# Pawan Kumar Nayak v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 921
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-30
- **Case number:** Civil Misc. Writ Petition No. 51845 of 2008
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-nayak-v-state-of-u-p-and-others-41270
- **Pages:** 3

## Headnote

Sri. H.R. Mishra
Sri. H.K. Shukla
S.C.

U.P.
Panchayat
Raj
(Removal
of
Pradhans, Up Pradhans and Members)
Enquiry Rule 1997-Rule 5-order ceasing
financial and administrative powers of
village Pradhan-without recording his
subjective satisfaction to hold enquiry on
material
disclosed
in
preliminary
enquiry-nor
the
order
disclosed
appointment
of
enquiry
officer-heldmandatory provision of Rule 5 totally
ignored-not sustainable.

Held: Para 6
922 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
In the present case, there is no finding of
the District Magistrate regarding its
subjective satisfaction that an enquiry
should be held against the Pradhan
under Section 95 (1)(g) of the Act nor an
order has been passed directing the
enquiry officer to hold such enquiry.
Consequently,
the
impugned
order
ceasing the financial and administrative
powers
of
the
petitioner
is
not
sustainable and is quashed. The writ
petition is allowed.

## Text

3 All] Pawan Kumar Nayak V. State of U.P. and others
921
and thus shows that the entire holding
belong to Het Ram Singh, in my view, is
thoroughly misconceived. It is very
difficult to co-relate the said transaction to
the conclusion which has been drawn by
the learned appellate authority. A father
and son having separate holding, residing
separately but if help each other in their
period of difficulty or whenever necessity
arises,
would
not
mean
that
they
constitute one unit and entire thing belong
to the father or the son, as the case may
be. In Indian society and in common
practice, if the sons or daughters or even
brothers or other relatives needs help, the
first helping hand would be that of
normally the relatives or the friends and,
therefore, for purpose of land, if Het
Ram's land was mortgaged with respect to
the petitioner no. 1, that itself would not
justify the conclusion that the entire
holding belong to Het Ram in his own
right though ostensibly in the name of the
petitioners. The petitioners gave their
statements that they are all residing
separately. Mere non production of rationcard cannot justify an inference that the
statements
given
on
oath
by
the
petitioners
were
false
unless
some
evidence is produced by the State to show
the said averment to be incorrect. From a
bare reading of the appellate order, it is
evident that it has solely proceeded on the
assumption as if the onus lie upon the
petitioners to show that the holding was
separate, ostensibly in their names and did
not belong to their father Het Ram Singh.
The basic approach of the appellate
authority in the present matter is clearly
illegal and contrary to law.

9. In the result, the writ petition
succeeds and is allowed. The appellate
order
dated
29.1.1992
passed
by
Commissioner,
Moradabad
Division,
Moradabad (Annexure-3 to the writ
petition) is hereby quashed and the matter
is remitted back to the appellate authority
to consider and decide the matter afresh.
Since it is very old matter, it is directed
that the appellate authority shall decide
the appeal afresh in accordance with law
and in the light of the observations made
hereinabove
expeditiously
preferably
within a period of one year from the date
of production of certified copy of this
order. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 51845 of 2008

Pawan Kumar Nayak

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

Counsel for the Petitioner:
Sri. P.N. Singh

Counsel for the Respondents:
Sri. H.R. Mishra
Sri. H.K. Shukla
S.C.

U.P.
Panchayat
Raj
(Removal
of
Pradhans, Up Pradhans and Members)
Enquiry Rule 1997-Rule 5-order ceasing
financial and administrative powers of
village Pradhan-without recording his
subjective satisfaction to hold enquiry on
material
disclosed
in
preliminary
enquiry-nor
the
order
disclosed
appointment
of
enquiry
officer-heldmandatory provision of Rule 5 totally
ignored-not sustainable.

Held: Para 6
922 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
In the present case, there is no finding of
the District Magistrate regarding its
subjective satisfaction that an enquiry
should be held against the Pradhan
under Section 95 (1)(g) of the Act nor an
order has been passed directing the
enquiry officer to hold such enquiry.
Consequently,
the
impugned
order
ceasing the financial and administrative
powers
of
the
petitioner
is
not
sustainable and is quashed. The writ
petition is allowed.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri P.N. Singh, the learned
counsel for the petitioner and Sri H.R.
Misra, the learned senior counsel assisted
by Sri H.K.Shukla, for the contesting
respondent No.5 and the standing counsel
for the remaining respondents.

2. The petitioner is an elected
Pradhan and, by the impugned order dated
13.9.2008, his financial powers has been
ceased and, a committee of three
members of the Gram Panchayat has been
constituted comprising of three members
of the Gram Panchayat to exercise the
powers of the Pradhan under the first
proviso to Section 95 (1)(g) of the U.P.
Panchayat
Raj
Act.
Since
factual
controversy is not involved, the present
writ petition is being disposed of with the
consent of the parties at the admission
stage itself without calling for a counter
affidavit.

3. From a perusal of the impugned
order, it transpires that the petitioner filed
his objection to the preliminary report and
thereafter
the
prescribed
authority
namely, the District Magistrate passed an
order
ceasing
the
financial
and
administrative powers of the petitioner.

4. Upon hearing the parties at some
length, this Court finds that the impugned
order has been passed in violation of the
provisions of Rule 5 of the U.P.
Panchayat Raj (Removal of Pradhans, UpPradhans and Members) Enquiry Rules,
1997.

5. Enquiry Officer- Where the State
Government is of the opinion, on the basis
of the report referred to in sub-rule (2) of
Rule 4 or otherwise that an enquiry
should be held against a Pradhan or UpPradhan or Member under the proviso to
Clause (g) of subsection (1) of Section 95,
it shall forthwith constitute a committee
envisaged by proviso to clause (g) of subsection (1) of Section 95, of the Act and by
an order ask an Enquiry Officer, other
than the Enquiry Officer nominated under
sub-rule (2) of Rule 4, to hold the
enquiry."

5. From a bare perusal of the
aforesaid Rules, it is clear that upon the
submission of the preliminary enquiry
report under Rule 4 of the Rules, the
prescribed authority is required to record
its subjective satisfaction, namely, that an
inquiry is required to be held against the
Pradhan under Section 95 (1)(g) of the
Rules, and only then it can issue an order
ceasing the financial and administrative
powers of the Pradhan under the proviso
to Section 95 (1)(g) of the Act and by an
order ask the enquiry officer to hold an
enquiry under Rule 6 of the Rules.

6. In the present case, there is no
finding
of
the
District
Magistrate
regarding its subjective satisfaction that
an enquiry should be held against the
Pradhan under Section 95(1)(g) of the Act
nor an order has been passed directing the
enquiry officer to hold such enquiry.
3 All] Smt. Shehnaz Bano V. State of U.P. and others
923
Consequently,
the
impugned
order
ceasing the financial and administrative
powers of the petitioner is not sustainable
and is quashed. The writ petition is
allowed.

7. It would be open to the District
Magistrate to pass a fresh order in
accordance with the provisions of Section
95(1)(g) of the Act read with the Rules of
1997.

Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2008

BEFORE
THE HON'BLE RAJIV SHARMA, J.

Civil Misc. Writ Petition No. 13863 of 2001

Smt. Shehnaz Bano

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

Counsel for the Petitioner:
Sri. B.D. Mandhyan
Sri Satish Mandhyan

Counsel for the Respondents:
Sri. R.K. Tripathi
Sri. R.S. Mishra
Sri. Rudreshwari Prasad
Sri. P.D. Tripathi
S.C.

U.P.
Recruitment
of
Dependants
of
Government Servants (Dying in Harness
)
Rules
1974-Rule-6-Compassionate
appointment-claim of petitioner being
widow of deceased employee having 7
minor children-denied on the ground of
receiving pension-but given to the son of
first wife of the deceased employeewithout considering the hardship and
financial burden to maintain 7 childrenheld-without
considering
comparative
hardship of the claimants rejection of
claim-illegal-consequential
direction
issued.

Held: Para 21

Undisputedly, the petitioner is a widow
who has to sustain ten children, out of
which
most
of
them
are
minors.
Therefore, had the concerned authority
applied
its
mind
correctly
to
the
materials
on
record
and
given
consideration to the provisions of Rules
7 of 1974 Rules, it is the petitioner
whose
claim
is
much
stronger
in
comparison to respondent no.4 and she
should
have
been
given
suitable
appointment on Class IV post. The
impugned order dated 23.3.2001 has
been passed without considering the
relevant Rules and wrongly giving too
much weightage to the provisions of
Paragraph 9 of the Government Order
dated 4.9.2000. It is also relevant to
point out that in the said impugned order
dated 23.3.2001, there is no mention
that
the
comparative
hardship
was
considered and the claim of respondent
no.4 was found genuine. It is to be kept
in mind that while considering as to who
is
to
be
given
employment,
the
paramount factor which shall be taken
into consideration is the overall interest
of the welfare of the entire family.
Case law discussed:
(2001) 1 UPLBEC 706.

(Delivered by Hon'ble Rajiv Sharma, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.

2. The present writ petition has been
filed by the wife of Tufail Ahmad for a
direction to the competent to consider her
case
for
compassionate
appointment
against a post of Category IV and for
quashing the communique/order dated
23.2.2001, passed by the Secretary, Basic
Shiksha Parishad.