# Madan Kumar Singh v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1603
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-24
- **Case number:** Writ-A No. 29840 of 2010
- **Bench:** Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madan-kumar-singh-v-state-of-u-p-ors-50227
- **Pages:** 6

## Headnote

Law
-Tubewell
Mechanic
-
Tubewell Mechanic Service Rules, 1951 -
Under Rule 9(B) of the 1951 Rules, the
minimum experience required for an ITI
holder is only 2 years. In the instant case,
as per the advertisement notification, the
minimum
qualification
prescribed
for
seeking appointment to the post of
Tubewell Mechanic was ITI with 5 years
of experience. Petitioner, an ITI certificate
holder,
submitted
an
experience
certificate of 7 years and 4 months, but it
was later discovered that only 3 years and
4 months of this experience were after
obtaining the ITI certificate. Petitioner's
selection was cancelled. The petitioner
challenged the cancellation, on the ground
that under the Tubewell Mechanic Service
Rules, 1951, only 2 years of experience
after ITI is required and not 5 years, and
that a government circular cannot change
the rules. Court held that the petitioner
had accepted the terms and conditions as
mentioned
in
the
advertisement
notification and could not now challenge
them after being found ineligible. (Para
19, 20, 21, 22)
1604 INDIAN LAW REPORTS ALLAHABAD SERIES
Dismissed. (E-5)
List of Cases cited:
The Director of Teacher's Training Research
Education & anr. Vs O.M. Jessymol

## Text

5 All. Madan Kumar Singh Vs. State of U.P. & Ors.
1603
not
carried
the
relevant
documents,
including, identity card to the examination
centre or had not participated in the
P.E.T./Medical Examination.

33. In the circumstances, it cannot be
said in absence of any other material
available with the Railways, that it is a case
of
mismatch
in
handwriting/thumb
impression. The inference of the Railways
is based on an opinion without being
supported by any other material, i.e., the
petitioners had not appeared at different
stages of the selection process.

34. In service jurisprudence, though
Evidence Act is not applicable, the charge
is not required to be proved beyond
reasonable doubt, but on the principle of
preponderance of probability, based on
some
material
evidence
against
the
petitioners. It is not a case of disciplinary
proceedings, neither, it is a case set up by
the Railways, that there was large scale
irregularities in the examination process,
only few candidates have been picked-up
and their selections cancelled merely on an
opinion obtained behind the back of the
petitioners
without
confronting
the
petitioners with the incriminating material.

35. The respondent's action otherwise
is not inconformity with the principles of
natural justice, accordingly, the impugned
order dated 1 May 2018, being stigmatic
cannot be sustained.

36. Accordingly, the writ petition is
allowed. Respondents are directed to
appoint the petitioners on Group-D post
forthwith.

37. It is clarified that no other ground
or point was pressed by the counsels for the
respective parties.

38. No cost.
----------
(2023) 5 ILRA 1603
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.04.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 29840 of 2010
And
Writ-A No. 18844 of 2010

Madan Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhagwati Prasad, Sri Alok Kumar Yadav

Counsel for the Respondents:
C.S.C.

Service
Law
-Tubewell
Mechanic
-
Tubewell Mechanic Service Rules, 1951 -
Under Rule 9(B) of the 1951 Rules, the
minimum experience required for an ITI
holder is only 2 years. In the instant case,
as per the advertisement notification, the
minimum
qualification
prescribed
for
seeking appointment to the post of
Tubewell Mechanic was ITI with 5 years
of experience. Petitioner, an ITI certificate
holder,
submitted
an
experience
certificate of 7 years and 4 months, but it
was later discovered that only 3 years and
4 months of this experience were after
obtaining the ITI certificate. Petitioner's
selection was cancelled. The petitioner
challenged the cancellation, on the ground
that under the Tubewell Mechanic Service
Rules, 1951, only 2 years of experience
after ITI is required and not 5 years, and
that a government circular cannot change
the rules. Court held that the petitioner
had accepted the terms and conditions as
mentioned
in
the
advertisement
notification and could not now challenge
them after being found ineligible. (Para
19, 20, 21, 22)
1604 INDIAN LAW REPORTS ALLAHABAD SERIES
Dismissed. (E-5)
List of Cases cited:
The Director of Teacher's Training Research
Education & anr. Vs O.M. Jessymol
(Delivered by Hon'ble Saurabh Srivastava, J.)

1. With the consent of learned counsels
for both the parties, these two petitions shall
be heard together and disposed of with a
common order.

2. Heard Sri Alok Kumar Yadav,
learned counsel for the petitioner and Sri
Satyendra Kumar Tripathi, learned Standing
Counsel for the State-respondent nos.1 to 3.

3. Writ A No.29840 of 2010 has been
filed seeking the following relief:-

"A. Issue a writ, order or direction,
in the nature of certiorari, quashing the
impugned dismissal order dated 31.03.2010
passed by the Respondent no.3 (Annexure
No.21).

B. Issue a writ, order or direction,
in the nature of mandamus directing the
Respondents No.2 and 3 to allow the
petitioner to work as Nalkoop Mistry,
Nalkoop Anurakshan Khand, Bhadohi under
Nalkoop Mandal of respondent No.2 and
Division of respondent No.3.

E. Issue a writ, order or direction
in the nature of mandamus declaring
Paragraph-Ga of office memorandum dated
09.09.2008 issued by Chief Engineer as
ultra-vires to Rule 9-Kha of the Service
Rules."

4. Writ A No.18844 of 2010 has been
filed seeking the following relief:-

a) Issue a writ, order or direction,
in the nature of certiorari, quashing the
impugned dismissal order dated 25.03.2010
passed by the Respondent no.2 (Annexure
No.20).

B.
Issue
a
writ,
order
or
direction, in the nature of mandamus
directing the Respondents No.2 and 3 not to
interfere in the functioning of the petitioner
as Nalkoop Mistry, Nalkoop Anurakshan
Khand, Bhadohi under Nalkoop Mandal of
respondent
No.2
and
Division
of
respondent No.3.

5. It is the case of the petitioner that
he being ITI certificate holder applied for
the
post
of
Tubewell
Mechanic
in
pursuance of the advertisement notification
wherein minimum prescribed qualification
for seeking appointment over the post of
Tubewell Mechanic was mentioned as ITI
and having 5 years of experience from the
specified institutions as mentioned in the
notification itself. The petitioner submitted
the experience certificate of 7 years and 4
months for seeking appointment under the
eligible candidate in pursuance of the
eligibility criteria as prescribed under the
advertisement notification. The petitioner
was selected and joined on the said post on
29.05.2009.

6. On the complaint as well as writ
petition preferred by the respondent no.4, the
discrepancy and irregularity while conducting
appointment is specifically in favour of the
petitioner has been highlighted wherein it has
been mentioned that the petitioner has
submitted the experience certificate on
16.09.2008 is not as per prescribed in the
advertisement notification.

7. After re-scrutiny of the experience
certificate as submitted by the petitioner, it
5 All. Madan Kumar Singh Vs. State of U.P. & Ors.
1605
has been revealed that the experience after
ITI as obtained by the petitioner was only
for 3 years and 4 months and before
completion of ITI, it was 4 years.

8. The competent authority being the
head of selection procedure decided vide
order dated 25.03.2010 that experience as
obtained by the petitioner before the ITI
cannot be given any credence and as such
the experience obtained by the petitioner
after ITI is less than the prescribed
experience in the advertisement notification
dated 16.9.2008 and as such, the selection
of the petitioner has been cancelled even
after putting him in the final select list
which culminated into joining in the
services and rendered for few months. The
precise
ground
for
challenging
the
determination as drawn while passing the
order dated 25.03.2010 as well as order
dated 31.03.2010 that the experience as
mentioned in the rules pertaining to the
Tubewell Mechanic as mentioned in the
Tubewell Mechanic Service Rules, 19511
wherein the minimum experience required
for ITI holder is only minimum 2 years as
prescribed under Rule 9(B) and as such, the
rules framed under the powers extracted
from the Article 309 of the Constitution of
India
cannot
be
substituted
or
supplemented
by
the
office
memorandum/Government Order and as
such in pursuance of the Rule 9(B) of the
1951 Rules, the petitioner was having
requisite qualification along with the
experience as required for the post of
Tubewell Mechanic and as such, the order
dated 31.03.2010 passed by the respondent
no.3 is contrary to the rules and the same is
liable to be set aside.

9. Per contra, learned Standing
Counsel vehemently opposed the prayer as
made in the petition on the ground that the
petitioner never challenged the terms and
conditions as defined in the advertisement
notification dated 16.09.2008 wherein the
minimum experience required for ITI
holder was 5 years for seeking appointment
over the post of Tubewell Mechanic, rather
the petitioner participated in the same by
way of producing experience certificate of
7 years and 4 months which was legally
ignored by the competent authority since
the experience of four years as mentioned
by the petitioner, was before obtaining the
certificate of ITI and as such, the same
cannot be counted for the purposes of
seeking appointment for the post of
Tubewell Mechanic wherein the minimum
qualification is ITI, the experience as
obtained by the petitioner after holding the
certificate of ITI can only be counted for
seeking appointment over the said post.

10. It is the admitted case of the
petitioner that the experience after having
the minimum qualification as required
under the advertisement notification was
only three years and four months and as
such, the same was not meeting the
minimum experience as required through
notification dated 16.09.2008 and as such,
the selection of the petitioner was rightly
cancelled by the competent authority.

11.

After
hearing
the
rival
submissions as extended by the learned
counsels, the only point is available for
determining by this Court that whether the
minimum experience as required for the
post of Tubewell Mechanic notified vide
advertisement
notification
dated
16.09.2008 was to be held justified
mentioned in the notification in pursuance
of the circular issued on 09.09.2008
through which the prescribed length of
experience has been extended or the
minimum experience mentioned mentioned
1606 INDIAN LAW REPORTS ALLAHABAD SERIES
in the 1951 Rules may be taken into
consideration by the competent authorities?

12.

While
substantiating
the
arguments as raised by learned counsel for
the petitioner, it has been argued that the
specific rules framed in shape of the 1951
Rules, any of the rules and provisions
cannot be interfered with, altered, modified
or determined contrary to the same by mere
issuing a Government Order/circular by
any authority of the State-respondents. The
entire experience has to be carried out by
the competent body who framed the rules
itself.

13. In reply to the contentions and
legal arguments as raised by the learned
counsel for the petitioner, again the learned
Standing Counsel vehemently argued that if
the petitioner was aggrieved with the
amending rules, he should have challenged
the same at the time when he was intended
to seek appointment over the post of
Tubewell Mechanic wherein the prescribed
minimum eligibility was ITI with 5 years of
experience, it is the petitioner who applied
for the same and after accepting all the
minimum
qualifications
as
required
through advertisement notification and as
such after cancelling the selection of the
petitioner, the cause of action does not
survive in his favour for challenging the
circular through which the Rules have been
modified or explained or clarified through
the circular dated 09.09.2008. There is a
much force in the arguments as raised by
the learned counsel for the petitioner that
the rules cannot be modified by mere
issuing a circular or Government Order but
at the same time, it is admitted case of the
petitioner that he has never challenged any
of the required eligibility criteria as
mentioned in the advertisement notification
dated
16.09.2008 whereas
being
the
eligible candidate under the prescribed
eligibility
criteria
mentioned
in
the
notification, he submitted his claim through
an
application
along
with
requisite
minimum experience certificate by way of
submitting experience certificate of 7 years
and 4 months, it is also admitted by the
learned counsel for the petitioner that the
experience after ITI was only for 3 years
and 4 months.

14. Once, the petitioner submitted his
application
along
with
experience
certificate, it clearly demonstrates that the
entire terms and conditions mentioned in
the advertisement notification was duly
accepted by the petitioner, it is not the case
of the petitioner that without accepting the
minimum experience length as mentioned
in the notification, he submitted his claim
for seeking appointment over the post of
Tubewell Mechanic and as such, after being
declared not suitable for the post of
Tubewell Mechanic on the ground of
minimum experience as required through
the advertisement notification, the legal
ground available with the petitioner that the
minimum experience as mentioned in the
rules cannot be altered by way of issuing
office memorandum/circular/order which
held the orders impugned the petition as
illegal.

15. The petitioner once accepted the
terms and conditions as mentioned in the
advertisement notification, he will not be
permitted to take any ground whatsoever is
available once he has been declared
unsuccessful on the ground of re-scrutiny
of the mandatory documents which were
required to be submitted at the time of
seeking appointment over the post of
Tubewell Mechanic wherein it has been
found that the experience certificate as
submitted
by
the
petitioner
was
5 All. Madan Kumar Singh Vs. State of U.P. & Ors.
1607
considerably less in nature as mentioned in
the notification which was 5 years and
experience certificate submitted by the
petitioner was only 3 years and 4 months.

16. In support of the stand taken up
by the petitioner he has placed reliance on
the judgement passed by Hon'ble the Apex
Court in the case of The Director of
Teacher's Training Research Education
and another Vs. O.M. Jessymol2.

17. In the aforementioned Civil
Appeal, the epigenes of the case starts from
the challenge initiated by the teacher who
obtained the Teacher's Training Certificate
from the State of Nagaland and obtained
less than 50% marks and as such, the
appellant
was
treated
ineligible
for
appointment as Secondary Grade Teacher at
the time issuing the notification of
advertisement for the post of teacher, the
requisite 50% marks obtained in the
Teachers'
Training
Certificate
was
mentioned but the same was silent in the
rules whereupon the determination has
been made by Hon'ble the Apex Court that
once the position of requirement of
minimum marks is silent in the rules, the
same
cannot
be
mentioned
in
the
advertisement
notification
issued
for
appointment over the post of teachers.

18.
In
the
present
case,
for
requirement of minimum experience as
mentioned in the rules is only 2 years but
while issuing the advertisement notification
for the same post mentioned in the
advertisement notification was minimum
experience of 5 years. The analogy and the
ratio of the said judgement is clearly
applicable in the instant matter but the case
is slightly different with the matter which
has already been decided by Hon'ble the
Apex Court.

19. In the instant matter, the petitioner
by way of accepting all the terms and
conditions and requirements mentioned in
the advertisement notification submitted his
application for seeking appointment for the
post of Tubewell Mechanic along with
experience certificate of 7 years and 4
months which was letter on found that the
experience
actually
obtained
by
the
petitioner after holding the certificates of
ITI was only 3 years and 4 months which is
admitted to the petitioner.

20. In the matter as referred by
learned counsel for the petitioner which has
been decided by Hon'ble the Apex Court,
the aspirants/candidates applied for the post
of teachers were not holding the 50%
marks in the Teachers' Training Certificate
as
mentioned
in
the
advertisement
notification but the same was not available
in the rules and once she applied by way of
disclosing the fact that she is not having
50% marks in the Teacher's Training
Certificate and her candidature was rejected
at the initial level itself then only the entire
controversy has been raised and the same
has been duly decided by Hon'ble the Apex
Court.

21. In the instant matter, the petitioner
knowingly each and everything submitted
by way of adducing the experience
certificate of 7 years and 4 months which
clearly shows that the petitioner accepted
the terms and conditions for acquiring the
minimum experience of 5 years as
mentioned
in
the
advertisement
notification.

22. In view of the abovementioned
facts and circumstances
and lengthy
discussions upon the factual position, legal
provisions as well as the dictum of the
judgement of Hon'ble the Apex Court in the
1608 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid case, both the petitions stand
dismissed.
----------
(2023) 5 ILRA 1608
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.04.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Application U/S 482. No. 12717 of 2023

Neelam ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Shashi Prakash Misra, Sri Jai Prakash
Singh

Counsel for the Opposite Parties:
G.A., Sri Pramod Kumar Pandey

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 363, 366 and 120-B , The
Protection
of
Children
from
Sexual
Offences Act, 2012 - Section 2(d), 16/17 -
proceedings under Section 376 I.P.C. and
POCSO Act, cannot be quashed on the
basis of a compromise between the
accused and the victim. (Para - 10)

(B) Criminal Law - adjudication of cases
involving gender related crimes - courts
should not suggest or entertain any
notions (or encourage any steps) towards
compromises between the prosecutrix and
the accused to get married, suggest or
mandate mediation between the accused
and
the
survivor,
or
any
form
of
compromise as it is beyond their powers
and jurisdiction. (Para - 8)

Compromise application filed - signed by
applicant, prosecutrix, first informant, and
prosecutrix's mother and father - case against
applicant - conspired with - to cause prosecutrix
to elope with a Class X student - application
states - prosecutrix, informant, and husband do
not want to pursue prosecution further -
prosecutrix
and
her
parents
moved
an
application seeking to compromise. (Para -
2,3)

HELD:- No good grounds to quash ongoing trial
proceedings based on the provided facts. (Para
- 11)

Application u/s 482 Cr.P.C. rejected. (E-7)

List of Cases cited:

1. Aparna Bhat & ors. Vs St. of M.P. & anr.,
2021 SCC OnLine SC 230

2. Pravin Kumar Singh & ors. Vs St. of U.P.
Thru. Prin. Secy. Home Deptt. & anr., 2023 SCC
OnLine All 131

3. Nardeep Singh Cheema @ Navdeep Singh
Cheema Vs St. of Punj. & ors., CRM-M-22702020

4. Om Prakash Vs St. of U.P. & anr., 2023 SCC
OnLine All 93

(Delivered by Hon'ble J.J. Munir, J.)

1. This application has been filed
seeking to quash the proceedings of Special
Sessions Trial No. 71 of 2018 (arising out
of Case Crime No. 1888 of 2017 (State v.
Neelam and others) under Sections 363,
366 and 120-B I.P.C. and Section 16/17 of
the Protection of Children from Sexual
Offences Act, 2012, Police Station -
Bakhira, District - Sant Kabir Nagar,
pending before the Court of the Additional
Sessions Judge/Special Judge (POCSO
Act), Sant Kabir Nagar.

2. The submission of the learned
Counsel for the applicant is that a
compromise application dated 13.12.2023
has been filed, signed by the applicant, the
prosecutrix, as also the first informant and