# Om Prakash v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1577
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-12
- **Case number:** Special Appeal No. 1933 of 2013
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, Cj. Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-of-u-p-and-ors-42797
- **Pages:** 7

## Headnote

Rules-Chapter
VIII-Rule-5Special
Appeal-against
order
issuance
notice-order
involving
question
of
jurisdiction-within meaning of judgmentheld-special
appeal
maintainable-mere
issue notice can not be treated as tied up or
part-heard-after change of roster learned
Single Judge ceased with every jurisdictionexcept the jurisdiction assigned by roster
by Hon'ble the Chief Justice-order passed
by Single Judge-set-a-side-consequential
direction issued.

Held: Para-12
In Prof. Y.C. Simhadri (supra), it has
been held by the Division Bench that the
contempt jurisdiction is an independent
jurisdiction of an original nature whether
emanating from the Contempt of Courts
Act
or
under
Article
215
of
the
Constitution of India. Consequently, it
has
been
held
that
where
the
assumption of jurisdiction by the learned
Single Judge is contrary to the Rules of
the Court, the order would be appealable
under Clause 10 of the Letters Patent as
continued by Clause 15 of the United
Provinces High Courts (Amalgamation)
Order, 1948 and Rule 5 of Chapter VIII
of the Allahabad High Court Rules, 1952.
Such an order involving the exercise of
jurisdiction not vested in the learned
Single Judge has been held to fall within
the
definition
of
the
expression
'judgment' since it decides a matter of
moment or affects the vital and valuable
rights of the parties, thereby working
serious injustice as explained in the
judgment of the Supreme Court in Shah
Babulal Khimji Vs. Jayaben D. Kania &
Anr.5.

Case Law discussed:
Prof. Y.C. Simhadri, Vice Chancellor, B.H.U. &
Ors Vs. Deen Bandhu Pathak, Suudent; Sanjay
Kumar Srivastava Vs. Acting Chief Justice &
Ors.; Awadh Naresh Sharma Vs. State of U.P.
& Ors; State of Rajashthan Vs. Prakash Chand;
Prof. Y.C. Simhadra(supra); Shah Babulal
Khimji Vs. Jayaben D. Kania & Anr.

## Text

3 All] Om Prakash Vs. State of U.P. and Ors.
1577
monetary terms indigents, young persons,
infirm individuals and women are weak
categories and courts should be liberal in
releasing them on their own recognisances
put whatever reasonable condition you may."

5. In view of above decision of the
Apex Court as the appellant has been in
jail for such a long time., it would be
difficult for him to arrange for personal
sureties for him. We, therefore direct the
trial Court Judge to comply with our
order. We direct that the appellant shall be
released on bail on his furnishing a
personal bond for Rs.20,000/-. However,
he is required to appear at the police
station Sadar Bazar, Jhansi after every
three months. In case of failure to appear
at the police station as directed above, it
would be open to the authorities of the
court concerned to take steps for
cancellation of his bail.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2013

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, CJ.
THE HON'BLE SANJAY MISRA, J.

Special Appeal No. 1933 of 2013

Om Prakash.. .Appellant
Versus
State of U.P. and Ors.... Respondents

Counsel for the Appellant:
Sri Rajeev Giri

Counsel for the Respondents:
C.S.C., Sri R.R. Shukla, Sri V.C. Naik, Sri
Vivek Pandey

High
Court
Rules-Chapter
VIII-Rule-5Special
Appeal-against
order
issuance
notice-order
involving
question
of
jurisdiction-within meaning of judgmentheld-special
appeal
maintainable-mere
issue notice can not be treated as tied up or
part-heard-after change of roster learned
Single Judge ceased with every jurisdictionexcept the jurisdiction assigned by roster
by Hon'ble the Chief Justice-order passed
by Single Judge-set-a-side-consequential
direction issued.

Held: Para-12
In Prof. Y.C. Simhadri (supra), it has
been held by the Division Bench that the
contempt jurisdiction is an independent
jurisdiction of an original nature whether
emanating from the Contempt of Courts
Act
or
under
Article
215
of
the
Constitution of India. Consequently, it
has
been
held
that
where
the
assumption of jurisdiction by the learned
Single Judge is contrary to the Rules of
the Court, the order would be appealable
under Clause 10 of the Letters Patent as
continued by Clause 15 of the United
Provinces High Courts (Amalgamation)
Order, 1948 and Rule 5 of Chapter VIII
of the Allahabad High Court Rules, 1952.
Such an order involving the exercise of
jurisdiction not vested in the learned
Single Judge has been held to fall within
the
definition
of
the
expression
'judgment' since it decides a matter of
moment or affects the vital and valuable
rights of the parties, thereby working
serious injustice as explained in the
judgment of the Supreme Court in Shah
Babulal Khimji Vs. Jayaben D. Kania &
Anr.5.

Case Law discussed:
Prof. Y.C. Simhadri, Vice Chancellor, B.H.U. &
Ors Vs. Deen Bandhu Pathak, Suudent; Sanjay
Kumar Srivastava Vs. Acting Chief Justice &
Ors.; Awadh Naresh Sharma Vs. State of U.P.
& Ors; State of Rajashthan Vs. Prakash Chand;
Prof. Y.C. Simhadra(supra); Shah Babulal
Khimji Vs. Jayaben D. Kania & Anr.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. This special appeal has been filed
by the eighth respondent, who is the
1578 INDIAN LAW REPORTS ALLAHABAD SERIES
officiating Joint Director of Education,
Varanasi Region, Varanasi against an
order of the learned Single Judge dated 25
November 2013 which reads as follows:-

"After hearing Sri R.B. Pradhan,
learned
Additional
Chief
Standing
Counsel, this Court is satisfied that there
has been an attempt on the part of the then
Regional Joint Director of Education to
over reach the directions issued by this
Court vide judgment dated 22nd October,
1997 passed in Civil Misc. Writ Petition
No. 28384 of 1993 (Committee of
Management,
Gangadin
Ram
Km.
Intermediate College, Ramgarh, Jaunpur
& others vs. Sri Amit Prakash, Deputy
Director of Education, Vth Region,
Varanasi & others along with connected
petition), and to bring disrepute to the
final judgment, which has been made in
the matter. Therefore, the then Regional
Joint Director of Education, Sri O.P.
Dwivedi is prima facie liable for contempt
and for the purposes of framing of charge
his presence is required.

Let the then Regional Joint Director
of Education, Sri O.P. Dwivedi appear
before this Court on 18th December,
2013.

List this matter on 18th December,
2013."

2. The writ petition under Article
226 of the Constitution has been filed by
the twelfth and thirteenth respondents to
this appeal, who are respectively the
Committee of Management, Ganga Din
Ram Kumar Inter College, Ramgarh
Barawan, Jaunpur and Virendra Kumar
Pandey, its Manager. The petition seeks a
writ of certiorari calling for the records of
an alleged election held on 23 October
2011 and for quashing and setting aside
the election and an order of the District
Inspector of Schools, Jaunpur dated 29
October 2011, attesting the signature of
Smt. Vimla Tripathi (respondent 11 in the
writ proceedings and respondent 10 in the
present appeal). The petition was initially put
up as a fresh matter before a learned Single
Judge on 6 February 2012 and thereafter was
adjourned from time to time until 15 March
2012 when the learned Single Judge (Justice
A.P. Sahi) directed that the petition be placed
before a Bench of which he is not a Member
after obtaining a nomination from Hon'ble the
Chief Justice. The Chief Justice, on 16 March
2012, directed that the petition should be
placed before Hon'ble Mr. Justice Dilip Gupta
before whom the petition appeared on board
on 12 April 2012, 10 May 2012, 2 July 2012,
18 September 2012, 3 October 2012, 10
October 2012, 21 November 2012, 29
November, 2012, 22 March 2013 and 5 April
2013. Eventually on 5 April 2013, the learned
Single Judge directed that since he was now
sitting in a Division Bench, the matter may be
placed before the Hon'ble the Chief Justice for
appropriate orders. Accordingly, the Hon'ble
the then Chief Justice issued a direction on 9
April 2013 to the effect that the petition may
be laid/listed before the appropriate Bench.
Accordingly, on 9 May 2013, the petition was
listed before the learned Single Judge in
accordance with the prevailing roster of work.
On that day, the order sheet records that the
petition was heard in part and on the request
of the counsel for the eleventh respondent (in
the writ proceedings) who sought an
adjournment to study the matter, the petition
was directed to be placed on 13 May 2013.
On 20 May 2013, the petition appeared on
board before the learned Single Judge. While
referring to the fact that the petition had been
heard "at length on 9 May 2013", the learned
Single Judge directed the petition to stand
over to 29 May 2013 peremptorily. The
petition was not heard on 29 May 2013.
3 All] Om Prakash Vs. State of U.P. and Ors.
1579

3. The admitted position is that the
assignments of work under the roster
prepared under the directions of Hon'ble
the Chief Justice changed after the
summer recess of 2013. However, the
same learned Single Judge, who had
heard the matter on 9 May 2013 and 20
May 2013, heard the proceedings on 10
July 2013. For the first time, notice was
issued on that date when the learned
Standing
Counsel
representing
respondents 1 to 7 and the counsel
representing respondents 11 and 12
accepted notice. The appellant, being an
officer of the Education Department, the
learned Standing Counsel was directed to
take notice on his behalf. A further
direction for listing the matter on 25 July
2013 was issued. Thereafter, the learned
Single Judge heard the petition on diverse
dates between 25 July 2013 and 10
October
2013.
Eventually,
on
25
November 2013, an order was passed by
the learned Single Judge observing that
the Court was satisfied that there had been
an attempt on the part of the then
Regional Joint Director of Education to
overreach the directions issued by this
Court in a judgment dated 22 October
1997 and to bring disrepute to the final
judgment.
Consequently,
the
then
Regional Joint Director of Education was
prima facie held liable for contempt and
his presence has been directed to be
secured before the Court on 18 December
2013 for framing of charges.

4. Two submissions have been urged
in support of the appeal. First, it has been
submitted that under the directions of
Hon'ble the then Chief Justice, the hearing
of the petition was directed to be
laid/listed before the appropriate Bench
(by an administrative direction dated 9
April 2013). Accordingly, the petition
came up before the learned Single Judge
on 9 May and 20 May 2013. This was
before the issuance of notice. Once the
roster changed after the reassembling of
the Court at the end of summer recess in
July 2013, it has been urged that the
learned Single Judge had no jurisdiction
to further proceed with the hearing of the
petition and, hence, the assumption of
jurisdiction was improper and the order
which has been passed on 25 November
2013 is a nullity. Second, it has been
urged that even if the assumption of
jurisdiction was correct and proper, the
learned Single Judge had no jurisdiction
to hold the Regional Joint Director of
Education prima facie liable for contempt
and to require his presence for framing of
charges since the learned Judge was not
assigned contempt matters. In this regard,
reliance was placed on a Division Bench
judgment of this Court in Prof. Y.C.
Simhadri, Vice Chancellor, B.H.U. &
Ors. Vs. Deen Bandhu Pathak, Student1.

5. On the other hand, it has been
urged on behalf of the respondents that (i)
the learned Single Judge had heard the
matter in part on 9 May 2013 and
consequently
was
acting
within
jurisdiction in continuing to retain control
over the matter despite the change in the
roster. Once the petition was heard in
part, the learned Single Judge was
justified in entertaining the petition; (ii)
under Section 15 of the Contempt of
Courts
Act,
1971,
the
Court
has
jurisdiction to take cognizance on its own
motion of a case of criminal contempt.
That Court necessarily has to be the Court
in respect of whom a case of criminal
contempt arises and hence the learned
Single Judge before whose court prima
facie a criminal contempt had been found
was entitled to exercise jurisdiction.
1580 INDIAN LAW REPORTS ALLAHABAD SERIES

6. The rival submissions now fall for
consideration.

7. In the present case, as the order
sheet indicates, the first administrative
assignment, after a learned Single Judge had
recused himself, was issued on 16 March
2012 when there was a direction that the case
would be laid/listed before Hon'ble Mr.
Justice Dilip Gupta. When Hon'ble Mr.
Justice Dilip Gupta observed in an order
dated 5 April 2013 that he was unable to take
up the matter since he was sitting in a
Division Bench, the Hon'ble the then Chief
Justice, by an administrative order on 9 April
2013, directed that the case would be
laid/listed before the appropriate Bench.
Clearly, therefore, the direction of Hon'ble
the then Chief Justice was not to tie the case
with a particular Judge eo nominee but the
case would now be heard by the learned
Single Judge who was presiding over the
relevant assignment under the roster. It was
in accord with the aforesaid administrative
direction that the case came to be placed
before the learned Single Judge on 9 May
2013 when it was heard in part. The case was
thereafter directed to be placed on board on
13 May 2013 since the counsel for the
eleventh respondent sought time to study the
matter. The petition did not thereafter appear
before the learned Single Judge on 13 May
2013. Again on 20 May 2013, it was passed
over on the illness of one of the Advocates
who was appearing for a contesting party and
was directed to be listed on 29 May 2013.
The term of the court ended on account of
the summer recess in June 2013. After the
roster changed with the assembling of the
court after the summer recess, it was for the
first time that by an order dated 10 July 2013,
the learned Single Judge directed issuance of
notices. Consequently, from the order sheet,
it would be evident that prior to 10 July
2013, even notices had not been issued and,
as a matter of fact, though the case had been
heard on 9 May 2013, the counter affidavits
had yet not been filed. It was only on 10 July
2013 that the learned Single Judge granted
time to the respondents to file their counter
affidavits within a period of two weeks.
Obviously, there could be no substantial
hearing of a case unless the defence in the
form of a counter was placed on the record
and which, upon the directions of the Court,
could take place after 10 July 2013. Now, it
is in this background of the facts which have
emerged before the Court on the basis of the
orders, that we have to deal with the
submission in regard to the assumption of
jurisdiction by the learned Single Judge.

8. Rule 14 (1) of Chapter V of the
Allahabad High Court Rules, 1952
provides 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."

Rule 7 of Chapter VI of the said
Rules provides as follows:-

"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 Bench orders otherwise,
be proceeded with whether any Advocate
appearing in the case is present or not:

Provided that if any part-heard case
cannot be heard for more than two months
3 All] Om Prakash Vs. State of U.P. and Ors.
1581
on account of the absence of any Judge or
Judges constituting the Bench, the Chief
Justice may order such part-heard case to
be laid before any other Judge or Judges
to be heard afresh."

9. These Rules have been interpreted
by a Full Bench of this Court in Sanjay
Kumar Srivastava Vs. Acting Chief
Justice & Ors.2. The Full Bench has
emphasized that Rule 14 (1) makes it
clear that a case does not become partheard merely by passing an interim order
or by issuance of a notice to the opposite
party. Hence, the Full Bench held that a
Bench which has merely passed an ex
parte order or directed the notice to be
issued locates it as a part-heard case or
passes an order that it will come up before
that Bench for further hearing or as a partheard or as a tied-up case, the order would
be in violation of the Rules of the 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 it is listed before the Bench under
the orders of the Chief Justice. The
judgment of the Full Bench has been
followed in a judgment of a Division
Bench of this Court in Awadh Naresh
Sharma Vs. State of U.P. & Ors.3, where
the Division Bench held as follows:-

"14. 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.

15. In paragraphs 34 and 35 the Full
Bench went into the question about the
matters which are being heard finally and 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."

The Division Bench has finally
concluded thus:-

"19. The law laid down in these
judgments clearly established 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 roster is not within
the competence of any Single or Division
Bench of the High Court as has also been
held in the case of Jasbir Singh (supra)."

10. In this view of the matter, the
law on the subject is settled beyond a
shadow of doubt. The Rules of this Court
contemplate that even the issuance of a
notice or the passing of an ex parte order
does not ipso facto result in a case being
1582 INDIAN LAW REPORTS ALLAHABAD SERIES
treated as a case partly heard by a Bench.
Consequently, if a court issues a direction
treating a petition as a part-heard or as a tiedup case merely because a notice has been
issued or an ex parte order has been passed,
such an order would be a nullity and without
jurisdiction. The Rules of the Court have, in
the present case, been crafted with care and
for a purpose. It is necessary, in order to
maintain judicial discipline and to promote
transparency in the functioning of the Court,
that a Judge of the Court should not even
remotely give an impression of holding on to
a case despite a change in the assignment.
When the roster changes, cases which have
not been disposed of by a particular Court,
necessarily, must pass on to the regular
Bench to which the new roster of work has
been assigned by the orders of the Chief
Justice. An excessive outflow of part-heard
or tied-up cases disrupts the orderly
functioning of the court. Besides, it would
promote a sense of confidence of the
litigating public in the working of the court if
Judges were not to treat cases as part-heard
or tied-up unless, in a given case, the matter
has been heard extensively, in which case the
administration of justice requires that the
case should be heard and disposed of by the
same Bench. This is always subject to the
overarching administrative discretion of the
Chief Justice. Before a case can be taken up
as a part heard or tied up case after a change
in the roster, the prior administrative
directions of the Chief Justice must be
obtained. It is also well settled in view of the
judgment of the Supreme Court in State of
Rajasthan Vs. Prakash Chand4, that the
Chief
Justice
has
the
authority
and
jurisdiction to refer even a part-heard case to
another Bench for its disposal in accordance
with the regular roster of work.

11. In the present case, as is evident from
the order sheet, notice was issued, for the first
time, on 10 July 2013 by which time the roster
of work had changed. Even the issuance of a
notice, however, is not sufficient for a case to
be treated as tied-up or part-heard. It is evident
that the direction for filing of the counter
affidavit came to be issued on 10 July 2013.
Consequently, there would be no occasion to
treat the case as tied-up or part-heard by the
time the roster of work had changed after the
conclusion of the summer recess in the first
week of July 2013. In this view of the matter,
we find merit in the contention which has been
urged on behalf of the appellant that the
assumption of jurisdiction by the learned Single
Judge and the impugned order dated 25
November 2013 must be regarded as a nullity.
The learned Single Judge had, in our respectful
view, no jurisdiction to hear the case on 25
November 2013.

12. In Prof. Y.C. Simhadri (supra), it
has been held by the Division Bench that the
contempt jurisdiction is an independent
jurisdiction of an original nature whether
emanating from the Contempt of Courts Act
or under Article 215 of the Constitution of
India. Consequently, it has been held that
where the assumption of jurisdiction by the
learned Single Judge is contrary to the Rules
of the Court, the order would be appealable
under Clause 10 of the Letters Patent as
continued by Clause 15 of the United
Provinces High Courts (Amalgamation)
Order, 1948 and Rule 5 of Chapter VIII of
the Allahabad High Court Rules, 1952. Such
an order involving the exercise of jurisdiction
not vested in the learned Single Judge has
been held to fall within the definition of the
expression 'judgment' since it decides a
matter of moment or affects the vital and
valuable rights of the parties, thereby
working serious injustice as explained in the
judgment of the Supreme Court in Shah
Babulal Khimji Vs. Jayaben D. Kania &
Anr.5.
3 All] Chandra Pal Singh Vs. State of U.P. and Ors.
1583

13. For all the aforesaid reasons, we
allow this appeal and set aside the impugned
judgment and order of the learned Single
Judge dated 25 November 2013. In
consequence, we direct that Writ - C No.
5825 of 2012 shall now be placed before the
learned Single Judge in accordance with the
roster of work.

14. We clarify that since we have
held that the learned Single Judge had no
jurisdiction to entertain the petition and to
pass the impugned order dated 25
November
2013,
it
would not
be
necessary for us to express any view on
the merits of the allegation of a breach of
the judgment of this Court of 1997.

15. We also clarify that when the
writ petition is placed before the learned
Single Judge in pursuance of the present
judgment and order, all the rights and
contentions of the parties are kept open to
be urged before and decided by the
learned Single Judge on all issues which
may arise for consideration.

16. The appeal is accordingly allowed.
There shall be no order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2013

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
THE HON'BLE SANJAY MISRA, J.

Special Appeal No. 1964 of 2013

Chandra Pal Singh .Appellant
Versus
State of U.P. and Ors... .Respondents

Counsel for the Appellant:
Sri Shesh Kumar
Counsel for the Respondents:
C.S.C.

U.P. Civil Services Regulations-Regulation
351-A-Withholding
10%
pension-in
disciplinary proceeding appellant found guilty
of charges-punishment of withholding 10%
from pension-learned Single Judge-declined
to interfere-argument that in absence of
pecuniary loss-no power to withhold pensionhence-considering amended provision of
Regulation 351-A w.e.f. 01.01.61-penalty of
withholding
10%
pension-can
not
be
regarded as unconceivable-no interference
call for-appeal dismissed.

Held: Para-6
After the amendment, the provision has
now been modified so as to allow the
exercise of power under regulation 351-A of
the Regulations even in a situation where
an employee is found to have been guilty of
grave
misconduct
in
departmental
or
judicial
proceeding.
Hence,
both
the
legislative history as well as the plain and
literal meaning of regulation 351-A of the
Regulations do not support the submission
which has been urged on behalf of the
appellant. In the circumstances, the extent
of penalty which has been imposed in the
present case cannot be regarded as
unconscionable. No case for interference is
made out.

Case Law discussed:
A.Savariar Vs. The Secretary, Tamil Nadu
Public Service Commission and another.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)

1. The special appeal arises from a
judgment of the learned Single Judge
dated
7
November
2013.
By
the
judgment, which is impugned, the learned
Single Judge dismissed a petition filed by
the appellant seeking to question several
orders, the substance of which is that 10%
of the pension which is payable to the
appellant
has
been
withheld
under