# M/S Deepak Kumar Agarwal v. Nagar Palika Parishad & Anr

- **Citation:** (2014) 2 ILRA 774
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-06-27
- **Case number:** Civil Misc. Writ Petition No. 50601 of 2007
- **Bench:** Tarun Agarwala, Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-deepak-kumar-agarwal-v-nagar-palika-parishad-anr-42974
- **Pages:** 4

## Headnote

Constitution
of
India,
Art.-226-
Black
listing-petitioner are register government
contractor-who completed the work within
prescribed period payment also made-after
some time by notice required to submit
explanation-thereafter by impugned order
black
listed-upon
direction
of
court
representation required to be decided by
passing speaking
order-in para 9
of
representation
petitioner
mentioned
relevant facts-totally untouched by the
authority-held-rejection
order
wholly
unjustified and arbitrary impugned black
listing order quashed.

Held: Para-10
In the instant case, the Court finds gross
violation of the principles of natural
justice and non-consideration of the
relevant aspects of the matter before
blacklisting the petitioner, therefore, the
impugned orders are wholly unjustified
and arbitrary.

Case Law discussed:
[(1975) 1 SCC 70]; [(1977) 3 SCC 457];
[(1978) 1 SCC 248]; [(1981) 1 SCC 722];
[(1979) 3 SCC 489]; [(1989) 3 SCC 751];
[(1990) 3 SCC 752]; [(1977) 3 SCR 249].

## Text

774 INDIAN LAW REPORTS ALLAHABAD SERIES
the amended notification by the Aligarh
Muslim University for the purposes of
reducing the teaching experience from
five years to four years would be
perspective in nature and will not
adversely affect the selection proceedings
which
had
been
initiated
under
advertisement No.1 of 2013.

11. The last date for making of the
application was 5.3.2013. The eligibility of
the candidates has to be seen with reference
to the provisions as applicable and with
reference to the condition mentioned in the
advertisement, on the last date of making of
the application as has been laid down by the
Apex Court in the case of U.P. Public
Service Commission,U.P., Allahabad and
another Vs. Alpana (1994) 2 SCC-723.

12. We further find that if a candidate
like respondent no.6, who had less then five
years teaching experience and did not satisfy
the
requirements
mentioned
in
the
advertisement had to consider than last
expected from Aligarh Muslim University to
have published a corrigendum or a fresh
advertisement so that all other candidates
with four years teaching experience like
respondent
no.6
may
submit
their
application. It is not open to the Aligarh
Muslim University to have reduce the
requirements
of
five
years
teaching
experience contrary to the terms of the
advertisement only in respect of respondent
no.6 and Tanvir Ahmad.

13. Such experience undertaken by the
Aligarh Muslim University runs contrary to
Article 14 and 16 of the Constitution of
India, inasmuch as similarly situate persons
like respondent no.6 have been denied the
opportunity to participate in the process of
selection because of the condition mentioned
in the advertisement published qua five years
teaching experience as Lecturer/Associate
Professor being mandatory for making of the
application for the post of Associate
Professor.

14. We may clarify that the
qualifications provided under the guidelines
of the Medical Council of India only lay
down minimum standards for the post of
Lecturer/Associate Professor and it is always
open to a University to prescribe higher
qualification and if any advertisement in this
regard is published, it cannot be said to be in
violation of the guidelines of the Medical
Council of India.

15. So far as the objection raised on
behalf of the respondent no.6 qua petitioner
being not entitled to challenge the selection
process having participated in the same does
not appeal to us in the facts of this case. The
consideration of the case of respondent no.6
after reduction of the required experience is
found to be in violation of Article 14 and 16
of the Constitution.

16.

We
quash the
selection
proceedings including the select panel
dated 27.6.2013. The Aligarh Muslim
University may proceed with selections in
accordance with law. The writ petition is
allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2014

BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE RAJAN ROY, J.

Civil Misc. Writ Petition No. 50601 of 2007

M/S Deepak Kumar Agarwal ...Petitioner
Versus
Nagar Palika Parishad & Anr. Respondents
2 All] M/S Deepak Kumar Agarwal Vs. Nagar Palika Parishad & Anr.
775
Counsel for the Petitioner:
Sri Ravi Agarwal

Counsel for the Respondents:
C.S.C., Sri M.D. Singh Shekhar
Sri S.P. Singh

Constitution
of
India,
Art.-226-
Black
listing-petitioner are register government
contractor-who completed the work within
prescribed period payment also made-after
some time by notice required to submit
explanation-thereafter by impugned order
black
listed-upon
direction
of
court
representation required to be decided by
passing speaking
order-in para 9
of
representation
petitioner
mentioned
relevant facts-totally untouched by the
authority-held-rejection
order
wholly
unjustified and arbitrary impugned black
listing order quashed.

Held: Para-10
In the instant case, the Court finds gross
violation of the principles of natural
justice and non-consideration of the
relevant aspects of the matter before
blacklisting the petitioner, therefore, the
impugned orders are wholly unjustified
and arbitrary.

Case Law discussed:
[(1975) 1 SCC 70]; [(1977) 3 SCC 457];
[(1978) 1 SCC 248]; [(1981) 1 SCC 722];
[(1979) 3 SCC 489]; [(1989) 3 SCC 751];
[(1990) 3 SCC 752]; [(1977) 3 SCR 249].

(Delivered by Hon'ble Tarun Agarwala, J.)

1. List has been revised. No one
appears to oppose this petition.

2. Heard learned counsel for the
petitioner and perused the record.

3. By means of this writ petition, the
petitioner has challenged the orders dated
9th January, 2006 and 3rd July, 2006,
whereby he has been blacklisted, his
security forfeited and the remaining dues
declined.

4. According to the petitioner, he is
a registered contractor and had submitted
a tender for construction/painting of a
road, namely 'Majnuwala Road' from
G.T.road to Raillway Crossing, on 1st
July, 2003, which was accepted and an
agreement was entered into between the
parties on 29.07.2003.

5. Assertion of the petitioner is that he
completed the work by 31.03.2004, where
after the due payment was also made.
Thereafter, he received a notice with regard
to the work being not satisfactory and
ultimately an order of blacklisting was
passed on 09.01.2006, against which, the
petitioner filed Writ Petition No. 8670 of
2006, which was disposed of with a direction
to the petitioner to submit a representation
before the authority concerned, which was to
be decided within a stipulated period and till
then the order of blacklisting dated
09.01.2006, was kept in abeyance. The
representation made accordingly, by the
petitioner has been rejected by the exparte
order dated 03.07.2006.

6. Upon hearing learned counsel for
the petitioner and perusal of the record, it
transpires that no notice was issued to the
petitioner before passing the initial order
of blacklisting nor after the order of this
Court, any notice or opportunity of
hearing was given to the petitioner and
the order impugned herein has been
passed exparte. The Court finds merit in
the contention of the learned counsel for
the petitioner that the authority has failed
to consider the specific pleadings made by
him in paragraphs 3 and 9 of his
representation, which are quoted hereto
below:
776 INDIAN LAW REPORTS ALLAHABAD SERIES

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dh fufonk vkeaf=r dh x;h Fkh pwWfd ckn dks
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tks fd rduhdh :i ls vko';d gS ftlds fy;s
fufonk,a fdUgha vifjgk;Z dkj.kksa ls vkeaf=r ugha dh
x;hA

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ds ckn lMd ij fizfefDlax (ysiu dk;Z) gksuk
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x;k pwafd isafVax dk;Z lMd fueZk.k dk 1@2
(vk/kk) dk;Z gS bl dkj.k lMd ij tc rd
fizfefDlax dk;Z ugha gksxk rks lMd dk T;knk le;
rd fVds jguk rduhdh :i ls laHko ugha gSA
uxjikfydk ifj"kn nsocan us isafVax odZ ij
fizfefDlax u djkdj uxjikfydk ifj"kn nsocUn
Lo;a lMd {kfrxzLr gksus ds fy;s ftEesnkj gS rFkk
viuh deh izkFkhZ ij Fkksaiuk pkgrh gS tks ljklj
xyr gSA

7. A perusal of the orders impugned
indicates that the assertion made in
paragraph
3
of
the
representation,
according to the authority, do not require
any examination and there is not even a
whisper therein about the assertion made
in paragraph 9 of the representation. In
the opinion of the Court, the assertions
made in paragraphs 3 and 9 of the
representation were very relevant because
according to the petitioner, he was
assigned only the painting work whereas
the laying and surfacing of the road by
tarcol mix with stone ballast was to be
done by the Nagar Palika Parishad, the
respondent no. 1, which was not done and
due to which, the irregularity occurred
and for that, the petitioner could not be
held responsible. Non-consideration of
the aforesaid specific pleas raised by the
petitioner in his representation renderes
the impugned order arbitrary.

8. Reference may be made in this
regard to the pronouncement of the
Supreme Court in the case of Erusian
Equipment & Chemicals Ltd. v. State of
West Bengal and Anr. Reported in
[(1975)1
SCC
70]
wherein
their
Lordships' have held as under:

"20. Blacklisting has the effect of
preventing a person from the privilege
and advantage of entering into lawful
relationship with the Government for
purposes of gains. The fact that a
disability is created by the order of
blacklisting indicates that the relevant
authority
is
to
have
an
objective
satisfaction. Fundamentals of fair play
require that the person concerned should
be given an opportunity to represent his
case before he is put on the blacklist."

9. The decisions of the Supreme Court
in Radha krishna Agarwal and Ors. v. State
of Bihar & Ors. [(1977) 3 SCC 457];
E.P.Royappa v. State of Tamil Nadu and
Anr. [(1974) 4 SCC 3]; Maneka Gandhi v.
Union of India and Anr. [(1978) 1 SCC 248];
Ajay Hasia and Ors. v. Khalid Mujib
Sehravardi and Ors., [(1981) 1 SCC 722];
R.D.
Shetty
v.
International
Airport
Authority of India and Ors., [(1979) 3 SCC
489]and Dwarkadas Marfatia and sons v.
Board of Trustees of the Port of Bombay
[(1989) 3 SCC 751] have also ruled against
arbitrariness and discrimination in every
matter that is subject to judicial review
before a Writ Court exercising powers under
Article 226 or Article 32 of the Constitution.
A reference to the following passage from
the decision of the Supreme Court in M/s
Mahabir Auto Stores & Ors.v. Indian Oil
Corporation Ltd.,[(1990) 3 SCC 752] should,
in our view, suffice:

"11. It is well settled that every
action of the State or an instrumentality of
the State in exercise of its executive
power, must be informed by reason. In
appropriate cases, actions uninformed by
2 All] Dhirendra Nath Yadav Vs. State of U.P. & Ors.
777
reason may be questioned as arbitrary in
proceedings under Article 226 or Article
32 of the Constitution. Reliance in this
connection may be placed on the
observations of this Court in Miss Radha
Krishna Agarwal and Ors. v. State of
Bihar and Ors., [(1977) 3 SCR 249]...... In
case any right conferred on the citizens
which is sought to be interfered, such
action is subject to Article 14 of the
Constitution, and must be reasonable and
can be taken only upon lawful and
relevant grounds of public interest. Where
there is arbitrariness in State action of this
type of entering or not entering into
contracts, Article 14 springs up and
judicial review strikes such an action
down. Every action of the State executive
authority must be subject to rule of law
and must be informed by reason. So,
whatever be the activity of the public
authority, in such monopoly or semimonopoly dealings, it should meet the test
of Article 14 of the Constitution. If a
Governmental action even in the matters
of entering or not entering into contracts,
fails to satisfy the test of reasonableness,
the same would be unreasonable.. It
appears to us that rule of reason and rule
against arbitrariness and discrimination,
rules of fair play and natural justice are
part of the rule of law applicable in
situation
or
action
by
State
instrumentality in dealing with citizens in
a situation like the present one. Even
though the rights of the citizens are in the
nature of contractual rights, the manner,
the method and motive of a decision of
entering or not entering into a contract,
are subject to judicial review on the
touchstone
of
relevance
and
reasonableness, fair play, natural justice,
equality and non-discrimination in the
type of the transactions and nature of the
dealing as in the present case."

10. In the instant case, the Court
finds gross violation of the principles of
natural justice and non-consideration of
the relevant aspects of the matter before
blacklisting the petitioner, therefore, the
impugned orders are wholly unjustified
and arbitrary.

11. In view of above, the impugned
orders being unsustainable are quashed.
The writ petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2014

BEFORE
THE HON'BLE SURYA PRAKASH KESARWANI, J.

Civil Misc. Writ Petition No. 51697 of 2006

Dhirendra Nath Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Bajpai

Counsel for the Respondents:
Sri J.P. Pandey, Sri R.D. Khare
Sri S.K. Srivastava, Ms. Suman Sirohi
Sri Ayank Mishra, C.S.C.

Constitution
of
India,
Art.-226Compassionate
appointment-petitioner
being second son-of deceased employee
applied for compassionate appointmentof death of first son-in the year 1998-by
order dated 23.12.2014 claim rejected
on ground-the amended provision of
dying in Harness Rules 1974-adopted by
Corporation by order dated 24.10.02-by
which brother of deceased employeealso included in definition of family-heldrelevant provisions prevailing at the time
of application-applicable and not on date
of consideration-in the year 1998 after
death of brother-all family member were
dependent
of
deceased
father-no