, J.)

1. The present intra-Court appeals
have been preferred assailing the common
judgement & order dated August 27, 2021
passed in leading Writ A No. 6418 of 2021,
vide which the writ petitions filed by the
appellants against their transfer orders have
been dismissed.

2. As the issues involved in these
appeals are similar arising out of common
judgement and order, hence the same are
being decided by the common order.

3. The facts of Special Appeal No.
724 of 2021 are taken for the purpose of
deciding these two appeals.

4. The appellant applied for intraState or inter-District transfer on the
strength of Government Order dated
December 9, 2019, which was accorded.
The application was processed and she was
transferred at her requested place. Later on,
on scrutiny of documents, it revealed that
the disclosed information given by the
appellant was incorrect and therefore her
transfer order was recalled. The appellant
preferred writ petition before this Court,
which was dismissed by the learned Single
Judge by the impugned order.

5.