# Raj Nath Singh v. State of U.P. and others

- **Citation:** (2010) 1 ILRA 248
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-22
- **Case number:** Civil Misc. Writ Petition No. 3960 of 2010
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-nath-singh-v-state-of-u-p-and-others-41570
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.
226Cancellation of appointment-petitioner
was appointed as Collection Amin in the
year 1976-confirmed on the said post in
1977-after 33 years-complaint made
about lack of qualification-petitioner
from
very
beginning
disclosed
his
qualification as High School-admittedly
passed
Intermediate
subsequently
certainly could not be appointed initially
due to lack of requisite qualification-but
considering long period of working-
1 All] Raj Nath Singh V. State of U.P. and others

249
omission on post of authorities-can not
beousted
dismissal
order
quashedconsequential direction given.

Held: Para 13

It is also to be noticed that there was a
distinction made in the case of Mohd.
Sartaj (supra) wherein paragraph 19
recites that the order of cancellation
therein was passed within a very short
span of time. The aforesaid aspect,
therefore, weighed heavily with the
Supreme Court while deciding the case
of Mohd. Sartaj. In the instant case, the
order has been passed after more than
33 years of service and, therefore, the
question of proximity of time has also to
be taken notice of which has weighed
with me while allowing this petition.
Apart from this, there is no fraud or
misrepresentation on the part of the
petitioner
and
he
had
categorically
disclosed his qualification only as High
School and not as Intermediate. The
impression given by the complainant
that
the
petitioner
had
obtained
employment through a forged marksheet was not found to be correct. It
appears that then authority proceeded to
make the appointment on the basis of a
bona fide belief of the existence of the
Rules
before
its
amendment
which
contained
the
qualification
of
High
School.
Case law discussed:
1993 Supp. (2) SCC 611, AIR 1978 SC 1536,
(1993) 3 SCC 591, (1998) 8 SCC 59.

## Text

248 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

6. I have given my thoughtful
consideration to the rival submissions
made by the parties counsel. It is true that
another Bench of this Court in the case of
Raj Narain Pandey (Supra) has decided
the appeal on merit in the absence of
lower court record on the basis of the
impugned judgement only, but in my
considered opinion, the appeal can not be
decided on merit in the absence of lower
court record. Unless the evidence is
available for perusal, in my opinion, the
appeal can not be decided on merit merely
on the basis of the lower court judgement,
as evidence is essentially required to
consider the merit of the impugned
judgement and merely on the basis of the
said judgement, no order on merit can be
passed in the appeal.

7. From the report made by the
Sessions Judge, Jhansi, this fact is borne
out that the record of Session Trial No. 9
of 1980 was weeded out in the year 1992
and original judgement only is available
in the file. From the report dated
15.09.2007 of the Sessions Judge, Jhansi,
this
fact
is
also
borne
out
that
reconstruction of the record is not
possible. I agree with the submission of
the learned counsel for the appellant that
no useful purpose would be served after a
gap of about twenty nine years to direct
retrial of the accused persons, as no paper
of the case is available. Therefore, having
regard to the observations made by the
Hon'ble Apex Court in the case of State of
U.P. Vs. Abhay Raj Singh (supra) there is
no alternative except to acquit the
appellants, as hearing of the appeal in
accordance with the arrangement made in
section 386 Cr.P.C.can not be made and
retrial also is not possible.

8. Consequently, the appeal is
allowed. The impugned judgement and
order are set aside and the surviving
appellants-accused are hereby acquitted of
the offences with which they have been
charged for want of trial court record and
there being no possibility of retrial.

9. The appellants-accused are on
bail. They need not to surrender. Their
personal and bail bonds are cancelled and
the sureties are discharged.

10. Office is directed to send a copy
of this judgement to the trial court
concerned for information.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2010

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

Civil Misc. Writ Petition No. 3960 of 2010

Raj Nath Singh

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

Counsel for the Petitioner:
Sri Sunil Kumar Singh

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.
226Cancellation of appointment-petitioner
was appointed as Collection Amin in the
year 1976-confirmed on the said post in
1977-after 33 years-complaint made
about lack of qualification-petitioner
from
very
beginning
disclosed
his
qualification as High School-admittedly
passed
Intermediate
subsequently
certainly could not be appointed initially
due to lack of requisite qualification-but
considering long period of working-
1 All] Raj Nath Singh V. State of U.P. and others

249
omission on post of authorities-can not
beousted
dismissal
order
quashedconsequential direction given.

Held: Para 13

It is also to be noticed that there was a
distinction made in the case of Mohd.
Sartaj (supra) wherein paragraph 19
recites that the order of cancellation
therein was passed within a very short
span of time. The aforesaid aspect,
therefore, weighed heavily with the
Supreme Court while deciding the case
of Mohd. Sartaj. In the instant case, the
order has been passed after more than
33 years of service and, therefore, the
question of proximity of time has also to
be taken notice of which has weighed
with me while allowing this petition.
Apart from this, there is no fraud or
misrepresentation on the part of the
petitioner
and
he
had
categorically
disclosed his qualification only as High
School and not as Intermediate. The
impression given by the complainant
that
the
petitioner
had
obtained
employment through a forged marksheet was not found to be correct. It
appears that then authority proceeded to
make the appointment on the basis of a
bona fide belief of the existence of the
Rules
before
its
amendment
which
contained
the
qualification
of
High
School.
Case law discussed:
1993 Supp. (2) SCC 611, AIR 1978 SC 1536,
(1993) 3 SCC 591, (1998) 8 SCC 59.

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

1. The petitioner is a Collection
Amin,
whose
services
have
been
terminated under the impugned order
dated 10.12.2009 on the ground that when
he was appointed 33 years ago, he did not
possess the minimum qualification of
Intermediate which was required for the
said post and, therefore, his appointment
being invalid, the services are liable to be
terminated.

2. The petitioner was admittedly
appointed on 1.1.1977 as a Collection
Amin and it is undisputed that he was
made regular w.e.f. 1.7.1978 and was
confirmed in his services on 10.1.1983.
The petitioner passed his Intermediate
Examination in the year 1989.

3. The nephew of the petitioner, who
has been arrayed as Respondent No.4,
made a complaint that the petitioner had
gained appointment on the basis of a
forged
Certificate
upon
which
the
petitioner was issued a Notice on
30.1.2006
by
the
Addl.
District
Magistrate, Azamgarh, calling upon him
to give a reply to the said allegation made
in the complaint. The petitioner submitted
a reply that his certificate was not forged
and he had been given appointment under
the then prevalent qualification which was
High School, and which certificate was
possessed by him. The District Magistrate
issued another direction to the SubDivisional Magistrate that he has received
the said reply and the Addl. District
Magistrate has gone into this question
and, therefore, appropriate action should
be taken. On the strength of such
direction, a show cause notice was issued
to the petitioner on 11.12.2007 to explain
about his want of qualification on the
initial date of appointment. The petitioner
submitted a reply on 25.1.2008 indicating
that at the time of his appointment, he was
in possession of a High School Certificate
and on the strength thereof, he was
appointed in 1977. He also submitted that
the Rule, having been changed with
regard to qualification, was not in force
nor was it known to the Sub-Divisional
Magistrate who was the then appointing
250 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

authority and, therefore, there is no
occasion to consider his appointment to
be invalid that too even after 32 years of
service. A second show cause notice was
issued to the petitioner on 29.8.2008 by
the Sub-Divisional Magistrate calling
upon the petitioner to show cause as to
why his services be not terminated.

4. This second show cause notice
was challenged by the petitioner in Writ
Petition No.15525 of 2008 in which a
counter-affidavit was filed but no orders
were
passed.
The
Sub-Divisional
Magistrate,
thereafter,
proceeded
to
consider the reply of the petitioner and
passed the impugned order holding that
the petitioner did not possess the
minimum qualification of having passed
the Intermediate Examination on the date
of his appointment and his services were
terminated.

5. This writ petition has been filed
challenging
the
said
order
dated
10.12.2009 on the ground that the
petitioner has already put in more than 32
years of service and that in view of the
law laid down in the case of Surendra
Kumar
Singh
Vs.
U.P.
Financial
Corporation and others, decided on
11.8.2004, which is a Division Bench
judgement, this Court should exercise its
writ of certiorari to quash the impugned
order. Other decisions have also been
cited at the Bar which shall be discussed
hereinafter.

6. The facts in relation to the
appointment of the petitioner on 1.1.1977,
and the fact that the petitioner was only
High School and not Intermediate, has not
been disputed by the petitioner. Learned
Standing Counsel, therefore, contends that
there is no occasion to file any counteraffidavit and the matter can be decided on
the legal issues raised. He submits that the
petitioner did not possess the minimum
qualification on the date of his initial
appointment and, therefore, in view of the
decision of the Apex Court in the case of
State of M.P. and others Vs. Shyam
Pardhi and others, (1996) 7 SCC 118, the
initial qualification which was lacking at
the time of appointment, cannot allow the
petitioner to continue in service and,
therefore, the impugned order is not
vitiated. He has further cited the decision
of the Apex Court in the case of Mohd.
Sartaj and another Vs. State of U.P. and
others, (2006) 2 SCC 315 (paragraph nos.
11 and 16), to contend that this was not a
mere irregularity in appointment and it
was a lack of initial qualification which
cannot
be
cured
and
hence
the
appointment has to be set side. Learned
Standing Counsel, therefore, contends that
the impugned order does not call for any
interference and the Division Bench
judgment relied upon by the learned
counsel for the petitioner, which is
Annexure-11 to the writ petition, does not
come to his aid.

7. In view of the undisputed fact that
the petitioner did not have the initial
qualification of Intermediate at the time of
his appointment in 1977 and was only a
High School, the fact remains that the
petitioner was appointed on the basis of a
wrong
qualification.
The
petitioner
subsequently passed his Intermediate
Examination in the year 1989 after he had
been
confirmed
in
service.
The
qualification of Intermediate had been
introduced by way of an amendment in
the Rules on 11.3.1976. The appointment
of the petitioner was undisputedly after
the said amendment. This is not a case
where the petitioner was at fault but it is a
1 All] Raj Nath Singh V. State of U.P. and others

251
case where he has been appointed on the
basis of a qualification which has been
altered
by
way
of
an
appropriate
amendment. The question is, therefore,
should
his
appointment
should
be
cancelled and the second issue is as to
whether it should be done after 33 years
of service of the petitioner.

8. The Apex Court in the case of
Ashok Kumar Sharma and another Vs.
Chandra Shekhar and another, 1993
Supp. (2) SCC 611, came to the
conclusion
that
the
results
of
the
examination of the qualification that was
required to be possessed on the date of
interview had not been declared for no
fault
of
the
applicants,
but
were
announced immediately before the date of
interview. This did not dis-entitle the
applicants as being disqualified and the
Supreme Court upheld their selection and
appointment in spite of that infirmity. The
minority view of the third Hon'ble Judge
even though agreed with the conclusion
but held the applicants to be ineligible on
the date when the application was to be
filed. The minority view held that such
practice should be discouraged as a
person not qualified on the date of the
application, cannot be subsequently given
any
benefit.
However,
since
the
conclusion
was
in
favour
of
the
applicants,
their
appointments
were
upheld.

9. There is another 3 Judges decision
in the case of Ram Sarup Vs. State of
Haryana and others, AIR 1978 SC
1536, relied upon by the learned counsel
for the petitioner where one of the three
requisite qualifications of experience was
not possessed by the candidate yet the
Supreme Court held that the same stood
cured in the following words:-
"We are of the view that the
appointment
of
the
appellant
was
irregular since he did not possess one of
the three requisite qualifications but as
soon as he acquired the necessary
qualification of five years' experience of
the working of labour laws in any one of
the three capacities mentioned in Cl. (1)
of R.4 or in any higher capacity, his
appointment must be regarded as having
been regularised."

10. The Supreme Court in another
case M.S. Mudhol Vs. S.D. Halegkar,
(1993) 3 SCC 591, considered the case
relating to the appointment to the post of a
Principal where the allegation was that the
candidate did not fulfil the essential
qualification. The Supreme Court in para
4 held that the candidate did not have the
requisite educational qualification to be
selected for the post of Principal as he did
not possess the post graduate Degree in
the division concerned, yet the subsequent
acquisition of the qualification and his
experience was taken into account and it
was found that it would be inequitable to
dislodge the petitioner after 9 years of
service. Even though it was held that the
academic qualification was not possessed,
yet the illegality was committed by the
Selection Committee and, therefore, the
candidate was allowed to continue in
service.

11. The Supreme Court in the case
of Roshni Devi Vs. State of Haryana
and others, (1998) 8 SCC 59, again came
across such a case where it passed an
order in exercise of powers under Article
142 of the Constitution of India and
upheld the appointment.
12. The aforesaid decisions found
favour with the Division Bench as relied
upon by the learned counsel for the
252 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

petitioner and, as such, in view of the fact
that the petitioner had continued for more
than 33 years of service, I see no
justification in passing of the order when
it is admitted that the petitioner has
passed his Intermediate Examination
subsequently.

13. It is also to be noticed that there
was a distinction made in the case of
Mohd. Sartaj (supra) wherein paragraph
19 recites that the order of cancellation
therein was passed within a very short
span of time. The aforesaid aspect,
therefore, weighed heavily with the
Supreme Court while deciding the case of
Mohd. Sartaj. In the instant case, the order
has been passed after more than 33 years
of service and, therefore, the question of
proximity of time has also to be taken
notice of which has weighed with me
while allowing this petition. Apart from
this, there is no fraud or misrepresentation
on the part of the petitioner and he had
categorically disclosed his qualification
only as High School and not as
Intermediate. The impression given by the
complainant that the petitioner had
obtained employment through a forged
mark-sheet was not found to be correct. It
appears that then authority proceeded to
make the appointment on the basis of a
bona fide belief of the existence of the
Rules before its amendment which
contained the qualification of High
School.

14. I, accordingly, set aside the order
dated 10.12.2009 and allow the writ
petition.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.03.2010

BEFORE
THE HON'BLE B.K. NARAYANA, J.

Civil Misc. Writ Petition No. 4351 of 1994

Adhyaksh
Prabandh
Samiti,
Dugdh
Utpadak Sahkari Samiti Ltd. ...Petitioner
Versus
Presiding
Officer,
Labour
Court,
Allahabad and others ...Respondents

Counsel for the Petitioner:
Sri G.D. Mishra

Counsel for the Respondents:
Sri Rajesh Tiwari
C.S.C.

U.P. Industrial Dispute Act-1947-Award
in favour of workman-of Cooperative
Societies-challenged
on
question
of
jurisdiction-held-considering ratio of Zila
Sahkari
Bank
Case-provision
of
Industrial dispute Act not applicable-to
those employees governed by Societies
Act.

Held: Para 7

For the aforesaid reason, I have no
hesitation in holding that the ratio of the
case of Ghaziabad Zila Sahkari Bank Ltd
(Supra)
applies
to
the
facts
and
circumstances of this case with full force,
and I have no hesitation in holding that
the provisions of U.P. Industrial Disputes
Act are not applicable to the employees
of Co-operative Societies Act who are
governed by the provisions of U.P. Cooperative
Societies
Act,
1965.
The
impugned award dated 14.4.1993 is
therefore, totally without jurisdiction
and is liable to be set aside.
Case law discussed:
JT 2007 (2) SC 566.