# Manoj Kumar v. Mohd. Saud and another

- **Citation:** (2008) 1 ILRA 137
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-22
- **Bench:** H.L. Gokhale, C.J. Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-v-mohd-saud-and-another-41248
- **Pages:** 7

## Headnote

Sri Girish Chandra Upadhyay
Sri R.P.Dubey
Sri Sanjay Kumar

Allahabad
High
Court
Rules
1952,
Chapter V Rule-14-Tied up Cases-pre
admission stage-even after change of
roster-such direction of Single Judge
against the Law laid down by Apex Court
in Jasbir Singh Case-apart from violation
of Rules-14.

Held: Para 17

The law laid down in these judgments
clearly
establishes
that the learned
Single Judge could not have directed the
Registry to continue the matter to be
placed before him as the roster had been
changed. Even if he was to say that the
matter was part heard, in view of the law
laid down by the Full Bench which is
affirmed by the Apex Court: such a
direction or order would be in violation
of the Rules of Court and, therefore,
nullity. Any case at pre admission stage
cannot be treated as part heard or tied
up and such a direction contrary to the
138 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
roster is not within the competence of
the any Single or Division Bench of the
High Court as has also been held in the
case of Jasbir Singh (supra).
Case law discussed:
2006 (8) SCC-294, 1998 (1) SCC-I, 1996 AWC644 (DB)

## Text

1 All] Manoj Kumar V. Mohd. Saud and another
137
illegality was committed by him in
declaring the result from his office.

31. The court below while deciding
issues No. 2,3,4 and 5 have failed to
consider the effect of the order of the
RO/DM by which he delegated only
limited powers to the ARO and the legal
position that declaration of result is
separate and is not part of counting. Thus
the court below manifestly erred in law in
holding that as the result was validly
declared by the ARO and the RO/DM has
become functus officio to have ordered
recounting and to make a different
declaration in favour of the appellant
Manoj Kumar.

32. Undisputedly, in the recounting
appellant Manoj Kumar was declared
elected and a certificate in form VIII was
also issued in his favour by the RO/DM
declaring him as elected over respondent
No. 1 Mohd. Saud by a margin of two
votes. Thus, he was rightly declared
elected.

33. In view of the above, the appeal
succeeds and is allowed. The judgment
and order dated 30.7.2007 passed by the
District Judge in Election Petition No.
3/70 of 2007 Mohd. Saud Vs. Manoj
Kumar is set aside.

34. The parties shall bear their own
costs.

Note:-Office to send a copy of this
judgment and order to the State Election
Commission,
U.P.,
Lucknow
and
RO/DM, Kaushambi.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2007

BEFORE
THE HON'BLE H.L. GOKHALE, C.J.
THE HON'BLE PANKAJ MITHAL, J.

Special Appeal No. [954] of 2007

Sanjay Mohan

...Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Appellants:
Sri Ashok Khare
Sri P.N. Ojha

Counsel for the Respondents:
Sri Girish Chandra Upadhyay
Sri R.P.Dubey
Sri Sanjay Kumar

Allahabad
High
Court
Rules
1952,
Chapter V Rule-14-Tied up Cases-pre
admission stage-even after change of
roster-such direction of Single Judge
against the Law laid down by Apex Court
in Jasbir Singh Case-apart from violation
of Rules-14.

Held: Para 17

The law laid down in these judgments
clearly
establishes
that the learned
Single Judge could not have directed the
Registry to continue the matter to be
placed before him as the roster had been
changed. Even if he was to say that the
matter was part heard, in view of the law
laid down by the Full Bench which is
affirmed by the Apex Court: such a
direction or order would be in violation
of the Rules of Court and, therefore,
nullity. Any case at pre admission stage
cannot be treated as part heard or tied
up and such a direction contrary to the
138 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
roster is not within the competence of
the any Single or Division Bench of the
High Court as has also been held in the
case of Jasbir Singh (supra).
Case law discussed:
2006 (8) SCC-294, 1998 (1) SCC-I, 1996 AWC644 (DB)

(Delivered by Hon'ble H.L. Gokhale, C.J.)

1. Heard Mr. Ashok Khare, Senior
Advocate assisted by Mr. P.N.Ojha
appearing for the appellant, Mr. Girish
Chandra Upadhyay, Standing Counsel for
the State appearing for respondents no.1,
3 and 4 and Mr. R.P.Dubey appearing for
respondent no.2. Mr. Sanjay Kumar
appears
for
respondent
no.5.
All
respondents are served.

2. The appeal was admitted by an
order passed by a Division Bench, in
which one of us (Hon. H.L.Gokhale, C.J.)
was a party, on 1.11.2007. With the
consent of the counsel appearing for the
respondents the appeal is taken up for
final hearing and is being disposed of.

3. This appeal arises out of writ
petition no.9456 of 2007 filed by the
respondent no.5 herein, one Puran Lal
Sonkar, father of one Km. Sunaina Devi.
The prayer in the petition was to direct the
State
of
U.P.
and
the
Additional
Secretary, Madhyamik Shiksha Parishad
to consider the request of the petitioner
for providing examination centre at
Mahatma Joti Rao Phule Vidya Ashram
Higher Secondary School, Karadham,
district Kaushambi, where the daughter of
respondent no.4 was studying. The
petition was filed on 19th February, 2007
and the examination was to be held in
March, 2007. Inasmuch as the time to
consider such a prayer was inadequate,
the centre could not be allotted at that
school. Meanwhile, the daughter of
respondent no.4 appeared for the High
School examination, from where she was
allotted the centre and passed the
examination.
The
mark-sheet
is
at
Annexure-14 to this appeal. Mr. Sanjay
Kumar appearing for respondent No.5
accepts this position. Now, what has
happened is that the learned Single Judge,
who was seized of the petition continued
to retain and proceed with the matter
which in fact thus had become clearly
infructuous. He went on passing different
orders. These orders are dated (i)
12.3.2007, (ii) 23.3.2007, (iii) 6.4.2007,
(iv) 4.5.2007, (v) 2.7.2007, (vi) 9.8.2007,
(vii) 17.9.2007, (viii) 12.10.2007 and one
more order directing a C.B.I. enquiry.

4. The first order dated 12.3.07
records
that
certain
black
listed
examination centres initially withdrawn
were subsequently re-allotted and that
required enquiry. The second order dated
23.3.2007 records that a preliminary
enquiry had been done by the Chief
Secretary into such 34 centres in that
district detecting irregularities. The order
thereafter directed that action be taken
against the Sachiv, Madhyamik Shiksha
Parishad and the Director of Education for
their inaction within ten days on the basis
of the report dated 22.3.2007 referred in
that order. By the next order dated
6.4.2007 the learned Single Judge ordered
for an enquiry by C.B.I. This order was
challenged by filing a Special Appeal and
that order was stayed. Subsequently, on
4.5.2007
the
learned
Single
Judge
directed the Chief Secretary to file his
personal affidavit with respect to the steps
being taken. This was followed by one
more order dated 2.7.2007, which directs
for issuance of charge-sheet. Meanwhile,
new Chief Secretary had taken charge. He
1 All] Sanjay Mohan V. State of U.P. and others
139
was directed to serve charge-sheet upon
the
District
Inspector
of
Schools,
Kaushambi within 15 days. The order
passed thereafter is dated 9.8.2007. It
records that an I.A.S. Officer has been
appointed as the Enquiry Officer for the
enquiry contemplated by the learned
Single Judge. On 17.9.2007 the learned
Single Judge recorded that the progress
made by the Government was too slow
and the report of the Enquiry Officer be
produced in original on subsequent date.
It
also
directed that the Principal
Secretary as well as the Enquiry Officer,
an I.A.S. officer will remain present in the
court. Lastly, on 12.10.2007 the matter
was adjourned to 2.11.2007 and it was at
this stage that the appeal was filed.

5. This appeal has been filed by the
Director
of
Education
(Secondary)
challenging these eight orders passed on
12.3.2007, 23.3.2007, 6.4.2007, 4.5.2007,
2.7.2007,
9.8.2007,
17.9.2007
and
12.10.2007. As far as the order dated
6.4.07 is concerned, which directs for
C.B.I. enquiry, the State filed an appeal
and stay has been granted in that appeal.
The appellant seeks to challenge that
order also.

6. The appellant had applied for
joining in the petition as respondent by
moving an impleadment application. No
orders
have
been
passed
on
that
application and the application remains
pending. It is for this reason that leave to
appeal was sought to file the appeal and
that was granted on the last date.

7. Two principal grounds of
challenge have been raised in this appeal.
The first is that when the daughter of
respondent no.4 had appeared at the
examination and passed it, the petition
was worked out. The petitioner had
sought centre at the school where his
daughter
was
studying
for
her
convenience. She appeared at the centre
which was allotted to her. Therefore
nothing remained to be done further.
Grounds no.5 and 6 of the appeal are that
since the examination in question had
already commenced and the results were
declared nothing survived in the petition
and the petition ought to have been
disposed of. In ground no.7 it is
specifically averred that the learned
Single Judge ought to have confined
himself to the pleadings and the prayers
of the writ petition and each of the
direction/observation
of
the
learned
Single Judge are totally beyond the scope
of the petition.

8.

The
counsel
for
original
petitioner, who is joined as respondent
no.5, does not dispute these submissions
of the appellant, nor any other counsel
appearing for other respondents. In this
behalf one must note that when a litigant
files a petition in the court, the litigant
approaches the Court for the particular
relief, which he seeks in the petition. The
learned Judge is expected to decide the
prayer in the petition in the light of the
averments made in the petition and the
grounds taken therein after looking into
the counter affidavit, which may be filed
by the respondents and the rejoinder
affidavit that maybe filed by the petitioner
himself. The manner in which the learned
Single Judge has gone into other aspects
of the matter in the present case is not
permissible in an adversary litigation. The
learned Single Judge has gone into the
question as to why the 34 examination
centres cancelled at one point of time
from being examination centre were
revived and why action was not taken
140 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
against those responsible in this behalf.
He has further gone to the extent of
directing a C.B.I. enquiry. None of these
questions were raised in the petition and
the counsel for respondent no.5 has
accepted that his petition had already been
worked out. The orders passed by the
learned Single Judge appear to have been
passed in the interest of purity of
examinations. However, these orders are
in the nature of orders which are passed
on a public interest litigation and that was
not the jurisdiction of the learned Single
Judge. The consequence has been that the
learned Single Judge has gone on passing
orders after orders and the petition that
ought to have been disposed of in
April/May, 2007 remained pending. The
judicial time that would have been better
utilised was spent on a petition that had
already been worked out. There is enough
substance in this ground of appeal as
pointed out above.

9. The other ground raised in this
appeal which is to be looked into is
ground no.14. In this ground it is stated
that the matter came up for consideration
before the learned Single Judge at a point
of time when he was seized of the
jurisdiction with regard to education
matters in the month of February/March,
2007. Thereafter what is stated in this
ground is reproduced below:

"However, subsequent thereto there
has been change of jurisdiction of the
learned Single Judge on more than one
occasion and His Lordship is no longer
seized with jurisdiction pertaining to
education matters. However, despite such
cessation of jurisdiction the writ petition
to be listed before the learned Single
Judge treating the same to be part
heard/tied up with the learned Single
Judge."

10. Mr. Khare, learned Senior
Counsel appearing for the appellant
submitted that these orders were passed
by the learned Single Judge when he had
no jurisdiction to pass such orders. We
have looked into the orders passed by the
learned Single Judge. Firstly, in none of
the orders it has been stated that the
matter may be treated as tied up or part
heard. He has all throughout stated that
the matter may be listed or put up on a
subsequent date for further orders. Even if
he was to treat the matter as part heard or
tied-up at the pre-admission stage, it is not
permissible under the Rules of the Court.
The relevant rules from the Allahabad
High Court Rules, 1952 are Rule 14 of
Chapter V on tied up cases and Rule 7 of
Chapter VI on part-heard cases, which
read as follows:

"14. Tied up cases.- (1) A case
partly heard by a Bench shall ordinarily
be laid before the same Bench for
disposal. A case in which a Bench has
merely directed notice to issue to the
opposite party or passed an ex parte order
shall not be deemed to be a case partly
heard by such Bench.
(2) When a criminal revision has
been admitted on the question of severity
of sentence only, it shall ordinarily be
heard by the Bench admitting it."

"7. Part-heard cases.- A case which
remains part-heard at the end of the day
shall, unless otherwise ordered by the
Judge or Judges concerned, be taken up
first after miscellaneous cases, if any, in
the Cause List for the day on which such
Judge or Judges next sit. Every part-heard
case entered in the list may, unless the
1 All] Sanjay Mohan V. State of U.P. and others
141
Bench orders otherwise, be proceeded
with whether any Advocate appearing in
the case is present or not."
11. As far as the question with
respect to pre-admission matters being
part heard or tied up matters is concerned,
the question is no longer res-integra and is
answered in Sanjay Kumar Srivastava
Vs. Acting Chief Justice and others,
1996 A.W.C. 644. In that matter a writ
petition was pending in this Court for
admission. The matter was adjourned for
about seven dates and an interim order
was passed. On the application to vacate
the interim order the prayer was rejected
by the Division Bench. On application
being moved by the State Government the
then Acting Chief Justice withdrew the
matter and referred it to the Full Bench.
This order of the Acting Chief Justice was
challenged by filing another writ petition.
It was stated that the writ petition was part
heard before the earlier Bench and it was
not permissible to the Acting Chief
Justice to withdraw the same and refer to
Full Bench. The Full Bench in para 36 has
laid down law (Per Sagir Ahmed, J., as
His Lordship then was in this Court) on
above referred rule 14 as follows:

"36. The other part of sub-rule (1)
lays down in clear terms that the case in
which the Bench has merely issued notice
to the opposite party or had passed an ex
parte order shall not be deemed to be a
case partly-heard by that Bench. This
provision has been made to specify that a
case does not become part-heard merely
by passing of interim order. It also lays
down that if notices are directed to be
issued to the opposite party, the case does
not become part-heard case of that Bench.
The consequences are obvious. If the
Division Bench which has merely passed
an ex parte order or directed notice to be
issued to the opposite party locate it as a
part heard case or passes an order that it
will come up before that Bench for
"further hearing" or as a part-heard" or as
a "tied-up" case, the order would be in
violation of the Rules of Court and,
therefore, a nullity. Such an order would
be without jurisdiction and would not
confer any jurisdiction on the Bench
concerned to proceed with that case
unless the case is listed before them again
under the orders of the Chief Justice. In a
situation where any order has been passed
indicating such a case on the order-sheet
or on the main writ petition to be part
heard or tied up case, the Chief Justice
inspite of that order would retain his
jurisdiction to list it before the appropriate
Bench for hearing as the order limiting
the case to be a part-heard or tied up
would be in violation of the Rules of
Court and would not bind the hands of the
Chief Justice from listing that case as a
"seen" case before any other Bench rather
than as a "tied up" case before that very
Bench." (Underling supplied)

12. Thus, the Full Bench of this
Court has clearly laid down that if a
Bench has issued only notice to the
opposite party and passed an order that
the matter will come up before that Bench
for further hearing or as a part-heard or as
a tied-up case, the order would be in
violation of the Rules of Court and,
therefore, a nullity. Such an order would
be without jurisdiction and would not
confer any jurisdiction on the Bench
concerned to proceed with that case,
unless the case is listed before that Bench
under the orders of the Chief Justice.

13. In paragraphs 34 and 35 the Full
Bench went into the question about the
matters which are being heard finally and
142 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
are part-heard. After referring Rule 14 of
Chapter V of the Rules of the Court the
Full Bench held in paragraph 34 that the
provision of sub-rule (1) would indicate
that even a case which is partly heard by a
Division Bench is not necessarily to be
laid before that Bench. The use of word
"ordinarily" itself indicates that there can
be a departure from the normal practice of
listing a part-heard case before the same
Bench.

14. Identical rules of Rajasthan High
Court came up for consideration before
the Apex Court in State of Rajasthan Vs.
Prakash Chand reported in (1998) 1 SCC
1. A Bench of three Judges of the Apex
Court (Per Dr. Anand, J. prior to His
Lordship becoming, C.J.I.) affirming the
judgment of the Full Bench in paragraph
23, specifically held that "the above
opinion appeals to us and we agree with
it." Paragraph 23 reads as follows:

"23. The above opinion appeals to us
and we agree with it. Therefore, from a
review of the statutory provisions and the
case on the subject as rightly decided by
various High Courts, to which reference
has been made by us, it follows that no
Judge or a Bench of Judges can assume
jurisdiction in a case pending in the High
Court unless the case is allotted to him or
them
by
the
Chief
Justice.
Strict
adherence of this procedure is essential
for maintaining judicial discipline and
proper functioning of the Court. No
departure from it can be permitted. If
every Judge of a High Court starts picking
and choosing cases for disposal by him,
the discipline in the High Court would be
the casualty and the administration of
justice would suffer. No legal system can
permit machinery of the Court to collapse.
The Chief Justice has the authority and
the jurisdiction to refer even a part-heard
case to a Division Bench for its disposal
in accordance with law where the Rules
so demand. It is complete fallacy to
assume that a part-heard case can under
no circumstances be withdrawn from the
Bench and referred to a larger Bench,
even where the Rules make it essential for
such a case to be heard by a larger
Bench."

15. In this paragraph the Apex Court
has clearly held that no Judge or Bench
can assume jurisdiction in a case pending
in the High Court unless the case is
allotted to him or them by the Chief
Justice. Strict adherence of this procedure
is essential for maintaining judicial
discipline and proper functioning of the
Court. No departure from it can be
permitted.

16. Recently, in another judgment
the Apex Court has held in para 19 of
Jasbir Singh Vs. State of Punjab
reported in (2006) 8 SCC 294 that it is not
within the competence of any Single or
Division Bench of the High Court to give
any direction to the Registry in that behalf
which will run contrary to the directions
of the Chief Justice. The judgment (Per
Balakrishnan, J. prior to His Lordship
becoming C.J.I.) specifically referred to
the
earlier
judgment
in
State
of
Rajasthatn Vs. Prakash Chandra (Supra)
and reiterated the legal position.

17. The law laid down in these
judgments clearly establishes that the
learned Single Judge could not have
directed the Registry to continue the
matter to be placed before him as the
roster had been changed. Even if he was
to say that the matter was part heard, in
view of the law laid down by the Full
1 All] Sanjay Mohan V. State of U.P. and others
143
Bench which is affirmed by the Apex
Court: such a direction or order would be
in violation of the Rules of Court and,
therefore, nullity. Any case at pre
admission stage cannot be treated as part
heard or tied up and such a direction
contrary to the roster is not within the
competence of the any Single or Division
Bench of the High Court as has also been
held in the case of Jasbir Singh (supra).

18. In these circumstances, we
accept both the submissions of the
appellant, namely, the petition had
become infructuous once the daughter of
the original petitioner had appeared at the
examination from the centre that was
allotted to her and secondly, the orders
passed by the learned Single Judge after
change of roster were without jurisdiction
and are liable to be treated as null and
void.

19. In these circumstances, we allow
this appeal and set aside the orders dated
12.3.2007, 23.3.2007, 6.4.2007, 4.5.2007,
2.7.2007,
9.8.2007,
17.9.2007
and
12.10.2007 passed by the learned Single
Judge and the petition is also disposed of
as worked out. The registry will make
necessary entry.

20. In the circumstances of the case,
obviously there will not be any order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2007

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 34209 of 2005

Markandey Maurya

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri P.C. Sritvastava

Counsel for the Respondents:
Sri V.S. Shukla
Sri A.K. Bajpai
S.C.

Irrigation Department Munshi Service
Rules
1954-Rule
5,12
and
13Recruitment on the Post of Head Munshipetitioner initially appointed on the Post
of Sinchpal in 1979-promoted on the
post of Munshi on 27.11.98, confirmed
on
29.10.04-further
promoted
on
15.11.04 as Head Munshi-cancellation on
the ground not having 10 years working
experience as Munshi-held-illegal-on the
date of promotion petitioner posses
more
than
10
years
experienceparticularly the private respondent being
appointed as Mate in 1997 can not be
promoted as head Munshi-legal aspect
clarified.

Held: Para 11

Learned counsel for the respondent No. 5
submits that the promotion of the
petitioner as head Munshi has rightly
been cancelled as he was not qualified
for such a promotion as under Rule 12 of
the Rules, 1954.he has not put in at least
10 years continuous service on the post
of Murshi I am not at all impressed by
the above submission. A plain reading of
Rule 12 and 13 indicates that for the
promotion on the post of Munshi the
Patrol or Tube-well Operator as the case
may be apart from being in the required
age group should have least 5 years of
continuous service and should be willing
to work as Munshi. As far as for the
appointment on the post of head Munshi
by promotion, the necessary eligibility
conditions
are
that
the
candidates