# Km. Rita Yadav v. State of U.P. and others

- **Citation:** (2007) 3 ILRA 654
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-12-14
- **Case number:** Special Appeal No. 292 of 2007
- **Bench:** H.L. Gokhale, C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-rita-yadav-v-state-of-u-p-and-others-41047
- **Pages:** 3

## Headnote

Constitution
of
India-Art.
226Interpretation of statutes-circular issued
on 4.12.06 governing mode of giving
weightage to disable persons-no where
mention about retrospective applicableheld-prospective
applicable-selection
made earlier can not be questioned.

Held: Para 10

But if it is capable of two interpretations,
it ought to be considered as prospective.
In the present case, we have gone
through this circular issued on 24th
April, 2006. It undoubtedly states to
begin with that the Government order
dated 10th October, 2005 has led to
some confusion with respect to the
addition of the weightage that was
provided there under. However, the
Government clarificatory order does not
say anything to provide that it will
govern the selection made earlier or
made from any particular date in the
past. There is no indication in this
subsequent circular that it is to act
retrospectively. Inasmuch as there is no
specific indication therein, as stated by
the Apex Court, assuming that two
interpretations are possible, the circular
will
have
to
be
operated
as
prospectively.
Case law discussed:
2005 (2) ESC (SC) 247

## Text

654 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the Apex Court in Union Of India versus
W.N. Chadha: 1993 SCC (Cr.) 117l.

9. The impugned order dated
14.5.2007 passed by Session's Judge,
Basti in Criminal Revision No. 1229 of
2006 is hereby set aside and the order
dated 14.12.2006 passed by J.M.-I, Basti
in Case No. 556/12/06 on the application
under section 156 (3) filed by the
revisionist is hereby restored. Police is
directed to register the FIR. However, this
order will not prejudice the rights of the
accused persons which they have got
under the law against the said registration
of FIR.

10. In view of the aforesaid
discussion, this revision is allowed at the
admission stage itself.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.03.2007

BEFORE
THE HON'BLE H.L. GOKHALE, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 292 of 2007

Km. Rita Yadav

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

Counsel for the Petitioner:
Anil Kumar Dubey

Counsel for the Respondents:
Sri V.P. Mishra
Sri K. Sahai
Sri V.K. Singh
S.C.

Constitution
of
India-Art.
226Interpretation of statutes-circular issued
on 4.12.06 governing mode of giving
weightage to disable persons-no where
mention about retrospective applicableheld-prospective
applicable-selection
made earlier can not be questioned.

Held: Para 10

But if it is capable of two interpretations,
it ought to be considered as prospective.
In the present case, we have gone
through this circular issued on 24th
April, 2006. It undoubtedly states to
begin with that the Government order
dated 10th October, 2005 has led to
some confusion with respect to the
addition of the weightage that was
provided there under. However, the
Government clarificatory order does not
say anything to provide that it will
govern the selection made earlier or
made from any particular date in the
past. There is no indication in this
subsequent circular that it is to act
retrospectively. Inasmuch as there is no
specific indication therein, as stated by
the Apex Court, assuming that two
interpretations are possible, the circular
will
have
to
be
operated
as
prospectively.
Case law discussed:
2005 (2) ESC (SC) 247

(Delivered by Hon'ble H.L. Gokhale, C.J.)

1. Heard Mr. Anil Kumar Dubey for
the appellant, learned Standing Counsel
for the State and Sri V.P. Mishra appears
for respondent No.6.

2. The appeal raises question with
respect to the interpretation of the
clarification
issued
by
the
State
Government on 24th April, 2006 to clarify
the earlier Government circular dated
10th October, 2005. The matter requires
consideration.

3. The appeal is admitted.
3 All] Km. Rita Yadav V. State of U.P. and others
655
4. Considering the facts and urgency
of the case, the appeal is heard forthwith.
The short facts leading to this appeal are
as follows:-

5. The appellant was selected to the
post of a Shiksha Mitra. She has secured
64.46 marks as per the method provided
for selection under the Government
orders. The respondent No.6, who was
second in the list, had obtained 64.40
marks and that is why the appellant came
to be selected.

6. Now it so transpires that
respondent No.6 represented to the
authorities concerned on the basis of the
Government
clarification
dated
24th
April, 2006. His case is that he is a
handicapped
person
and
under
the
particular clarification, if it is, applied he
would be getting 68.55 marks. Therefore,
he should have been selected.

7.

The
authorities
of
the
Government accepted this submission of
the respondent No.6 and that is why the
appointment of the petitioner came to be
cancelled. Aggrieved by this decision, she
filed a writ petition and the same has been
dismissed by a learned Single Judge by
the impugned order dated 31st January,
2007. Being aggrieved by that judgment
and order, this appeal has been filed.

8. The learned counsel for the
appellant points out that under the earlier
Government circular dated 10th October,
2005, as far as the disabled persons,
widows
or
divorced
women
are
concerned, 10% marks were to be added
to the marks that they have secured. At
the time when the petitioner was selected
this circular dated 10th October, 2005 was
in force. The circular dated 24th April,
2006 has come to be issued subsequently
whereunder a certain method has been
provided for calculating this 10% marks.
As per this clarification average of the
marks of 10th standard and 12th standard
are first to be calculated and then 10
marks is to be added. As per this
calculation, respondent No.6 will be
getting 68.55% marks. The submission of
the appellant is that this circular, which is
issued subsequent to the selection of the
appellant
cannot
be
applied
retrospectively
and
that
being
the
position, the observation of the learned
Single Judge that the clarificatory orders
always relate back is not correct.

9. The counsel for respondent No.6
submitted that circular was clarifying the
position under the earlier circular. This
being so, the learned Single Judge was
right in taking the view that it will apply
retrospectively.

10. In this connection, we must note
that there is a recent judgment of the
Apex Court in the case of Secretary, A.P.
Public
Service
Commission
vs.
B.
Swapna and others reported in 2005(2)
E.S.C. (SC) 247 wherein the Apex Court
has laid down that statutory rule is
normally
prospective
unless
it
is
expressly, or by necessary implication,
made to have retrospective effect. There
must be words in the Statute showing
intention to affect existing right. If the
rule is clear in its language then there is
no difficulty. But if it is capable of two
interpretations, it ought to be considered
as prospective. In the present case, we
have gone through this circular issued on
24th April, 2006. It undoubtedly states to
begin with that the Government order
dated 10th October, 2005 has led to some
confusion with respect to the addition of
656 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the
weightage
that
was
provided
thereunder. However, the Government
clarificatory order does not say anything
to provide that it will govern the selection
made earlier or made from any particular
date in the past. There is no indication in
this subsequent circular that it is to act
retrospectively. Inasmuch as there is no
specific indication therein, as stated by
the Apex Court, assuming that two
interpretations are possible, the circular
will have to be operated as prospectively.

11. In the circumstances, the view
taken by the learned Single Judge,
namely, that the circular will apply
retrospectively is not correct.

12. We have, therefore, no option
but to allow this appeal and set-aside the
order passed by learned Single Judge. The
appellant has undoubtedly received marks
higher than the respondent No.6 even
after considering the weightage that was
given to him under the earlier circular.
That being so, the petition filed by the
appellant will have to be allowed.
Consequently the order passed by the
District Magistrate on 4th December, 2006
canceling her selection will have to be
set-aside. We allow this appeal and we
allow the writ petition as well. The
appellant will be permitted to join back at
the place where she was expected to join.

13. The appeal is allowed. No order
as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2007

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

First Appeal From Order No. 336 of 1988
Connected with
First Appeal From Order No. 337 of 1988
AND
First Appeal From Order No. 428 of 1988

Oriental
Fire
&
General
Insurance
Company
 ...Defendant-Appellant
Versus
Smt. Savitri Devi and others

 ...Opposite Parties

Counsel for the Appellant:
Sri Kuldeep Shaanker Amist

Counsel for the Opposite Parties:
Sri Rakesh Pathak
Sri Dinesh Pathak
Sri S.D. Pathak
Sri S.K. Sharma
Sri Sameer Sharma
Sri Vinay Singh

Motor Vehicle Act 1939-Section 95 (1)
(b)-Liability
of
Insurance
Companyowner of vehicle allowed the vehicle in
question to play by the U.P.S.R.T.C.-
accident
took
place-whether
the
insurance is liable to pay whole amount
of compensation or with limited liabilityheld-Insurance Company responsible to
pay whole amount of compensation-the
insurer can not be absolved from liability
to pay compensation.

Held: Para 13

Having
considered
the
respective
submissions of the learned counsel for
the parties as also the decisions relied
upon by them, I am of the opinion that
on the facts of the present case, the
insurer cannot be absolved from its