# Paresh Yadav & Ors v. State of U.P. and Ors

- **Citation:** (2014) 1 ILRA 198
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-31
- **Case number:** Civil Misc. Writ Petition No. 23055 of 2013
- **Bench:** Arun Tandon, Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/paresh-yadav-ors-v-state-of-u-p-and-ors-42761
- **Pages:** 5

## Headnote

C.S.C.

Financial Hand Book-Vol.-II-Part-II to IVChapter VI-Para 49-claim of salary of higher
post-beyond 90 days-without concurrence
of
finance
department-working
on
officiating basis-whether entitled for salary
of higher post?-held-case relied in Prem
Chandra Srivastava case-not considered
this aspect-even dismissal of SLP by Apex
Court-can not be relied upon-considering
validity of direction of Division Benchmatter referred to larger bench.

Held: Para-14

## Text

198 INDIAN LAW REPORTS ALLAHABAD SERIES
patent lack or defect of jurisdiction. If the
decision/order of Court/authority is void for
want of jurisdiction over the subject matter, it
cannot operate as res judicata; so as to make
that judgment conclusive between the
parties, since the essential pre-requisite is that
it should be the judgment of a Court of
competent jurisdiction within the meaning of
Section 11 of the Civil Procedure Code.
Something
which
is
wholly
without
jurisdiction, that is nullity in the eyes of law,
no principle of law would come to confer
any kind of effectiveness to such proceedings
so as to have any legal consequences.

13. In view of the aforesaid
discussion as also exposition of law, I do
not find any reason to interfere.

14. Dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2014

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Civil Misc. Writ Petition No. 23055 of 2013

Paresh Yadav & Ors..... Petitioners
Versus
State of U.P. and Ors.... Respondents

Counsel for the Petitioner:
Sri Bhagwati Prasad Singh, Sri Vivek
Srivastava, Sri Vivek Kumar Singh

Counsel for the Respondents:
C.S.C.

Financial Hand Book-Vol.-II-Part-II to IVChapter VI-Para 49-claim of salary of higher
post-beyond 90 days-without concurrence
of
finance
department-working
on
officiating basis-whether entitled for salary
of higher post?-held-case relied in Prem
Chandra Srivastava case-not considered
this aspect-even dismissal of SLP by Apex
Court-can not be relied upon-considering
validity of direction of Division Benchmatter referred to larger bench.

Held: Para-14
14. In our opinion the following
substantial questions of law needs to be
examined by a Larger Bench:

(a) whether the proviso to para 49 of
Chapter VI of Financial Hand Book Vol. II
(Para II
to
IV) which requires
the
concurrence of the finance department, if
officiating appointment is to be continued
beyond 90 days would be applicable in
respect of appointments covered by Clause
I & III of para 49 or the said proviso would
be applicable to appointments under Clause
III only.

(b) whether the law laid down by the
Division Bench of the High Court in the case
of Prem Chand Srivastzva which direct that
merely on holding additional charge of an
additional post, the incumbent would
become entitled to salary of higher post
even in absence of sanction from the
finance department lays down the correct
law or not.

Case Law discussed:
1448(S/B) dis.On. 20.10.08; 563 of 2012(S/B).

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Shri B.P.Singh, Senior
Advocate assisted by Shri V.K.Singh,
Advocate on behalf of the petitioner and
the learned Standing Counsel on behalf of
the State.

2. Petitioners, who are seven in
number, claim that they were appointed as
Passenger Tax Officer /Superintendent in
the transport department of the State of
U.P. They were asked to work on
officiating basis as Assistant Regional
1 All] Paresh Yadav & Ors. Vs. State of U.P. and Ors.
199
Transport
Officer
(ARTO)
during
different periods between the year 1996 to
2003. It is further their case that in the
year 203 they have all been regularly
selected for appointment as ARTO. For
the period of officiation as ARTO i.e.
between 1996 yo 2003, the petitioners set
up a claim for payment of salary
admissible to the post of ARTO inasmuch
as it is their case that they were required
to hold two posts at the same time and to
discharge duties of two posts namely
Passenger Tax Officer /Superintendent
and Assistant Regional Transport Officer,
simultaneously. It is the case of the
petitioners that in accordance with Para
49 (1) of Chapter VI of the Financial
Handbook, Vol. II, Part 2 to 4, they are
entitled to payment of salary of the higher
post while holding dual charge.

3. Some of the petitioners had filed
Civil Misc. Writ Petition No. 51469 of
2012 and others filed Civil Misc. Writ
Petition No. 55030 of 2012 alleging
therein that their request for grant of
salary of the higher post of ARTO for the
period they were holding charge of two
posts has not been considered.

4. The writ petitions were decided
vide order dated 04.10.2012 and dated
17.10.2012
requiring
the
state
Government to examine the grievance of
the petitioners individually in light of the
judgment of the High Court in the case of
Subhash Chandra Kushwaha vs. State of
U.P. (Writ petition no. 1448 (S/B)
decided on 20.10.2008).

5. The State Government under the
order impugned dated 16.01.2013 passed
in individual case of all the petitioners
separately has rejected the request of the
petitioners.

6. Under the order impugned, it has
been recorded that the claim of the
petitioners for salary of the higher post for
having discharged duties of two posts is
not covered by Para 49 of Chapter VI of
the Financial Handbook, Vol. II (Part II to
IV), on the ground that they have not been
initially appointed to higher post and they
have only been asked to look after the
work of the higher post. It has further
been recorded that the petitioners did not
raise any grievance in the matter of
payment of salary during the relevant
period. It has, therefore, been held that it
is too late in the day to accept the request
of the petitioners for grant of salary of the
higher post i.e. ARTO for the period they
had held the charge of the said post i.e.
between
1996
to
2003.
The
representations have accordingly been
rejected.

7. Shri B.P.Singh submitted before
us that the order of the State Government
is in teeth of the Division Bench judgment
of this Court in the Prem Chand Srivastava
vs. State of U.P. and others (Writ Petition
No. 563 of 2012 (S/B), decided on
24.05.2013 which in turn had noticed the
judgement of another Division Bench in the
case of Subhash Chandra Kushwaha
(Supra) and had further taken note of Para
49 of Chapter VI the Financial Handbook
Vol. II. He submits that for the reasons
which have been recorded in the judgment
of Division Bench in the case of Prem
Chand Srivastava (Supra), the petitioners
are also entitled to the same relief for
payment of salary for the post of ARTO for
the period they had held the charge of the
said post. He further points out that against
the order of the Division Bench dated
24.05.2013, an Special Leave Petition was
filed before the Apex Court. Leave was
granted but the Special Leave to Appeal
200 INDIAN LAW REPORTS ALLAHABAD SERIES
has been dismissed on 04.09.2013 by
means of the following order :

"Leave granted.

Upon hearing the learned counsel for
the appellants and looking to the facts of
the case, in our opinion, the cost awarded
by the High Court is quite excessive. We
reduce the amount of Rs.2 lacs to
Rs.10,000/-, which shall be paid to the
present respondent within two months
from today.

Subject to above observations, the
appeal is dismissed with no order as to
costs.?

8. It is also stated that the order of the
Division Bench in the case of Prem Chand
Srivastava and in the case of Subhash
Chandra
Kushwaha
have
since
been
implemented by the State Government. It is
the case of the petitioners that this Court may
also follow the judgment of the Division
Bench in the case of Prem Chand Srivastava
and in the case of Subhash Chandra
Kushwaha (Supras).

9. Having heard learned counsel for
the parties and having examined the records,
we find that the proviso to para 49 which
requires that if a government servant holds
charge of another post or posts then approval
of the financial department for payment of
additional pay beyond the period of 90 days
has to be obtained.

10. It is worthwhile to reproduce
Chapter VI of Financial Handbook Vol II,
relevant for our purposes which reads as
follows :

:Chapter
VI?
Combination
of
Appointments

49. The Government may appoint a
Government servant already holding a
post in a substantive or officiating
capacity to officiate, as a temporary
measure, in one or more of other
independent posts at one time under the
State Government. In such cases, his pay
is regulated as follows :

(I) where a Government servant is
formally appointed to hold full charge of
the duties of a higher post in the same
office as his own and in the same
cadre/line of promotion, in addition to his
ordinary duties, he shall be allowed the
pay admissible to him, if he were
appointed to officiate in the higher post,
unless his officiating pay is reduced under
Rule 35 but no additional pay shall be
allowed for performing the duties of a
lower post.

(ii) where a Government servant is
formally appointed to hold dual charge of
two posts in the same cadre in the same
office carrying identical scales of pay, no
additional
pay
shall
be
admissible
irrespective of the period of dual charge;

Provided that if the Government
servant is appointed to an additional post
which carries special pay, he shall be
allowed such special pay,

(iii) where a Government servant is
formally appointed to hold charge of
another post or posts which is or are not
in the same office, or which, though in the
same office, is or are not in the same
cadre/line of promotion, he shall be
allowed the pay of the higher post, or the
highest post if the holds charge of more
than two posts, in addition to ten per cent
of the presumptive pay of the additional
post or posts, if the additional charge is
1 All] Paresh Yadav & Ors. Vs. State of U.P. and Ors.
201
held for a period exceeding thirty days but
not exceeding ninety days :

Provided that if in any particular
case, it is considered necessary that the
Government servant should hold charge
of another post or posts for a period
exceeding ninety days, the concurrence of
the State Government in the Finance
Department shall be obtained for the
payment of the additional pay beyond the
period of ninety days.

(iv) No additional pay shall be
admissible to a Government servant who
is appointed to hold current charge of the
routine duties of another post or posts
irrespective of the duration of the
additional charge.

(v) if compensatory or sumptuary
allowances are attached to one or more of
the posts the Government servant shall
draw such compensatory of sumptuary
allowances as the State Government may
fix :

Provided that such allowances shall
not exceed the total of the compensatory
and sumptuary allowances attached to all
the posts.?

11. This proviso to para 49 has not
been taken note of in the judgment in the
case of Prem Chand Srivastava as well as
in
the
case
of
Subhash
Chandra
Kushwaha (Supra). In our opinion, the
proviso put an embargo upon the State
Government to continue a person with
charge of one or more than one post
beyond
90
days
except
with
the
concurrence of the Finance Department.

12. It is not the case of the
petitioners that any such concurrence
from the finance department was obtained
for payment of additional pay beyond 90
days. We find it difficult to agree to the
Division Bench judgments in the case of
Prem Chand Srivastava and in the case of
Subhash Chandra Kushwaha (Supras).

13. Counsel for the petitioners
would contend before this Court that
proviso referred to herein above by us
would be applicable only in respect of
matters covered para 49 (iii) and would
not apply to officiating appointment
covered by para 49(i). This aspect of the
matter has not been examined by any of
the aforesaid two Benches in the case of
Prem Chand Srivastava and in the case of
Subhash Chandra Kushwaha (Supras).

14. In our opinion the following
substantial questions of law needs to be
examined by a Larger Bench :

(a) whether the proviso to para 49 of
Chapter VI of Financial Hand Book Vol.
II (Para II to IV) which requires the
concurrence of the finance department, if
officiating appointment is to be continued
beyond 90 days would be applicable in
respect of appointments covered by
Clause I & III of para 49 or the said
proviso
would
be
applicable
to
appointments under Clause III only.

(b) whether the law laid down by the
Division Bench of the High Court in the case
of Prem Chand Srivastzva which direct that
merely on holding additional charge of an
additional post, the incumbent would
become entitled to salary of higher post even
in absence of sanction from the finance
department lays down the correct law or not.

15. Let the papers be placed before
the Hon'ble The Chief Justice for
202 INDIAN LAW REPORTS ALLAHABAD SERIES
constituting a Larger Bench for answer to
the said questions.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 37248 of 2013

State of U.P..... Petitioner
Versus
Nalanda Serv Infraventure Pvt. Ltd. & Ors...
 Respondents

Counsel for the Petitioner:
Sri Sanjay Goswami, A.C.S.C.

Counsel for the Respondents:
Sri Pankaj Misra, Sri Swapnil Kumar
Sri H.P. Dube

Indian Stamp Act, 1899-Section 31imposition of penalty and impounding
the
document-application
for
fixing
valuation
of
property
sought
to
purchase-held-without
jurisdiction-as
neither instrument nor any abstract of itbrought before collector.

Held: Para-22 & 23
22. In the present case, neither any
instrument was brought before Collector so
as to attract sub-section (1) of Section 31
nor at any point of time any abstract of
instrument
was
placed
before
him.
Therefore, in my view, here is not a case
where Section 31 could have been invoked.

23. Since in the present case no such
instrument
was
ever
placed
before
authority concerned, in my view, exercise of
power by ADM (F&R) by passing impugned
order without having any instrument before
him,
is
patently
illegal
and
without
jurisdiction.

Case Law discussed:
AIR 1951 All 851; AIR 1956 All 453; AIR 1971
SC 787.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This writ petition has been preferred
by State of U.P. assailing an order dated
25.02.2012 passed by the State's own officer,
i.e., Additional District Magistrate (Finance
and Revenue), Agra (hereinafter referred to
as the "ADM (F&R)" in Case No. 93/201112 in purported exercise of powers under
Section 31 of Indian Stamp Act, 1899
(hereinafter referred to as the "Act, 1899").

2. This Court issued notices to
respondents. I have perused the office
report dated 18.11.2013. Service upon
respondent no. 1 is deemed sufficient. Sri
H.P.
Dube,
Advocate
has
put
in
appearance on behalf of respondents no. 5
and 6, i.e., ADM (F&R), who has also
been impleaded in person. Sri Swapnil
Kumar, Advocate has put in appearance
on behalf of respondents no. 2, 3 and 4.

3. The short question up for
consideration is, "whether Section 31 of Act,
1899 is attracted to the case in hand or not".

4. It appears that respondent no. 1 M/s
Nalanda Serv Infraventure Pvt. Ltd. filed an
application (undated) before ADM (F&R)
under Section 31 of Act, 1899 stating that it
proposes to purchase an immoveable
property, i.e., No. 2/83/2/84 total area 4470
sq. yards, i.e., 3737.367 sq. mater, out of
which 2125 sq. yards shall be jointly sold by
Vijay Nijhavan, Sandeep Kochar and
Naveen Lamba to respondent no. 1 and 2354
sq. yards would be sold by M/s Cheetarmal
Ramdayal, hence the ADM (F&R) was
requested to determine market value of
aforesaid property proposed to be purchased
by respondent no. 1. The ADM (F&R) vide