# Mahendra Prakash Srivastava v. D.J., Allahabad and Anr

- **Citation:** (2013) 2 ILRA 1098
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-15
- **Case number:** Special Appeal No. 903 of 2006
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-prakash-srivastava-v-d-j-allahabad-and-anr-42563
- **Pages:** 6

## Headnote

Constitution of India, Art. 226- Gratuitywithheld-on ground of pendency of
disciplinary
action-against
petitionermuch
after
retirement-disciplinary
proceeding
initiated
without
any
authority of law-direction issued to
release amount of gratuity within one
month-interest payable-after one month
from actual date of retirement @ 10%
per
annum.
2 All] Mahendra Prakash Srivastava Vs. D.J. Allahabad and Anr.

1099
Held: Para-17
Be that as it may, in any case, 90% of
gratuity being provisional payment has
to be made even if an enquiry would
have been pending at the time of
retirement but in the present case even
that is not the state of affairs. In these
facts and circumstances it is evident that
withholding of gratuity for more than
two years on the part of the respondents
is patently illegal, erroneous, unjust,
improper and unwarranted.

Case Law discussed:
1972 AC 1027; 1964 AC 1129; JT 1993 (6) SC
307; JT 2004(5)SC 17; (1996) 6 SCC 530;
(1996) 6 SCC 558; AIR 1996 SC 715; W.P. No.
34804 of 2004; 1985(1) SLR-750; (1987) 4
SCC 328; (1994) 6 SCC 589; AIR 1997 SC 27;
(1999) 3 SCC 438; (2008) 3 SCC 44; 2011(2)
ADJ 608; (2008) 119 FLR 787; AIR 2005 SC

## Text

1098 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

issue pertaining to the status of an
institution
as
a
minority
education
institution, but it has to be kept in mind
that a Division Bench of this Court in
Special Appeal No. 903 of 2006
(Committee
of
Management
Inter
College Dharaon, District Chandauli
vs. State of U.P. And others) decided on
24th August, 2006, has held that it is only
for a competent Court of law to declare an
institution to be minority institution and it
is not within the competence of the State
Government to issue any such declaration.
The relevant portion of the order of the
Division Bench reads as follows:

"..........It is not for any State
Government to grant any minority status
to any institution; not even the Parliament
or State Legislature can do it. A minority
institution has to grow by itself. Only a
competent Court of law can declare such
status."

21. In light of the said judgement of
the Division Bench and in view of Section
12 (2) of Act, 2004 which provides that
Commission
for
the
purposes
of
discharging its functions under this Act,
shall have all the powers of a civil court
trying a suit. It logically follows that
Commission while declaring the status of
a institution to be a minority institution
shall not only consider the material
evidence relevant for the purpose, but
shall also pass a reasoned order with
reference to the evidence so produced for
coming to the conclusions that institution
in question had been (a) established by a
minority community and (b) had been run
and managed by a minority community
since its establishment.

22. In absence of reasons having
been recorded in the order passed by the
Commission declaring minority status
with reference to the evidence on record,
the declaration issued appears to be
unjustified.

23. The notification dated 4th May,
2009 issued by the Secretary, National
Commission for Minority Educational
Institution, New Delhi as well as the letter
dated 5th May, 2009 issued by the same
authority and the consequential order
dated 16th March, 2011 issued by the
District Inspector of Schools, Moradabad
cannot be legally sustained and are hereby
quashed.

24. The present writ petition is
allowed.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 15.07.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.35695 of 2013

Mahendra Prakash Srivastava..Petitioner
Versus
D.J., Allahabad and Anr. ..Respondents

Counsel for the Petitioner:
Sri Satish Dwivedi

Counsel for the Respondents:
C.S.C., Sri Yashwant Verma

Constitution of India, Art. 226- Gratuitywithheld-on ground of pendency of
disciplinary
action-against
petitionermuch
after
retirement-disciplinary
proceeding
initiated
without
any
authority of law-direction issued to
release amount of gratuity within one
month-interest payable-after one month
from actual date of retirement @ 10%
per
annum.
2 All] Mahendra Prakash Srivastava Vs. D.J. Allahabad and Anr.

1099
Held: Para-17
Be that as it may, in any case, 90% of
gratuity being provisional payment has
to be made even if an enquiry would
have been pending at the time of
retirement but in the present case even
that is not the state of affairs. In these
facts and circumstances it is evident that
withholding of gratuity for more than
two years on the part of the respondents
is patently illegal, erroneous, unjust,
improper and unwarranted.

Case Law discussed:
1972 AC 1027; 1964 AC 1129; JT 1993 (6) SC
307; JT 2004(5)SC 17; (1996) 6 SCC 530;
(1996) 6 SCC 558; AIR 1996 SC 715; W.P. No.
34804 of 2004; 1985(1) SLR-750; (1987) 4
SCC 328; (1994) 6 SCC 589; AIR 1997 SC 27;
(1999) 3 SCC 438; (2008) 3 SCC 44; 2011(2)
ADJ 608; (2008) 119 FLR 787; AIR 2005 SC
2755.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. After receiving instructions, Sri
Yashwant
Verma,
learned
Counsel
appearing for respondents fairly stated
that at the time of retirement, no
departmental enquiry was pending against
petitioner. He, however, submitted that in
the year 2013, two enquiries have been
initiated but could not show any provision
under which if any enquiry was not
pending against an employee at the time
of retirement, still his gratuity would not
have been paid or respondents were
authorized by some other provision to
withhold gratuity of petitioner for such a
long time.

2. Withholding of retiral benefits of
retired employees for years together is not
only illegal and arbitrary but a sin if not
an offence since no law has declared so.
The officials, who are still in service and
are instrumental in such delay causing
harassment to the retired employee must
however feel afraid of committing such a
sin. It is morally and socially obnoxious.
It is also against the concept of social and
economic justice which is one of the
founding pillar of our constitution.

3. The respondents being "State"
under Article 12 of the Constitution of
India, its officers are public functionaries.
As
observed
above,
under
our
Constitution, sovereignty vest in the
people. Every limb of constitutional
machinery therefore is obliged to be
people oriented. Public authorities acting
in violation of constitutional or statutory
provisions oppressively are accountable
for their behaviour. It is high time that
this Court should remind respondents that
they are expected to perform in a more
responsible and reasonable manner so as
not to cause undue and avoidable
harassment to the public at large and in
particular their ex-employees and their
legal heirs like the petitioner. The
respondents have the support of entire
machinery and various powers of statute.
An ordinary citizen or a common man is
hardly equipped to match such might of
State or its instrumentalities. Harassment
of a common man by public authorities is
socially
abhorring
and
legally
impressible. This may harm the common
man personally but the injury to society is
far more grievous. Crime and corruption,
thrive and prosper in society due to lack
of public resistance. An ordinary citizen
instead of complaining and fighting
mostly succumbs to the pressure of
undesirable functioning in offices instead
of standing against it. It is on account of,
sometimes,
lack
of
resources
or
unmatched status which give the feeling
of
helplessness.
Nothing
is
more
damaging than the feeling of helplessness.
Even in ordinary matters a common man
1100 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

who has neither the political backing nor the
financial strength to match inaction in public
oriented departments gets frustrated and it
erodes the credibility in the system. This is
unfortunate that matters which require
immediate attention are being allowed to
linger on and remain unattended. No
authority can allow itself to act in a manner
which is arbitrary. Public administration no
doubt
involves
a
vast
amount
of
administrative discretion which shields
action of administrative authority but where
it is found that the exercise of power is
capricious or other than bona fide, it is the
duty of the Court to take effective steps and
rise to occasion otherwise the confidence of
the common man would shake. It is the
responsibility of Court in such matters to
immediately rescue such common man so
that he may have the confidence that he is
not helpless but a bigger authority is there to
take care of him and to restrain arbitrary and
arrogant, unlawful inaction or illegal exercise
of power on the part of the public
functionaries.

4. In our system, the Constitution is
supreme, but the real power vest in the
people of India. The Constitution has been
enacted "for the people, by the people and of
the people". A public functionary cannot be
permitted to act like a dictator causing
harassment to a common man and in
particular when the person subject to
harassment is his own employee.

5. Regarding harassment of a
common man, referring to observations of
Lord Hailsham in Cassell & Co. Ltd.
Vs. Broome, 1972 AC 1027 and Lord
Devlin in Rooks Vs. Barnard and
others 1964 AC 1129, the Apex Court in
Lucknow Development Authority Vs.
M.K. Gupta JT 1993 (6) SC 307 held as
under:

"An Ordinary citizen or a common
man is hardly equipped to match the
might of the State or its instrumentalities.
That is provided by the rule of law....... A
public functionary if he acts maliciously
or oppressively and the exercise of power
results in harassment and agony then it is
not an exercise of power but its abuse. No
law provides protection against it. He who
is
responsible
for
it
must
suffer
it...........Harassment of a common man by
public authorities is socially abhorring
and legally impermissible. It may harm
him personally but the injury to society is
far more grievous." (para 10)

6. The above observations as such
have been reiterated in Ghaziabad
Development Authorities Vs. Balbir
Singh JT 2004 (5) SC 17.

7. In a democratic system governed
by rule of law, the Government does not
mean a lax Government. The public
servants hold their offices in trust and are
expected to perform with due diligence
particularly so that their action or inaction
may not cause any undue hardship and
harassment to a common man. Whenever
it comes to the notice of this Court that
the Government or its officials have acted
with gross negligence and unmindful
action causing harassment of a common
and helpless man, this Court has never
been a silent spectator but always reacted
to bring the authorities to law.

8. In Registered Society Vs. Union
of India and Others (1996) 6 SCC 530
the Apex court said:

"No public servant can say "you may
set aside an order on the ground of mala
fide but you can not hold me personally
liable" No public servant can arrogate in
2 All] Mahendra Prakash Srivastava Vs. D.J. Allahabad and Anr.

1101
himself the power to act in a manner
which is arbitrary".

9. In Shivsagar Tiwari Vs. Union
of India (1996) 6 SCC 558 the Apex
Court has held:

"An arbitrary system indeed must
always be a corrupt one. There never was
a man who thought he had no law but his
own will who did not soon find that he
had no end but his own profit."

10.

In
Delhi
Development
Authority Vs. Skipper Construction
and Another AIR 1996 SC 715 has held
as follows:

"A democratic Government does not
mean a lax Government. The rules of
procedure and/or principles of natural
justice are not mean to enable the guilty to
delay and defeat the just retribution. The
wheel of justice may appear to grind
slowly but it is duty of all of us to ensure
that they do grind steadily and grind well
and truly. The justice system cannot be
allowed to become soft, supine and
spineless."

11. Now, coming to another aspect
of the matter, if retiral benefits are paid
with extra ordinary delay, the Court
should award suitable interest which is
compensatory in nature so as to cause
some solace to the harassed employee. No
Government official should have the
liberty of harassing a hopeless employee
or his heirs by withholding his/her lawful
dues for a long time and thereafter to
escape from any liability so as to boast
that nobody can touch him even if he
commits an ex facie illegal, unjust or
arbitrary act. Every authority howsoever
high must always keep in mind that
nobody is above law. The hands of justice
are meant not only to catch out such
person but it is also the constitutional duty
of Court of law to pass suitable orders in
such matters so that such illegal acts may
not be repeated, not only by him/her but
others also. This should be a lesson to
everyone committing such unjust act.

12. Interest on delayed payment on
retiral dues has been upheld time and
against in a catena of decision. This Court
in Shamal Chand Tiwari Vs. State of
U.P. & Ors. (Writ Petition No.34804 of
2004) decided on 6.12.2005 held:

"Now the question comes about
entitlement of the petitioner for interest on
delayed payment of retiral benefits. Since
the date of retirement is known to the
respondents well in advance, there is no
reason for them not to make arrangement
for payment of retiral benefits to the
petitioner well in advance so that as soon
as the employee retires, his retiral benefits
are paid on the date of retirement or
within reasonable time thereafter. Inaction
and inordinate delay in payment of retiral
benefits is nothing but culpable delay
warranting liability of interest on such
dues. In the case of State of Kerala and
others Vs. M. Padmnanaban Nair, 1985
(1) SLR-750, the Hon'ble Supreme Court
has held as follows:

"Since the date of retirement of every
Government servant is very much known
in advance we fail to appreciate why the
process
of
collecting
the
requisite
information and issuance of these two
documents should not be completed at
least a week before the date of retirement
so that the payment of gratuity amount
could be made to the Government servant
on the date he retires or on the following
1102 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

day and pension at the expiry of the
following months. The necessity for
prompt payment of the retirement dues to
a Government servant immediately after
his retirement cannot be over-emphasized
and it would not be unreasonable to direct
that the liability to pay panel interest on
these dues at the current market rate
should commence at the expiry of two
months from the date of retirement."

In this view of the matter, this Court
is of the view that the claim of the
petitioner for interest on the delayed
payment of retiral benefits has to be
sustained."

13. It has been followed and
reiterated in O.P. Gupta Vs. Union of
India and others (1987) 4 SCC 328, R.
Kapur Vs. Director of Inspection (1994)
6 SCC 589, S.R. Bhanrate Vs. Union of
India and others AIR 1997 SC 27, Dr.
Uma Agarwal Vs. State of U.P. &
another (1999) 3 SCC 438 and S.K. Dua
Vs. State of Haryana and another
(2008) 3 SCC 44.

14. A Division Bench of this Court
has also considered the question of award
of interest on delayed payment of retiral
benefits recently in Rajeshwar Swarup
Gupta Vs. State of U.P. & others 2011
(2) ADJ 608 and, relying on the Apex
Court decision in M. Padmnanaban Nair
(supra) and its several follow up as also
an earlier Division Bench judgement of
this Court in Smt. Kavita Kumar Vs.
State of U.P. & others (2008) 119 FLR
787, has awarded 12% interest in the said
case.

15. In view of the above, I have no
hesitation in holding that non payment of
gratuity to petitioner is wholly arbitrary
and
unreasonable.
There
was
no
justification at all for respondents to delay
payment thereof.

16. In a case where the person who
has
invoked
extraordinary
equitable
jurisdiction satisfying the Court that in the
hands
of
authorities
of
state
instrumentality, individual has suffered
grievously, the Court, while deciding the
matter, can also pass an order of
exemplary cost compensatory in nature so
that such authorities may not recur the
similar negligence in future. In Gurpal
Singh Vs. State of Punjab and another,
AIR 2005 SC 2755 it was held that the
Court must do justice by promotion of
good faith and prevent law from crafty
invasion.

17. Be that as it may, in any case,
90%
of
gratuity
being
provisional
payment has to be made even if an
enquiry would have been pending at the
time of retirement but in the present case
even that is not the state of affairs. In
these facts and circumstances it is evident
that withholding of gratuity for more than
two years on the part of the respondents is
patently
illegal,
erroneous,
unjust,
improper and unwarranted.

18. The writ petition is accordingly
allowed. Respondent no.1 is directed to
forthwith release gratuity to the petitioner
alongwith interest @ 10% p.a. To be
computed after a month from the date of
retirement, till the payment is actually
made.

19. The petitioner shall also be
entitled to cost which is quantified to
Rs.5,000/-.
---------
2 All] Swaroop Chand Singh Vs.State of U.P. and Ors.

1103
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2013

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE BHARAT BHUSHAN, J.

Civil Misc. Writ Petition No. 35775 OF
2013

Swaroop Chand Singh
 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Saurabh Kumar

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-341(1)and
(2)- Whether 'Kasera' is sub cast of
"Shilpkar"?-question referred to larger
Bench.

Held: Para-13
It is pertinent to refer here that the
'Kasera' was included in Schedule-I with
reference to Section 2 (b) of U.P. Public
Services (Reservations for Scheduled
Castes, Scheduled Tribes and Other
Backward Classes) Act, 1994 at serial
no.54:- "54, Kasera, Thathera, Tamrakar
in the list of Other Backward Classes."
The UP Act of 1994 did not amend the
List of Scheduled Caste inasmuch as the
said List can only be amended by the
Parliament under Article 341 (2) of the
Constitution of India under its statutory
powers.

Case Law discussed:
Service Bench No. 2080 of 2011; Civil Appeal
No. 5821 of 2012.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. We have heard Shri Saurabh
Kumar, learned counsel for the petitioner.
Learned Standing Counsel appears for the
State respondents.

2. By this writ petition the petitioner
has prayed for directions to the District
Magistrate, Mirzapur to issue a Scheduled
Caste
certificate
in
the
name
of
petitioner's son Tarang Singh.

3. The reason, for which Shri Tarang
Singh, who is minor, has not been
impleaded in the writ petition, has not
been stated. The petitioner is given liberty
to
file
an
appropriate
application
impleading Tarang Singh, through his
father-the petitioner as petitioner no.2.

4. It is submitted that the District
Magistrate has not issued caste certificate,
despite repeated applications.

5. The petitioner has relied upon a
Division Bench judgment of Lucknow
Bench of this Court in Service Bench
No.2080 of 2011 (State of UP vs. Vijay
Shankar
&
another)
decided
on
23.12.2011.

6. We have perused the judgment
and do not agree with the reasoning,
which has far reaching effect on the
issuance of caste certificates to the
persons belonging to 'Kasera' caste as
Scheduled Caste, and will discriminate
other notified castes as Scheduled Castes.

7. The facts given in the judgment
cited by the petitioner, and annexed as
Annexure no.3 to the writ petition that
Shri Vijay Shankar-the opposite party was
appointed
as
Assistant
Prosecution
Officer on the recommendation of the UP
Public
Service
Commission
in
the
reserved category of the Scheduled Caste
vide a Certificate issued by the Tehsildar,