# Raj Kumar v. State of U.P. and another

- **Citation:** (2010) 3 ILRA 977
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-31
- **Case number:** Civil Misc. Writ Petition No. 13684 of 2010
- **Bench:** V.M. Sahai, Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-v-state-of-u-p-and-another-41763
- **Pages:** 4

## Headnote

Constitution of India Art. 226-Alternative
Remedy-Petition seeking direction for
payment of Rs.502713/-towards work
done by contractor-during pendency of
suit contractor died-Executive Engineer
required
succession
certificate-after
paying
court
fee
of
Rs.30,000/-on
production
of
succession
certificatepayment
of
Rs.
60,000/
made-for
remaining amount plea of demand of
necessary
fund-not
available-entire
amount be paid within two months with
8% interest-in Case of default 10%
interest

Held: Para 13

We are of the view that the performance
of the duty of the State and its officials
must be above board. Here in this case,
we find that the respondents are taking
a casual stand in not releasing the
payment to the petitioner whose father
has performed his part of contract. The
petitioner
has
also
invested
about
30,000/- towards court fees in getting
the
succession
certificate
and
after
submitting the succession certificate
only a meagre amount of Rs.60,000/-
(Rs.65,788/- according to respondents)
has been released in favour of the
petitioner. The Apex Court in numerous
cases has held that alternative remedy is
not absolute bar and in appropriate
cases the petitions can be entertained
under Article 226 of the Constitution of
India. The reference may be given to the
Apex
Court
decision
2003
SC
107
Harbanslal
Sahnia
and
another
Vs.
Indian Oil Corporation and others and
2005 8 SCC 242 Sanjana M Wig (Ms.) Vs.
Hindustan Petroleum Corporation Ltd.
This Court also in the Writ Petition No.
14821 of 2008 Vijay Kumar Yadav Vs.
State of U.P. and others decided on
13.7.2009 Writ Petition No. 40595 of
2004 Messrs. Anup Agencies and another
Vs. State of U.P. and others decided on
14.12.2005 has taken the same view.
Case law discussed:
2003 SC 107, 2005 8 SCC 242, W.P. No.
14821 of 2008,W.P. No. 40595 of 2004

## Text

3 All] Raj Kumar V. State of U.P. and another
977
ORIGINAL JURISDICTION
CIVIL SIDE'
DATED ALLAHABAD 31.08.2010

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 13684 of 2010

Raj Kumar

 ...Petitioner
Versus
State Of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri Vinod Kr. Agrawal

Counsel for the Respondent:
Sri Y.S.Bohra (A.C.S.C.)
C.S.C

Constitution of India Art. 226-Alternative
Remedy-Petition seeking direction for
payment of Rs.502713/-towards work
done by contractor-during pendency of
suit contractor died-Executive Engineer
required
succession
certificate-after
paying
court
fee
of
Rs.30,000/-on
production
of
succession
certificatepayment
of
Rs.
60,000/
made-for
remaining amount plea of demand of
necessary
fund-not
available-entire
amount be paid within two months with
8% interest-in Case of default 10%
interest

Held: Para 13

We are of the view that the performance
of the duty of the State and its officials
must be above board. Here in this case,
we find that the respondents are taking
a casual stand in not releasing the
payment to the petitioner whose father
has performed his part of contract. The
petitioner
has
also
invested
about
30,000/- towards court fees in getting
the
succession
certificate
and
after
submitting the succession certificate
only a meagre amount of Rs.60,000/-
(Rs.65,788/- according to respondents)
has been released in favour of the
petitioner. The Apex Court in numerous
cases has held that alternative remedy is
not absolute bar and in appropriate
cases the petitions can be entertained
under Article 226 of the Constitution of
India. The reference may be given to the
Apex
Court
decision
2003
SC
107
Harbanslal
Sahnia
and
another
Vs.
Indian Oil Corporation and others and
2005 8 SCC 242 Sanjana M Wig (Ms.) Vs.
Hindustan Petroleum Corporation Ltd.
This Court also in the Writ Petition No.
14821 of 2008 Vijay Kumar Yadav Vs.
State of U.P. and others decided on
13.7.2009 Writ Petition No. 40595 of
2004 Messrs. Anup Agencies and another
Vs. State of U.P. and others decided on
14.12.2005 has taken the same view.
Case law discussed:
2003 SC 107, 2005 8 SCC 242, W.P. No.
14821 of 2008,W.P. No. 40595 of 2004

(Delivered by Hon'ble V.M. Sahai, J.)

1. The petitioner happens to be son of
late Jai Deo Prasad who was contractor and
completed certain work under contract with
the respondents. The father of the petitioner
was not paid the entire amount of the
contract and an amount of Rs. 5,02,713/-
remain
due
against
the
respondents.
Pending that payment the petitioner's father
died. After death of the father, the petitioner
moved an application before the respondent
no. 2 for the payment which was to be
released in favour of his father. After receipt
of the application of the petitioner, the
Executive Engineer has required the
succession certificate. The petitioner has
filed a case before the Civil Judge for
granting the succession certificate for which
an amount of Rs. 30,588/- was paid towards
court fee. On 29.3.2007 the succession
certificate was issued by the Civil Judge,
(Senior Division), Mathura in favour of the
petitioner. After receiving the same, the
petitioner has submitted the succession
certificate before the respondent no. 2 on
978 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
30.3.2007.
After
submission
of
the
aforesaid certificate, the respondent no. 2
has paid Rs.60,000/- out of Rs. 5,02,713/-.
For remaining payment petitioner has filed
an application on 25.5.2006 but nothing has
been done. Thereafter the petitioner has sent
several reminders before the respondent no.
2 but it remain unattended, copies of the
few reminders have been brought on record
of the writ petition.

2. Aggrieved by the inaction of the
respondents the petitioner has filed present
writ petition with the prayer to issue a writ
of mandamus directing the respondents to
make
payment
of
an
amount
of
Rs.4,37,713/- along with 10% interest.

3. A counter affidavit has been filed
by the State respondents. In paragraph 4 of
the counter affidavit the claim of the
petitioner to the extent of Rs. 502713/- has
been
admitted
by
the
respondents.
According to that an amount of Rs. 65,788/-
was paid to the petitioner vide Boucher No.
226H dated 31.3.2007 after deducting a sum
of Rs. 1474.00/- as income tax. For
remaining the payment the letter has been
written to the government but the budget
has not been allocated therefore the
payment has not been made and as soon as
the amount is received the entire payment of
the petitioner shall be made to him.

4. For better appreciation the contents
of paragraph 4 of the counter affidavit is
quoted below.

(4) That the contents of paragraph no.
3 of the writ petition are not admitted as
stated. It is submitted that the father of the
petitioner completed the work for an
amount of Rs. 5,02,713.00 as per records.
The petitioner has been paid Rs. 65,788.00
vide Boucher No. 226H dated 31.3.2007
after deducting a sum of Rs. 1474.00 as
income tax. For the rest amount letters
dated 16.11.2006, 20.2.2008 and 18.8.2009
have been sent by the answering respondent
for making fund available in order to make
payment to the petitioner. As soon as the
amount is received the same shall be paid to
the petitioner. There is no provision for
making payment of interest on the aforesaid
amount. True copies of letters dated
16.11.2006, 20.2.2008 and 18.8.2009 are
being filed herewith and marked as
Annexure Nos. CA-1, CA-2 and CA-3
respectively to this counter affidavit.

5. In the submissions of learned
counsel for the petitioner since the claim is
admitted therefore a direction be issued to
the respondents to pay the entire amount
along with 10% interest.

6. Refuting the submissions of learned
counsel for the petitioner learned standing
counsel has submitted that the writ court is
not an appropriate remedy for redressal of
such kind of grievance. The petitioner may
either invoke the arbitration clause under
the terms of the contract or file suit for
realization of the alleged amount.

7. We have heard learned counsel for
the petitioner and learned standing counsel
and perused the record.

8. From the perusal of contents of
paragraph 4 of the counter affidavit, it
transpires
that
the
respondents
have
admitted the claim of the petitioner and the
reason for non-payment as has been
assigned in the counter affidavit is non
allocation of fund by the government for
payment.

9. After hearing learned counsel for
the parties, and perusing the record we are
3 All] Raj Kumar V. State of U.P. and another
979
unable to swallow the stand taken by the
respondents in not releasing the payment,
when the work performed by the petitioner's
father has not been disputed and liability of
payment has been admitted, in such
situation, it is incumbent upon the
government to release the payment.

10. From the bare perusal of contents
of paragraph 4 of the counter affidavit, it
transpires that respondent no. 2 is writing
letter after letter to the State government for
releasing the payment and it appears that
even after respondent no.2's continuous
effort the payment is not being released by
the State government.

11. It is noticeable that the entire work
has been completed by the petitioner's
father and in completion thereof he had
invested huge amount of money. It is very
strange that on the one hand the government
has taken the work from the father of the
petitioner who had invested his own money
in performing his part of the contract and on
the other hand the State government is
lacking to perform its part of contract.

12. We find that there appears to be no
cogent reason for non-performance of the
duty imposed upon the state government in
releasing the payment in lieu of the
completion of work under the contract. For
such meagre amount the State can take
shelter that there is no fund. We are of the
view that the authorities working under
government
while
entering
into
the
agreement must be aware of their financial
status for which agreement has been entered
into between the parties and if the financial
condition was not good then the agreement
should not have been entered into and if it
has been entered into there must have been
clear mention in the notice that fund is not
available with the government and the
contractors are required to complete the
work under contract and as soon as fund is
available the payment be released in
absence of such mention in the notice action
of the respondents cannot said to be
justified.

13. We are of the view that the
performance of the duty of the State and its
officials must be above board. Here in this
case, we find that the respondents are taking
a casual stand in not releasing the payment
to the petitioner whose father has performed
his part of contract. The petitioner has also
invested about 30,000/- towards court fees
in getting the succession certificate and after
submitting the succession certificate only a
meagre amount of Rs.60,000/- (Rs.65,788/-
according to respondents) has been released
in favour of the petitioner. The Apex Court
in numerous cases has held that alternative
remedy is not absolute bar and in
appropriate cases the petitions can be
entertained under Article 226 of the
Constitution of India. The reference may be
given to the Apex Court decision 2003 SC
107 Harbanslal Sahnia and another Vs.
Indian Oil Corporation and others and
2005 8 SCC 242 Sanjana M Wig (Ms.) Vs.
Hindustan Petroleum Corporation Ltd.
This Court also in the Writ Petition No.
14821 of 2008 Vijay Kumar Yadav Vs.
State of U.P. and others decided on
13.7.2009 Writ Petition No. 40595 of 2004
Messrs. Anup Agencies and another Vs.
State of U.P. and others decided on
14.12.2005 has taken the same view.

14. In view of that looking into the
admitted liability of payment we feel no
hesitation in allowing the writ petition with
the direction to respondents to release the
admitted amount to the petitioner within a
period of two months from the date a
certified copy of the order is produced
980 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
before respondent no. 2. We further provide
that as the respondents without there being
any cogent reason have delayed the
payment, therefore the petitioner is also
entitled 8% interest. It is further provided
that in case the remaining amount is not
released within a period of two months, the
petitioner shall be entitled 10% interest till
the date of entire payment, which has to be
paid by the respondents.

With the aforesaid directions, the writ
petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2010

BEFORE
THE HON'BLE A.P. SAHI, J

Civil Misc. Writ Petition No. 13862 of 2004

Virendra Pal Singh

 ...Petitioner
Versus
Joint
Director
of
Education
Kanpur
Region and others
 ...Respondents

Counsel for the Petitioner:
Sri R.G.Padia
Sri Prakash Padia

Counsel for the Respondents:
Sri Shashi Kant Shukla
Sri Ambrish Kumar
S.C.

Service-U.P. Secondary Education Service
Rules 1998,Rule 14-Promotion to the post
of Lecturer (History)-vacancy arose on
retirement of permanent incumbent on
30/06/1998-Management
promoted
X
illegally, defying claims of petitioner and
respondents No.5-Again X retired, and
vacancy arose on 01/07/1999-Respondent
No.5 become eligible for that post on
08/07/1998-Held,since
vacancy
arose
initialy on 30/06/1998, and the post
having not been legally filled up will
continue-therefore
relevant
date
for
qualification would be 01/07/1998-thus
petitioner found liable to be promotedpetition allowed.

Held: Para 13

Having heard learned counsel for the
parties, the Rules require the possession of
the requisite qualification as on the first
day of the year of recruitment. The
relevant Rule is Rule 14 of the U.P.
Secondary Education Service Selection
Board Rules, 1998. There is no dispute that
the vacancy occurred on 30.6.1998 and,
therefore, the qualification had to be seen
on
1.7.1998.
The
Committee
of
Management did proceed to make a
promotion but it promoted Shishu Pal
Singh and did not consider the claim either
of the petitioner or of the Respondent
No.5. The Respondent No.5 subsequently
staked his claim on the ground that he has
acquired qualification on 8.7.1998. It
appears that after Shishu Pal Singh retired,
the Respondent No.5 was supported by
the Committee of Management. In the
opinion of the Court, this could not have
been done inasmuch as the vacancy which
occurred on 30.6.1998 cannot be said to
have been occupied lawfully by Shishu Pal
Singh in the absence of any approval by
the competent authority. It is the same
vacancy which continued and, therefore,
the date on which the qualification had to
be considered according to Rule 14
aforesaid was 1.7.1998. The Joint Director
of Education committed a manifest error
by shifting the said date of consideration
on the ground of the alleged action of the
Committee of Management by promoting
Shishu
Pal
Singh
which
was
never
approved by the competent authority. In
such a situation, the impugned order is
unsustainable.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri Prakash Padia, learned
counsel for the petitioner, learned Standing
Counsel for Respondent Nos. 1, 2, 6 & 7