# Keshav Prasad Lal v. State of U.P. and others

- **Citation:** (2002) 1 ILRA 278
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-03-14
- **Case number:** Special Appeal No. 71 of 2001
- **Bench:** S.K. Sen, C.J. S.Rafat Alam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/keshav-prasad-lal-v-state-of-u-p-and-others-39817
- **Pages:** 7

## Headnote

U.P. Consolidation Lekhpal Service Rules
1978 - Section 24- Retirement where
the Rules is silent - Provision of
Government
servant
Rule
applicable
after
the
revision
of
pay
Scale
-
considering the qualification, nature of
work, the Lekhpals are much qualified
and doing ministerial work - they are
class III employees - retirement at the
age of 58 held proper.

Held - Para 13

The
functions
and
duties
of
Consolidation
Lekhpal
is
almost
of
ministerial nature such as to collect
agricultural statistic in respect of Kharib
and rabi crops every year during the
period the village remains under the
consolidation
operation,
to
prepare
statement in CH forms 7 regarding the
amount of land revenue payable on new
holdings and also to prepare revised
annual
register
in
Ch
form
II
incorporating all the orders relating to
rights and liabilities in respect of the
land etc. which are of clerical nature.
Besides
that
qualification
for
appointment to the post of Consolidation
Lekhpal is high school, with a training
1All] Keshav Prasad Lal V. State of U.P. and others
279
certificate of Patwari or Lekhpal whereas
the qualification for Group 'D' employees
in Rule of 1985 in Class 5 only. So far as
peon, messenger, Cyclostyle Operator
and
other
post
is
concerned
no
educational qualification is required in
terms of Rule 6 of Rules of 1985.
Therefore because of inconsistency in
regard to duties and function, apart from
qualification of Group 'D' posts Rules of
1985 shall prevail over Rules of 1978,
which is a specific rule framed prior to
the enactment of Rules of 1985 by virtue
of the provisions contained in Rule 3. It
is also not in dispute that the pay scale
of the petitioner appellant was revised in
1986 and he was allowed scale of Rs.
950/-
to
Rs.1500/-.
The
State
Government reclassified the posts on the
pattern of classification made by the
Central Government and only the posts
carrying the scale of pay, the maximum
of which did not exceed Rs.1150/- were
classified as Group 'D' post vide G.O.
dated 19th May, 1989. Therefore, the
benefit of proviso to Fundamental Rule
56(3) is not available to the petitioner
appellant by reason of explanation to the
proviso
as
status
of
the
post
of,
Consolidation Lekhpal was changed on
account of revision of the pay scale.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
278
provided under Section 9 of the Act. The
record of writ petition no. 970 of 2001,
was also placed before us along with the
instant writ petition. A perusal of the
record shows that in the case that writ
petition was preferred against the final
order dated 30.07.2001 cancelling the
recognition certificate. It further appears
that earlier that notice was issued under
Rule 25-Ka (9) to show cause as to why
the recognition certificate should not be
cancelled for violating the provision of
section 4-B of the Act, pursuant to which
show cause was filed before the assessing
authority and thereafter, by a reasoned
order dated 30.07.2001, the recognition
certificate was cancelled. Since in that
case final order was passed, therefore, this
Court directed to exhaust the statutory
remedy of appeal, whereas in the casein
hand, there is no allegation of violation of
any
terms
and
conditions
of
the
recognition certificate or of the provisions
contained in Section 4-B of the Act nor
there is any allegation of misuse of
recognition certificate or of Form 3-B and
the petitioner approached this Court
immediately after issuance of notice
instead of submitting to the jurisdiction of
the assessing authority. Therefore, the
case of the present petitioner cannot be
equated with that of writ petition no. 970
of 2001.

17. In view of the discussions made
above the writ petition succeeds and is
allowed. The impugned notice dated
09.05.2001 and the proceeding initiated
pursuant thereto, are quashed. There shall,
however, be no order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABD 14.03.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE S.RAFAT ALAM, J.

Special Appeal No. 71 of 2001

Keshav Prasad Lal

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

Counsel for the Appellant:
Smt. Poonam Srivastava

Counsel for the Respondents:
Sri Umesh Kumar Pandey
S.C.

U.P. Consolidation Lekhpal Service Rules
1978 - Section 24- Retirement where
the Rules is silent - Provision of
Government
servant
Rule
applicable
after
the
revision
of
pay
Scale
-
considering the qualification, nature of
work, the Lekhpals are much qualified
and doing ministerial work - they are
class III employees - retirement at the
age of 58 held proper.

Held - Para 13

The
functions
and
duties
of
Consolidation
Lekhpal
is
almost
of
ministerial nature such as to collect
agricultural statistic in respect of Kharib
and rabi crops every year during the
period the village remains under the
consolidation
operation,
to
prepare
statement in CH forms 7 regarding the
amount of land revenue payable on new
holdings and also to prepare revised
annual
register
in
Ch
form
II
incorporating all the orders relating to
rights and liabilities in respect of the
land etc. which are of clerical nature.
Besides
that
qualification
for
appointment to the post of Consolidation
Lekhpal is high school, with a training
1All] Keshav Prasad Lal V. State of U.P. and others
279
certificate of Patwari or Lekhpal whereas
the qualification for Group 'D' employees
in Rule of 1985 in Class 5 only. So far as
peon, messenger, Cyclostyle Operator
and
other
post
is
concerned
no
educational qualification is required in
terms of Rule 6 of Rules of 1985.
Therefore because of inconsistency in
regard to duties and function, apart from
qualification of Group 'D' posts Rules of
1985 shall prevail over Rules of 1978,
which is a specific rule framed prior to
the enactment of Rules of 1985 by virtue
of the provisions contained in Rule 3. It
is also not in dispute that the pay scale
of the petitioner appellant was revised in
1986 and he was allowed scale of Rs.
950/-
to
Rs.1500/-.
The
State
Government reclassified the posts on the
pattern of classification made by the
Central Government and only the posts
carrying the scale of pay, the maximum
of which did not exceed Rs.1150/- were
classified as Group 'D' post vide G.O.
dated 19th May, 1989. Therefore, the
benefit of proviso to Fundamental Rule
56(3) is not available to the petitioner
appellant by reason of explanation to the
proviso
as
status
of
the
post
of,
Consolidation Lekhpal was changed on
account of revision of the pay scale.

(Delivered by Hon'ble S.R. Alam, J.)

1. This special appeal is preferred
against the judgment and order of the
learned Single Judge dated 19.01.2001 in
Writ Petition No. 2354 of 2001 whereby
the learned Single Judge dismissed the
writ
petition
challenging the
office
order/notice dated 23.12.2000 retiring the
petitioner with effect from 31.01.2001 on
attaining the age of 58 years.

2. The short question involved in the
present appeal is as to whether the age of
retirement of Consolidation Lekhpal is 60
years or 58 years.

3. We have heard Smt. Poonam
Srivastava learned counsel appearing on
behalf of the appellant and Sri U.P.
Pandey, learned Standing Counsel on
behalf of the State-respondents. With the
permission of the Court they have also
filed their written arguments, which are
on record.

4. It appears that the petitionerappellant was appointed as Consolidation
Lekhpal on 11.10.1979 in the pay scale of
Rs.330-7-365-8-381-405-9-450/- in the
district of Basti. It is not in dispute that
his date of birth is 10.01.1943. He was,
however,
served
with
the
office
order/notice dated 23rd January, 2001
informing that in view of Rule 5 of
volume II part-II to IV of Financial Hand
Book and also in view of the instructions
issued from time to time by the State
Government
he
would
retire
on
31.01.2001 on attaining 58 years of age.
Being aggrieved the petitioner challenged
the aforesaid order/notice before this
Court by moving Writ Petition No. 2354
of 2001 on the ground, inter alia, that the
post of Consolidation Lekhpal belongs to
Group-D posts as described under Rule 2
of the Uttar Pradesh Consolidation
Lekhpal Services Rules, 1978 and,
therefore, in view of the provisions
contained in Rule 56 of Fundamental
Rules he can only be superannuated on
attaining 60 years of age. The learned
Single
Judge
having
heard
learned
counsel for the parties and relying on a
judgment of this Court in the case of
Rajendra Prasad Tiwari Versus State
of U.P. & others reported in 2000(4)
Educational
Service
Cases
2309
(Allahabad) held that after the revision of
the pay-scale with effect from 1st January,
1996 the petitioner ceased to be an
employee
belonging
to
'Group-D'
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
280
Category
and,
therefore,
he
cannot
continue in service up to age of 60 years.

5. Smt. Poonam Srivastava, learned
counsel appearing for the appellant
contended that the post of Consolidation
Lekhpal being non gazetted it comprises
of 'Group-D' posts as provided under the
U.P.
Consolidation
Lekhpal
Service
Rules, 1978, the age of retirement of
Consolidatin Lekhpal would be 60 years
in view of the provisions contained in
Fundamental Rules, 56. The submission
in short is that in view of the amendment
in Rule 56 (a) of the Fundamental Rules
by U.P. Fundamental (First Amendment)
Rule, 1987 the petitioner being appointed
prior to 05.11.1985 is entitled to continue
in service till he attains the age of 60
years. Learned counsel further sought to
distinguish the judgment of this Court in
the case of Rajendra Prasad Tiwari
Versus State of U.P. and others (supra)
relied by the learned Single Judge in the
order under appeal and submitted that the
said order is in respect of Tube Well
Operator who were earlier classified as
'Group-D' Employee but subsequently by
Government Order dated 31.08.1989 they
are classified as 'Group-C' Employee on
account of revision of their pay-scale and
therefore, it is contended that the reliance
on the aforesaid judgment by the learned
Single Judge is mis-conceived and it does
not apply in the facts and circumstances
of the present case.

6. On the other hand, learned
Standing Counsel submitted that upon the
revision of the pay-scale with effect from
January, 1986 the 'Samta Committee'
constituted by the State Government
recommended for re-classification of the
State Government's Employees on the
pattern of the classification made by the
Central Government according to which
the posts, having maximum of scale of
pay of Rs.4000/- or more came in GroupA and maximum of scale of pay of
Rs.2900/- or more but less than Rs.4000/-
came in Group-B and maximum of the
scale of Rs.1150/- or more but not
exceeding Rs.2900/- were placed in
Group-C and the posts carrying scale of
pay the maximum of which did not
exceed Rs.1150/- were placed in Group-D
posts. It is submitted that since the
Consolidation Lekhpals are in the pay
scale of Rs.950-1500/- therefore they are
Group-C Posts and their age of retirement
in 58 years. It is also submitted that after
revision of the pay scale of the State
Governments Employees re-classification
of groups have been made on the basis of
scale of pay. The posts of Consolidation
Lekhpals are in the pay scale of Rs.9501500/- and it comes in 'Group-C', hence
their age of retirement is 58 years. He
further placed reliance on the judgment
rendered in the case of S.S. Sharma
Versus Tehsildar and others reported
in 1993(2) UPLBEC 1029 and submitted
that the Lekhpals do not perform manual
function and their duty is only to maintain
revenue records, they cannot be treated
'Group-D' Employees. He also placed
reliance on the judgment rendered in the
case of Dharam Pal Singh Pipil Versus
Executive
Engineer,
Tube
Well
Division, Bulandshahr reported in ALR
1997 (29) 351 and in the case of R.P.
Tiwari Versus State of U.P. & others
reported in 2000 (3) UPLBEC 2683 and
submitted that in view of the work and
function of the petitioner and his pay
scale he belongs to 'Group-C' and,
therefore, the learned Single Judge has
rightly held that the petitioner ceased to
be an employee belonging to 'Group-D'
Category and cannot claim as a matter of
1All] Keshav Prasad Lal V. State of U.P. and others
281
right to continue in service up to the age
of 60 years.

7. The State Government has framed
specific Rules in respect of Consolidation
Lekhpals called as the Uttar Pradesh
Consolidation Lekhpals Service Rules,
1978 (in short Rules of 1978). In the
above rule the status of Lekhpals, its
strength,
source
of
recruitment,
qualification, procedure for recruitment
etc. are provided but the age of
superannuation is not provided. Rule 24,
however, provides that the matters not
specifically covered by these rules or by
special orders, persons appointed to the
service shall be governed by the rules,
regulations
and
orders
applicable
generally to Government servants serving
in connection with the affairs of the State,
Rule 24 reads as under:

"24 Regulations of other matters:-
In regard to the matters not specifically
covered by these rules or by special
orders, persons appointed to the service
shall be governed by the rules, regulations
and
orders
applicable
generally
to
Government
servants
serving
in
connection with affairs of the State."

8. Since the Rules 1978 is silent in
respect
of
age
of
retirement
of
Consolidation Lekhpal, it would be
governed by the rules, regulations and
orders applicable generally to the State
Government Employees.

9. Fundamental Rule 56 (a)
amended in 1987 prescribes the age of
retirement of Government servants which
is as under:

"56 (a) Except as otherwise provided
in other clauses of this rule, every
government servant shall retire from
service on the afternoon of the last day of
the month in which he attains the age of
58 years. He may be retained in service
on the after the day of retirement on
superannuation with the sanction of the
Government on public grounds, which
must be recorded in writing, but he must
not be retained after the age of 60 years
except in very special circumstances:

Provided that a government servant,
recruited before November 5, 1985 and
holding the Group 'D' post shall retire
from service on the afternoon of the
month in which he attains the age of 60
(sixty) years.

Explanation- The above proviso shall
not be applicable in those cases where the
status of a post/posts referred to in the
above proviso, has been changed after
February 27, 1982 and categorized in
higher Group of post/posts".

10. The age of retirement of
government servants in general is 58
years. However, proviso to 'Rule' 56 (a)
made exception in respect of government
servants of Group 'D' appointed prior to
05.11.1985 and only they are to be
superannuated on attaining 60 years of
age. The explanation to the proviso is
very significant. It provides that the
proviso shall not be applicable in those
cases where the status of a post/posts
referred to in the proviso, has been
changed after February 27, 1982 and
categorized in higher group of post/posts.
Therefore,
only
those
government
servants of Group 'D' who are appointed
prior to 05.11.1985 and their status is not
changed after February 27, 1982 will
retire on attaining the age of 60 years and
unless both the conditions are satisfied a
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
282
government
servant
cannot
continue
beyond the age of 58 years.

11. The State Government has also
framed rules in respect of Group 'D'
employees
called
as
"Group
'D'
Employees Services Rules, 1985" (in
short Rules of 1985) under the proviso to
Article 309 of the Constitution of India,
which came into force w.e.f. 16.03.1985.
Rule 2 of the above rules provides that it
shall apply to all Group 'D' posts in all
the
subordinate
offices.
Subordinate
Offices are defined in clause (h) of Rule 4
of the Rules 1985, which includes all the
offices
under
the
control
of
the
Government of Uttar Pradesh excluding
the Secretariat. Offices of the State
Legislature, Lokayukt, Public Service
Commission, High Court, Subordinate
Courts
under
the
control
and
superintendence of High Court, Advocate
General and the Establishment under the
control of the Advocate General. The
petitioner appellant is an employee of the
consolidation
department,
which
is
subordinate office under the control of the
State Government and, therefore, Rules of
1985 is applicable in respect of its
employees belonging to Group 'D', Rule
3 of Rules of 1985 provides that it will
have overriding effect over specific rules
made prior to it. It reads as under:

"3. Overriding effect of these rules; In
the event of any inconsistency between
these rules and a specific rule or rules
pertaining to any of the aforesaid posts in
any department -

(i) the provision contained in these rules
shall prevail to the extent to the
inconsistency in case the specific rules
were made prior to the commencement
of these rules; and
(ii) the provisions contained in the
specific rules prevail in case they are
made after the commencement of these
rules"

12. Thus, the provisions of this rule
shall
prevail,
to
the
extent
of
inconsistency in case the specific rules
were made prior to the commencement of
this rule. But where the specific rules are
made after the Rules of 1985 then the
provisions of such specific rules shall
prevail. The specific Rules of 1978 for
Consolidation Lekhpals was notified and
came into force w.e.f. 29th July, 1978
which
although
provides
that
Consolidation
Lekhpals
Service
comprises Group 'D' posts but since it
came into force much before the Rules of
1985 and, therefore, in the event of any
inconsistency in respect of any provision
the Rules of 1985 shall prevail over it.

13. The various categories of Group
'D' employees are mentioned in Rule 6 of
the Rules of 1985, which are Peon,
Messanger, Chaukidar, Mali, Farrash,
Sweeper,
Waterman
Bhishti,
Tindal,
Thelaman, Record Lifter, Peon-Jamadar,
Daftari/Bookbinder/Cyclostyle Operator,
Farrash Jamadar, Sweeper Jamadar, Head
Mali and every other non-technical posts.
Therefore only those employees who
perform menial nature of work they
belong to Group 'D' posts. On the other
hand as it appears from various provisions
of the Uttar Pradesh Consolidation of
Holding Act, 1953 and the Uttar Pradesh
Consolidation of Holding Rules, 1954 the
functions and duties of Consolidation
Lekhpal is almost of ministerial nature
such as to collect agricultural statistic in
respect of Kharif and rabi crops every
year during the period the village remains
under the consolidation operation to
1All] Keshav Prasad Lal V. State of U.P. and others
283
prepare statement in CH form 7 regarding
the amount of land revenue payable on
new holdings and also to prepare revised
annual
register
in
CH
form
11
incorporating all the orders relating to
rights and liabilities in respect of the land
etc., which are clerical nature. Besides
that, qualification for appointment of the
post of Consolidation Lekhpal is high
School, with a training certificate of
Patwari
or
Lekhpal
whereas
the
qualification for Group 'D' employees in
Rule of 1985 is class 5 only. So far as
Peon, Messenger, Cyclostyle Operator
and
other
post
is
concerned
no
educational qualification is required in
terms of Rule 6 of rules of 1985.
Therefore, because of inconsistency in
regard to duties and functions, apart from
qualification of Group 'D' posts Rules of
1985 shall prevail over rules of 1978,
which is a specific rule framed prior to the
enactment of Rules of 1985 by virtue of
the provisions contained in Rule 3. It is
also not in dispute that the pay scale of
the petitioner appellant was revised in
1986 and he was allowed scale Rs.950/-
to
1500/-.
The
State
Government
reclassified the posts on the pattern of
classification
made
by
the
Central
Government and only the posts carrying
the scale of pay, the maximum of which
did not exceed Rs.1150/- were classified
as Group 'D' post vide G.O. dated 19th
May 1989. Therefore, the benefit of
proviso to Fundamental Rule 56(3) is not
available to the petitioner appellant by
reason of explanation to the proviso as
status of the post of, Consolidation
Lekhpal was changed on account of
revision of the pay scale.

14. The learned Single Judge relying
on a Judgment in the case of Rajendra
Prasad Tiwari versus State of U.P. and
others (supra) has found that the
petitioner on account of revision of his
pay scale w.e.f. 01.01.1986 ceased to be
an employee belonging to Group 'D'
category and, therefore, he cannot claim
as a matter of right to continue in service
up to the age of 60 years.

15. Learned counsel for the
petitioner has placed reliance on the
judgment and order dated 09.04.1999 of
the learned Single Judge in the case of
Har Govind Sahai Saxena Versus State
of U.P. through Collector and others in
Writ Petition No. 30347 of 1998 a copy
whereof is enclosed as Annexure-3 to the
affidavit filed in support of the special
appeal. In our view, they are of no help to
the appellant for the reason that in that
judgment the effect of the revision of
scale and the re-classification of the post
vide G.O. dated 19th May, 1989 has not
been considered. Further Rules of 1985
framed in respect of Group 'D' employee
has also not been noticed. Therefore, we
are of the view, that the learned Single
Judge has rightly held that upon revision
of the pay scale and re-classification of
the post the petitioner ceased to be Group
'D' employee. In that view of the matter,
the order under appeal does not call for
any interference.

In the result, the appeal fails and is
accordingly, dismissed but without cost.
---------
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
284
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.3.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE S.R. ALAM, J.

Civil Misc. (PIL) Writ Petition No. 9976 of
2002

Smt. Durga

...Petitioner
Versus
Election Commissioner and others

 ...Respondents

Counsel for the Petitioner:
Sri Shitla Prasad Pandey

Counsel for the Respondents:
Sri Ranvijai Singh
S.C.

Constitution of India, Article 239 (b)
readwith- Representation of people Act
1951 Chapter II Section 80 A. 81 and
100-
Election
Petition-
validity
of
election can be challenged only by way
of election petition- writ petition not
maintainable.

Held- Para 7

We are of the view that it is well settled
by several decisions of the apex court
that there is no scope for granting relief
in such cases under Article 226 of the
Constitution and proper remedy for the
petitioner is to file an election petition
under the Act.

(Delivered by Hon'ble S.K. Sen, C.J.)

1. Heard Sri Shitla Prasad Pandey,
learned Advocate for the petitioner and
Sri Ranvijay Singh, learned standing
counsel for the respondents.

2. In this writ petition the petitioner
has prayed for holding fresh election in
two polling booth nos. 291 and 292 in
village Sisaura Kala Anshik situated in
221
Dhanapur
Vidhan
Sabha
Constitutency district Chandauli.

3. In our view the writ petition is not
maintainable in view of Article 329 (b) of
the Constitution of India, which is set out
herein below:

" 329 (b) no election to either House
of Parliament or to the House or either
House of the Legislature of a State shall
be called in question except by an election
petition presented to such authority and in
such manner as may be provided for by or
under any law made by the appropriate
Legislature."

4. That apart, in our view,
appropriate remedy is to file an election
petition
under
Chapter
II
of
the
Representation of the People Act, 1951
(hereinafter referred to as the Act). The
relevant sections, i.e. Section 80, 80-A, 81
and 100, in the said Chapter are set out
herein below:

"80. Election Petitions - No election
shall be called in question except by an
election petition presented in accordance
with the provisions of this Part.
80A. High Court to try election
petitions
-
(1)
The
Court
having
jurisdiction to try an election petition
shall be the High Court.
(2)
Such
jurisdiction
shall
be
exercised ordinarily by a single Judge of
the High Court and the Chief Justice
shall, from time to time, assign one or
more Judges for that purpose: