# Pramod Chandra Pandey v. State of U.P. and others

- **Citation:** (2012) 2 ILRA 931
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-05
- **Case number:** Civil Misc. Writ Court No. 41055 of 2011
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-chandra-pandey-v-state-of-u-p-and-others-42227
- **Pages:** 6

## Headnote

Constitution of India, Article 226-writ
petition-against
'U.P.
Ganna
Kishan
Sansthan'-whether
maintainable-held-
'Yes'-'Sansthan' being within definition
of instrumentality of state-under Article
12 of Constitution-Writ maintainable.

Held: Para 5

A preliminary objection was raised that a
writ petition would not lie in the matter
of dispute relating to Sansthan which is
a society registered under the Societies
Registration Act. This Court finds answer
to this query in a Full Bench judgment in
Radhey Shyam Rai Vs. State of U.P. and
others, 2005(3) UPLBEC 2549 wherein
U.P. Ganna Kisan Sansthan has been
held an instrumentality of State and,
therefore, a "State" within Article 12 of
the
Constitution
and
hence a
writ
petition
under
Article
226
of
the
Constitution would be maintainable. In
para 40 of the judgment the Full Bench
has concluded as under:
Case law discussed:
2005 (3) UPLBEC 2549; Writ Petition No.
9690 of 2010, Bhopal Singh Vs. State of U.P.
and others, decided on 23.02.2010; 2011 All.
C.J. 1752

## Text

2 All] Pramod Chandra Pandey V. State of U.P. and others
931
that
the
petitioner
has
been
unnecessarily dragged into litigation and he
was compelled to file several petitions
also before this Court as well as before
the Tribunal and it was only then that
payments were made and that too
without interest and without there being
any reason for delay in payment.

7. In view of aforesaid fact, we
allow the writ petition and direct the
respondents to pay interest at the rate of
10% on the amount of Rs.1,55,000/- for
a period of 10 years (delay being from
1998 to 2008) and the same interest at
the rate of 10% on the amount of
Rs.8,34,000/- for a period of four years
(delay being from 2005 to 2009). Such
payment shall be made to the petitioner
within a period of four months from
today, failing which respondents shall be
liable to pay interest at the rate of 18%
per annum instead of 15% per annum.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Court No. 41055 of 2011

Pramod Chandra Pandey
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.B. Singh
Sri Manish Singh

Counsel for the Respondents:
C.S.C.
Sri M.C. Chaturvedi

Constitution of India, Article 226-writ
petition-against
'U.P.
Ganna
Kishan
Sansthan'-whether
maintainable-held-
'Yes'-'Sansthan' being within definition
of instrumentality of state-under Article
12 of Constitution-Writ maintainable.

Held: Para 5

A preliminary objection was raised that a
writ petition would not lie in the matter
of dispute relating to Sansthan which is
a society registered under the Societies
Registration Act. This Court finds answer
to this query in a Full Bench judgment in
Radhey Shyam Rai Vs. State of U.P. and
others, 2005(3) UPLBEC 2549 wherein
U.P. Ganna Kisan Sansthan has been
held an instrumentality of State and,
therefore, a "State" within Article 12 of
the
Constitution
and
hence a
writ
petition
under
Article
226
of
the
Constitution would be maintainable. In
para 40 of the judgment the Full Bench
has concluded as under:
Case law discussed:
2005 (3) UPLBEC 2549; Writ Petition No.
9690 of 2010, Bhopal Singh Vs. State of U.P.
and others, decided on 23.02.2010; 2011 All.
C.J. 1752

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

1. Heard Sri Manish Singh, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. With the consent of learned
counsel for the parties, since pleadings
are complete, the Court has proceeded
to decide this matter finally under the
Rules of this Court at this stage.

3. The facts, in brief, giving rise to
the present dispute are that petitioner
was working as Senior Assistant-cumAccountant in Ganna Kisan Sansthan
Training
Centre,
Gorakhpur
and
completed 58 years of age in August,
2011. The Assistant Director, Ganna
Kisan Sansthan, Gorakhpur, resondent
932 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
no. 3, vide order dated 26.03.2011
communicated the petitioner that in
view of Para 7.7 of Ganna Vikas
Sansthan Sewa Niyamawali he would
retire on 31.08.2011, i.e., on completion
of age of superannuation, i.e., 58 years.

4. The claim of petitioner is that he
was entitled to continue till he attains
the age of 60 years in view of the fact
that Governing Council has already
resolved to extend the age of retirement
upto 60 years and power to amend the
rule is vested with Governing Council
of
U.P.
Ganna
Kisan
Sansthan
(hereinafter
referred
to
as
the
"Sansthan"). Hence the petitioner could
not have been retired on attaining the
age of 58 years only on the ground that
this resolution of Governing Council
was not approved by State Government
vide order dated 31.12.2008. It is in
these circumstances the Government
Order dated 31.12.2008 declining to
grant
approval
extending
age
of
superannuation from 58 to 60 years to
employees of Sansthan has also been
assailed.

5. A preliminary objection was
raised that a writ petition would not lie
in the matter of dispute relating to
Sansthan which is a society registered
under the Societies Registration Act.
This Court finds answer to this query in
a Full Bench judgment in Radhey
Shyam Rai Vs. State of U.P. and
others, 2005(3) UPLBEC 2549 wherein
U.P. Ganna Kisan Sansthan has been
held an instrumentality of State and,
therefore, a "State" within Article 12 of
the Constitution and hence a writ
petition under Article 226 of the
Constitution would be maintainable. In
para 40 of the judgment the Full Bench
has concluded as under:

"40. In the premise we hold, as
stated
above,
that
Ganna
Kisan
Sansthan is State within the meaning of
Article 12 of the Constitution and a Writ
in
the
nature
of
certiorari
is
maintainable
against
the
Sansthan
under Article 226 of the Constitution."

6. In view thereof, it cannot be
said that writ petition in question is not
maintainable. I hold accordingly.

7. Now I come to the core question
whether the petitioner would have
retired on attaining the age of 58 years
or 60 years. There is no dispute between
the parties that terms and conditions of
service of petitioner are governed by
U.P. Ganna Kisan Sansthan Service
Rules, 1979 (hereinafter referred to as
the "Rules, 1979"), a copy whereof has
been filed as Annexure-4 to the writ
petition. These Rules have been framed
in 1979 and were implemented w.e.f.
01.04.1979. Para 7.7 provides the age of
superannuation
of
employees
of
Sansthan. For Class-IV employees it is
60 years and for others it is 58 years. It
also
confers
power
of
premature
retirement upon the competent authority
provided the employee concerned has
completed 50 years of age. This Court is
not concerned with the question of
premature retirement.

8. Para 16 of Rules, 1979 as
amended in 1992 confers power upon
the Governing Council of Sansthan to
make amendment in the Rules or to
grant relaxation, if any.
2 All] Pramod Chandra Pandey V. State of U.P. and others
933

9. The petitioner contended that
since Rules, 1979 could have been
amended by Governing Council itself
and it had taken a decision to increase
age of retirement to 60 years from 58
years vide resolution dated 06.05.2006,
hence there was no occasion to seek
approval from Government. In view of
the
decision
taken
by
Governing
Council on 06.05.2006, Para 7.7 of
Rules, 1979 ought to be treated as duly
amended and petitioner, therefore, could
not have been retired on attaining the
age of 58 years. He submitted when a
particular procedure has been prescribed
in the Rules, the same has to be
observed strictly and by superimposing
the requirement/condition of so called
approval of higher authority, i.e., the
State
Government,
the
procedure
prescribed in Rules cannot be given a go
bye. It is further submitted that in other
departments including the Cooperative
Sugar Societies the age of retirement
was increased from 58 to 60 years,
therefore, non-extension of same benefit
to petitioner is even otherwise illegal
and arbitrary.

10. A counter affidavit has been
filed on behalf of respondents sworn by
Dr. Naval Kishore Kamal, Deputy
Director, Lal Bahadur Sastri Ganna
Kisan Sansthan, Lucknow. It is not
disputed that service conditions of
petitioner and other employees of
Sansthan are governed by Rules, 1979
as amended in 1992. A complete set of
Rules has been filed as Annexure-1 to
the counter affidavit. It is stated that
there was no resolution making any
amendment in Rules but a decision was
taken in principle to extend age of
retirement from 58 to 60 years but
subject
to
approval
of
State
Government. Therefore, the resolution
as such does not have the effect of
amending Para 7.7 of Rules, 1979. It is
also submitted that under Memorandum
of Association of Sansthan the State
Government has the power to issue
executive orders directing Sansthan to
act in a particular manner and Sansthan
is under an obligation to give effect to
such directives of the State Government.
A copy of Memorandum of Association
of Sansthan has been filed as Annexure4 to the counter affidavit and Clause
41(a) has been quoted in para 13 of the
counter affidavit. It is also submitted
that the issue has already been settled by
this Court in Writ Petition No. 9690 of
2010, Bhopal Singh Vs. State of U.P.
and others, decided on 23.02.2010 in
favour of Sansthan and the writ petition
seeking similar relief has already been
dismissed.

11. I have heard learned counsel
for the parties and perused the record.

12. Para 7.7 of Rules, 1979, which
provides age of retirement, reads as
under:

^^laLFkku ds prqFkZ Js.kh deZpkjh dh lsok
fuo`fRr dh vk;q 60 o"kZ rFkk vU; lsodksa dh lsok
fuo`fRr dh vk;q 58 o"kZ gksxhA fdUrq fu;qfDr
izkf/kdkjh dks ;g vf/kdkj gksxk fd og ,sls lsod
dks ftlus 50 o"kZ dh vk;q iwjh dj yh gks rFkk
ftldk dk;Z ,oa vkpj.k vkSlr ls fuEu Lrj dk
gks vkSj ftlesa dksbZ lq/kkj dh lEHkkouk u gks]
rhu ekg dh uksfVl vFkok mlds cnys rhu ekg
dk osru nsdj dk;Zfgr esa lsok fuo`Rr dj ldrk
gSA**

"Age of superannuation of Class-IV
employees of the Institute will be 60
years and that of other employees would
be 58 years. But the Appointing
Authority shall have the power to
934 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
superannuate,
in
the
interest
of
administration, such employee who has
completed 50 years of age and whose
work and conduct is below the average,
with no hope of improvement, after
giving him three months notice or giving
salary of three
months."
(English
translation by the Court)

13. The power of amendement of
Rules has been conferred under Rule 16
and it reads as under:

^^16- fu;eksa esa vko';d ifjorZu rFkk
f'kfFkyhdj.k dk vf/kdkj laLFkk dh xofuZx
dkmafly dks gksxhA**

"Power to make necessary changes
and relaxation in rules will be vested in
the
Governing
Council
of
the
Institution."
(English translation by the Court)

14. Learned Standing Counsel has
also
not
disputed
the
power
of
Governing Council of Sansthan to make
amendment in the Rules. He, however,
has firstly submitted that there was no
decision taken by Governing Council to
make amendment in the Rules and,
therefore, the assumption of amendment
in Rules founded on resolution dated
06.05.2006 is baseless and non est. The
basic premise of entire writ petition is
fallacious and unfounded. He further
submitted that it is always open to
Governing Council to seek approval of
State Government for a decision taken
by it before making amendment in the
Rules.
Such
power
of
Governing
Council is not contrary to any provision
of the Rules. The Governing Council at
no point of time decided to amend Para
7.7
in
a
particular
manner
and,
therefore,
its
resolution
dated
06.05.2006 by itself would not confer
any right upon petitioner to claim
extended age of retirement, i.e., 60
years by treating as if Para 7.7 of Rules,
1979 stood automatically amended. I
find substance in these arguments.

15. This Court finds it appropriate
first to consider the resolution passed by
Governing Council. Can it be construed
as an ipso facto amendment of Para 7.7.
The agenda Item No. 8 and resolution
passed
by
Governing
Council
is
contained in minutes, placed on record
as Annexure-6 to the writ petition, and
the relevant part on page 51 reads as
under:

16. From a bare perusal of minutes
it is evident that Governing Council as
such did not consider the amendment of
Rules. A general subject of extension of

"izLrko la[;k&8

xUuk laLFkku dfeZ;ksa
dks
lsokfuo`Rr
vk;q
c<+k;s tkus ds lEcU/k
esaA"

"Item No. 8

Regarding
extension
of
retirement age of
employees
of
Ganna Sansthan."
(English
translation by the
Court)

"loZ lEer ls laLFkku
dfeZ;ksa dh lsokfuo`Rr
vk;q 58 o"kZ ls c<+kdj
60 o"kZ fd;s tkus dh
'kS)kfUrd Lohd`r iznku
djrs gq, 'kklu ds
vuqefr gsrq laLrqfr dh
x;hA**

Unanimously
resolved
on
principle to extend
age of retirement
of
employees
of
Institution from 58
to 60 years and
was recommended
for approval of the
Government.
(English
translation by the
Court)
2 All] Pramod Chandra Pandey V. State of U.P. and others
935
age came to be considered by it and it
passed a resolution to accept on
principle the extension of age of
retirement from 58 to 60 years but for
that it also resolved for seeking
approval from State Government. This
is a decision taken by a body competent
to make amendement in the Rules. The
learned counsel for the petitioner could
not place anything to show that such a
decision could not have been taken by
Governing Council before making an
amendment of Para 7.7 in a particular
manner. The aforesaid decision of
Governing
Council
was
also
not
inconsistent with the provisions of
Memorandum of Association and this
Court find nothing obnoxious or invalid
therein.

17.

This
question
can
be
considered from another angle. Para 7.7
which this Court has already quoted
above shows that in the first part it
provides age of retirement of Class-IV
employees
but
in
the
continuing
sentence it provides age of retirement of
other employees as 58 years. In order to
make amendment in Para 7.7 it has to be
redrafted in a proper manner and that
redrafted rule has to be approved by
Governing
Council.
The
resolution
dated 06.05.2006 does not show that
any redrafted rule which would have
substituted Para 7.7 was approved or
accepted by Governing Council. Unless
it is done, it cannot be said that a
resolution passed by Governing Council
accepting
a
subject
matter
on
a
particular aspect in principle would
have the result of amendment in Rules.
Whenever a change is made in a Rule,
the manner in which amended Rule
shall be read has to be drafted and
approved
by
competent
authority.
Nothing of that sort has been done in
the case in hand. The Governing
Council's power to seek approval of
State Government has not been shown
to be in contravention of any provision
particularly when it was not seeking
approval on the amendement of Rule
but it was seeking approval on the
policy decision taken by it on a
particular subject without having the
effect of a suo motu or ipso facto
change in the format of Rule. Such
procedure
followed
by
Governing
Council cannot be said to be illegal or
without jurisdiction or in violation of
any statutory provision. None in fact has
been shown to this Court. In the
circumstances, it cannot be said that
Para 7.7 stood amended as soon as
resolution dated 06.05.2006 was passed
by Governing Council and had the
effect
of
extending
age
of
superannuation of employees other than
Class-IV employees from 58 to 60
years.

18. Moreover, I find that this
question has also been considered by
this Court in Bhopal Singh (supra) and
there also the ultimate conclusion has
been drawn by Court that age of
retirement provided in Para 7.7 of
Rules, 1979 has not been amended by
resolution dated 06.05.2006. To the
reasons assigned in the judgement, I
respectfully concur and agree.

19. The various authorities cited at
the
bar,
on
the
proposition
that
procedure once prescribed cannot be
diverted or that when something is
required to be done in a particular
manner, must be done in that way, have
no application to the facts of this case.
In my view the Apex Court's decision in
936 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
The
Joint
Action
Committee
of
Airlines Pilots Associations of India
and others Vs. The Director General
of Civil Aviation and others, 2011 All.
C.J. 1752 also has no application to the
facts of this case.

20. In the result, the writ petition
is devoid of merit.

21. Dismissed.

22. There shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.06.2012

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition no. 14905 of 2005

Mohammad Shamim Akhtar ...Petitioner
Versus
State Of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri M.Sarwar Khan
Sri K.N. Rai

Counsel for the Respondents:
C.S.C.

Indian Stamp Act 1899-Section-2(14-A)-
oral
gift
under Mohammadan
Law
,made on 17.12.2001-reduced in writing
on 08.05.2002-amened provision made
effective
w.e.f.
20.05.2002-held-such
deed is record of past transactions-does
not
require
registration-demand
of
stamp duty with penalty-quashed.

Held: Para 14

In the above situation neither the gift
made by a Mohammedan orally nor its
reduction in writing subsequently would
amount to execution of an instrument
which could be subjected to payment of
stamp duty. Thus, I am of the opinion
that the authorities below grossly erred
in
law
in
subjecting
the
above
memorandum of gift dated 8.5.2002 to
stamp duty.
Case law discussed:
2011 (2) ARC 218; AIR 1962 AP 199; AIR
1927 Cal. 197; AIR 1934 Allahabad 1052
Sukhdeo Prasad; AIR 1958 Raj 291

(Delivered by Hon'ble Pankaj Mithal,J.)

1. Heard Sri K.N.Rai, learned counsel
for the petitioner and Sri Nimai Das, learned
Standing Counsel for the respondents and
with the consent of the parties the writ
petition is being finally decided.

2. The father of the petitioner, Mohd.
Kaleem made an oral gift on 17.12.2001 of
the land in question in favour of the
petitioner. The petitioner accepted the gift
and was given possession of the same.
Subsequently, as a memoriam, the said gift
was reduced to writing on 8.5.2002.

3. The authorities under the Indian
Stamp Act, 1899 (in short 'Act') initiated
proceedings on the basis of the aforesaid
memorandum by treating it to be a gift deed
and vide order dated 11.5.2004 determined
the deficiency in stamp duty of Rs.92,400/-
and imposed a penalty of Rs.7,600/-. The
aforesaid order was affirmed in appeal vide
order dated 4.1.2005.

4. The petitioner has thus invoked
the writ jurisdiction of this Court
challenging both the above orders.

5. Sri Rai has argued that under the
Mohammedan Law gift can be made
orally and there is no requirement of
executing any document in respect
thereof. The memorandum of gift is not a