# Kumar Mahajan v. Ashok Kumar and

- **Citation:** (2001) 2 ILRA 257
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-mahajan-v-ashok-kumar-and-39883
- **Pages:** 5

## Text

2All] Ghanshyam Upadhyay V. The U.P.P.S.C., Allahabad and others
257
parties. It is, however, made clear that this
Court is not expressing any opinion on
merits of the case and the Court below
will records its own finding on the basis
of the materials filed by the parties before
it.'

12. Mere perusal of the part of the
order extracted above makes it clear that
the opinion expressed in the order does
not constitute a binding precedent. An
order cannot be read beyond what it
decides. Therefore, the opinion expressed
in the order on the basis of the facts and
circumstances of that case cannot be
assigned a status higher than an instance
of the course adopted by the Court.

13. The provisions of sub-rule (1) of
Rule 5 of Order XV of the Code
unmistakably, enjoin upon the defendant
in a suit by a lessor for his eviction to
regularly deposit the monthly amount due
within a week from the date of its accrual
throughout continuation of the suit. In the
event of default, the Court may, subject to
the provisions of sub-rule (2) of Rule 5 of
Order XV of the Code, strike off his
defence. The opinion expressed by the
learned single judge in the case of Anil
Kumar Mahajan Vs. Ashok Kumar and
another (supra) is not in consonance with
the provisions of Rule 5 of Order XV of
the Code in as much as the Explanation
(3) to sub - rule ( 1) of Rule 5 of Order
XV of the Code clearly forbids any
deduction from "the monthly amount
due except the taxes, if any, paid to a
local authority in respect of the building
on lessor's account. It is rather per
incuriam, and cannot lend support to the
contention of the learned counsel of the
applicant.

14. All told, in the opinion of the
Court, the revision lacks merit and is
dismissed. The interim order/ orders shall
stand vacated. There is no order as to
costs.

15. The suit has remained pending
for over twelve years. Therefore, the trial
court is directed to dispose of the suit as
expeditiously as possible, but not later
than six months from the date of receipt
of the certified copy of this order.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$
'$7(' $//$+$%$' 0$5&+
%$' 0$5&+
%()25(
%()25(
7+( +21·%/( 65 6,1*+ -
7+( +21·%/( 65 6,1*+ -
7+( +21·%/( '5 &+$8'+$5< -
7+( +21·%/( '5 &+$8'+$5< -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

*KDQVK\DP 8SDGK\D\
3HWLWLRQHU
9HUVXV
7KH
83
3XEOLF
6HUYLFH
&RPPLVVLRQ
$OODKDEDG DQG RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL $VKRN %KXVKDQ
6KUL <DU 0RKDPPDG

&RXQVHO IRU WKH 5HVSRQGHQWV
6KUL 6. 6LQJK
6KUL 3 6LQJK
6&
83
3XEOLF
6HUYLFHV
5HVHUYDWLRQ
IRU
6&67 2%& $FW 83 $FW 1R

RI

5HVHUYDWLRQ
TXRWD
UHVHUYDWLRQ
SRVW
UHPDLQHG
XQILOOHG
FDUULHG IRUZDUG RYHU WR WKH QH[W \HDU
KHOGSURSHU SURYLGHG LQ WKH UHOHYDQW \HDU
WKH UHVHUYDWLRQ SRVW QRW H[FHHG
+HOG 3DUD
+DYLQJ
EHVWRZHG
RXU
PRVW
DPLFDEOH
FRQVLGHUDWLRQV WR WKH VXEPLVVLRQV PDGH
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
258
DFURVV WKH EDU ZH DUH RI WKH ILUP YLHZ
WKDW

XQILOOHG
YDFDQFLHV
RI

EHORQJLQJ
WR
WKH
YDULRXV
UHVHUYHG
FDWHJRULHV ZHUH ULJKWO\ DOORFDWHG WR WKH
UHVSHFWLYH UHVHUYHG FDWHJRULHV DQG WKH
UXOH WKDW UHVHUYDWLRQ VKRXOG QRW H[FHHG
 RI WKH WRWDO QXPEHU RI YDFDQFLHV
KDV QRW EHHQ LQIULQJHG XSRQ
&DVH ODZ GLVFXVVHG
$,5 6&

By the Court

1. Common questions of law and
facts inter-knit these petitions and the
respective
counsel
having
expressed
themselves in concurrence to common
disposal, it would be apt to dispose them
of by a composite judgment.

2. The facts draped in brevity are
that the U.P. Public Service Commission
issued an advertisement-bearing no. A1/E-1/1997-98 inviting applications upto
12.2.97 in respect of 548 posts of
Principals and Senior Lecturers for
Government Intermediate Colleges and
normal/training colleges besides 200 posts
of Dy. Collector/Dy. S.P./other allied
services for which Combined State/Upper
Subordinate
Services
(Preliminary)
Examinations 1997, was held on 18.5.97.
It was, however, expressly provided in the
advertisement that the number of the
vacancies might increase or decrease. The
petitioners applied for the posts of
Principal (Hill Cadre) and appeared in the
preliminary examination the result of
which was pronounced on 3.7.1997. In
all,
722
candidates
including
the
petitioners herein romped home in the
preliminary examination held for the
posts of Principals and lecturers and
accordingly,
they
went
ahead
with
appearing in the main examination. The
result of the main examination was
announced on 8.1.98. The number of
vacancies, as declared in the result, was,
however, pruned to 443 as against 548
posts initially advertised. Though the
petitioners
were
not
amongst
the
candidates declared successful in main
examination,
they
were
provisionally
allowed by the Court to be interviewed
and on the basis of interim order passed
by the Court. The final result of the
selection was declared on 25.1.98. the
break-up of 443 posts was as under:

(a) Principal (Plain Cadre)

 19

(b) Principal (Hill Cadre)

238

(c) Senior Lecturer (Plain Cadre) 162

(d) Senior Lecturer (Hill Cadre)
 24
 -----------------------
 Total =443
 -----------------------

3. The figure of 238 posts of
Principal belonging to Hill Cadre was
admittedly
inclusive
of
111
posts
belonging to reserved classes that were
carried
forward
from
the
previous
recruitment year, 1996 and accordingly,
these vacancies were allocated to the
respective reserved categories as per
section 3 (2) of the U.P. Act 4 of 1994.
Allocation of posts to general candidates
was made out of remaining 127 posts. The
238 posts of Principal belonging to Hill
Cadre
were
allocated
to
various
classes/categories as under:

(a) General

69

(b) Scheduled Castes

70

(c) Scheduled Tribes

06
2All] Ghanshyam Upadhyay V. The U.P.P.S.C., Allahabad and others
259
(d) O.B.C

93
 ----------------------

 Total =238
 ----------------------
The figure of 238 was inclusive of 15
posts
of
physically
handicapped,
Dependants of Freedom fighters and
Defence Personnel adjusted horizontally
in the respective class to which they
belonged.

4. The petitioners in this fascicle of
writ petitions have circumscribed their
claims as against the posts of Principal
ear-marked for Hill cadre. The only
grouch of the petitioner spelt out in these
cases and as submitted by their learned
counsel, is that the over-all reservation
out-ran the limit of 50%. It has been
submitted with vehemence by Sarvsri
Ashok Bhusan, Ashok Khare and D.S.
Singh that where due to unavailability of
suitable candidates in any of the vacancies
reserved under sub-section (1) of Sec. 3 of
the U.P. Public Services (Reservation for
SC/ST and OBC) Act, 1994, the posts
remain unfilled, the same may be carried
forward
over
to
the
next
year
commencing from Ist of July in which the
recruitment is to be made "subject to the
condition that in that year total reservation
of vacancies for all categories of persons
mentioned in sub-section (1) would not
exceed 50% of the total vacancies."
Credence has been placed upon subsection (4) of Sec. 3 as also the law laid
down by the Apex Court in Indra
Sawhney's case1. It has been canvassed
by the learned counsel that 111 unfilled
vacancies of 1996 falling in the reserved
categories could no doubt be clubbed with
vacancies of the recruitment year in
question but while computing the quota of

1 AIR 1993 SC 477
reservation for reserved categories of
candidates, care should have been taken
that the total reservation of vacancies for
all categories of persons mentioned in
sub-section (1) did not exceed 50% of the
total vacancies. This principle, submit the
counsel, has been infringed upon and it is
owing to this reason that the petitioner
could not be selected.

5. Sri S.K. Singh learned counsel
representing the Uttar Pradesh Publish
Service Commission has canvassed that
the unfilled vacancies of 1996 belonging
to reserved categories that were carried
forward to the recruitment year in
question,
were
apportioned
to
the
respective reserved categories inasmuch
as such vacancies were not liable to be
thrown in the common pool of vacancies
of recruitment year in question. It is
further canvassed by Sri S.K. Singh that
the rule that the reserved quota should be
so computed as not to transcend the
bounds of 50% of the total number of
vacancies as propounded by the Apex
Court in Indra Sawhney's case and as
laid down by Sub-section (4) of Sec. 3 of
the U.P. Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994
comes into play only if the vacancies
remain unfilled due to non-availability of
candidates "even after special recruitment
referred to in sub-sectioned (2)" which
visualises that the unfilled vacancies of
reserved categories are to be filled by
special recruitment for "such number of
times, not exceeding three, as may be
considered
necessary
to
fill
such
vacancies from amongst the person
belonging to that category". It has been
submitted by Sri S.K. Singh that the
provisions contained in sub-sections (2)
and (4) of Sec. 3 of the Act, will have to
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
260
be construed harmoniously as otherwise
the very purpose of the carry-forward rule
embodied in sub-section (2) of Sec. 4 will
be frustrated.

6. Having bestowed our most
amicable
considerations
to
the
submissions made across the bar, we are
of the firm view that 111 unfilled
vacancies of 1996 belonging to the
various reserved categories were rightly
allocated
to
the
respective
reserved
categories and the rule that reservation
should not exceed 50% of the total
number of vacancies has not been
infringed upon. It is no body's case that
the unfilled vacancies of 1996 belonging
to the reserved categories were already
carried forward for more than three times.
The
expression
"even
after
special
recruitment referred to in sub-section (2)"
occurring in sub section(4) of Sec. 3 of
the Act is of pivotal significance. The said
expression clearly connotes that it would
apply to situation where due to nonavailability of suitable candidates any of
the vacancies reserved under sub-section
(1)
remains,
"even
after
special
recruitment referred to in sub-section (2)".
The special recruitment, as visualised by
sub-section (2) may be held for "such
number of times, not exceeding three, as
may be considered necessary to fill such
vacancy
from
amongst
the
persons
belonging to that category." In the factsituation of the case in hand, the
provisions contained in sub-section (4) of
Sec. 3 are not attracted. It comes into play
only after exhaustion of the maximum
permissible limit of special recruitment's
to which the unfilled vacancies of the
reserved category can be carried over
under section 3 (2) of the Act. It is not
disputed that out of 127 vacancies in the
posts of Principal (Hill Cadre), 69 were
allocated to general candidates whereas
50% 127 posts comes to 63. The
petitioners were although sub-joined in
the list of general candidates selected for
interview on the basis of marks obtained
in the written examination, but finally,
after the interview, they could not secure
enough marks to enable them to find a
place in the merit-list amongst the general
candidates.
The
selection
and
appointment
of
reserved
category
candidates against unreserved posts on the
basis of merits have rightly not been
challenged in view of the provisions
contained in section 3 (6) of the Act 4 of
1994 which provides that candidates
selected on merits shall not be taken into
reckoning against vacancies meant for
respective reserved category. In such view
of the matter, the petitions lack merit and
are liable to be dismissed.

7. Before parting with the case, it
may be observed that 164 vacancies
falling in various reserved categories
remained unfilled due to non-availability
of suitable candidates. These vacancies
were
carried
forward
to
the
next
recruitment year 1998 for which the
selection
process
has
already
been
completed with the declaration of result
except in respect of 51 post the result of
which could not be declared due to
interim order passed by this Court. The
interim order is liable to be discharged for
the reason aforestated.

In the result, the petitions fail and are
dismissed without any order as to costs.
Interim order is discharged.
2All] Shri Kamlakar Tripathi V. The Vice Chancellor, B.H.U., Varanasi and others
261
25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21
%/( 90 6$+$, -
7+( +21
%/( 90 6$+$, -

&LYLO 0LVF $SSOLFDWLRQ 1R RI

6UL .DPODNDU 7ULSDWKL
«3HWLWLRQHU
9HUVXV
7KH
9LFH&KDQFHOORU
%+8
9DUDQDVL
DQG RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHUV
6UL ,UVKDG $OL
6UL 6KDLOHQGUD .XPDU 3DWKDN
&RXQVHO IRU WKH 5HVSRQGHQWV
6UL 9. 8SDGK\D\D
&RQVWLWXWLRQ
RI
,QGLD
$UWLFOH

FRQWHPSW MXULVGLFWLRQ ZKHWKHU WKH +LJK
&RXUW EHLQJ D FRXUW RI UHFRUG FDQ SXQLVK
WKH DXWKRULW\ WR HQIRUFH LWV RUGHU KHOG
\HV 3URYLVLRQV RI 5XOH $( ;;;9( RI
WKH +LJK &RXUW 5XOHV ZLOO QRW FRPH LQ WKH
ZD\
RI
H[HUFLVLQJ
WKH
3RZHU
XQGHU
$UWLFOH RI WKH &RQVWLWXWLRQ
+HOG 3DUD DQG
7KH SRZHU WR SURFHHG XQGHU $UWLFOH
LV DQ LQKHUHQW SRZHU RI WKH +LJK &RXUW ,W
FDQQRW EH FXUWDLOHG RU DEULGJHG E\ HLWKHU
&RQWHPSW RI &RXUWV $FW RU XQGHU
&KDSWHU ;;;9( RI WKH $OODKDEDG +LJK
&RXUW 5XOHV
&DVH ODZ GLVFXVVHG
 6&&
$,5 6&
 6&&
 6&&

By the Court

1. This is an application under
Article 215 of the Constitution filed by
the petitioner for initiating contempt
proceedings against Sri Y.C. Simhadri,
Vice
Chancellor,
Banaras
Hindu
University, Sri V.V. Menon, Controller of
Examinations, Banaras Hindu University
and Sri P.C. Upadhyaya, Registrar,
Banaras Hindu University for wilful
disobedience of the order dated 21.3.2001
passed by this court in Civil Misc. Writ
Petition No.47177 of 1999. It is prayed
that the aforesaid respondents be punished
for contempt of court.

2. Notice on contempt application
was served on Sri V.K. Upadhaya learned
counsel appearing for respondents on
26.3.2001. This application came up
before this court on 27.3.2001 and it was
directed to be put up along with the
records.

3. Petitioner appeared in LL.B. IInd
year
Examination
in
1997.
After
examination of LL.B. IInd year the
petitioner was expelled by order dated
5.2.1997 passed by Vice Chancellor of the
University. The expulsion was for a
period of two years. The order further
stated that he was not allowed to appear in
entrance test for admission to any course
of the University. After the expulsion
period of two years expired the petitioner
moved an application on 12.8.1999 that
his result of LL.B. IInd year examination
which was withheld due to expulsion be
declared and he be permitted to complete
LL.B. IInd year course provisionally. The
respondents did not admit the petitioner of
LL.B. IIIrd year course nor declared his
result. The respondents issued show cause
notice to the petitioner on 23.10.1999 to
show cause why the petitioner be not
expelled from the University for all times
to come. No order has been passed by the
University in pursuance to show cause
notice. Since the expulsion period of two
years was over the respondents could not