# Rais v. State of U.P. reported in 2009(5)

- **Citation:** (2011) 1 ILRA 475
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-11
- **Case number:** Civil Misc. Writ Petition No. 61552 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rais-v-state-of-u-p-reported-in-2009-5-41891
- **Pages:** 10

## Headnote

C.S.C.
Sri J.P.Singh
Sri S.K.Anwar
Sri T.M. Abbasi
Sri Zafar Abbas

Intermediate
Education
Act
1921Chapter
III
Regulation
103compassionate
appointment-minority
institution-provision of Regulation 103
already
quashed
by
Single
Judge-
476 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
meaning
thereby-it
is
like
stillborn
provision-order
of
D.I.O.S.
directing
compassionate
appointment-quashed
necessary direction to proceed with
selection in accordance with law issued.

Held: Para 24 and 31

Now,
the
second
aspect,
whether
declaration of an amending provision
would have the effect of revival of old
provision or it stood wiped out from the
statute book. This has to be seen in the
light
of
the
decision
whereby
the
provision
has
been
struck
down.
Whenever a statute, whether principal or
subordinate legislation, is struck down,
being violative of provisions of the
Constitution,
and
in
particular
fundamental rights under Part III of the
Constitution, in view of Article 30(2) of
the Constitution, such a statute is void
ab initio. It is like a stillborn provision
incapable of repeal or substitution of an
existing provision.

That being so, since there is a clear
provision
by
way
of
proviso
to
Regulation
103
that
the
provision
pertaining
to
compassionate
appointment would not apply to minority
institutions, in my view, DIOS had no
authority or jurisdiction to direct the
Management of the College to make
appointment
from
a
claimant
of
compassionate appointment. The college
Management therefore had rightly made
its selection. In the absence of any other
reason, the same could not have been
disapproved only on the ground that a
candidate
claiming
compassionate
appointment had to be appointed on the
post in question.
Case law discussed:
2002(2) UPLBEC 1742; Civil Misc. Writ Petition
Nos.12157 of 2003 with 33298 of 2002
(Governing Body of the Registered Society
Designated
as
St.
Andrew's
College
Association, Gorakhpur Vs. State of U.P.); AIR
1958 SC 468; AIR 1954 SC 728; AIR 1958 SC
648; AIR 1963 SC 1019; JT 2005 (12) SC 1

## Text

1 All Naushad Alam V. State of U.P. and others
475

2. Learned standing counsel states that
since a pure question of law is involed it is
not necessary to file a counter affidavit at
this stage.

3. The petitioner is a tenure holder
against whom proceedings were initiated
under the U.P.Imposition of Ceiling on
Land
Holdings
Act,
1960
and
the
Prescribed
Authority
vide
orderdated
28.2.2011 declared certain land as surplus in
the hands of the petitioner. Aggrieved the
petitioner has preferred an appeal being
Ceiling Appeal No.3 of 2010-11 which has
been admitted on 15.4.2011. However,
while admitting the appeal the application
for an interim relief has been rejected on the
ground that there is no justification for grant
of any interim order.

4. Learned counsel for the petitioner
submits that in view of the provisions of
clause (c) of Section 14(1) of the 1960 Act,
the Collector can take possession of the
surplus land only after decision in appeal
and upon a notification being issued under
Section 14. He submits that the aforesaid
situation has not arrived and therefore the
appellate authority ought to have granted an
interim order so as not to disturb the
possession of the petitioner during the
pendency of the appeal.

5. Learned standing counsel submits
that as a matter of fact that in view of the
legal position as indicated by the petitioner,
the appeal itself has to be disposed of before
possession can be taken.

6. Having heard learned counsel for
the parties as a matter of fact the Collector
cannot take possession of the land so long
as the appeal is not decided in terms of the
provisions referred to hereinabove.

7. Even otherwise in such matters
where an appeal is filed and the same has
been admitted, the same presumes a prima
facie case of the petitioner. The appellate
authority should therefore not refuse to
exercise discretion for granting interim
relief as indicated in the case of Mahmood
Rais V. State of U.P. reported in 2009(5)
ADJ 529. Learned Commissioner himself
has admitted the appeal and therefore the
rejection
of
the
stay
application
is
unjustified.

8. Accordingly the writ petition is
disposed of with a direction that the
petitioner should not be dispossessed from
the land in dispute till the disposal of the
appeal at this stage.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.04.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 61552 of 2008

Naushad Alam

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

Counsel for the Petitioner:
Sri J.A. Azmi
Sri J.J. Munir

Counsel for the Respondent:
C.S.C.
Sri J.P.Singh
Sri S.K.Anwar
Sri T.M. Abbasi
Sri Zafar Abbas

Intermediate
Education
Act
1921Chapter
III
Regulation
103compassionate
appointment-minority
institution-provision of Regulation 103
already
quashed
by
Single
Judge-
476 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
meaning
thereby-it
is
like
stillborn
provision-order
of
D.I.O.S.
directing
compassionate
appointment-quashed
necessary direction to proceed with
selection in accordance with law issued.

Held: Para 24 and 31

Now,
the
second
aspect,
whether
declaration of an amending provision
would have the effect of revival of old
provision or it stood wiped out from the
statute book. This has to be seen in the
light
of
the
decision
whereby
the
provision
has
been
struck
down.
Whenever a statute, whether principal or
subordinate legislation, is struck down,
being violative of provisions of the
Constitution,
and
in
particular
fundamental rights under Part III of the
Constitution, in view of Article 30(2) of
the Constitution, such a statute is void
ab initio. It is like a stillborn provision
incapable of repeal or substitution of an
existing provision.

That being so, since there is a clear
provision
by
way
of
proviso
to
Regulation
103
that
the
provision
pertaining
to
compassionate
appointment would not apply to minority
institutions, in my view, DIOS had no
authority or jurisdiction to direct the
Management of the College to make
appointment
from
a
claimant
of
compassionate appointment. The college
Management therefore had rightly made
its selection. In the absence of any other
reason, the same could not have been
disapproved only on the ground that a
candidate
claiming
compassionate
appointment had to be appointed on the
post in question.
Case law discussed:
2002(2) UPLBEC 1742; Civil Misc. Writ Petition
Nos.12157 of 2003 with 33298 of 2002
(Governing Body of the Registered Society
Designated
as
St.
Andrew's
College
Association, Gorakhpur Vs. State of U.P.); AIR
1958 SC 468; AIR 1954 SC 728; AIR 1958 SC
648; AIR 1963 SC 1019; JT 2005 (12) SC 1

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

1. Both these matters relate each
other and hence are being decided by this
common judgment.

2. Writ Petition No.61552 of 2008 is
directed against three orders. One is dated
18th August, 2008 (Annexure 5 to the
writ petition) whereby District Inspector
of
Schools,
Azamgarh
(hereinafter
referred to as "DIOS") respondent No.3
has informed Manager, Shibli National
Inter College, Azamgarh (hereinafter
referred to as "College" that proposal for
appointment
of
Naushad
Alam
(petitioner) on the post of Assistant Clerk
is being disapproved since matter of
compassionate
appointment
in
the
aforesaid College is pending.

3. Second impugned order in this
writ petition is dated 23rd August, 2008
whereby DIOS has invited applications
for appointment on compassionate basis
against existing vacancies which included
the vacancy in question i.e. of Assistant
Clerk occasioned due to retirement of Sri
Abdul Qadeer. The third order is dated
18th August, 2008 whereby DIOS has
recommended respondent No.6 (Atharu
Ebad) for appointment on the post of
Assistant Clerk in the vacancy in question
in the College directing the competent
authority to issue letter of appointment
forthwith.

4. Learned counsel for the petitioner
contended that in view of proviso to
Regulation 103 of Chapter III, right to
claim compassionate appointment in not
available to the heirs of the employees of
minority institution and hence impugned
orders are wholly illegal and void ab
initio.
1 All Naushad Alam V. State of U.P. and others
477

5. No counter affidavit has been
filed on behalf of respondents No.1 to 3.
The respondents No.4 and 5, however,
have filed counter affidavit through Sri
S.K.Anwar Advocate. It is said that a
Selection Committee was constituted by
Committee of Management consisting of
the following:

1.Sri Abu Saad Ahmad (President)

2.Sri Shamim Ahmad (Secretary).

3.Wasi Uddin (Joint Secretary)

4.Sri Niyaz Ahmad Jamili (Manager)

5.Sri Abu Mohd. Khan (Principal)

6. The committee interviewed 11
candidates including the petitioner as well
as respondent No.6 for the post in
question and prepared merit list. It found
that only two candidates i.e. petitioner and
one Mohd. Shahid were conversant with
typing
which
was
the
essential
qualification
and
accordingly
made
recommendation
in
favour
of
the
petitioner pursuant whereto the resolution
was passed by Managing Committee for
appointment of petitioner as 'Assistant
Clerk'.

7. It is said that DIOS has no
authority under law to interfere in
appointment of the teaching and non
teaching staff in a minority institution.
Regulations 101 to 107 do not apply to
minority institutions. It is said that any
other view would make the Regulations
violative of Article 30 read with Section
16-F and 16-FF of U.P. Intermediate
Education Act, 1921 (hereinafter referred
to as the "Act 1921").

8. Respondent No.6 initially filed a
short counter affidavit through Sri J.P.
Singh, Advocate stating that his father
late Sri Ali Ebad was Lecturer (Urdu) in
the College and died on 30th December,
2006. His application for compassionate
appointment was forwarded by Manager
of the College to DIOS on 23rd June,
2007. The Principal also forwarded name
of respondent No.6 for compassionate
appointment to DIOS on 26th June, 2007.
When the matter was pending, new
manager, who was interested in fresh
appointment, proceeded to hold selection
and fixed 5th June, 2008 for interview.
DIOS, in the circumstances, issued a letter
on 4th June, 2008 directing Manager not
to hold any selection on 5th June, 2008,
but
ignoring
thereto,
selection
proceedings
were
completed
and
resolution was passed in favour of
petitioner. He however admits that he
knows little typing but claims that
relaxation in the matter of requisite
qualification is provided in the rules.

9. A detailed counter affidavit has
also been filed by respondent no.6 where
also similar averments have been made.

10. Learned counsel for the
petitioner contended that Regulation 103,
which provides a right to the dependent of
a
deceased
employee
to
claim
appointment on compassionate basis
specifically says that such provisions shall
not be applicable to minority institution.

11.

However,
there
was
an
amendment by notification dated 9th
August, 2001 whereby the proviso to
Regulation 103 was repealed and a new
regulation
without
proviso
was
substituted.
Regulation
103
before
notification dated 9th August, 2001 and as
478 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
it stand subsequent to notification dated
9.8.2001 is reproduced as under:

Prior to 09.8.2001

103.
Notwithstanding
anything
contained in these regulations, where any
teacher or employee of ministerial grade
of any recognised, aided institution, who
is appointed accordingly with prescribed
procedure,dies during service period,
then one member of his family, who is not
less than eighteen years in age, can be
appointed on the post of teacher in
trained graduate grade or on any
ministerial
post,
if
he
possesses
prescribed
requisite
academic
qualifications, training eligibilities, if any,
and he is otherwise fit for appointment :

Provided that anything contained in
this regulation would not apply to any
recognised aided institution established
and administered by any minority class.

Explanation.- For the purpose of this
regulation "member of the family" means
widow or widower, son, unmarried or
widowed daughter of the deceased
employee.

Note.-
This
regulation
and
Regulations 104 to 107 would apply in
relation to those employees who have died
on or after 1 January, 1981."

On & After 09.8.2001

"103.
Notwithstanding
anything
contained in these regulations, where any
teacher or employee of ministerial grade
of any recognised, aided institution, who
is appointed accordingly with prescribed
procedure,dies during service period,
then one member of his family, who is not
less than eighteen years in age, can be
appointed on the post of teacher in
trained graduate grade or on any
ministerial
post,
if
he
possesses
prescribed
requisite
academic
qualifications, training eligibilities, if any,
and he is otherwise fit for appointment :

Explanation.- For the purpose of this
regulation "member of the family" means
widow or widower, son, unmarried or
widowed daughter of the deceased
employee.

Note.-
This
regulation
and
Regulations 104 to 107 would apply in
relation to those employees who have died
on or after 1 January, 1981."

Thus the real distinction between two
above is the 'proviso'.

12. The validity of notification dated
9th August,2001 deleting proviso to
Regulation 103 came to be challenged in
writ
petition
Committee
of
Management, MAH Inter College &
Another Vs. District Inspector of
Schools, Ghazipur and others 2002 (2)
UPLBEC 1742. This Court held the said
notification violative of Article 30 of the
Constitution and hence quashed the same.

13. It is thus contended that earlier
Regulation continued to operate, and,
hence no right was available to an
employee, teaching or non teaching, of
minority institution, to claim a vested
right
of
compassionate
appointment
therefore, the impugned orders are wholly
illegal and without jurisdiction.

14. Per contra, learned counsel
appearing for respondents No.6 stated that
decision of learned Single Judge in
1 All Naushad Alam V. State of U.P. and others
479
Committee of Management, MAH Inter
College & Anr. (supra) came to be
considered by a Division Bench in Civil
Misc. Writ Petition Nos.12157 of 2003
with 33298 of 2002 (Governing Body of
the Registered Society Designated as St.
Andrew's
College
Association,
Gorakhpur Vs. State of U.P.) decided on
27th August, 2003 and the Division
Bench expressed its disagreement with
the view of the Hon'ble Single Judge.
Hence, it is contended that decision of
Hon'ble Single Judge in Committee of
Management MAH Inter College (supra)
stood overruled by the Division Bench
judgement. In the existing provisions,
right to compassionate appointment is
available to all irrespective of the nature
of institution. It is thus contended that no
interference is called in the orders
impugned in this writ petition.

15. Having heard Sri J.A.Azmi for
the petitioner, learned Standing Counsel
for respondent No.3, Sri S.K.Khurshid
Anwar for respondent No.4 and 5; and,
Sri J.P.Singh for respondent No.6, in my
view,
the
short
question
up
for
consideration would be, "whether the
decision of Hon'ble Single Judge in
Committee of Management M.A.H. Inter
College (supra) in so far as it quashed the
notification dated 9th August, 2001
survive with respect to the consequences
of its decision on notification dated 9th
August, 2001; and; what is the effect of
disagreement expressed by the Division
Bench in St. Andrew College Association
(supra).

16. If the answer comes in favour of
the petitioner, no further enquiry may be
necessary in the case in hand.

17. The Hon'ble Single Judge in
Committee of Management M.H.Inter
College (supra) having considered the
issue observed in paras 23, 27 and 28 of
the judgment as under:

"23. The question now arises as to
what relief is to be granted. Two options
are open. One that the provisions of
Regulations 103 to 107be read down as in
applicable to minority institutions and to
quash the recommendations made by the
District Inspector of Schools and the
other : to also strike down the notification
dated 9.8.2001 impugned in this writ
petition. It has already been held that if
the Regulations are applied to a minority
institution they would infringe Article
30(1) read with Article 29 and, therefore,
the recommendations made by the District
Inspector of Schools are liable to be
quashed.

27. As the notification substituting
the new Regulation 103 only repeals the
proviso and otherwise re-enacts the old
Regulation entirely has the effect of
creating confusion about the true legal
position on the issue of minority rights, it
is necessary to strike down it and not
merely to read down the provisions of
Regulations 103 to 107 as inapplicable to
minority institutions. It does not require
emphasis that subordinate legislation by
the notification on an issue so sensitive as
minority rights without application of
mind and which does not, according to
the admission of the State itself bring out
the true intention casts doubt upon the
bona fides of the Government itself upon
the minority question and cannot be
tolerated to exist.

28. In the result, both the writ
petitions are allowed. The Notification
480 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
No. 5834/15-7-2 (1)/90, dated 9th August,
2001 (Annexure-1) and also the order of
the
District
Inspector
of
Schools,
Ghazipur dated 27.12.2001 in Writ
Petition No. 4308 of 2002 are quashed
and the order dated 8.11.2001 (Annexure4) passed by the District Inspector of
Schools.
Muzaffarnagar
and
the
notification dated 9.8.2001 (Annexure-5)
in Civil Misc. Writ Petition No. 43328 of
2001 are quashed.

18. It is not disputed by learned
counsels for the parties that the very
notification dated 9th August, 2001, which
was issued to bring about an amendment
by substitution in Regulation 103 was
challenged in the above matter and has
been quashed by Hon'ble Single Judge.

19. Learned counsel for the parties
also stated that the judgement attained
finality since it was not taken in appeal
either by filing an intra Court appeal or
before the Apex Court. The result of the
judgment therefore is that notification
dated
9th
August,
2001,
whereby
amendment was made in Regulation 103
Chapter III of Regulations framed under
U.P. Intermediate Education Act, 1921
stood quashed and no longer survive.

20. The matter before Division
Bench
in
St.
Andrew's
College
Association (supra) pertain to higher
education and statute 39 Chapter 23 of
statutes of Gorakhpur University was up
for consideration before Division Bench
which itself did not make any distinction in
the
matter
of
dying
in
harness
appointments in the colleges governed by
the said statute but it was contended that
said statute has to be read in a manner so
as to apply only to general institutions and
not to minority institutions otherwise it
would be violative of Articles 29 and 30.
The Division Bench considered the matter
and observed that the said restriction
would be applicable so far as Teaching
posts are concerned but cannot be applied
to Class III and Class IV posts. In this
regard decision of Hon'ble Single Judge,
which relates to Secondary Educational
institutions, governed by Act 1921 Act,
was considered and in para 15 of the
judgment, the Division Bench said as
under:

"15.
Learned
Counsel
for
the
petitioner has invited our attention to the
decision of a learned single Judge of this
Court in Committee of Management, MAH
Inter College v. DIOS, Ghazipur, 2002 (3)
AWC 2221, in which a contrary view has
been taken by the learned single Judge.
The learned single Judge was of the view
that
since
an
appointment
on
compassionate grounds is not made on
merit since there is no competition with the
candidates from the open market hence it
cannot be said that a direction for making
such appointments in minority institutions
will be conducive to efficiency and
standards of education in the said
institution. We respectfully disagree with
the reasoning given by the learned single
Judge. As held by the Supreme Court in
TMA Pai's case (supra) a regulation for
the welfare of teacher does not infringe the
right of a minority institution under Article
30 of the Constitution. We do not see how
appointment on a Class III or Class IV
post will affect. The standard of education
in a minority institution. After all, a Class
III post is not a teacher's post."

21. Having said so, the Division
Bench in paras 19, 20 and 21 said as
under:
1 All Naushad Alam V. State of U.P. and others
481

"19. As regards the decision of the
Supreme Court in N. Ammad v. Manager,
Emjay High School, 1998 (6) SCC 764,
all that has been held in that decision is
that the management has full freedom to
appoint any person as Head Master. This
again
has
nothing
to
do
with
compassionate appointment on a Class III
post.
Hence
this
decision
is
also
distinguishable.

20.
We
see
no
reason
why
humanitarian regulations, such as the
kind which has been impugned in this
petition, cannot be made for minority
institutions. We cannot see how such
humanitarian measures of the kind with
which we are dealing in this petition can
be said to infringe the right under Article
30 of a minority institution.

21. It may have been a different
matter if the compassionate appointment
was sought to be made on the post of
Head Master or teacher, and there it
possibly could have been said that this
infringes the right of the minority
institution under Article 30 of the
Constitution. Since teaching work is
certainly related to the standard of
education imported. That is not the case
here. Here we are concerned with an
appointment on a Class III post in a
minority institution on compassionate
ground. We see no violation of Article 30
of the Constitution in such a case, or in
case of a Class IV post."

22. It is thus evident that reasoning
followed by Hon'ble Single Judge in
Committee
of
Management,
MAH
Inter College (supra) to quash the
notification dated 9th August, 2001 were
not approved by the Division Bench in St.
Andrew's College Association (supra)
and the Division Bench expressed its
disagreement with the said reasoning. The
said disagreement has been noticed
specifically in the following words:

"We respectfully disagree with the
reasoning given by the learned Single
Judge."

23. It is no doubt true that decision
to this extent of Hon'ble Single Judge
cannot be said to be a good law any
longer after the aforesaid Division Bench
judgment but the question up for
consideration in this case is entirely
different. The Division Bench judgment
would not operate as to had the effect of
setting aside the Hon'ble Single Judge's
decision in Committee of Management,
MAH Inter College (supra) since the
Division Bench judgment was not passed
in appeal arising out of the aforesaid
Hon'ble Single Judge's judgment but it
was in a different matter governing
different statute and different context.
Therefore, so far as decision of Hon'ble
Single Judge is concerned, the orders or
provisions, which have been quashed or
declared illegal therein, would not revive.
The judgment of Hon'ble Single Judge
having attained finality would take within
its sweep whatever has been done therein.
This effect could have been nullified only
in appeal and not otherwise. The
notification dated 9th August, 2001
having been quashed by the Hon'ble
Single
Judge
in
Committee
of
Management,
MAH
Inter
College
(supra) it would not stand revived by the
Division Bench decision in St. Andrew's
College Association (supra) which has
nothing to do either with the Secondary
Educational
Institutions
or
U.P.
Intermediate Education Act, 1921 or
Regulation 103 mentioned in notification
482 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
dated 9th August, 2001 which purported
to have been issued under Section 9(4) of
Intermediate Education Act, 1921 since
the Division Bench was only concerned
with
a
case
pertaining
to
higher
educational institutions governed by the
U.P. State Universities Act, 1973 and the
statutes framed thereunder i.e. Gorakhpur
University Statute.

24. Now, the second aspect, whether
declaration of an amending provision
would have the effect of revival of old
provision or it stood wiped out from the
statute book. This has to be seen in the
light of the decision whereby the
provision
has
been
struck
down.
Whenever a statute, whether principal or
subordinate legislation, is struck down,
being violative of provisions of the
Constitution,
and
in
particular
fundamental rights under Part III of the
Constitution, in view of Article 30(2) of
the Constitution, such a statute is void ab
initio. It is like a stillborn provision
incapable of repeal or substitution of an
existing provision.

25. In N.P.V. Sundara Vs. State of
Andhra Pradesh AIR 1958 SC 468
considering the doctrine of still-born
piece of legislation a Constitution Bench
said,

"If a law is on a field not within the
domain of the legislature, it is absolutely
null and void, and a subsequent cession of
that field to the legislature will not have
the effect to breathing life into what was a
still-born piece of legislation and a fresh
legislation on the subject would be
requisite. But if the law is in respect of a
matter assigned to the legislature but its
provisions
disregard
constitutional
prohibitions, though the law would be
unenforceable
by
reason
of
those
prohibitions,
when
once
they
are
removed, the law will become effective
without re-enactment."

26. In Sagir Ahmad Vs. The State
of U.P. & Ors AIR 1954 SC 728 the
Court
examined
challenge
to
the
Constitutional validity of U.P State
Transport Act, 1951 under which the
State was enabled to run Stage Carriage
Service to the exclusion of others. In
exercise of its power under the Act, the
State Government made a declaration
extending the act to a particular area and
frame a scheme for operation of the stage
carriage service on certain routes. At the
relevant time the State did not have the
power to deny citizen of his right to carry
on transport service. However, after the
Constitution (First) Amendment Act of
1951, the State became entitled to carry
on any trade or business either by itself or
through Corporation owned or controlled
by it to the exclusion of private citizens
wholly or in part. One of the question
raised was whether the Constitution
(First) Amendment Act could be invoked
to validate an earlier legislation. The
Court
held
that
the
Act
was
unconstitutional at the time of enactment
and therefore it was stillborn and could
not
be
vitalized
by
a
subsequent
amendment of the Constitution removing
the constitutional objection and must be
re-enacted.
Hon'ble
Mukherjea,
J.
speaking for the Court referred to Prof.
Cooley in his work on "Constitutional
Limitations" (Vol. I page 384) and said:

"a statute void for unconstitutionality
is dead and cannot be vitalised by a
subsequent amendment of the Constitution
removing the constitutional objection but
must be re-enacted".
1 All Naushad Alam V. State of U.P. and others
483

The Hon'ble Court further observed
that it is of the view that this is a sound
law.

27. This view was reiterated in Deep
Chand Vs. The State of U.P. & Ors.
AIR 1958 SC 648 where the Court said
that a plain reading of Article 13(2)
indicates, without any reasonable doubt,
that prohibition goes to the root of the
matter and limits the State's power to
make law; the law made in spite of the
prohibition is a still-born law.

28. Again another Constitution bench
in Mahendra Lal Jaini Vs. State of U.P.
AIR 1963 SC 1019 reiterated the above
view in para 22 of the report. It says,

"..it must be held that unlike a law
covered by Art. 13(1) which was valid
when
made,
the
law
made
in
contravention of the prohibition contained
in Art. 13(2) is a still-born law either
wholly or partially depending upon the
extent of the contravention. Such a law is
dead from the beginning and there can be
no question of its revival under the
doctrine of eclipse."

29. This has been followed recently
in Rakesh Vs. Dr. JT 2005 (12) SC 1.

30. In the case in hand, Hon'ble
Single Judge in his judgment dated 30th
April, 2002 held the amendment sought to
be
brought in
Regulation
103
by
notification dated 9th August, 2001
violative of Article 30 of the Constitution,
and in fact, had quashed the same. That
being so, unless the judgment is set aside,
its effect i.e. quashing of notification,
would
continue,
meaning
thereby,
Regulation 103, as it was existing and
operating
before
the
issuance
of
notification dated 9th August, 2001 would
continue to hold the field.

31. That being so, since there is a
clear provision by way of proviso to
Regulation
103
that
the
provision
pertaining to compassionate appointment
would not apply to minority institutions,
in my view, DIOS had no authority or
jurisdiction to direct the Management of
the College to make appointment from a
claimant of compassionate appointment.
The college Management therefore had
rightly made its selection. In the absence
of any other reason, the same could not
have been disapproved only on the ground
that a candidate claiming compassionate
appointment had to be appointed on the
post in question.

32. In the result, the writ petition
No.61552 of 2008 is allowed. The
impugned order dated 18th August, 2008
(Annexure 5 to the writ petition) is hereby
quashed. The DIOS is directed to consider
the
proposal
and
resolution
of
management of the college afresh with
respect to the selection for appointment of
petitioner on a Class III post in
accordance with law and in the light of
the observations made above and to pass a
fresh order with regard to his financial
approval within one month from the date
of production of a certified copy of this
order, after giving due opportunity of
hearing to all concerned parties.

33. Writ petition no.66596 of 2008
has
been
filed
by
Atharul
Ebad,
respondent No.6 in writ petition no.61552
of 2008, seeking a mandamus directing
respondent No.3 to take steps for
implementation of his orders dated 18th
August, 2008 and 31st August, 2008, the
two orders, which have been challenged
484 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
by Naushad Alam in Writ Petition
no.61552 of 2008.

34. Since the orders dated 18th
August, 2008 and 31st August, 2008 are
quashed, writ petition no.66596 of 2008
must have to fail. It is accordingly
dismissed.

35. There shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2011

BEFORE
THE HON'BLE ASHOK BHUSHAN,J.
THE HON'BLE SHYAM SHANKAR TIWARI,J.

Civil Misc. Writ Petition No. 71837 of 2010

Harish Chandra

 ...Petitioner
Versus
U.P. Sahkari Gram Vikas Bank Ltd. and
others

 ...Respondents

Counsel for the Petitioner:
Sri A.P. Singh

Counsel for the Respondent:
C.S.C.,
Sri K.M.Misra
Sri Shailendra Kumar Singh

U.P. Cooperative Societies Act, 1965Section
34
readwith
Section
95-ARecovery
certificate-loan
advance
to
purchase of Tempo-default in payment of
instalments-petitioner
possesses
less
than 3.125 acre land in view of G.O.
Dated 27.09.07 such plots can not be
auctioned-other mode of recovery by
issuing recovery certificate-provision of
Section
95-A
of
the
Act
are
fully
attracted by virtue of section 34 of the
Act-held-recovery
certificate-justifiedpetition dismissed.

Held: Para 11

Under Section 34, the State Government
has
a
right
to
nominate
on
the
Committee
of
Management
of
such
society not more than two persons in
cases as mentioned in the said section. It
is not denied that the State Government
gives loan and makes advances to
respondent no. 1 and the U.P. Sahakari
Gramin Vikas Bank is run on the financial
aid and grants provided by the State as
has been submitted by learned counsel
for the respondents. The respondent no.
1 thus, is clearly covered within the
meaning of section 34 and with regard to
recovery of dues of such society section
95-A is fully attracted. As mentioned
above, the respondent no. 1 is registered
cooperative society within the meaning
of U.P. Cooperative Societies Act, 1965
by virtue of section 131 of 1965 Act.
Hence, Section 95-A is fully attracted in
the facts of the present case. As
submitted by learned counsel for the
respondents, the agricultural land of less
than 3.125 acres cannot be sold hence,
the respondent no. 1 can adopt the other
process of recovery as provided. Thus,
the respondents are free to adopt other
process of recovery except for auction of
the land result of which may render the
agriculturist having less than land 3.125
acres.
Case law discussed:
1965 R.D. 327; 1968 R.D. 187; 1968 R.D. 57;
1969 R.D. 79; 2001 Allahabad Civil Journal
1167;1984 AIR (S.C.) 718

(Delivered by Hon'ble Ashok Bhushan, J.)

1. By this writ petition, the
petitioner has prayed for quashing the
citation dated 8.11.2010 for recovery of
amount of Rs. 1,31,875/- as well as
recovery certificate dated 15.10.2007 in
so far as it relates to the petitioner
(Annexure-6 to the writ petition). Short
counter
affidavit
and
short
supplementary counter affidavit have