# Meena Srivastava v. State of U.P. and others

- **Citation:** (2009) 1 ILRA 110
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-11-04
- **Case number:** Special Appeal No. 1498 of 2008
- **Bench:** Ashok Bhushan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/meena-srivastava-v-state-of-u-p-and-others-41295
- **Pages:** 4

## Headnote

Constitution
of
India-Art.226-Writ
Petition-maintainability-
petitioner
working as Shiksha Mitra-Challenge the
advertisement-dismissal
by
Single
Judge-as
Shiksha
Mitra
not
a
Government servant held-action of state
authorities questioned, being arbitrary
and malafide-held writ petition very well
maintainable.

Held: Para 7

We are of the view that the writ petition
was maintainable. The mere fact that the
Shiksha Mitra is paid honorarium by the
state Government cannot be said to a
ground for dismissing the writ petition
as not maintainable when the actions of
the State Officers are impugned in the
writ petition. Petitioner can maintain a
writ petition. We are of the view that the
Hon'ble Single Judge has committed an
error in dismissing the writ petition as
not maintainable.
Case law discussed:
1990 SC 423, 1984 SC 1621

## Text

110 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No. 1498 of 2008

Meena Srivastava

...Appellant

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

Counsel for the Appellant:
Sri Sanjay Kumar Shukla

Counsel for the Respondents:
Sri Ghan Shyam Maurya
Sri V.K. Singh
S.C.

Constitution
of
India-Art.226-Writ
Petition-maintainability-
petitioner
working as Shiksha Mitra-Challenge the
advertisement-dismissal
by
Single
Judge-as
Shiksha
Mitra
not
a
Government servant held-action of state
authorities questioned, being arbitrary
and malafide-held writ petition very well
maintainable.

Held: Para 7

We are of the view that the writ petition
was maintainable. The mere fact that the
Shiksha Mitra is paid honorarium by the
state Government cannot be said to a
ground for dismissing the writ petition
as not maintainable when the actions of
the State Officers are impugned in the
writ petition. Petitioner can maintain a
writ petition. We are of the view that the
Hon'ble Single Judge has committed an
error in dismissing the writ petition as
not maintainable.
Case law discussed:
1990 SC 423, 1984 SC 1621

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Sanjay Kumar Shukla,
learned counsel for the appellant, Sri
Shyam Maurya, learned counsel for
respondent no. 5, Sri V.K. Singh, learned
counsel for respondent no. 4 and learned
Standing Counsel for respondent nos. 1 to
3.

2. With the consent of the parties
this special appeal is being disposed of at
the admission stage without calling for
counter affidavit, in view of the order
proposed to be passed today.

3. This special appeal has been filed
against the judgement and order passed by
the Hon'ble single Judge dated 13th
October 2008, whereby the writ petition
filed by the appellant has been dismissed
as not maintainable.

4. The Hon'ble Single Judge has
observed that the appointment of Shiksha
Mitra is contractual in nature and they are
paid
honorarium.
They
are
not
government servant in any case.

5. Learned counsel for the appellant
submits that the Shiksha Mitra is
appointed
in
accordance
with
the
Government Orders issued from time to
time and the amount of honorarium is
paid by the State Government through
Gram Shiksha Samiti. The appointment
and selection are regulated by the
Government Order and implemented by
the State Authorities including the Gram
Shiksha Samiti, District Basic Education
Officer and District Magistrate.

6. In the writ petition the appellant
has challenged the advertisement issued
by the District Basic Shiksha Adhikari,
1 All] Meena Srivastava V. State of U.P. and others
111
Gorakhpur.
The
appellant
submitted
before the Writ Court that he has already
been selected as Shikshta Mitra and there
was no occasion for issuing fresh
advertisement inviting application for the
post of Shikshta Mitra. The Challenge
made in the writ petition is to the
advertisement
issued
by
the
Stateauthority.

7. We are of the view that the writ
petition was maintainable. The mere fact
that the Shiksha Mitra is paid honorarium
by the State Government cannot be said to
be a ground for dismissing the writ
petition as not maintainable when the
actions of the state officers are impugned
in the writ petition. Petitioner can
maintain a writ petition. We are of the
view that the Hon'ble Single Judge has
committed an error in dismissing the writ
petition as not maintainable.

8. Reference may be had to the
judgment of the Hon'ble Supreme Court
of India in the case of Francis John vs.
Director of Education & Ors., reported
in AIR 1990 SC 423, wherein a writ
petition was filed against the order passed
by the Director of Education, the High
Court
dismissed
the
writ
petition
upholding the objections that the writ
petition was not maintainable, since it was
against a private school. The Hon'ble
Supreme Court relying upon an earlier
judgement in the case of Tika Ram vs.
Mundikota Shikshan Prasarak Mandal,
reported in AIR 1984 SC 1621 held that
the writ petition was fully maintainable.
Relevant paragraphs i.e. paragraphs nos. 7
and 9 of the judgement of the Hon'ble
Supreme Court of India in the case of
Francis John (Supra) are being quoted
herein below:

"7. The appellant contended in the
writ petition that the proceedings of the
Disciplinary
Committee
are
in
contravention of the principal of natural
justice and fair play and the approval
given by the Director of Education was
unsustainable. The appellant relied upon
the decision of this Court in Tika Ram vs.
Mundikota Shikshan Prasarak Mandal,
(1985) 1 SCR 339:(AIR 1984 SC 1621)
and contended that he was not asking for
any relief against the private body but he
was challenging the order of the Director
of Education who had granted approval
to his removal on the basis of a report
submitted
to
him
by
the
Dispute
Settlement Committee and hence the
Director of Education, who was a public
authority and whose orders had been
questioned
before
the
Court
was
amenable to the jurisdiction of the High
Court under Art. 226 of the Constitution.
The High Court distinguished the above
case by observing in Para 11 of its
judgment thus(1988)(1)Lab LN 762 at p.
765):

"..........Mr. Kakodkar had placed
reliance on Tika Ram vs. Mundikota
Shikshan Prasarak Mandal (AIR 1984 SC
1621) in support of his proposition that
a writ petition would be maintainable in
the case of a Headmaster of a private
school
who
is
dismissed
by
the
management of a private school. In Tika
Ram's case, the petitioner was not seeking
any relief against the management on the
basis of the clauses in the School's Code.
But the Court observed (Para 3)

'In the instant case the appellant is
seeking a relief not against a private body
but against an officer of Government who
is always amenable to the jurisdiction of
the Court.'

Obviously, no decision of an Officer
of Government is being challenged in the
112 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
present case and hence, Tika Ram's case
is easily distinguishable."

9. In the instant case also we are
concerned with the Grant-in-Aid Code.
The decision which was challenged before
the High Court was the order of the
Director of Education Dated July 12,
1984 which is fully extracted above. It is
further seen that a copy of the above
order has been communicated by the
Director of Education not merely to the
management of the School but also to the
Zonal Officer, North Educational Zone,
Mapsa and the Grant-in-Aid Section of
the Directorate of Education. If the
impugned orders of the Director of
Education and of the Dispute Settlement
Committee to which he had referred the
case are set aside then the order of
termination of service of the appellant,
which is pursuant to them would also
have to fall. Any private school which
receives aid from the Government under
the
Grant-in-aid-Code,
which
is
promulgated not merely for the benefit of
the Management but also for the benefit
of the employees in the School for whose
salary and allowances the Government
was contributing from the public funds
under the Grant-in-aid Code cannot
escape from the consequences flowing
from the breach of the Code and
particularly
where
the
Director
of
Education who is an instrumentality of the
State is participating in the decision
making
process.
Under
these
circumstances we find that the High Court
was wrong in upholding that the orders of
the Director of Education and of the
Dispute Settlement Committee were not
amenable to the jurisdiction of the High
Court
under
Article
226
of
the
Constitution since the matter squarely
falls within the principles laid down by
this Court in Tika Ram's case (AIR 1984
SC 1621) (supra)"

9. In the facts of the present case
writ petition has been filed against an
action of a Government Officer, who is
public authority. The writ petition under
Article 226 of the Constitution of India is
maintainable against a public authority.
The public authorities, who are Stateauthorities and instrumentalities are not to
act
arbitrarily,
irrationally
or
unreasonably. Any action of public
authority can always be impugned in the
writ petition and it cannot be said that the
writ petition is not maintainable in such
case.

10. In view of the aforesaid, we are
of the view that the writ petition is
maintainable and could not have been
dismissed by the Hon'ble Single Judge on
the ground that appointment of Shiksha
Mitra is contractual in nature and they are
paid honorarium. The judgment and order
of the Hon'ble Single Judge dated 13th
October, 2008 is hereby set aside. The
writ petition is restored to its original
number. Let the writ petition be placed
before the Hon'ble Single Judge afresh for
consideration in accordance with law in
the next cause list.

11. This special appeal is allowed
subject to the observation made above.
---------
1 All] Smt. Amrawati Devi V. Purvanchal Vidyut Vitran Nigam Ltd. and another
113
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.01.2009

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No.1545 of 2009

Smt. Amrawati Devi

...Petitioner

Versus
Purvanchal Vidyut Vitran Nigam Ltd. and
another

 ...Respondents

Counsel for the Petitioner:
Sri B.C. Rai

Counsel for the Respondents:
Sri H.P. Dube

U.P. Electricity Supply Code 2005-5-6
©(iii)-Testing of defective meters of
Electric
supply-authorities
found
the
meter of petitioner tempered-having
very slow movement-after scale the
meter-petitioner was required to be
present in laboratory of Nigam for
testing-without obtaining the consent of
consumer
in
writing-held-illegal
impugned
order
can
not
sustaindirection issued for fresh testing after
taking consent of consumer by separate
agency.

Held: Para 11

We are of the considered opinion that
after sealing the meter the Nigam must
serve a notice, on which it should be
printed in bold capital letters, intimating
the consumer or his representative to
exercise his option either to get the
meter tested by the electrical inspector
or at the laboratory of the Nigam or the
consumer may exercise his option to get
his meter tested from one of the outside
agencies
approved
by
the
Nigam
mentioned in the notice. Once the
consumer
exercise
his
option
then
immediately a date has to be fixed for
testing of the meter in the presence of
the consumer.
Case law discussed:
AIR 1979 SC 621, (1867) LR 2 HL 43 at p. 57,
(1920) 28 CLR 305 (Aus), (1846) 2 CB 706,
(1937) AC 473,

(Delivered by Hon'ble V.M. Sahai, J.)

1. The Purvanchal Vidyut Vitran
Nigam Ltd. (in brief the Nigam) replaced
the old electricity meter on 14.12.2004
and installed a new Secure Meter No.
UPE 62373 at the hotel of the petitioner.
Another China Meter No.LT-1089513
was installed outside the premises of the
petitioner on 16.12.2007. The hotel of the
petitioner was checked on 26.11.2008 and
the officers of the Nigam found that the
Secure Meter No. UPE 62373 was
running slow by 12.61%. It was decided
by the officers of the Nigam that the
aforesaid meter would be tested at the
laboratory of the Nigam. On the same day
the Secure Meter No.UPE 62373 was
sealed and the petitioner was intimated
that the meter would be tested at the
laboratory of the Nigam and the petitioner
should be present on 4.12.2008. The
Secure Meter No.UPE 62373 was taken
away and a new meter was installed at the
hotel of the petitioner.

2. At the laboratory of the Nigam on
4.12.2008 the seal of the Secure Meter
No. UPE 62373 was opened in the
presence of the petitioner. The meter and
seal, after testing were found to have been
tampered.
Thereafter,
provisional
assessment notice dated 31.12.2008 was
issued to the petitioner which has been
challenged by the petitioner in this writ
petition on the ground that the sealed
meter should have been sent for testing by
an independent agency as provided by
Clause 5.6 (c)(iii) of U.P. Electricity