# Lalit Kumar Srivastava v. State of U.P. and others

- **Citation:** (2005) 1 ILRA 29
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-11-30
- **Case number:** Civil Misc. Writ Petition No.40590 of 1997
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalit-kumar-srivastava-v-state-of-u-p-and-others-40362
- **Pages:** 5

## Headnote

U.P. Panchayat Raj Act, 1947-S.11-U.P.
Panchayat Raj Rules, 1947-Rr. 31, 32, 33
and 35-A-Cancellation of petitioner's
licence by Commissioner for distribution
of Sugar and Kerosene on technical
ground-held, meeting of Gaon Sabha was
contend in accordance with S. 11 of P.R.
Acts, validity of which was duly endorsed
by Khand Vikas Adhikari-petitioner was
functioning-till appeal was dismissed by
Commissioner
merely
on
technical
ground-Commissioner failed to apply its
mined
to
question
that
licence
of
petitioner could not be cancelled merely
on ground that technical procedure laid
down in G.O. had not been complied
with,
though
Gaon
Sabha
passed
proposal as per Rr. 31,32,33 and 35-A of
Rules read with S. 11 of P.R. Act-

Held: Para 8 & 9

I have looked into the record of the case
and find that the meeting of the Gaon
Sabha was convened in accordance with
the provisions of Section 11 of the
Panchayat Raj Act, the validity of which
was duly endorsed by the concerned
Khand Vikas Adhikari and the petitioner
who had been granted the licence by the
concerned authority was functioning till
the
appeal
was
dismissed
by
the
Commissioner
merely
on
technical
ground
without
any
basis.
The
Commissioner failed to apply its mind to
the question that the licence of the
petitioner could not be cancelled merely
on
the
ground
that
the
technical
procedure laid down in the Government
Order had not been complied with
though the Gaon Sabha had passed the
proposal
in
accordance
with
the
provisions of Rules 31,32,33 & 35-A of
the Rules read with Section 11 of the
Act.
In view of the above said facts and
circumstances
of
the
case
and
observations
made
hereinabove,
the
impugned
order
dated
8.4.1997
(annexure-4 to the writ petition) and the
order
of
the
Commissioner
dated
5.11.1997
(annexure-7
to
the
writ
petition) are hereby quashed. The case is
remanded
back
to
the
authority
concerned to proceed and dispose off the
same afresh in accordance with law
under the terms and conditions laid
down in Uttar Pradesh Panchayat Raj
Act, 1947 and the rules and Government
Order dated 3.7.1990, preferably within
a period of two months from the date a
certified copy of this order is placed
before it.

## Text

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1All] Lalit Kumar Srivastava V. State of U.P. and others
29
such vacancy due to his pressing need of
employment having regard to financial
stringency and poverty of his family, he
has submitted his revised application for
appointment on class-IV post in that
eventuality alone his appointment on
class-IV post need not to be re-opened
and not otherwise. While probing of the
vacancies against class-III post in the
district, the Director of Basic Education is
required to state the manner of occurrence
of vacancies also as to how and when the
vacancies have occurred and as to
whether they have been occurred on
account of death/ retirement or otherwise
and the date of occurrence of vacancies is
required to be mentioned in the order. It is
made further clear that the appointment
on supernumerary post can only be made
on class-IV post and on the post of
Assistant Teacher in the primary school
run by the Board. There can be no claim
for
compassionate
appointment
on
supernumerary post in class-III. It is also
made clear that while deciding the
controversy, Director Basic Education is
expected to pass reasoned and speaking
order.

19.
Before
parting
with
the
judgment,
I
must
appreciate
the
transparent policy of the Government in
respect of appointment under Dying in
Harness
Rules
contained
in
the
Government Order dated 4.9.2000. To my
mind the aforesaid transparent policy of
the Government cannot be properly and
effectively implemented on account of
rampant corruption in the public life and
other sort of favouritism, nepotism and so
many other factors, which determines the
functioning
of
Government/public
functionaries in day to day working unless
some monitoring cell is constituted at
regional level and at head office level by
the Government whereunder the regional
Officer at regional level and the Chairman
of the Board/ Director of Basic Education
at head office level may be held
responsible for proper and effective
implementation
of
the
aforesaid
Government Order. Therefore, I direct
that within three months the Government
may take steps to constitute monitoring
cell at regional level and at head office
level to supervise and ensure proper and
effective
implementation
of
the
Government Order dated 4.9.2000 in
respect of appointment under Dying in
Harness Rules underlying in the aforesaid
Government
Order.
The
Registrar
General, High Court is directed to
communicate the copy of this judgment to
the
Secretary
of
Basic
Education,
Government of Uttar Pradesh as well as
the Chief Secretary of Government of
Uttar Pradesh for its compliance and
necessary action.

20. The petitioner is directed to
move an application alongwith certified
copy of this judgment before the Director
of Basic Education Uttar Pradesh within
15 days from today who is directed to
pass appropriate order in the light of
observations and directions made in the
body of the judgment within three
months.

21. With the aforesaid observations
and directions this writ petition is
disposed of finally. The parties shall bear
their own costs.
 Petition disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.11.2004

BEFORE
THE HON'BLE V.C. MISRA, J.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
30

Civil Misc. Writ Petition No.40590 of 1997
Beche Lal

...Petitioner
Versus
Commissioner, Bareilly and others

 ...Opposite Parties

Counsel for the Petitioner:
Sri M.D. Misra

Counsel for the Opposite Parties:
Sri R.K. Awasthi
S.C.

U.P. Panchayat Raj Act, 1947-S.11-U.P.
Panchayat Raj Rules, 1947-Rr. 31, 32, 33
and 35-A-Cancellation of petitioner's
licence by Commissioner for distribution
of Sugar and Kerosene on technical
ground-held, meeting of Gaon Sabha was
contend in accordance with S. 11 of P.R.
Acts, validity of which was duly endorsed
by Khand Vikas Adhikari-petitioner was
functioning-till appeal was dismissed by
Commissioner
merely
on
technical
ground-Commissioner failed to apply its
mined
to
question
that
licence
of
petitioner could not be cancelled merely
on ground that technical procedure laid
down in G.O. had not been complied
with,
though
Gaon
Sabha
passed
proposal as per Rr. 31,32,33 and 35-A of
Rules read with S. 11 of P.R. Act-

Held: Para 8 & 9

I have looked into the record of the case
and find that the meeting of the Gaon
Sabha was convened in accordance with
the provisions of Section 11 of the
Panchayat Raj Act, the validity of which
was duly endorsed by the concerned
Khand Vikas Adhikari and the petitioner
who had been granted the licence by the
concerned authority was functioning till
the
appeal
was
dismissed
by
the
Commissioner
merely
on
technical
ground
without
any
basis.
The
Commissioner failed to apply its mind to
the question that the licence of the
petitioner could not be cancelled merely
on
the
ground
that
the
technical
procedure laid down in the Government
Order had not been complied with
though the Gaon Sabha had passed the
proposal
in
accordance
with
the
provisions of Rules 31,32,33 & 35-A of
the Rules read with Section 11 of the
Act.
In view of the above said facts and
circumstances
of
the
case
and
observations
made
hereinabove,
the
impugned
order
dated
8.4.1997
(annexure-4 to the writ petition) and the
order
of
the
Commissioner
dated
5.11.1997
(annexure-7
to
the
writ
petition) are hereby quashed. The case is
remanded
back
to
the
authority
concerned to proceed and dispose off the
same afresh in accordance with law
under the terms and conditions laid
down in Uttar Pradesh Panchayat Raj
Act, 1947 and the rules and Government
Order dated 3.7.1990, preferably within
a period of two months from the date a
certified copy of this order is placed
before it.

(Delivered by Hon'ble V.C. Misra, J.)

1. Heard Shri M.D. Misra, learned
counsel for the petitioner, and Shri R.K.
Awasthi, learned standing counsel on
behalf of respondents no.1 & 2. No one
has put in appearance on behalf of
respondent no.3 inspite of notice having
been served upon it.

2. This writ petition has been filed
challenging the order-dated 5.11.1997
(annexure-7 to the writ petition) passed by
the
respondent
no.1-Commissioner
Bareilly division, Bareilly in appeal
No.71 of 1997. The opposite party no.3
was granted a licence under the U.P.
Scheduled
Commodities
Dealers
(Licencing and Restriction of Hoarding)
Order, 1989 (hereinafter referred to as the
Control Order) for the purposes of
distribution of sugar and kerosene on fair
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1All] Beche Lal V. Commissioner, Bareilly and others
31
price shop to the members of Gaon Sabha,
the
allegation
was
made
against
respondent no.3 for not distributing the
sugar and kerosene properly to the
residents of the Gaon Sabha and was
selling the scheduled commodities in
black market after charging excessive
price for the same. Looking into the
difficulties of the people due to the said
allegations, a meeting of the Gaon Sabha
was convened in accordance with the
provisions of Section 11 of the U.P.
Panchayat Raj Act, 1947. In the said
meeting dated 24.6.1995 a resolution was
passed that the extending licence of the
licensee Bhogarj may be cancelled and in
his place a licence may be granted to
Beche Lal-petitioner. The concerned
Khand Vikas Adhikari endorsed the said
resolution
and
recommended
the
cancellation of the licence of Bhograj and
granted a licence in favour of the
petitioner. In pursuance of the aforesaid
recommendation the licence of Bhograjrespondent no.3 and Ram Pal was
cancelled vide order dated 7/8.9.1995 and
granted licence to Beche Lal and Ram
Murti.

3. Being aggrieved, Bhograj and
Ram Pal filed a writ petition before this
Court, which was dismissed with the
observations that the petitioners could file
an appeal before the Commissioner and in
pursuance of the same, both the persons
filed Appeal Nos.11 and 12 of 1995. The
Commissioner vide its Judgment and
Order dated 13.2.1997 allowed both the
appeals separately in part and remanded
the case to the Sub Divisional Officer,
Bareilly, on the technical ground that the
Sub Divisional Officer while cancelling
the licence of the opposite party no.3
failed to give any show cause notice to it.
On the remand of the case, the Sub
Divisional Officer, Bareilly vide its order
dated 8.4.1997 cancelled the licence of
the opposite party no.3 on the ground that
resolution
dated
24.6.1995
seeking
cancellation of the licence of opposite
party no.3 and grant of licence to the
petitioner did not bear the signature of the
Secretary and the Observer and violated
the provisions of the Government Order
No.F-3967/29
dated
3.7.1990.
The
petitioner filed an appeal before the
Commissioner and obtained an interim
stay order on 1.5.1997. In pursuance of
the stay granted by the Commissioner, the
petitioner continued lifting the quota of
the goods. Ultimately, vide order-dated
5.11.1997 the Commissioner dismissed
the appeal of the petitioner merely on the
technical
ground
contained
in
the
Government Order.

4. Being aggrieved, the petitioner
has filed the present writ petition on the
ground inter alia that the authorities had
failed to consider the method and
procedure for convening the meeting of
the Gaon Sabha as laid down under
Section 11 of the Act and Rules 31,32,33
& 35-A of the Rules, as alleged, the
Government Order cannot supercede the
statutory provision in the Act.

5. Learned counsel for the petitioner
has submitted that the impugned order
dated 5.11.1997 (annexure-7 to the writ
petition) has been passed on the basis of
Government Order No.F3967/29 dated
3.7.1990 wherein the Gaon Sabha has
been authorized to convene and open
meeting and seek the opinion of the
members of the village community and
thereafter on its basis proposed the name
of the incumbent. As per Clauses 5 & 5
(1) of the Government Order to ascertain
as to whether the meeting was held in
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
32
open or not, the Gram Panchayat Adhikari
along with a high ranking officer as an
observer shall remain present in the
meeting, and it shall be the duty of the
observer to make available the so passed
proposal of the Gaon Sabha to the Sub
Divisional Officer. This procedure was
admittedly not followed.

6. Learned counsel for the petitioner
has submitted that in case the procedure
aforesaid as laid down in the Government
Order, is not complied with as such and
the
proposal
has
been
passed
in
accordance with the provisions of Rules
31,32,33 and 35-A of the Panchayat Raj
Rules and Section 11 of the U.P.
Panchayat Raj Act, 1947, then under the
said circumstances the licence of the
petitioner could not be cancelled.

7.

Learned
counsel
for
the
respondents
has
submitted
that
the
Government Order is absolutely valid as
per Article 162 of the Constitution of
India and the same has not been
challenged.
The
Government
Order
framed exercising the powers under
Article 162 read with Article 243-G of the
Constitution of India is regarding the
public distribution system, which finds
place at serial no.28 in the 11th Schedule.
Learned counsel for the respondents has
further referred to Sections 95-A and 96A of the U.P. Panchayat Raj Act wherein
the State government may delegate any of
its powers under this Act to any officer or
authority subordinate to it, under such
condition as it may deem fit to impose.
Learned counsel for the respondents in
rebuttal has stressed that the authorities
below have failed to consider the fact that
the Government Order has been issued to
ensure the genuineness of the meeting and
the resolution passed and as such
contemplates endorsement of the higher
authorities, in the present case. The block
development
authority
has
already
endorsed the meeting and recommended
the matter to the Sub Divisional Officer.

8. I have looked into the record of
the case and find that the meeting of the
Gaon Sabha was convened in accordance
with the provisions of Section 11 of the
Panchayat Raj Act, the validity of which
was duly endorsed by the concerned
Khand Vikas Adhikari and the petitioner
who had been granted the licence by the
concerned authority was functioning till
the
appeal
was
dismissed
by
the
Commissioner
merely
on
technical
ground
without
any
basis.
The
Commissioner failed to apply its mind to
the question that the licence of the
petitioner could not be cancelled merely
on the ground that the technical procedure
laid down in the Government Order had
not been complied with though the Gaon
Sabha had passed the proposal in
accordance with the provisions of Rules
31,32,33 & 35-A of the Rules read with
Section 11 of the Act.

9. In view of the above said facts
and circumstances of the case and
observations
made
hereinabove,
the
impugned
order
dated
8.4.1997
(annexure-4 to the writ petition) and the
order
of
the
Commissioner
dated
5.11.1997
(annexure-7
to
the
writ
petition) are hereby quashed. The case is
remanded back to the authority concerned
to proceed and dispose off the same
afresh in accordance with law under the
terms and conditions laid down in Uttar
Pradesh Panchayat Raj Act, 1947 and the
rules and Government Order dated
3.7.1990, preferably within a period of
http://www.allahabadhighcourt.nic.in
1All] Beche Lal V. Commissioner, Bareilly and others
33
two months from the date a certified copy
of this order is placed before it.

The Writ petition is allowed. No
order as to costs.
Petition allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2004

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.

Special Appeal (D) NO. 248 of 2003

State of U.P. and others

...Appellant
Versus
Sunil Kumar

...Respondent

Counsel for the Appellants:
S.C.

Counsel for the Respondent:
Sri Vinod Sinha

Constitution
of
India
Article
226Selection of petition-under reserve quota
of S.T.-belonging to the cost of 'Meena'
in State of Rajasthan-but not in Uttar
Pradesh-appointment
cancelled-No
Cause
notice
required-benefit
of
reservation-can not be claimed.

Held: Para 12 & 15

Thus,
in
view
of
the
aforesaid
observations of the Hon'ble Supreme
Court, it has to be held that the
petitioner-appellant cannot claim the
benefit of reservation as a Scheduled
Tribe on the sole basis that Meena caste
had been declared as a Scheduled Tribe
in the State of Rajasthan.

In view of the law laid down by the
Supreme Court, no other conclusion is
possible and, therefore, in our opinion,
the order impugned in the writ petition
cannot be quashed solely on the ground
that the principles of natural justice have
not been complied with.
Case law discussed:
JT 2000 (9) SC-502
AIR 1981 SC- 136
AIR 1970 SC-679
1990 (3) SCC-130
1994 (5) SCC-244
AIR 2000 SC 525
J.T. 1994 (4) SC-423
2003 (1) UPLBEC-349

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This special appeal has been filed
against the judgment and order dated
07.10.2002 of a learned Judge, by which
the petition filed by the respondent has
been allowed only on the ground that he
had not been given an opportunity of
hearing
before
cancelling
his
appointment/training on the post of
Constable.

2. The facts and circumstances
giving rise to this case are that the
appellants
issued
an
advertisement
advertising 5225 vacancies of Constables
in Civil Police. The petitioner-respondent
applied in pursuance of the same. His
candidature was considered and he was
selected. However, he was not sent for
training on the ground that he was not
eligible to be selected in the reserved
category of Scheduled Tribes for the
reason that he belonged to the Meena
community which is a Scheduled Tribe in
the State of Rajasthan but not in State of
Uttar Pradesh. Feeling aggrieved, he filed
the writ petition which has been allowed
by the learned Single Judge only on the
ground that no show cause notice was
given to him before cancelling his
candidature. Hence, this special appeal.