# Kameshwar Thakur v. Regional Higher Education Officer (R.H.E.O.) & Ors

- **Citation:** (2016) 7 ILRA 1091
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-11
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kameshwar-thakur-v-regional-higher-education-officer-r-h-e-o-ors-43971
- **Pages:** 6

## Text

7 All. Kameshwar Thakur Vs Regional Higher Education Officer (R.H.E.O.) & Ors
1091
impleadment therein, he was a total stranger thereto. The objection as also the revision filed by
him, were for the same reason clearly not maintainable.

7. It has additionally been submitted by learned counsel for the petitioner that since the
correction has been ordered in the final consolidation map, the proceedings initiated by the
respondent were barred by Section 11A of the U.P. Consolidation of Holdings Act. This correction
could have been done only during consolidation operations and not thereafter.

8. This submission of learned counsel for the petitioner is totally devoid of substance.

9. A bare reading of Section 11A of the U.P. Consolidation of Holdings Act provides that
an objection, which can be filed at the stage of Section 9, cannot be raised at any subsequent stage
of consolidation operations. An objection for the correction of map is to be made in accordance
with the provision of Section 27 of the Act. The bar contained in Section 11A, therefore, has
absolutely no application in matters pertaining to corrections of map.

10. Moreover, sub-section 3 of the aforesaid Section 27 of the Act provides that once the
final consolidation map has been prepared and the consolidation operations have come to a close,
this map is to be corrected and is maintained in accordance with the provision contained in the U.P.
Land Revenue Act, 1901.

11. It is therefore, clear that even the final consolidation map is subject to the provsions of
Section 28 of the U.P. Land Revenue Act, which had been invoked in the instant case by the
respondents.

12. Since the submissions of learned counsel for the petitioner are devoid of substance and
additionally since the petitioner is unconcerned with the proceedings not being a party thereto, this
writ petition is dismissed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2016

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.

Writ A No.- 30708 Of 1993

Kameshwar Thakur ...Petitioner
Versus
Regional Higher Education Officer (R.H.E.O.) & Ors. ...Respondents

Counsel for Petitioner:
Sri C. Prakash, Sri C. Prashad, Sri K. Kant, Sri Siddharth Khare, Sri Y. Agrawal
1092 INDIAN LAW REPORTS ALLAHABAD SERIES

Counsel for Respondents:
Standing Counsel, Sri Siddharth Singh

Service Law -- Education -- Class-IV Employee -- Forced Resignation -- Resignation Without One
Month Notice -- Clause 35.02, Chapter XXIII, Statutes of University of Gorakhpur -- Effect of
Non-Compliance -- Petitioner was appointed as Class-IV employee (Zamadar) at a college under Gorakhpur
University w.e.f. 03.01.1992 after due procedure -- he alleged that on 01.07.1992 his resignation was
obtained by force -- the incident was reported to the Superintendent of Police, Ballia -- the earlier Writ
Petition No. 6730 of 1993 was disposed of by this Court on 29.03.1993 directing the District Inspector of
Schools (DIOS), Ballia to hear the representation of the petitioner regarding forced resignation -- pursuant
thereto DIOS heard the petitioner and the Principal on 15.05.1993 and 21.05.1993, called for the Manager's
report on 22.06.1993, and after considering all material, rejected the petitioner's representation vide order
dated 15.07.1993 holding that the resignation was voluntarily tendered -- the petitioner challenged this order
contending, inter alia, that the resignation was not in the manner prescribed by Clause 35.02 of the Statute
which requires one month's notice in advance or deposit of one month's salary in lieu thereof -- Held: a bare
perusal of Clause 35.02 makes it clear that where an employee resigns without giving one month's notice, he
is under a legal obligation to deposit one month's salary in lieu thereof -- failure to deposit the salary does not
render the resignation invalid -- the only consequence is that the college becomes entitled to recover the said
amount -- the petitioner committed a breach of Clause 35.02 and cannot be allowed to take advantage of his
own wrong by contending that the resignation was bad for want of one month's notice or deposit of one
month's salary.

Service Law -- Writ Jurisdiction -- Non-Impleadment of Necessary Party -- Appointed Incumbent
-- Writ Petition Not Maintainable -- Held: after the vacancy was created due to the alleged resignation of
the petitioner, one Sri Subhash Chandra Singh was duly appointed on the said post and his appointment was
approved by the DIOS vide approval dated 02.02.1994 -- this fact was well within the knowledge of the
petitioner as stated in paragraph 25 of the writ petition itself -- yet the petitioner has neither impleaded Sri
Subhash Chandra Singh, the newly appointed incumbent, as a respondent, who is a necessary party, nor has
he impleaded the Manager of the college against whom the sole allegation of forced resignation has been
made -- in such circumstances, the writ petition is not maintainable on the ground of non-impleadment of a
necessary party -- no relief can be granted in the absence of the affected party.

Writ Petition Dismissed -- Writ petition challenging the order dated 15.07.1993 passed by the District
Inspector of Schools, Ballia, rejecting petitioner's representation in relation to his alleged forced resignation
from the post of Class-IV employee (Zamadar) in a college under Gorakhpur University, dismissed as wholly
misconceived -- no order as to costs.

Case Law Discussed:
1. Bharat Singh: Dallu: Nathu Ram: Ram Phal v. State of Haryana, AIR 1988 SC 2181
2. A.K. Roy v. State of Punjab, AIR 1986 SC 2160

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

1. Heard Sri Yogesh Agarwal, learned counsel for the petitioner, Sri Siddharth Singh,
learned counsel for the respondent No.3 and learned standing counsel for the respondents No.1 &
2.
7 All. Kameshwar Thakur Vs Regional Higher Education Officer (R.H.E.O.) & Ors.
1093
2. This writ petition has been filed praying for a writ, order or direction in the nature of
certiorari to quash the order dated 15.07.1993 passed by the District Inspector of Schools, Ballia.

3. Learned counsel for the petitioner submits that specific averments made in paragraphs21, 25 & 27 have been replied by the respondent No.3 in paragraphs-16, 18 and 20 of the counter
affidavit without annexing any evidence of affording opportunity of hearing to the petitioner and
thus, averments made in the counter affidavit are not entertainable in view of the law laid down by
the Hon'ble Supreme Court in the case of Bharat Singh: Dallu: Nathu Ram: Ram Phal Vs. State
of Haryana, AIR 1988 SC 2181 (para-13) to the effect that when a point which is ostensibly a
point of law is required to be substantiated by facts, the party raising the point, if he is the
petitioner, must plead and prove such facts by evidence which must appear from the writ petition
and if he is the respondent, from the counter affidavit and if the facts are not pleaded or evidence in
support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may
be, the court will not entertain the point. He submits that the resignation was obtained by force and
as such there is no resignation in the eyes of law. He further submits that Clause 35.02 of Chapter
XXIII of Statute of University of Gorakhpur provides the manner for resignation by a temporary
employee from service by giving one month's notice in advance in writing to the
management otherwise he has to deposit one month's salary in lieu of notice. In the present
set of facts, the petitioner has neither deposited one month's salary with the college nor the
college has demanded one month's salary from the petitioner in lieu of notice and as such
even this forced resignation was without compliance to the procedure prescribed by statute
35.02. In support of his submission, he relied upon a decision of Hon'ble Supreme Court in
the case of A.K. Roy Vs. State of Punjab, AIR 1986 SC 2160 (para-10) to submit that if a
statute prescribes the manner in which something is to be done, then it has to be done in that
manner and in no other manner. He, therefore, submits that since the resignation of the
petitioner dated 01.07.1992 was obtained by force by the management of the college and also
since the aforesaid resignation was not in the manner prescribed by statute 35.02 of Chapter
XXIII of Statute of University of Gorakhpur and as such the aforesaid resignation was
wholly null and void. He further submits that no opportunity of hearing was afforded by the
respondent No.2 before passing the impugned order dated 15.07.1993.

4. Sri Siddarth Singh, learned counsel for the respondent No.3 submits that one Sri
Subhash Chandra Singh was appointed after due approval of the D.I.O.S. dated 02.02.1994
on the vacancy created due to resignation of the petitioner. Averments in this regard have
been made in paragraph-18 of the counter affidavit and paras-9 & 10 of the supplementary
counter affidavit which have not been specifically denied by the petitioner. He submits that
the writ petition is not maintainable because of non-impleadment of newly appointed
employee Sri Subhash Chandra Singh. The allegation of the petitioner against the manager of
the institution is not entertaianble inasmuch as the manager has not been made party in the
present writ petition. The Principal was the appointing authority, who was present before the
D.I.O.S. and the petitioner was afforded full opportunity of hearing. He refers to paragraphs16, 18 & 20 of the counter affidavit and paragraphs-8, 9 & 10 of the supplementary counter
1094 INDIAN LAW REPORTS ALLAHABAD SERIES

affidavit. He further submits that entire records were produced before the D.I.O.S. who
passed the impugned order after affording full opportunity of hearing to the petitioner.

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

6. Briefly stated, the facts of the present case are that according to the petitioner, one
post of class-IV employee (Zamadar) fell vacant due to termination of service of one Katari
Ram. The vacancy was advertised and the petitioner was appointed on the said post
following due procedure of law and he was allowed to work w.e.f. 03.01.1992 after due
approval of the competent authority. It is stated in paragraph-11 of the writ petition that the
petitioner was forced to sign a resignation letter which incident was reported by him to the
Superintendent of Police, Ballia on 24.08.1992. The petitioner filed a Civil Misc. Writ
Petition No.6730 of 1993, Kameshwar Thakur Vs. Regional Higher Education Officer,
Gorakhpur and others, which was disposed of by this court by order dated 29.03.1993 as
under:

 "In view of the above facts, I direct that the petitioner may approach the District
Inspector of Schools, Ballia through a representation to be filled by him before the said
Inspector along with a certified copy of this order within a period of two weeks from today.
On filing of the representation by the petitioner, the District Inspector of Schools, Ballia
shall examine the petitioner's case and look into the correctness of the allegations made by
him regarding the forced resignation which might have been procured by the Manager. He
shall pass appropriate orders on petitioner's representation after hearing the Manager and
the petitioner within three weeks from the date of the receipt of the representation.

 With these directions, the writ petition is disposed of finally."

7. It appears that pursuant to the aforesaid order passed by this court, the respondent
No.2 fixed the date for hearing for 15.05.1993 on which date the petitioner and the Principal
of the Institution appeared and made their submissions. The Manager of the Institution was
requested either to appear or to submit his report on 22.06.1993 which was submitted by him
by a letter dated 22.06.1993. After considering the report of the Manager and the statement
of the Principal and the petitioner recorded during the course of hearing on 15.05.1993 and
21.05.1993, the respondent No.2 came to the conclusion that the resignation was written and
signed by the petitioner, which was submitted before the respondent No.3 on 01.07.1992 and
for verification of the resignation, three lecturers namely Sri Baldev Mishra, Sri Sudama
Ram and Sri Premanand Mishra were requested who confirmed the resignation. The
permission for filling up the vacant post due to resignation of the petitioner was granted by
the respondent No.2 on 09.07.1992. He also recorded a finding that the allegation of forced
resignation was also not found correct by the Police. On these findings, he rejected the
representation of the petitioner. Aggrieved with this order dated 15.07.1993, the petitioner
has filed the present writ petition.
7 All. Kameshwar Thakur Vs Regional Higher Education Officer (R.H.E.O.) & Ors.
1095
8. In paragraph-21 of the writ petition, the petitioner has alleged that 15.05.1993 was
the date fixed for hearing by the respondent No.2 on which date manager of the college was
not present and subsequently without affording any opportunity to the petitioner, the
respondent No.2 passed the impugned order dated 15.07.1993. It is relevant to note that in
the impugned order, it is specifically mentioned that the petitioner and the Principal of the
Institution were heard on 15.05.1993 and 21.05.1993 and their statements were also
recorded. However, this fact, even though mentioned in the impugned order; has not been
denied by the petitioner. This clearly indicates that the petitioner was afforded opportunity of
hearing by the respondent No.2 who passed the order on the representation of the petitioner
after considering the statement of the petitioner, the statement of the Principal of the
Institution, the report of the Manager as well as the materials available on record. In
paragraph-16 of the counter affidavit, it is specifically stated that the petitioner was afforded
full opportunity of hearing by the respondent No.2 who also examined entire record
including alleged complaint of the petitioner and his resignation letter etc. The averments so
made is also verifiable from the contents and findings in the impugned order as
aforementioned with regard to opportunity of hearing.

9. In paragraph-25 of the writ petition, the petitioner himself has mentioned about the
approval of appointment of another person on the post on 09.07.1992. This paragraph has
been replied in paragraph-18 of the counter affidavit. In paragraphs-8, 9 & 10 of the
supplementary counter affidavit full relevant details of appointment of one Sri Subhash
Chandra Singh has been disclosed supported by relevant papers including the approval of
appointment dated 02.02.1994 granted by letter No.5349-52, dated 02.02.1994. Thus, the fact
of appointment of one Sri Subhash Chandra Singh on the vacancy created due to resignation
of the petitioner dated 01.07.1992, was well within the knowledge of the petitioner at
relevant point of time but the petitioner has not impleaded the said employee as respondent
in the present writ petition, who is a necessary party. In paragraph-25 of the writ petition, a
reference to Clause-35.02 of the statute of the University has been made to contend that the
resignation was not in the manner prescribed and if the petitioner had actually resigned then
the management would have demanded one month's salary from the petitioner as per Rules.
In paragraph-20 of the counter affidavit, it is stated that the management through letter dated
05.07.1992 had directed the petitioner to deposit one month's salary.

10. Clause 35.02 of Chapter XXIII of the statute provides that if a temporary
employee resigns from service he shall give notice to this effect in writing to the
management of the college one month in advance otherwise he shall have to deposit one
month's salary with the college in lieu of notice and similarly if the management of a college
decides to terminate the services of an employee, the management shall give one month's
notice to the employee or one month's salary in lieu thereof.

11. Bare perusal of the provisions of para-35.02 of the Statute as aforementioned
clearly indicates that employee who resigns without notice is under a legal obligation to
deposit one month's salary with the college in lieu of notice. If he does not deposit the salary
1096 INDIAN LAW REPORTS ALLAHABAD SERIES

then it shall not render the resignation to be invalid. The only consequence of resignation
without deposit of one month's salary in lieu of notice would be that the college shall become
entitled to recover the said amount in accordance with law. Not giving one month's prior
notice or not depositing one month's salary in lieu thereof, while tendering resignation; was
the breach of Clause 35.02 of Chapter XXIII of the Statutes of the University committed by
the petitioner and as such he cannot be allowed to say that the resignation was bad for want
of one month's notice or deposit of one month's salary. The petitioner has committed a wrong
of which he cannot take advantage. The resignation was voluntarily tendered by the
petitioner which was lawfully accepted by the competent authority. On the post which fell
vacant due to resignation of the petitioner, one Sri Subhash Chandra Singhw was appointed,
whose appointment was duly approved by the respondent No.2 yet the petitioner has not
impleaded him as respondent. The manager of the college against whom sole allegation of
forced resignation has been made, has also not been impleaded as respondent.

12. In view of the above discussions, I do not find any merit in this writ petition.
Writ petition is wholly misconceived and is, therefore, dismissed. However, there shall be no
order as to costs.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2016

BEFORE

THE HON'BLE V.K. SHUKLA, ACTING CHIEF JUSTICE, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Writ C No.- 30948 Of 2016

Shah Alam
 ...Petitioner
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioner:
Mohammad Hisham Qadeer, Mr. M.A. Qadeer

Counsel for the Respondents:
C.S.C., A.S.G.I., Gynendra Kr Dwivedi, Manish Goyal

Waqf Act, 1995 - Section 83 - Wakf (Amendment) Act, 2013 - Constitution of Tribunal - One member
Tribunal - Three member Tribunal - Notification dated 07.11.1998 - Notification dated 03.03.2014 - Civil
Judge (Senior Division) to act as one man Waqf Tribunal - Notification dated 07.11.1998 stands rescinded -
Civil Judge (Senior Division) would cease to have jurisdiction - Multi Member Waqf Tribunal constituted -
Section 6 of General Clauses Act - No express repeal - No implied repeal - No person has a vested right in