# Lamba v. Commanding Officer, Army - **Citation:** (2012) 2 ILRA 615 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2012-04-30 - **Case number:** Civil Misc. Writ Petition No. 20611 of 2012 - **Bench:** Sudhir Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lamba-v-commanding-officer-army-42233 - **Pages:** 5 ## Headnote U.P. Panchayat Raj Act 1947, Section 95 (1) (g)-removal of village in question reserved for S.C. Women-contention of petitioner being "Bajgi" in state of Punjab-a scheduled caste-hence after marriage in U.P. She became S.C.-heldmisconceived-a caste declaration in particular category in other state can not be treated in same writ jurisdictionorder can not be interfered. Held: Para 6 It is, thus, evident that in view of admitted facts as stated in para 4 and 5 of writ petition as also exposition of law as discussed above, the petitioner was not eligible or entitled to contest the election of Gram Pradhan of Village Teep, being not a Scheduled Caste, as per the notified list of Scheduled Caste in State of U.P. and therefore her very election was illegal since its inception, hence she could have been removed 616 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 from Office having been elected in violation of statutory provisions. Case law discussed: 2010 (10) ADJ 1; (2004) 1 UPLBEC 217; Civil Misc. Writ Petition No. 3936 of 2002 (Satpal Meena and others Vs. UP Public Service Commission, Allahabad and others); (2005) 2 SCC 731; AIR 2005 SC 1933; AIR 2007 SC 262; Writ Petition No. 38893 of 2008 (Brijendra Singh Vs. State Of U.P. and Others); Writ Petition No. 31995 of 2000 (Ganesh Singh Vs. District Magistrate & others); (2006) 8 SCC 776; ## Text 2 All] Smt. Bhajno Devi V. State of U.P. and others 615 was so shockingly disproportionate, which could be interfered with in exercise of power under the writ jurisdiction of this court. 20. It would be necessary to note that while judicially reviewing an order of punishment imposed upon a delinquent employee the writ court would not assume the role of an appellate authority. The Apex Court in the case of Charanjit Lamba v. Commanding Officer, Army Southern Command, reported in (2010) 11 SCC 314, in paragraph No.20, observed as follows:- "What is clear is that while judicially reviewing an order of punishment imposed upon a delinquent employee the writ court would not assume the role of an appellate authority. It would not impose a lesser punishment merely because it considers the same to be more reasonable than what the disciplinary authority has imposed. It is only in cases where the punishment is so disproportionate to the gravity of charge that no reasonable person placed in the position of the disciplinary authority could have imposed such a punishment that a writ court may step in to interfere with same." 21. Considering the facts and circumstances of the case, I am of the view that the punishment of dismissal awarded to the petitioner was one of the possible punishment that could be awarded to him considering the nature of his conduct and the fact that he was a member of a uniformed service, accordingly, it is not permissible for me to interfere with the same in exercise of power of judicial review. 22. For the reasons aforesaid, the petition lacks merit and is here by dismissed. 23. No order as to costs. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 30.04.2012 BEFORE THE HON'BLE SUDHIR AGARWAL, J. Civil Misc. Writ Petition No. 20611 of 2012 Smt. Bhajno Devi ...Petitioner Versus State of U.P. through Secretary and others ...Respondents Counsel for the Petitioner: Sri Satish Mandhyan Counsel for the Respondents: C.S.C. U.P. Panchayat Raj Act 1947, Section 95 (1) (g)-removal of village in question reserved for S.C. Women-contention of petitioner being "Bajgi" in state of Punjab-a scheduled caste-hence after marriage in U.P. She became S.C.-heldmisconceived-a caste declaration in particular category in other state can not be treated in same writ jurisdictionorder can not be interfered. Held: Para 6 It is, thus, evident that in view of admitted facts as stated in para 4 and 5 of writ petition as also exposition of law as discussed above, the petitioner was not eligible or entitled to contest the election of Gram Pradhan of Village Teep, being not a Scheduled Caste, as per the notified list of Scheduled Caste in State of U.P. and therefore her very election was illegal since its inception, hence she could have been removed 616 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 from Office having been elected in violation of statutory provisions. Case law discussed: 2010 (10) ADJ 1; (2004) 1 UPLBEC 217; Civil Misc. Writ Petition No. 3936 of 2002 (Satpal Meena and others Vs. UP Public Service Commission, Allahabad and others); (2005) 2 SCC 731; AIR 2005 SC 1933; AIR 2007 SC 262; Writ Petition No. 38893 of 2008 (Brijendra Singh Vs. State Of U.P. and Others); Writ Petition No. 31995 of 2000 (Ganesh Singh Vs. District Magistrate & others); (2006) 8 SCC 776; (Delivered by Hon'ble Sudhir Agarwal, J.) 1. Writ petition is directed against the order dated 12.4.2012 passed by District Magistrate, Bijnor removing petitioner from post of Gram Pradhan of Gram Panchayat Teep under Section 95 (1) (g) of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as "Act, 1947") on the ground that seat was reserved for Scheduled Caste woman and petitioner contested the election claiming herself to be a Scheduled Caste candidate (caste Bajgi) though actually she does not belong to that caste and even the caste certificate dated 29.9.2010 alleged to have been issued by Tahasildar was not actually issued by him as has been confirmed by Tahasildar by letter no. 533@ Vadd@ tkfr@ lR;kiu@ 2012 dated 6.1.2012. Therefore the very election of petitioner to the post of Gram Pradhan was void ab-initio. 2. Sri Madhyan learned counsel for petitioner contended that the impugned order has 0.00"been passed in utter violation of principles of natural justice and on the basis of enquiry conducted against petitioner behind her back and hence is liable to be set aside. He submitted that neither the report submitted by Tahasilar was ever apprised to petitioner nor petitioner was confronted with any material which was against her and considered by District Magistrate in passing the impugned order. Reliance is placed on a Full Bench Judgement in Vivekanand Yadav Vs. State of U.P. & others 2010 (10) ADJ 1 in support of submission that the procedure of enquiry as contemplated in Act, 1947 is mandatory and in case any order of removal has been passed without following the said procedure, it shall be illegal and void ab-initio. 3. It is not in dispute that petitioner belong to Bajigar caste which is declared to be scheduled caste in the State of Punjab. It is not so declared in the State of U.P. is also not disputed. Petitioner was married to Sri Lazza Ram, who belong to caste Bajgi which is scheduled cast in State of U.P. Without looking to the other questions, two questions which are relevant on the basis of facts averred in para 4 of writ petition would be: (1) Whether a Scheduled Caste in one State can claim benefit of such status in another State in which he/she is not declared to be a Scheduled Caste. (2) Whether by virtue of marriage, caste of a women would become that of husband entitling her to contest the election on a seat reserved for that caste or community. 4. So far as first question is concerned, the Apex Court has already replied this question in UP Public Service Commission, Allahabad Vs. Sanjai Kumar Singh (2004) 1 UPLBEC 217 wherein it was held that an ordinarily residents of other State whose caste is not in the reserved 2 All] Smt. Bhajno Devi V. State of U.P. and others 617 category in the State of U.P. is not entitled to benefit of reservation even if they belong to the reserved category in their own State. A division bench of this Court earlier took the same view in Civil Misc. Writ Petition No. 3936 of 2002 (Satpal Meena and others Vs. UP Public Service Commission, Allahabad and others) decided on 5.9.2002. The above authorities have been relied and followed by a Division Bench of this Court in Civil Misc Writ Petition No. 26044 of 2000 (Mohd Hassan Jafri Vs. The Director of Higher Education UP Allahabad and others) decided on 2.4.2004. 5. Coming to the second question, this is also no more res integra having been answered by Apex Court in Sandhya Thakur Vs. Vimla Devi Kushwaha (2005) 2 SCC 731, wherein the Apex Court observed has under: "...the appellant, who by birth did not belong to a backward class or community, would not be entitled to contest a seat reserved for a backward class or community, merely on the basis of her marriage to a male of that community. Therefore, it is not possible to accept the argument that the appellant was entitled to contest a seat reserved for a backward community merely because of her marriage to a person belonging to the Namdev community or caste." 6. It is, thus, evident that in view of admitted facts as stated in para 4 and 5 of writ petition as also exposition of law as discussed above, the petitioner was not eligible or entitled to contest the election of Gram Pradhan of Village Teep, being not a Scheduled Caste, as per the notified list of Scheduled Caste in State of U.P. and therefore her very election was illegal since its inception, hence she could have been removed from Office having been elected in violation of statutory provisions. 7. Coming to the question of application of principles of natural justice, suffice is to mention that once it is admitted that the very election of petitioner was not in accordance with Statute and facts in this regard are virtually admitted and only one conclusion is possible, under Article 226 this Court is not obliged to interfere with an order which has resulted in substantive justice merely on the ground of some defect in the matter of procedure i.e. denial of opportunity of hearing since observance of principles of natural justice is not an empty formality. Where only one conclusion is possible, this Court can decline to interfere in exercise of power under Article 226 of the Constitution. 8. In Karnataka State Road Transport Corporation and another Vs. S.G. Kotturappa AIR 2005 SC 1933, the Apex Court held: "The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving 618 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 at the subjective satisfaction. If the criterias required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with...". 9. In Punjab National Bank and others Vs. Manjeet Singh and another AIR 2007 SC 262, the Apex Court said: "The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice." (emphasis added) 10. This Court also in Writ Petition No. 38893 of 2008 (Brijendra Singh Vs. State Of U.P. and Others) decided on 18.5.2011 has taken somewhat similar view as under: "... it is well settled that if only one conclusion is possible, the Court would not interfere in the impugned order ...." 11. In P.D. Agrawal Vs. State Bank of India and others (2006) 8 SCC 776, it has been observed by Apex Court: "The Principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets." 12. This Court also in Writ Petition No. 31995 of 2000 (Ganesh Singh Vs. District Magistrate & others) decided on 29.4.2011 has held as under: "16. The principles of natural justice cannot be kept in a straight jacket formula. They apply in the facts and circumstances of each and every case. If the appointment of petitioner would have been made in accordance with law or at least some prima facie material would have to be placed to show what has been stated by respondents is not ex facie correct, then the matter may have required some further investigation. In the case in hand no such thing has been placed on record by petitioner or even pleadings to show that procedure prescribed under 1974 Rules was observed and thereafter petitioner was appointed. The appointment, therefore, is ex facie illegal and in the teeth of the Rules. 17. In the circumstances, this Court under Article 226 of the Constitution do not find it a fit case warranting interference. The writ petition, therefore, lacks merit and is dismissed." 13. In view of above, I do not find any reason to interfere. 14. Dismissed. --------- 2 All] Rajendra Pal Singh V. The Commissioner and others 619 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 23.04.2012 BEFORE THE HON'BLE SUDHIR AGARWAL, J. Civil Misc. Writ Petition No. 21109 of 1986 Rajendra Pal Singh ...Petitioner Versus The Commissioner and others ...Respondents Counsel for the Petitioner: Sri Anshu Chaudhary Sri Anupam Kulshrestha Sri G.N. Verma Sri Prakash Chandra Sri Rakesh Chandra Sri Samar Singh Counsel for the Respondents: S.C. Sri A. Rathore Sri D.R. Sharma Sri S.A. Khan U.P. Zamindari Abolition and Land Reforms Rules-285-A-285-D auction sale-conducted by Naib Tehsildarconfirmed by Dy. Collector-held-in no manner Asst. Collector includes Naib Tehsildar-whether remaining 75% amount deposited within 15 days-due to arbitrary illegal action of authorities petitioner deprived from his property for last 25 years-entitled for exepmtory cost of Rs. 50000. Held: Para 31 and 33 It shows that for the purpose of auction, Naib Tahsildar was authorised. By no stretch of imagination it can be said that this action and authorization of Naib Tahsildar satisfy the requirement of Rule 285-A of 1952 Rules which contemplates auction either by Collector or an Assistant Collector authorised in this behalf by him. In no manner Assistant Collector would include a Naib Tehsildar. Therefore the auction conducted on 27th January, 1997 was evidently not in conformity with Rule 285-A of 1952 Rules. In view of the above, it is, thus, clear that though there is no non-compliance of Rule 285-D and 285-E, yet, it cannot be said that the auction had been conducted by the competent authority and, therefore, there is a clear violation of rule 285-A. Case law discussed: 1960 ALJ 549; 1965 RD 379; 2009 (107) RD 22; 2004 (56) ALR 115 (SC) (Delivered by Hon'ble Sudhir Agarwal, J.) 1. Heard Mr Anshu Chodhary for the petitioner, learned Standing Counsel, representing respondent nos. 1 and 2, and Mr Diwakar Rai Sharma, representing respondent no. 4. None appeared for respondent no. 3, though the case has been taken up in the revised list. 2. Writ petition is directed against the order impugned dated 5.11.1986 (Annexure - B) passed by respondent no. 2, SDM/Tehsildar, Sikandara Rau, Aligarh, and the order dated 5.11.1986 passed by respondent no. 1, the Commissioner, Agra Division, Agra. 3. The respondent no. 2 has auctioned the attached property of the petitioner, at plot nos. 38006 and 380-kha and 450, total area 25- 12-15. on 13.3.1986, which has been confirmed by respondent no. 2 on 9.6.1986. The petitioner filed an appeal/application before the Commissioner for setting aside the auction which has been rejected by the impugned order dated 5.11.1986 passed by respondent no. 1.