# Nazma v. State of U.P

- **Citation:** (2009) 3 ILRA 1109
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-04
- **Case number:** Civil Misc. Writ Petition No. 65951 of 2009
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nazma-v-state-of-u-p-41392
- **Pages:** 4

## Headnote

,J.N. Maurya, C.S.C.

U.P.
Secondary
Education
Service
Selection Board Rules 1998-Rule-13-Life
of penal of selected list-petitioner was
given offer to join the post three times
by the management-by one pretext to
other petitioner refused to join-on life of
panel confined to one year-can not be
extended for endless period-attitude of
petitioner being illogical against the
larger interest of student-deserve no
sympathy-can not be allowed to abuse
such privilege.

Held: Para 6

This
exercise
of
seeking
extension
cannot be permitted endlessly, that too
even after the expiry of the period of the
panel itself. The Statute provides for a
1110 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
period of joining and the power of
extension cannot be construed to stretch
for more than the life of the panel itself.
The attitude of the petitioner is to avail
extensions as a luxury which is against
the
intention
of
the
Statute.
Reasonableness has to be assessed
keeping in view the life of the panel and
the period provided for joining. Anything
beyond would be unreasonable. From
the common man's point of view, it can
be said that the institution cannot be
placed in the position of a bride's father
to unendingly wait for the grooms
procession to arrive, as if there is no
option
or
alternative
available.
The
petitioner has crossed all limits of the
"Indian Standard Time" compelling the
management and the authority to run
out of patience. This in my opinion apart
from being illogical, is against the larger
interest
of
the
institution
and
the
students for whose benefit the petitioner
was offered appointment. The petitioner
seems to have no regard for the same
and therefore does not deserve any
further sympathy or indulgence.

## Text

3 All] Nazma V. State of U.P.
1109
Section 244 Cr.P.C. to add any person as
an accused to stand trial along with the
already trying accused. Merely because
Sabina, who was desired to be summoned
by the prosecution under Section 319
Cr.P.C., was not summoned under Section
204 Cr.P.C. is no ground not to summon
her under Section 319 Cr.P.C. and ask her
to stand trial. It is only the merit of the
statement under Section 244 Cr.P.C.
which is relevant for utilizing power
under Section 319 Cr.P.C.

4. Phraseology of the said Section
319 Cr.P.C. clearly indicates that the
power to summon any person as an
accused to face the trial along with
already trying accused clearly indicates
that during trial if it appears from the
evidence that any person not been an
accused has committed any offence for
which such person can be tried together
with the accused, the Court may proceed
against such person for the offence which
he appears to have been committed. The
word "evidence" as has been used in
Section 319 Cr.P.C. means the statement
recorded in the Court in accordance with
the provisions of the Evidence Act. The
statement under Section 244 Cr.P.C is one
of such statement which is an "evidence"
as it has been recorded by a Court during
a trial.

5. In such a view, the impugned
order dated 16.7.2009 passed by A.C.J.M.
Court No. 1, Muzaffarnagar in Case No.
3351/9 of 2008 (Nazma Vs Nawab
Arshad )under Sections 406, 506 I.P.C.
cannot be sustained and has to be set
aside.

6. I have not heard Sabina in this
application for the reason that prior to her
summoning, she has got no right to be
heard.

7. This criminal miscellaneous
application is allowed. The impugned
order dated 16.7.2009 is set aside. Case is
remanded back to the A.C.J.M. Court No.
1, Muzaffarnagar to re decide the prayer
of the prosecution for summoning Sabina
as an accused under Section 319 Cr.P.C.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 65951 of 2009

Ashwarya Pal Singh

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

Counsel for the Petitioner:
Sri Rajjan Lal

Counsel for the Respondent:
,J.N. Maurya, C.S.C.

U.P.
Secondary
Education
Service
Selection Board Rules 1998-Rule-13-Life
of penal of selected list-petitioner was
given offer to join the post three times
by the management-by one pretext to
other petitioner refused to join-on life of
panel confined to one year-can not be
extended for endless period-attitude of
petitioner being illogical against the
larger interest of student-deserve no
sympathy-can not be allowed to abuse
such privilege.

Held: Para 6

This
exercise
of
seeking
extension
cannot be permitted endlessly, that too
even after the expiry of the period of the
panel itself. The Statute provides for a
1110 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
period of joining and the power of
extension cannot be construed to stretch
for more than the life of the panel itself.
The attitude of the petitioner is to avail
extensions as a luxury which is against
the
intention
of
the
Statute.
Reasonableness has to be assessed
keeping in view the life of the panel and
the period provided for joining. Anything
beyond would be unreasonable. From
the common man's point of view, it can
be said that the institution cannot be
placed in the position of a bride's father
to unendingly wait for the grooms
procession to arrive, as if there is no
option
or
alternative
available.
The
petitioner has crossed all limits of the
"Indian Standard Time" compelling the
management and the authority to run
out of patience. This in my opinion apart
from being illogical, is against the larger
interest
of
the
institution
and
the
students for whose benefit the petitioner
was offered appointment. The petitioner
seems to have no regard for the same
and therefore does not deserve any
further sympathy or indulgence.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard learned counsel for the
petitioner and Sri Maurya for the Board.

2. It is submitted that the petitioner
is a selected candidate and it would be
unreasonable to deny him the benefit of
extension of the period for joining for
which he has prayed in his application.
The petitioner contends that he is still
ready to join and that the impugned order
dated 15.10.2009 deserves to be set aside.

3. Sri S.R. Singh learned counsel for
the Board contends that the period of
joining is prescribed under the rules and
he has invited the attention of the Court to
Rule 13 of the U.P. Secondary Education
Service Selection Board Rules, 1998. The
same is quoted below:
"13. Intimation of names of selected
candidates-(1) The Inspector shall, within
ten days of the receipt of the panel and the
allocation of institution under Rule 12-

(i) notify it on the notice-board of his
office;
(ii) intimate the name of selected
candidate to the Management of the
institution,
which
has
notified
the
vacancy, with the director, that , on
authorization under resolution of the
management, an order of appointment,
in the proforma given in Appendix "E"
be issued to the candidate by registered
post within fifteen days of the receipt of
intimation requiring him to join duty
within fifteen days of the receipt of the
order or within such extended time, as
maybe
allowed
to
him
by
the
Management, and also intimating him
that on his failure to join within the
specified time, his appointment will be
liable to be cancelled;
(iii) send an intimation to the candidate,
referred to in clause (ii), with the direction
to report to the Manager within fifteen
days of the receipt of the order of
appointment by him from the Manager
or within such extended time as may be
allowed to him, by the Management.
........................."

Sri Singh on the strength of the aforesaid
rule contends that as a matter of fact the
petitioner was granted ample time and he
failed to join and further from a perusal of
his application dated 7.9.2009 he has
prayed for further six months time. He
submits that after having waited for a
reasonable period the impugned order has
been passed which does not suffer from
any infirmity and does not call for
interference under Article 226 of the
Constitution of India.
3 All] Ashwarya Pal Singh V. State of U.P. and others
1111
4. I have heard learned counsel for
the petitioner and the learned counsel for
the Board and perused the rules. The same
provides that the proforma as provided
under Appendix E has to be filled up by
the management and the letter of
appointment has to be issued with an
intimation to the candidate to join within
a period of 15 days or within such
extended time as may be allowed him by
the management in the institution. It is the
admitted position that the petitioner had
been unable to join on account of his
family circumstances. He has further
prayed for six months time to join the
institution. The Court does not find any
valid reason except a bald and vague
averment of family circumstances so as to
justify further extension of time. Further
the time earlier provided has to be
reasonably construed.

5. According to the letters of the
management as referred to in the
impugned order dated 15.10.2009, the
management had offered the post to the
petitioner thrice after the panel was
declared way back on 24.10.2008. The
petitioner has voluntarily delayed his
joining for the past more than a year. The
life of the panel itself is one year. In view
of the provisions quoted above, the
management has already discharged its
obligation under the Statute and it is the
petitioner who has voluntarily disabled
himself.

6. This exercise of seeking extension
cannot be permitted endlessly, that too
even after the expiry of the period of the
panel itself. The Statute provides for a
period of joining and the power of
extension cannot be construed to stretch
for more than the life of the panel itself.
The attitude of the petitioner is to avail
extensions as a luxury which is against
the
intention
of
the
Statute.
Reasonableness
has
to
be
assessed
keeping in view the life of the panel and
the period provided for joining. Anything
beyond would be unreasonable. From the
common man's point of view, it can be
said that the institution cannot be placed
in the position of a bride's father to
unendingly
wait
for
the
grooms
procession to arrive, as if there is no
option or alternative available. The
petitioner has crossed all limits of the
"Indian Standard Time" compelling the
management and the authority to run out
of patience. This in my opinion apart from
being illogical is against the larger interest
of the institution and the students for
whose benefit the petitioner was offered
appointment. The petitioner seems to have
no regard for the same and therefore does
not deserve any further sympathy or
indulgence.

7.

The
petitioner
cannot
be
permitted to abuse a privilege which is
not an absolute right. The petitioner is to
act reasonably. In the opinion of the Court
the petitioner has taken undue advantage
of his selection and therefore the
impugned order dated 15.10.2009 does
not require any interference.

The writ petition therefore lacks
merit and it is dismissed.
---------
1112 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 33358 of 2007

Akhilesh Kumar Kardham and another

 ...Petitioners
Versus
Zila Basic Shiksha Adhikari and another

 ...Respondents

Constitution of India Article 226-Post
retirement benefits-petitioner's father
working as Head Master died in harness
on 27.08.2004-since than retire dues like
Provident Fund, Gratuity, Insurance and
arrears of family pension with held-crime
and corruption thrive and prosper in
society due to lack of public resistanceCourt expressed its great concern-having
onerous
responsibility
to
generate
confidence and strength in common
man-direction
issued
to
give
entire
amount with 10% interest per annum
from the date of filling of Writ Petition to
till the date of actual payment with cost
of Rs.10,000/-.

Held: Para 11

In view of the above the writ petition is
allowed. The respondents are directed to
release the retiral dues of the deceased
employee to the petitioners within a
period of two months from the date of
production of a certified copy of this
order alongwith interest at the rate of
10% per annum which shall be payable
from the date of filing of the present writ
petition, i.e., 23.07.2007 till the amount
is actually paid. The petitioner shall also
be entitled to cost which is quantified to
Rs. 10,000/-. However, the respondent
no. 2 shall be at liberty to make
appropriate disciplinary inquiry in the
matter and to find out the officials
responsible for such extraordinary delay
in payment of retiral benefits of the
deceased employee to the petitioners
and to realize the amount of interest and
cost awarded under this order from such
officer(s)/ employee(s) as the case may
be.
Case law discussed:
1972 AC 1027, 1964 AC 1129, JT 1993 (6) SC
307, (1996) 6 SCC 530, (1996) 6 SCC 558, AIR
1996 SC 715, 1985 (50) FLR 145.

(Delivered Hon'ble Sudhir Agarwal, J.)

1. The sole grievance of the
petitioners is that the father of petitioner
no. 1 and husband of petitioner no. 2 Late
Sri Jagat Singh, who was working as
Headmaster in Primary School died on
27.08.2004 and since then the petitioners
are requesting the respondents to pay
retiral dues of the deceased employee
like, provident fund, gratuity, insurance
and arrears of family pension etc. but till
date nothing has been done by the
respondents.

2. In the counter affidavit filed by
respondents the only defence taken is that
the matter is under consideration. It also
appears from the counter affidavit that for
the first time in 2005 the respondents
initiated the matter regarding payment of
retiral dues of the deceased employee,
passing the order dated 30.11.2005,
declaring that the suspension of the
deceased employee stands terminated on
27.08.2004 and he will be deemed to have
been reinstated on the said date for the
purpose of retiral benefits but without any
salary. Thereafter, the only factum
mentioned in the counter affidavit is that
an objection was raised by the Finance
and Accounts Officer, Basic Education,
Moradabad about the status of the
deceased employee which was clarified
by letter dated 29.08.2008 and since then