# Pradeep Kumar Goswami v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 609
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-24
- **Case number:** Special Appeal (D) No. 286 of 2020
- **Bench:** Shashi Kant Gupta, Shamim Ahmad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-goswami-v-state-of-u-p-ors-45473
- **Pages:** 7

## Headnote

A. Service Law - U.P. Intermediate Education
Act, 1921- U.P. High School and Intermediate
College (Payment of Salaries of Teachers and
other Employees) Act, 1971

Respondent no. 5 being senior to the appellant
and having requisite qualification was illegally
denied
promotion
by
the
Committee
of
Management by playing fraud as no such
affidavit
expressing
no
objection
to
the
promotion of the appellant prior to the
respondent no. 5 was ever filed by him. Learned
Singe Judge after fully considering the nature of
the dispute, nature and the extent of evidence
that may have to be appreciated, the complexity
of the issues that arise for determination has
remitted the matter to the concerned authorities
for reconsideration. (Para 14 & 19)

Appeal disposed of. (E-10)

List of Cases cited: -

## Text

12 All. Pradeep Kumar Goswami Vs. State of U.P. & Ors.
609
(Purchase), U.P. Jal Nigam, Lucknow on
record clearly stated that the inspecting
agency, i.e., M/s Crown Agents (India) Pvt.
Ltd., New Delhi may inspect the aforesaid
firm and it is only on its certification that
the firm meets the standards provided the
supply from the firm-M/s Rashmi Metaliks
Ltd., would be taken.

19. It is pertinent to mention here that
U.P. Jal Nigam is not directly involved in the
purchase of any material from any firm, rather it
awards contracts on turn-key basis and it is the
contractor who makes purchases of the material
from amongst firms prescribed by the U. P. Jal
Nigam, provided there is otherwise no legal
impediment.

20. In view of the aforesaid facts and
circumstances and the letter of the Chief
Engineer (Purchase) on record, since the
purchases from the aforesaid firm would be
taken subsequent to its certification by the
inspecting agency, we do not find that this
matter requires interference by us in
exercise of extraordinary jurisdiction.

21. Moreover, the controversy sought to
be raised is one relating to award of contracts
and the possibility of the petitioner being setup by the rival groups cannot be ruled out. It is
certainly not a petition on behalf of any
disadvantageous group of persons rather and
one on behalf of a competitor.

22. It is trite to mention here that a
dispute between two warring groups is in
the realm of a private dispute and is not
allowed to be agitated as a Public Interest
Litigation vide Ramsharan Autyanuprasi
and another v. Union of India and others
[AIR 1989 SC 549].

23. Accordingly, in the facts and
circumstances of the case, as narrated
above, the petition is dismissed as not
maintainable in public interest at the behest
of the petitioner.
----------
(2020)12ILR A609
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2020

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE SHAMIM AHMAD, J.

Special Appeal (D) No. 286 of 2020

Pradeep Kumar Goswami ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Sandeep Kumar, Sri Govind Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Alok Dwivedi

A. Service Law - U.P. Intermediate Education
Act, 1921- U.P. High School and Intermediate
College (Payment of Salaries of Teachers and
other Employees) Act, 1971

Respondent no. 5 being senior to the appellant
and having requisite qualification was illegally
denied
promotion
by
the
Committee
of
Management by playing fraud as no such
affidavit
expressing
no
objection
to
the
promotion of the appellant prior to the
respondent no. 5 was ever filed by him. Learned
Singe Judge after fully considering the nature of
the dispute, nature and the extent of evidence
that may have to be appreciated, the complexity
of the issues that arise for determination has
remitted the matter to the concerned authorities
for reconsideration. (Para 14 & 19)

Appeal disposed of. (E-10)

List of Cases cited: -

1. Ladli Prasad Vs Kamal Distillery AIR 1963 SC
1279
610 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Kaku & ors. Vs Savitri & ors. (1995) SCC
Online P & H 1199

3. Mahadeo Prasad Saraf Vs S.K. Srivastava AIR
1963 Cal. 152

4. Maya Devi (Dead) through Lrs. Vs Raj Kumari
Batra (Dead) through Lrs. & ors. (2010) 9 SCC
486

(Delivered by Hon'ble Shamim Ahmad, J.)

Order on Exemption Application

1. Learned counsel for the appellant
has submitted that due to the Pandemic
Covid-19, he has not been able to get the
certified copy of the impugned judgment
and order dated 3.3.2020 passed by this
Court in spite of his best efforts. In this
regard, the appellant has filed an exemption
application. Therefore, he prays that the
filing of the certified copy of the impugned
judgment and order dated 3.3.2020 may be
exempted.

2. The reasons shown in the
exemption application are sufficient. The
exemption application is allowed.

3. Accordingly, the appellant is
exempted to file certified copy of the
judgment and order dated 3.3.2020.

4. Office is directed to allot regular
number to the appeal.

Order on Memo of Appeal

5. This special appeal has been filed
against the judgment and order dated
3.3.2020 passed by the learned Single
Judge in Writ-A No.14271 of 2014
whereby the matter has been remitted back
to the authorities concerned to initiate fresh
exercise for the promotion from Class IV
post to the post of Assistant Clerk in the
institution
namely
Shri
Mahatma
Doodhadhari Inter College, Nagla Vishnu,
District Agra (hereinafter referred to as the
'Institution') strictly in accordance with law
taking into note seniority of the candidates
of the Institution in question.

6. Heard Sri Sandeep Kumar, learned
counsel for the appellant as well as learned
Standing Counsel for the State and Sri Alok
Dwivedi,
learned
counsel
for
the
respondent no.5 and perused the record.

7. Learned counsel for the appellant
has submitted that the aforesaid institution
is on the grant-in-aid list of the State
Government and the provisions of U.P.
Intermediate Education Act, 1921 and the
regulations framed thereunder as well as
the Uttar Pradesh High School and
Intermediate College (Payment of Salaries
of Teachers and other Employees) Act,
1971 are applicable.

8. Learned counsel for the appellant
has further submitted that on 21.03.2012 a
proposal was made by the Committee of
Management to fill up the one post of
Assistant Clerk in the Institution, which
was fell vacant due to retirement of Shri
Kishori Lal, Assistant Clerk. By proposal
no.2, the appellant was proposed for
promotion
by
the
Committee
of
Management. Further, in the proposal no.2
it has been mentioned that other persons
including the respondent no.5 has given
their consent as well as notarized affidavit
by giving their right of promotion and have
no objection in case the appellant Pradeep
Kumar Goshwami is promoted.

9. Learned counsel for the appellant
has next submitted that in pursuance of the
proposal so made by the Committee of
12 All. Pradeep Kumar Goswami Vs. State of U.P. & Ors.
611
Management, the District Inspector of
Schools called explanation to the concerned
employees for clarification in respect of
filing
their
affidavit,
wherein
no
person/employee
filed
any
objection
against the affidavit filed by them. The
District Inspector of Schools, Agra sent a
letter dated 6.11.2012 to the Manager of the
Committee of Management calling for the
record of the other employees. However, as
no
vacancy
was
found
under
the
promotional quota in the Institution, hence
the claim of promotion of the appellant as
Assistant Clerk was rejected by the District
Inspector of Schools by the order dated
16.4.2013.
Learned
counsel
for
the
appellant
further
submits
that
the
respondent no.5 was fully aware of the
above facts regarding the promotional
quota of the institution.

10. Learned counsel for the appellant
further submits that again on 30.11.2013,
one post of Assistant Clerk was fell vacant
due to retirement of one Sri Ramveer
Singh, Assistant Clerk working in the
Institution, hence the appellant made an
application dated 30.11.2013 before the
respondent no.4 for his promotion. Further
it is submitted that no other person had
filed any application before respondent
no.4 for the same post till the promotion
order was passed by the competent
authority in favour of the appellant. The
respondent no.5 namely Ranvir Singh was
not considered for promotion on the post of
Clerk by the Committee of Management
because of an adverse entry in service
record and also on the ground that he has
filed an affidavit by giving his right of
promotion in favour of the appellant earlier.

11. Learned counsel for the appellant
further submits that on the application
dated
30.11.2013
submitted
by
the
appellant, the Committee of Management
made a proposal/resolution for promotion
of the appellant and accordingly, the
Committee of Management sent a letter
along with all the relevant documents
before the District Inspector of Schools,
Agra for further action on 30.12.2013,
which was duly received on the same date
i.e. 30.12.2013. Learned counsel for the
appellant further submits that in furtherance
of the proposal so made by the Committee
of Management, the Finance and Accounts
Officer, Secondary Education, Agra wrote
a letter dated 27.1.2014 granting financial
approval in favour of the appellant and
forwarded the same to the respondent no.4
for further action.

12. Learned counsel for the appellant
further submits that in pursuance of the
letter
dated
27.1.2014,
the
District
Inspector of Schools Agra passed an order
dated 31.1.2014 granting promotion in
favour of the appellant, which was
challenged by the respondent no.5 by
means of writ petition no.14271 of 2014 by
concealing material facts. The said writ
petition was allowed by the learned Single
Judge vide order dated 3.3.2020 and the
resolution dated 2.12.2013 passed by the
Committee of Management as well as the
orders dated 27.1.2014 and 31.1.2014
passed by the respondent Nos.3 and 4 were
quashed and the matter was remitted back
to the authorities concerned to initiate fresh
exercise for promotion.

13. In reply to the arguments raised
by the learned counsel for the appellant, Sri
Alok Dwivedi, learned counsel for the
respondent no.5 has submitted that the
learned Single Judge has rightly passed the
impugned judgment. In support of his
argument,
learned
counsel
for
the
respondent no.5 has submitted that the
612 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no.5 had never filed any
affidavit
before
the
Committee
of
Management or any of the Educational
authorities for giving up his right to the
promotion as Assistant Clerk in the
institution. He has invited the attention of
the Court to the seniority list of Class IV
employees of the Institution of the year
2012, wherein respondent no.5 has been
placed at serial no.2 and his date of
appointment is 1.5.1988, whereas the
appellant has been placed at serial No.8 and
his date of appointment is 2.1.2007.
Similarly, attention was drawn regarding
the seniority list of Class IV employees of
the institution which was published on
26.12.2013, wherein the situation was more
or less the same and the respondent no.5
was at serial No.2 while appellant was at
serial No.7. Further, it is contended that the
respondent No.2 i.e. District Inspector of
Schools, Kanpur Nagar on 6.11.2012 had
apprised the Principal of the Institution that
the appellant was placed in the seniority list
at serial No.8 and other class IV employees
placed at serial No.1 to 7 have not
submitted their affidavit for not accepting
the promotion to the post of Assistant Clerk
in the institution. On the basis of the
affidavit alleged to have been filed by them
before the institution, the respondent no.2
further fixed 12.11.2012 and instructed the
concerned parties to appear in person
before him. It is next contended that after
the said letter, the orders dated 27.1.2014
and 31.1.2014 were passed exparte without
giving any opportunity of hearing to the
respondent no.5 appointing appellant on the
post of Clerk.

14.

Learned
counsel
for
the
respondent no.5 further submits that the
respondent no.5 being senior to the
appellant, being appointed in the year 1988
and having requisite qualification is entitled
to be promoted on the post of Assistant
Clerk in the institution, but was illegally
denied by the Committee of Management
by playing fraud as no such affidavit was
ever filed by the respondent no.5 and
submitted that the learned Single Judge has
rightly allowed the writ petition and the
matter has been remitted back to the
authorities concerned to initiate fresh
exercise for the promotion from Class IV
post to the post of Assistant Clerk in the
institution.

15.

Learned
counsel
for
the
respondent no.5 has placed reliance on the
judgment passed by the Hon'ble Apex
Court
in
Ladli
Prasad
vs
Kamal
Distillery, AIR 1963 SC 1279. The
Hon'ble Apex Court has observed as under:

"Where an appeal lies to a Division
Bench of the High Court against a
judgment of a single judge of the High
Court exercising original or appellate
jurisdiction, the decision of the single judge
should be regarded as a decision of the
Court immediately below the Division
Bench which hears the appeal, but the
single judge of the High Court cannot be
regarded as a Court subordinate to the High
Court."

16. Further reliance has been placed
on the Division Bench judgment of Punjab
and Haryana High Court in Kaku and
others vs Savitri and others, 1995 SCC
Online P & H 1199. The Division Bench
after considering Ladli Prasad's case
(supra) has observed as under:

"When a judgment of a learned single
judge is appealed against, the single judge
does not become subordinate to the
appellate Bench though as observed by the
Supreme Court above, the decision of the
12 All. Pradeep Kumar Goswami Vs. State of U.P. & Ors.
613
single judge should be regarded as a
decision of the Court immediately below
the Division Bench which hears the appeal.
Nature of the appellate power exercised by
the Division Bench is not curtailed in any
way merely for the reason that the writ
appeal is intra- Court appeal. The Bench
while dealing with the appeal may be faced
with various problems, i.e. the learned
single judge may allow a Writ Petition and
issue a writ on a pure question of law
without going into the other questions. The
Division Bench in appeal may disagree
with the interpretation of law which would
result in the reversal of the order of the
single
judge.
Resultantly,
the
other
questions would survive for consideration.
In such a situation the Bench may choose
to decide the other questions itself. But
there will be nothing wrong for the Bench
to remand the case for consideration by the
learned single judge of the other questions
to be decided on merits. The appeal is
against the decision of a learned single
judge. The Bench should have the benefit
of the opinion of the learned single judge
on all points. If the Bench does not have
the opinion and findings of the learned
single judge will it not be handicapped to
some extent while deciding the other
questions by itself? Ordinarily, the Bench
in appeal does not interfere with the
findings arrived at by a learned single judge
on facts. In such a case it would be more
appropriate to obtain the benefit of the
opinion of the learned single judge.

17. Further reliance has been placed on
the Division Bench judgment of the Calcutta
High Court in Mahadeo Prasad Saraf vs S.K.
Srivastava, AIR 1963 Cal. 152 and the
Hon'ble Court has observed as under:

"With regard to the question whether
the appellate Court's power is limited only
to the consideration of the question whether
a Rule Nisi should issue or not and to remit
the case to the lower Court in the event of
its coming to the conclusion that a case for
a Rule Nisi had been made out, it is to be
observed that such limitation or restriction
on the power of the appellate Court is not
warranted. There may be cases in which the
appellate Court may consider it desirable
and proper to dispose of the proceeding
under Article 226 of the Constitution
finally at the appellate stage without
sending the case back for disposal by the
trial Court. To take an example if an
application under Article 226 is made for
challenging the legality of an act on the
ground that the provisions of a statute
pursuant to which the action is taken are
ultra vires and that is the sole ground on
which the application is based and the trial
Court after hearing the petitioner on the
question dismisses the application in limine
and refuses to issue a Rule Nisi and the
petitioner prefers an appeal against the
order of dismissal, can it be said that the
appellate Court is bound to remand the case
to the trial Court if it is satisfied that there
is substance in the contention of the
appellant? The answer, in my view, must
be in the negative. No investigation into
any question of fact is necessary in such a
case and no filing of affidavit setting out
any fact may be called for in such 3 case.
The only question for determination before
the appellate Court in such a case is a
question of law and there is therefore no
reason why the appellate Court cannot
dispose of the proceeding under Article 226
finally instead of sending the case back for
disposal by the trial Court and driving the
parties to incurring of further unnecessary
costs. It is true that when question of facts
are to be gone into and it is necessary to
give an opportunity to the respondents to
meet the allegations contained in the
614 INDIAN LAW REPORTS ALLAHABAD SERIES
petition, the Court may think it fit to remit
the case to the trial Court with directions
for
giving
an
opportunity
to
the
respondents and for filing of affidavits but I
do not think any hard and fast rule can be
laid down that in each and every case of an
appeal from an order summarily rejecting
an application under Article 226, the
Appellate Court is bound to remit the case
for disposal by the trial Court."

18. This Court has also considered the
judgment passed by the Hon'ble Apex
Court in Maya Devi (Dead) through Lrs.
Versus
Raj
Kumari
Batra
(Dead)
through Lrs. and others, (2010) 9 SCC
486 wherein the Hon'ble Apex Court has
observed as under:

"Recording of reasons in cases where
the order is subject to further appeal is very
important from yet another angle. An
appellate Court or the authority ought to
have the advantage of examining the
reasons that prevailed with the Court or the
authority making the order. Conversely,
absence of reasons in an appealable order
deprives the appellate Court or the
authority of that advantage and casts an
onerous responsibility upon it to examine
and determine the question on its own. An
appellate Court or authority may in a given
case decline to undertake any such exercise
and remit the matter back to the lower
Court or authority for a fresh and reasoned
order. That, however, is not an inflexible
rule,
for
an
appellate
Court
may
notwithstanding the absence of reasons in
support of the order under appeal before it
examine the matter on merits and finally
decide the same at the appellate stage.
Whether or not the appellate Court should
remit the matter is discretionary with the
appellate Court and would largely depend
upon the nature of the dispute, the nature
and the extent of evidence that may have to
be appreciated, the complexity of the issues
that arise for determination and whether
remand is going to result in avoidable
prolongation of the litigation between the
parties. Remands are usually avoided if the
appellate Court is of the view that it will
prolong the litigation."

19.

Having
heard
the
rival
submissions and perusal of the record as
well as the judgments cited by learned
counsel for the respondent no.5 and the
judgment and order passed by the learned
Single Judge, we find that while disposing
of the writ petition the learned Single Judge
has fully considered the nature of dispute,
the nature and the extent of evidence that
may have to be appreciated, the complexity
of the issues that arise for determination
and the learned Single Judge has merely
remitted the matter to the concerned
authorities to initiate fresh exercise for the
promotion from class IV post to the post of
Assistant Clerk in the institution, hence we
do not see any justification to interfere in
the impugned judgment and order passed
by learned Single Judge.

20. However, considering the peculiar
facts and circumstances of the case, the
appellant
is
permitted
to
raise
his
grievances before the authorities concerned
along with computerized/certified copy of
this order enclosing therewith a copy of the
writ petition and its annexures. In case any
such grievance is raised by the appellant,
the authorities concerned shall look into the
grievances of the appellant while initiating
fresh exercise for promotion in question in
accordance with law and pass a speaking
and
reasoned
order
after
affording
opportunity of hearing to all parties
concerned.
The
above
exercise
be
completed by the authorities concerned
12 All. C/M Sant Ravidas Primary Pathshala, Azamgarh & Ors. Vs. State of U.P. & Ors.
615
within a period of two months from the
date
of
production
of
the
computerized/certified copy of this order.

21. With this observation, the appeal
stands finally disposed of.

22. The parties shall bear their own
costs.
----------
(2020)12ILR A615
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2020

BEFORE

THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE SIDDHARTH VARMA, J.

Special Appeal (D) No. 389 of 2020

C/M Sant Ravidas Primary Pathshala,
Azamgarh & Ors. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Gautam Baghel

Counsel for the Respondents:
C.S.C.

A. Practice & Procedure - Delay & Laches -
The law of no statutory limitation is not
applicable for invoking writ jurisdiction. Doctrine
of delay and laches are certainly applicable ad
required to be looked into while entertaining a
petition under Article 226 of the Constitution of
India. The objections pertaining to delay,
laches, alternative remedy, conduct of the
party, etc. are self-evolved restrictions
and
these
are
to
be
asserted
and
examined by the Court and not by its
ministerial
staff
including
Stamp
Reporters. (Para 7)
Delay and laches are two different concepts.
Laches certainly posses an essence of delay but
every delay does not reflect laches also. Laches
is an equitable defence available to a defendant
ad it should include certain other factors in
addition to delay in agitating the equitable relief.
(Para 8)
The first instance copy of the order dated
13.12.2017 was supplied to the appellantpetitioner
on
22.11.2018.
The
appellantpetitioner thereafter filed a writ petition in the
month of April, 2019. Such period looking to the
facts of the case even cannot be treated
sufficient to dismiss the writ petition on the
count of delay. (Para 10)
Writ Petition allowed. (E-10)

(Delivered by Hon'ble Govind Mathur, C.J. , &
Hon'ble Siddhartha Varma, J.)

1. Testing correctness of the order
passed by learned single Bench dated 7th
November, 2019 in Writ-A No.35379 of
2019, instant appeal has been preferred.

2. Brief facts leading to filing of this
appeal are that the appellant-petitioner, a
society
registered
under
Societies
Registration Act, 1860 mainly involved in
imparting education to the children coming
from
scheduled
castes
submitted
an
application to have grant-in-aid. Acting
upon
the
application,
the
Director,
Department of Social Welfare by a letter
dated 29th May, 2014 directed the District
Social Welfare Officer to enlist the
appellant-petitioner for grant-in-aid as an
institution of scheduled castes. After
necessary inquiry, a detailed report was
also said to be given in this regard by the
District Minority Officer, Azamgarh on
16th April, 2015. Being failed to have any
response the appellant-petitioner preferred
a petition for writ before this Court that
came to be disposed of on 27th October,
2016 with a direction to the authority
competent to decide the issue relating to
grant-in-aid expeditiously. Despite the