# P.N. Tiwari v. Director, I.I.T., Kanpur & others

- **Citation:** (2001) 1 ILRA 5
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/p-n-tiwari-v-director-i-i-t-kanpur-others-39034
- **Pages:** 5

## Text

1All] P.N. Tiwari V. Director, I.I.T., Kanpur & others
5
or malafidely or in violation of
Section 41(1) (a)j of the Code of Criminal
Procedure, writ of mandamus can be
issued
restraining
the
police
from
misusing its legal power. However, the
order staying arrest may be granted
sparingly in exceptional case and with
circumspection that too in rarest of rare
case keeping in mind that any relief,
interim or final during investigation,
which has the tendency to slow down or
otherwise hamper the investigation should
not be granted.

11. Section 41)1) of the Code of
Criminal Procedure makes a provision as
to in what circumstances, a police officer
may arrest an accused without the order
of Magistrate or without a warrant. Clause
(a) of this Sub-Section provides that any
person who has been concerned in any
cognizable offence or against whom a
reasonable complaint has been made or
credible information has been received, or
a reasonable suspicion exists, of his
having been so concerned, may be
arrested by police without a warrant.
Section 157 Cr.P.C. lays down the
procedure for investigation and empowers
the Investigating Officer to take measures
for the arrest of the offender. The Full
Bench in the case of Statpal and others
(supra) observed.

"...There is no doubt that arrest is part of
investigation,
the
police
or
the
investigating agency has every authority
to investigate a case where cognizable
offence has been reportred. But while
exercising power of arrest they are
required
to
be
satisfied
about
the
genuineness
or
bona
fides
of
the
allegations of the complaint and about the
necessity
of
arrest
of
the
person
concerned. In other words, there must be
reasonable justification for effecting such
arrest, which is necessary for the proper
investigation."

12. As already pointed out above,
the question of examining truthfulness or
otherwise of the allegations made in the
First Information Report is not to be gone
into by this Court in these proceedings as
the same is to be determined by the
Investigating
Agency
during
investigation. We hope and trust that the
Investigating
Agency
while
making
investigation shall act honestly, fairly and
independently in accordance with the
above mentioned observations of the Full
Bench decision.

13. For the reasons stated above, the
writ petition is dismissed.

14.

Learned counsel for the
petitioner then made a prayer that leave to
appeal to Supreme Court be granted. In
our opinion it is not a fit case for grant of
leave to appeal. Accordingly, the oral
prayer of the learned counsel is refused.

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By the Court

1. The petitioner has come up with a
prayer
to
quash
the
order
dated
21.12.1990 passed by the Dean, Faculty
Affairs, Indian Institute of Technology,
Kanpur (Respondent no. 2) as contained
in Annexure-12 in so far as it relates to
his termination of services by grant of a
writ, order or direction in the nature of
certiorari. The impugned order reads thus
:-

"Further to letter No.: Estt. 4493
(FA)/89-ITTK/4183 dated December 1,
1989, the term of probationary period of
Shri P.N. Tewari, Maintenance Engineer
(Aircraft),
Department
of
Aerospace
Engineering, has been extended for a
period of six months w.e.f. November 4,
1990 on the same terms and conditions
contained in the original appointment
letter No. DF/D-1 (FA)/ITTK/88/1333
dated September 13/20, 1988 with the
stipulation that no further extension will
be given.

Sd/-(V.SUNDARARAAJAN)
DEAN FACULTY AFFAAAIRS
The Relevant Facts:-

2. The petitioner then serving as
Sargent in Indian Air Force who had
obtained a First Class in the Degree
Course of A.M.I.E. (India) in Mechanical
Engineering, which is equivalent of B.
Tech. or B.E., and was having a
certificate granted by the Indian Air Force
in regard to maintenance and major
repairs of HT 2, Gnat and Dakota
aircraft's in terms of Advertisement No.
DF-15/87 December 23, published by the
Indian Institute of Technology, Kanpur
applied for his appointment. He, along
with others, was called for interview. He
secured the highest marks at the Interview
which is being denied. He was selected
for the appointment. Vide appointment
letter dated 13/20th September, 1988
(Annexure-3)
he
was
appointed
as
Maintenance
Engineer
(Aircraft).
Pursuant to this appointment he sought
voluntary retirement to discharge from the
Indian Air Force which was accorded.

2.1 In his appointment letter (as
contained in Annexure-3) following terms
were mentioned:-

"4.PROBATION;
Subject
to
the
provisions of the Rules and Statutes, this
appointment is made on Probation for a
period of one year and till the necessary
certificate for maintenance of the Institute
aircraft are obtained , from the date of
joining.
However,
the
appointing
authority shall have the power to extend
the period of probation. The appointment
will be confirmed on permanent basis,
1All] P.N. Tiwari V. Director, I.I.T., Kanpur & others
7
after
satisfactory
completion
of the
probationary period."

5. DURATION; On confirmation after the
period of probation and subject to
satisfactory service thereafter, you shall
be retained in the services of the Institute
on a permanent basis. The age of
retirement will be governed by the
provisions of the Statutes in force."

2.2. Vide his letter dated March 17,
1989 the petitioner informed his Head,
Aeronautical
Engineering
Department
that
he
is
preparing
for
A.M.I.E.
Examination scheduled to take place in
September, 1989. He was intimated vide
Aaannexure-6 that his confirmation will
be subject to his obtaining A.M.E. licence
within a reasonable time. The petitioner
made
another
communication
vide
Annexure-7. Vide Annexure-8 the Faculty
Incharge- Flight Lab. I.I.T., Kanpur
sought clarifications in regard to the
examination for AME licence. Vide
Annexure-9 the petitioner explained his
position stating that he has not been
informed about the acceptance and/or
rejection of his examination form. Vide
Annexure-10 the Dean Faculty Affairs,
I.I.T., Kanpur informed the petitioner that
his probationary period has been extended
for a period of one year with effect from
4th November, 1989 on same terms and
conditions
ass
contained
in
his
appointment letter (Annexure-3). The
petitioner vide Annexure-11 made another
correspondence to the Dean Faculty
explaining, interalia, that since there was
no Chief Engineer at the relevant time to
forward his examination from thus in
relation to the examination held for
September,
1989
Session
the
Civil
Aviation Department did not consider his
experience at I.I.T., Kanpur and that the
results of March, 1990 Session is
expected. Thereafter the impugned office
order as contained in Annexure-12 was
passed.

The Submissions :-

3. Sri Sidheshwari Prasad, the
learned Senior Counsel appearing on
behalf of the petitioner, contended as
follows:-

(i) Under the advertisement the only
requirement
for
the
purposes
of
appointment of Maintenance Engineer
was to be B. Tech. in Aeronautical or
Mechanical
Engineering
which
the
petitioner undisputedly possessed and
thus
the
subsequent
imposition
for
obtaining
'necessary
certificate
for
maintenance of the Institute of Aircraft'
was
wholly
arbitrary,
void
besides
unreasonable and impermissible for I.I.T.

(ii) Even assuming that this term was
validly imposed on a bare perusal of the
document as contained in Annexure-1,
which is the Indian Air Force Trade
Proficiency Certificate, it was/is crystal
clear that the petitioner had special
training in regard to maintenance and
major repairs of HT 2 Gnat and Dakota
Aircrafts
thus
the
petitioner
was
possessing the necessary certificate for
maintenance
of,
interalia,
Dakota
Aircrafts which are also a civil aircraft,
thus his services were illegally not made
permanent.

(iii) Issuance of a direction to obtain a
licence
for
maintenance
of
institute
aircraft repeatedly vide Annexures-4 and
6 for the reason already stated was void as
in service jurisprudence it is well settled
that imposition of any fresh term contrary
8 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
to and/or variance of the terms and
conditions issued in the advertisement
letter is not permissible.

4. The learned counsel appearing on
behalf of the Respondents, on the other
hand, contended as follows:-

(i) No wrong was committed in insisting
the petitioner to obtain the certificate for
maintenance of the institute aircraft,
which apparently meant civil aircraft and
not military aircraft, coupled with the
additional fact that the petitioner himself
went on applying for grant of more time
so that he could obtain that certificate, the
submission made by Mr. Prasad are not
valid.
(ii) Unless the petitioner could have
possessed that certificate in regard to
airworthiness of any civil aircraft.
(iii) Consequently, this writ petition has
got no merit and is liable to be dismissed.

Our Findings:-

5. It is not in dispute before us that
Dakota aircrafts are not civil aircrafts
though at times they are being used by the
Indian Air Force. The Trade Proficiency
Certificate granted by the Indian Air
Force proves the factum that the petitioner
had specialised training in maintenance
and major repairs of HT 2, Gnat and
Dakota Aircrafts. The advertisement in
question laid down only one requirement
for appointment as Maintenance Engineer
(Aircraft), namely, that the applicant
should be B. Tech. In Aeronautical or
Mechanical Engineering. The petitioner
possessed the required degree which is
undisputed before us. Admittedly, the
authorities of the Indian Institute of
Technology, Kanpur after interview had
selected
him
for
appointment.
The
question, therefore, is as to whether the
Respondents were justified in imposing
additional terms while appointing him on
probation vide Annexure-4. Our answer is
a definite no. Such a requirement was not
asked
for at the time of making
applications for appointment to the post in
question. It was only after his selection in
I.I.T. the petitioner sought voluntary
retirement from I.A.F. The imposition of
this
term,
being
contrary
to
the
Advertisement itself, the Respondents
could not insist for production of such a
licence by the petitioner even though he
had prayed for grant of some time for
production of such a licence for the
reasons mentioned in his letters which
have been brought on the record. As a
necessary
counter
there
was
no
justification for the Respondents not to
consider
the
case
of
permanent
appointment
of
the
petitioner
vide
Annexure-12 rather in the backdrop
aforementioned we are of the view that
the petitioner was/is entitled to for
consideration
of
his
permanent
appointment to the post in question.

6. In the result, the impugned order,
as contained in Annexure-12, is quashed
and the Respondents are directed to
consider the case of the petitioner for the
purpose of permanent appointment to the
post in question objectively and in the
light of the observations made in the
proceeding paragraph. This writ petition
is allowed with costs quantified to the
extent of Rs.5,000/- only.

7. The office is directed to hand over
a copy of this order within one week to
Sri Pankaj Bhatia, the learned counsel for
the Respondents for a follow up action.
1All] Smt. Suman Sinha V. Chief Justice, High Court, Allahabad & others
9
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By the Court

Following prayers have made in this
writ petition by the petitioner Smt. Suman
Sinha widow of Late Girish Shanker
Sinha,
Advocate,
whose
registration
number was 169 of 1981, and who had
died of heart attack on 16th July, 2000, as
per the Death Certificate as contained in
Annexure-1 :-

I. to issue a writ, order or direction in the
nature of mandamus directing Hon'ble the
Chief Justice and the Registrar of this
Court (arrayed as Respondent nos. 1 & 2
respectively) to consider the application
(as contained in Annexure-4) filed for her
appointment against any post in this court
in view of the proposal placed on
22.5.2000 before Hon'ble The Chief
Justice by the President of High Court Bar
Association of this Court at the time of
his welcome address which he had also
accepted.
II. to issue a writ, order or direction in
the nature of Mandamus directing the
Respondents to frame rules and law in the
interest of the dependants of the deceased
Advocates.
III. to issue a writ, order or direction in
the
nature
of
mandamus
directing
Respondent no. 3, the U.P. Bar Council,
to
pay
immediately
a
sum
of
Rs.1,00,000/- under Accidental Insurance
Scheme and Rs.50,000/- for which the
dependants
of
every
Advocate
are
entitled.

2. Respondent no. 4 is the High
Court Bar Association, Allahabad, which
has been sued through its President.
Respondent no. 5 is the Union of India
through Speaker, New Delhi. Respondent
no. 6 is also the Union of India through its
Central Law Minister, New Delhi.

3. In terms of order dated 2.6.2000
the petitioner has served Respondent no.
3. It further appears that the petitioner of