# Ram Anand v. State of U.P

- **Citation:** Service Single No. 4336 of 1988
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-05
- **Case number:** Service Single No. 4336 of 1988
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-anand-v-state-of-u-p-46218
- **Pages:** 10

## Headnote

(A) Service Law - U.P. Lekhpal Service
Rules, 1958 - Rule 212 and 214-B -
Chapter XIV - Land Record Manual -
Cancellation
of
Lekhpal
Examination
Certificate - Rule 5 and 212- of the -
petitioner was not held guilty of serious
misconduct in obtaining certificate which
can be the sole ground for cancellation of
certificate - no opportunity of hearing
provided - no provision either in Rules of
1958 or in Manual requiring a candidate to
have three years of experience as on
30.04.1980 for the purpose of admission
and
issuance
of
certificate
upon
completion of training in lekhpal schools
were given

The petitioner was granted appointment as a
Lekhpal on a temporary basis on a temporary
post in the year 1978 thereafter he took a
special lekhpal examination in the year 1981.
After verification it was found that as per the
Government Order dated 15.05.1980 he did not
completed three years of service as on
08.05.1980 as an untrained lekpal therefore his
certificate was cancelled and was subsequently
terminated from service. The non completion of
three years of service as on 30.04.1980 for the
purpose of admission and issuance of certificate
upon completion of training in a lekhpal schools
was laid down by aforementioned government
order and not by any statutory provision. The
condition imposed by the government order
restricts condition of appointment as required
under service rules. Such a fact exceeds the
authority of competent government since it has
effect of diluting or restricting the service
conditions indicated in the service rules, without
amendment to the same.

(B)
Interpretation
-
purposive
interpretation of subordinate legislation -
statutory provision cannot be diluted,
modified or overridden by government
order - government order can fill up the
gaps
and
supplement
the
rules
by
issuance of instructions no inconsistent
with the already existing rules

The condition imposed by the government order
dated
15.05.1980 is merely an enabling
provision which has been passed to enable
proper implementation of Rules 5 and 6 of the
Service Rules. Therefore the condition are to be
seen in its purposive character. It is apparent
that the entire purpose of the government order
was that a person entitles to be regularized in
service should have sufficient experience in the
776 INDIAN LAW REPORTS ALLAHABAD SERIES
field. In view of the facts of the case, the
petitioner as already cleared the certificate
examination in the year 1981 and was bereft of
required service for only one year, it can be
seen that the purpose of condition imposed by
the government order stood fulfilled. It is also
admitted that the at the time of passing of the
impugned order, petitioner had completed more
than 10 years of service and therefore to hold
him ineligible foe regularization only on the
basis that he had not completed requisite one
year extra service is unreasonable.

Writ Petition Allowed. (E-10)

List of cases cited:

## Text

3-5 All. Ram Anand Vs. State of U.P.
775
vacancy". It is in view of conjoint reading
of the facts of the case as also Section 18,
on relevant time, and Order of 1981.

36. Accordingly, the appointment of
the petitioner by way of promotion on the
post of Lecturer, Sanskrit vide order dated
27.07.1985 was not against "substantive
vacancy" and being so, he is not entitled for
regularization w.e.f. 01.08.1985 (date of
joining) under Section 33-A (1-A) of the
Act, 1982.

37. In view of the reasons recorded
hereinabove, this Court is of the view that
the petitioner is not entitled to the reliefs
sought.

38. For the foregoing reasons, the writ
petition lacks merit. It is hereby dismissed
with no order as to costs.
----------
(2020)03-05ILR A775
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.03.2020

BEFORE

THE HON'BLE MANISH MATHUR, J.

Service Single No. 4336 of 1988

Ram Anand ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
D.P. Dewadi, U.C. Pandey

Counsel for the Respondent:
C.S.C.

(A) Service Law - U.P. Lekhpal Service
Rules, 1958 - Rule 212 and 214-B -
Chapter XIV - Land Record Manual -
Cancellation
of
Lekhpal
Examination
Certificate - Rule 5 and 212- of the -
petitioner was not held guilty of serious
misconduct in obtaining certificate which
can be the sole ground for cancellation of
certificate - no opportunity of hearing
provided - no provision either in Rules of
1958 or in Manual requiring a candidate to
have three years of experience as on
30.04.1980 for the purpose of admission
and
issuance
of
certificate
upon
completion of training in lekhpal schools
were given

The petitioner was granted appointment as a
Lekhpal on a temporary basis on a temporary
post in the year 1978 thereafter he took a
special lekhpal examination in the year 1981.
After verification it was found that as per the
Government Order dated 15.05.1980 he did not
completed three years of service as on
08.05.1980 as an untrained lekpal therefore his
certificate was cancelled and was subsequently
terminated from service. The non completion of
three years of service as on 30.04.1980 for the
purpose of admission and issuance of certificate
upon completion of training in a lekhpal schools
was laid down by aforementioned government
order and not by any statutory provision. The
condition imposed by the government order
restricts condition of appointment as required
under service rules. Such a fact exceeds the
authority of competent government since it has
effect of diluting or restricting the service
conditions indicated in the service rules, without
amendment to the same.

(B)
Interpretation
-
purposive
interpretation of subordinate legislation -
statutory provision cannot be diluted,
modified or overridden by government
order - government order can fill up the
gaps
and
supplement
the
rules
by
issuance of instructions no inconsistent
with the already existing rules

The condition imposed by the government order
dated
15.05.1980 is merely an enabling
provision which has been passed to enable
proper implementation of Rules 5 and 6 of the
Service Rules. Therefore the condition are to be
seen in its purposive character. It is apparent
that the entire purpose of the government order
was that a person entitles to be regularized in
service should have sufficient experience in the
776 INDIAN LAW REPORTS ALLAHABAD SERIES
field. In view of the facts of the case, the
petitioner as already cleared the certificate
examination in the year 1981 and was bereft of
required service for only one year, it can be
seen that the purpose of condition imposed by
the government order stood fulfilled. It is also
admitted that the at the time of passing of the
impugned order, petitioner had completed more
than 10 years of service and therefore to hold
him ineligible foe regularization only on the
basis that he had not completed requisite one
year extra service is unreasonable.

Writ Petition Allowed. (E-10)

List of cases cited:

1. Dr. Rajendra Singh Vs. St. of Punjab (2001) 5
SCC 482 (followed)

2. Vijay Singh & ors. Vs. St. of U.P. &ors. 2005
(23) LCD 1696(followed)

3. Afsar Shahin Vs. Basic Shiksha & ors. 2004
(22) LCD 1164(followed)

4. State of Haryana Vs. S.J. Bahadur (1972) 2
SCC 188

5. Abhiram Singh Vs. C.D. Commachen & ors.
(2017) 2 SCC 629 (followed)

6. EERA Vs. State (NCT of Delhi) & anr. (2017)
15 Supreme Court Cases 133(followed)

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. U.C. Pandey learned
counsel for petitioner and learned State
Counsel appearing on behalf of opposite
parties.

2. Petition has been filed against order
dated 13th May, 1988 and the order dated
15th February, 1988 whereby petitioner's
temporary services as Lekhpal have been
terminated. There was no interim order
granted to petitioner and the petitioner has
thereafter
attained
the
age
of
superannuation in the year 2012.

3. As per averments made in the
petition, petitioner was appointed as
Lekhpal in Tehsil Bikapur on Ist May,
1978
in
a
temporary
vacancy
and
subsequently appointment was made on
31st January, 1982 against permanent
vacancy of one Bhawani Prasad who
superannuated. It has been stated that
thereafter petitioner appeared in Special
Lekhpal Examination in the year 1981 and
completed the same but by means of
impugned orders, the training undergone by
petitioner
and
certificate
issued
in
pursuance thereof has been cancelled and
petitioner's services have been terminated
on account of the fact that he had not
completed three years of continuous service
as on 30th April, 1980 as required by the
Government order dated 15th May, 1980.

4. Learned counsel for petitioner has
submitted that it is an admitted fact that
petitioner was appointed in a temporary
vacancy on a temporary basis on Ist May,
1978. It has been further submitted that as
per the U.P. Lekhpal Service Rules, 1958,
the source of recruitment as required under
Rule 5 is only for a candidate to have
obtained the Patwari or Lekhpal School
certificate. Names of such candidates
having obtained the aforesaid certificate
were required to be included in the list
mentioned in Rule 6 for the purposes of
procedure for recruitment. Learned counsel
has also drawn attention to Rule 212 of
Chapter XIV of Land Records Manual
wherein
it
has
been
provided
that
candidates for admission to Lekhpals'
schools will be selected by the District
Officer of the District in which candidate
resides. Attention has also been drawn to
paragraph 214-B pertaining to cancellation
of Lekhpal Examination Certificate and the
conditions under which such cancellation
can be effected. Learned counsel for
3-5 All. Ram Anand Vs. State of U.P.
777
petitioner has further submitted that it is an
admitted fact that petitioner was prmitted to
complete the special lekhpal examination in
the year 1981 and was also issued a
certificate to that effect, which however has
been cancelled by means of the impugned
orders. In view of aforesaid provisions, it
has been submitted that cancellation order
being contrary to provisions of paragraph
214-B of the Land Records Manual is thus
liable to be quashed.

5. Learned counsel for petitioner has
submitted that the condition for completion
of three years in service prior to appearance
in the Lekhpal examination has been
incorporated in terms of the government
order dated 15th May, 1980 which is only
an enabling provision and can not run
counter to the specific service rules
governing the petitioner.

6. Learned State Counsel appearing
on behalf of opposite parties has rebutted
the submissions advanced by learned
counsel for petitioner with the submission
that petitioner's engagement in service was
on a purely temporary basis in terms of rule
7(3) read with 18(b) of the Rules of 1958.
It has been submitted that although there is
no provision in the service rules with
regard to requirement of a candidate having
completed three years in service as on 30th
April, 1980 but the same has been
introduced by means of government order
dated 15th May, 1980, which is not
contradictory to any service regulations. It
is an independent provision included by
government order and is thus required to be
seen in that light.

7. After consideration of submissions
advanced by learned counsel for parties and
perusal of record, it is evident that the
opposite parties have admitted the fact that
petitioner was granted appointment as a
Lekhpal purely on a temporary basis on a
temporary post in the year 1978. In the
counter affidavit filed to the amended
portion of writ petition, it has been
admitted that petitioner was allowed to
appear in the special lekhpal examination
in the year 1981 but after verification, it
was found that till the cut off date of 8th
May, 1980 as required by the government
order dated 15th May, 1980 he had
completed only two years of service as
untrained Lekhpal due to which the
certificate
issued
to
petitioner
was
cancelled.

8. A perusal of the entire counter affidavit
makes it evident that the only ground taken for
passing of impugned orders rests on the
government order dated 15th My, 1980 and the
fact that petitioner had not completed three
years of service as on the cut off date of 8th
May, 1980 provided by government order. No
other reason for passing of impugned orders
have been indicated either in the impugned
orders or in the counter affidavit. As such
adjudication in the present writ petition rests
only with regard to condition of three years
service having been rendered by petitioner in
terms of government order dated 15h May,
1980.

9. The U.P. Lekhpal Service Rules, 1958
specifically governs the service conditions of
petitioner. Rule 5 pertains to source of
recruitment while Rule 6 indicates procedure
for recruitment. Rule 8 pertains to educational
qualifications required. Admittedly petitioner
was appointed in terms of Rule 18(b) of the
aforesaid
rules
pertaining
to
temporary
vacancies read with Rule 7(3).

10. Regarding the source and
procedure of recruitment, Rules 5 and 6 of
the said Rules are as follows:-
778 INDIAN LAW REPORTS ALLAHABAD SERIES

"5. Source of recruitment.-- (1)
Only such candidates as have obtained the
patwari or lekhpal School Certificate and
whose names have been brought on the list
mentioned in Rule 6 shall be eligible for
appointment to the service.

(2)
Notwithstanding
anything
contained in sub-rule (1), persons who
belong to the category mentioned in
Paragraph
2(3)(d)
of
revenue
(B)
Department G.O. No.4434/B, dated April
27, 1953, and are working in a temporary
or officiating capacity, with or without
break in service, shall be deemed eligible
for appointment to the service.

(3) The ex-patwari who had a
good record of service and fulfil other
qualifications and conditions prescribed
for appointment shall also be eligible for
appointment to the service.

(4) Ex-patwaris shall be treated
as new candidates and shall not get the
benefit of their past service in any matter.

(5) Ex-patwaris who have already
been absorbed in the service shall be
deemed to have been appointed under these
rules.

6. Procedure for recruitment.-(1)
For purposes of recruitment, the Collector
shall maintain in the following form a list
of candidates who have passed the Patwari
or Lekhpal School Examination.

xxxx xxxx xxxx

(2) Necessary material for the
maintenance of this list shall be supplied
each year, as soon as examination results
are out, by the Collector in whose district
the Lekhpal School is located. The
Collection may, subject to the approval of
the Director, add to the list so received the
name of any other candidate who has
passed the Patwari of Lekhpal School
Examination.

(3) The names, in the list shall be
arranged
in
order
of
seniority
as
determined by the year of examination.
Seniority as between the candidates of the
same year shall be judged on the basis of
the aggregate marks obtained at the
examination. Where the aggregate marks
are equal, the seniority shall be determined
on the basis of age.

[(3-A) A district-wise list of expatwaris fulfiling the conditions laid down
in sub-rule (3) of Rule 5 shall be
maintained by each Collector. The names
in this list shall be arranged according to
the length of service. If the length of service
of two or more ex-patwaris is the same the
names shall be arranged according to age.

NOTE- If any is is already
maintained in this behalf under executive
orders of Government it shall be deemed to
be maintained under this sub-rule.

(4) The lists referred to the
examination and the Collector shall remove
the names of-

(a) Candidates who have received
permanent appointment;

(b) Other candidates for good
and sufficient reasons to be recorded in
writing;

(c) Those candidates in the list
prescribed in sub-rule (3) of Rule 6 who
have exceeded the maximum age-limit for
appointment."

11.

Provision
with
regard
to
admission, training and examination of
lekhpal school candidates is required to be
done in terms of Chapter XIV of the Land
Record Manual. Paragraph 212 of the
aforesaid chapter pertaining to candidates
for admission is as follows:-

"212. Candidates for admission-
(i) Candidates for admission to Lekhpal
Schools will be selected by the District
Officer of the district in which the
candidate resides.
3-5 All. Ram Anand Vs. State of U.P.
779

(ii) The candidates to be selected
must fulfil the conditions of nationality, as
defined under Part II of the Constitution of
India, and must have passed the Hindustani
Middle or Junior High School or an
equivalent or higher examination and shall
not be less than 17 years and not more than
21 years of age on or before the date of
admission

(iii) No candidate who has once
been enrolled in some Lekhpal School will
be admitted to another Lekhpal School
except for good and sufficient reasons if so
certified
by
the
offer-in-charge.
A
certificate of qualifications obtained by
concealment of the fact of previous
enrolment in another school shall be void."

12. A perusal of aforesaid statutory
provisions make it evident that there is no
provision either in the rules or in the land
record manual requiring a candidate to
have three years of service as on 30th
April, 1980 for purposes of admission and
issuance of certificate upon completion of
training in a lekhpal schools. The only such
condition which forms the basis of
impugned order is to be found in the
government order dated 15th May, 1980.

13. Hon'ble the Supreme Court in the
case of Dr. Rajendra Singh versus State
of Punjab reported in (2001) 5 SCC 482
has held that no government order,
notification or circular can be a substitute
of the statutory rules framed with the
authority of law. It has been further held
that following any other course would be
disastrous and would be against the
constitutional scheme and accepted service
jurisprudence. The relevant portion of the
judgment is as follows:-

"The settled position of law is
that no Government Order, Notification or
Circular can be a substitute of the statutory
rules framed with the authority of law.
Following any other course would be
disastrous inasmuch as it would deprive the
security of tenure and right of equality
conferred upon the civil servants under the
constitutional scheme. It would be negating
the so far accepted service jurisprudence.
We are of the firm view that the High Court
was not justified in observing that even
without the amendment of the rules, the
Class II of the service can be treated as
Class I only by way of notification.
Following such a course in effect amounts
to amending the rules by a Government
Order and ignoring the mandate of Article
309 of the Constitution."

14. Similarly a full bench of this
Court in the case Vijay Singh and others
versus state of U.P. and others reported in
2005 (23) LCD 1696 has held that it is a
settled legal proposition that executive
instructions can not over ride the statutory
provision
nor
can
be
issued
in
contravention of statutory rules for the
reason that an administrative instruction is
not a statutory rule nor does it have any
force of law. Relevant portions of the
judgment are as follows:-

" 6. It is settled legal proposition
that executive instructions cannot override
the
statutory
provisions
[Vide
B.N.
Nagrajan v. State of Mysore, AIR 1966 SC
1942; Sant Ram Sharma v. State of
Rajasthan and Ors., AIR 1967 SC 1910;
Union of India and Ors. v. Majji
Jangammyya and Ors., AIR 1977 SC 757;
B.N. Nagarajan and Ors. v. State of
Karnataka and Ors., AIR 1979 SC 1676;
P.D. Agrawal and Ors. v. State of U.P. and
Ors., (1987) 3 SCC 622; M/s. Beopar
Sahayak (P) Ltd. and Ors. v. Vishwa Nath
and Ors., AIR 1987 SC 2111; State of
780 INDIAN LAW REPORTS ALLAHABAD SERIES
Maharashtra
v.
Jagannath
Achyut
Karandikar, AIR 1989 SC 1133; Paluru
Ramkrishananiah and Ors. v. Union of
India and Ors., AIR 1990 SC 166;
Comptroller and Auditor General of India
and Ors. v. Mohan LalMalhotra and Ors.,
AIR.1991 SC 2288; State of Madhya
Pradesh v. G.S. Dall and Flour Mills, AIR
1991 SC 772; Naga People's Movement of
Human Rights v. Union of India and Ors.,
AIR 1998 SC 431; C. Rangaswamaeah and
Ors. v. Karnataka Lokayukta and Ors., AIR
1998 SC 96.]

7. Executive instructions cannot
amend or supersede the statutory rules or
add something therein, nor the orders be
issued in contravention of the statutory
rules for the reason that an administrative
instruction is not a statutory Rule nor does
it have any force of law; while statutory
rules have full force of law provided the
same are not in conflict with the provisions
of the Act. (Vide State of U. P. and Ors. v.
Babu Ram Upadhyaya, AIR 1961 SC 751;
and State of Tamil Nadu v. M/s. Hind Stone
etc., AIR 1981 SC 711)."

15. This court in the case of Afsar
Shahin versus Basic Shiksha Parishad
and others reported in 2004 (22) LCD
1164 has also held to the same effect that a
statutory provision can not be diluted,
modified or overridden by government
orders which fall within domain of the
government under executive functions.

16. Upon applicability of aforesaid
judgments,
as
is
evident
the
only
requirement
not
being
fulfilled
by
petitioner
for
continuance
and
regularization in service has been imposed
by government order dated 15th May,
1980. It is thus seen that requirement of
three years of service as on 30th April,
1980 has been imposed for the first time by
means of the aforesaid government order.
As has been held by aforesaid judgments of
Hon'ble the Supreme court, such a
condition restricting the conditions of
appointment under Rules 5 and 6 of the
Service Rules of1958 could not have been
imposed without necessary amendment in
the relevant provision of Rule.

17. Learned State Counsel has
however placed reliance upon judgment of
Hon'ble Supreme Court in the case of State
of Haryana versus S.J. Bahadur reported
in (1972) 2 SCC 188 wherein it has been
held that while the government can not
amend or supercede the statutory rules by
administrative instructions, at the same
time if the rules are silent on any particular
point, the government can very well fill up
the gaps and supplement the rules by
issuance of instructions not inconsistent
with the rules already framed.

18. So far as aforesaid submission is
concerned, it is evident that the judgment
would be applicable only where rules are
silent on any particular point which is a
necessary requirement for the purposes of
appointment and such instructions can be
issued which are not inconsistent with the
rules already framed. While there is no
dispute with regard to the aforesaid
proposition of law as held by Hon'ble the
Supreme court but at the same time it is
also a relevant issue as to whether the
government order dated 15th May, 1980
merely fills in a gap or dilutes the very
condition of appointment envisaged under
the extant service rules. In the present case,
it is evident that the condition imposed by
the government order restricts conditions of
appointment as required under service
rules. Such a fact exceeds the authority of
competent government since it has effect of
diluting or restricting the service conditions
3-5 All. Ram Anand Vs. State of U.P.
781
indicated in the service rules, without
amendment to same. This can not be done
in view of judgments of Hon'ble the
Supreme court indicated herein above.

19. The matter can be examined from
another aspect as well that the condition
imposed by the government order dated
15th May, 1980 is merely an enabling
provision and has been passed to enable
proper implementation of Rules 5 and 6 of
the Service Rules. As such the conditions
imposed by government order are to be
seen in its purposive character.

20. With regard to purposive
interpretation of statute or subordinate
legislation, Hon'ble the Supreme Court in
Abhiram Singh versus C.D. Commachen
and others reported in (2017) 2 SCC 629
has held as follows:-

"37. In the same decision, Lord
Steyn suggested that the pendulum has
swung
towards
giving
a
purposive
interpretation to statutes and the shift
towards purposive construction is today not
in doubt, influenced in part by European
ideas, European community jurisprudence
and European legal culture. It was said: [R.
(Quintavalle) case [R. (Quintavalle) v.
Secy. of State for Health, 2003 UKHL 13 :
(2003) 2 AC 687 : (2003) 2 WLR 692
(HL)] , AC p. 700 C-F, para 21]

"21... the adoption of a purposive
approach
to
construction
of
statutes
generally, and the 1990 Act [Human
Fertilisation and Embryology Act, 1990] in
particular, is amply justified on wider
grounds. In Cabell v. Markham [Cabell v.
Markham, 148 F 2d 737 (2d Cir 1945)]
Learned Hand, J. explained the merits of
purposive interpretation [at p. 739]:

"Of course it is true that the
words used, even in their literal sense, are
the primary, and ordinarily the most
reliable, source of interpreting the meaning
of any writing: be it a statute, a contract, or
anything else. But it is one of the surest
indexes of a mature and developed
jurisprudence not to make a fortress out of
the dictionary; but to remember that
statutes always have some purpose or
object to accomplish, whose sympathetic
and imaginative discovery is the surest
guide to their meaning."

The pendulum has swung towards
purposive methods of construction. This
change was not initiated by the teleological
approach
of
European
Community
jurisprudence,
and
the
influence
of
European legal culture generally, but it has
been accelerated by European ideas: see,
however, a classic early statement of the
purposive approach by Lord Blackburn in
River Wear Commissioners v. Adamson
[River Wear Commissioners v. Adamson,
(1877) LR 2 AC 743 at p. 763 (HL)] . In
any event, nowadays the shift towards
purposive interpretation is not in doubt.
The qualification is that the degree of
liberality permitted is influenced by the
context, e.g. social welfare legislation and
tax statutes may have to be approached
somewhat
differently."
(emphasis supplied)

xxxx

 xxxx

 xxx

39. We see no reason to take a
different view. Ordinarily, if a statute is
well drafted and debated in Parliament
there is little or no need to adopt any
interpretation
other
than
a
literal
interpretation of the statute. However, in a
welfare State like ours, what is intended for
the benefit of the people is not fully
reflected in the text of a statute. In such
legislations, a pragmatic view is required to
be
taken
and
the
law
interpreted
782 INDIAN LAW REPORTS ALLAHABAD SERIES
purposefully and realistically so that the
benefit reaches the masses. Of course, in
statutes that have a penal consequence and
affect the liberty of an individual or a
statute that could impose a financial burden
on a person, the rule of literal interpretation
would still hold good."

21. Similarly in the case of EERA
versus State ( NCT of Delhi) and another
reported in (2017) 15 Supreme Court Cases
133, while following the judgment of
Abhiram Singh (supra), it has been held as
follows:-

" 30. The above expansion of
purposive
interpretation
has
been
approvingly quoted by the majority in
Abhiram
Singh
v.
C.D.
Commachen
[Abhiram Singh v. C.D. Commachen,
(2017) 2 SCC 629 : (2017) 2 SCC (Civ) 68]
and that is why Section 123(3) of the
Representation of the People Act, 1951 has
been construed keeping in view electoratecentric interpretation rather than candidatecentric one. The submission is that the
purposive interpretation has become the lan
vital of statutory interpretation because of
progressive social climate and the Judges'
statesmanship. Krishna Iyer, J., in his
inimitable style, had said ?when legislative
purpose or intention is lost, then the
process of interpretation is like to adorn the
skin, and to miss the soul?. A court has to
be progressive in its thought and should
follow the path of construction that
comprehensively meets the legislative
intention. If a Judge gets stuck with the
idea that construction is the safest, the
enactment is not fructified, the purpose is
missed and the soul is dismissed. A narrow
construction of a concept invites a hazard
whereas a broad exposition enlarges the
sweep and achieves the statutory purpose.
These are certain abstractions. It will apply
in a different manner in different statutes,
like Tax law, Penal law, Social Welfare
legislation, Excise law, Election law, etc.
That apart, the law intends to remedy a
mischief. It also sets goal and has a
remedial intent. It also states certain things
which clearly mean what has been said. In
that case, there is no room for the Judge
and solely because he is a constructionist
Judge, cannot possess such tool to fly in the
realm of fanciful area and confer a different
meaning. His ability to create in the name
of judicial statesmanship is not limitless. It
has boundaries. He cannot afford to
romance all the time with the science of
interpretation. Keeping these aspects in
mind, I shall presently refer to some
authorities where purposive construction
has been adopted and where it has not been
taken recourse to and the cardinal principle
for the same."

22. Although the aforesaid judgments
pertained to interpretation of statute viz-aviz the Constitution of India but the same
can be made applicable in the present case
in view of the fact that statutory provisions
regarding appointment have been sought to
be diluted or conditions imposed by means
of administrative orders.

23. In the light of aforesaid judgments
of Hon'ble the Supreme court, it can be
seen that the purpose of imposing the
condition as indicated in the government
order is only for a candidate to have
necessary experience in the filed or subject
prior to which he can be considered for
regularization.

24. In the present case, it is admitted
by opposite parties that petitioner was not
only enrolled in the certificate examination
but had successfully cleared the same in
1981. It is also admitted between parties
3-5 All. Ram Anand Vs. State of U.P.
783
that petitioner had completed two years of
service as on 30th April, 1980. The only
deficiency was with regard to one year
service which was yet to be rendered by
petitioner as on the cut off date.

25. If seen through the spectrum of
purposive construction of any provision, it
is apparent that the entire purpose of the
government order was that a person entitled
to be regularized in service should have
sufficient experience in the field. In view of
the fact that petitioner has already cleared
the certificate examination in the year 1981
and was bereft of required service for only
one year, it can be seen that the purpose of
condition imposed by the government order
dated 15th May, 1980 stood fulfilled by the
petitioner.

26. It is also an admitted factor that at
the time of passing of the impugned order,
petitioner had completed more than 10
years of service and therefore to hold him
ineligible for regularization only on the
basis that he had not completed requisite
one year extra service is unreasonable.

27. Another aspect of the matter as
submitted by learned counsel for petitioner
is that petitioner was permitted to be
admitted and trained in terms of paragraph
212 of Chapter XIV of the land record
manual whereafter he has successfully
completed the examination and was issued
the certificate thereof in the year 1981.
Once a lekhpal examination certificate has
been issued, the same can be cancelled only
in terms of paragraph 214-B of Chapter
XIV of land record manual which imposes
the following conditions:-

"214-B. Cancellation of Lekhpal
Examination Certificate- The Director
may, at any time, cancel the Lekhpal
Examination Certificate of a candidate if
he is satisfied on the report of the collector
that the candidate has been guilty of
serious
misconduct
in
circumstances
connected with his securing the certificate;
provided that no candidate's certificate will
be cancelled unless either his explanation
has been taken or he refuses to give his
explanation or is not traceable. The
Director may also report his case to
Government for debarring him from service
under the State Government."

28. Upon a perusal of the aforesaid
provision, it is clear that there is no
allegation against petitioner of serious
misconduct
regarding
circumstances
connected with his securing the certificate.
It is also not the case of opposite parties
that any opportunity of hearing was
provided to petitioner prior to passing of
the
impugned
orders.
As
such
the
conditions required for cancellation of
lekhpal examination certificate also do not
stand fulfilled in case of petitioner.

29. In view of aforesaid facts, it is
apparent that the impugned order has been
passed in violation of statutory provisions
and without considering the purposive
construction of the government order dated
15th May, 1980.

30. In view of the aforesaid, a writ in
the nature of certiorari is issued quashing
the orders dated 13th May, 1988 and 15th
February, 1988. Since the petitioner has not
actually performed the duties of post
subsequent to passing of the impugned
orders, he shall not be entitled to any salary
for the said period but would be entitled to
pensionary benefits of the post including
pension with allowances with effect from
the date of superannuation, as admissible
and revised from time to time. The service
784 INDIAN LAW REPORTS ALLAHABAD SERIES
period
between
15.2.1988
till
superannuation shall count as qualifying
service for calculation of pensionary
benefits. Orders pertaining to same shall be
passed within a period of two months from
the date a copy of this order is produced
before the competent authority.

31. Consequently, the writ petition
stands allowed.
----------
(2020)03-05ILR A784
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2020

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Service Single No. 6603 of 2010

Shailendra Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
V.K. Bajpai, Alok Gupta, Richa Srivastava,
Sanjay Kumar Srivastava, Shailendra Kumar
Singh, Shikha Srivastava, Suneel Kumar
Singh Kalhan, Yogendra Kumar Mishra

Counsel for the Respondents:
C.S.C., Shubham Gupta

(A) Compassionate Appointment - should not
be provided after an expiry of 22 and a half
years of the death of the petitioner's father -
can be considered as per the scheme/rule
applicable at the time of death of employee.

When the father of the petitioner expired on
17.05.1986, there was no Rule or statutory
provision for appointment on compassionate ground
existed in an unaided school/college covered under
the U.P. Intermediate Education Act, 1921.
Therefore, no such vested right accrued after the
death of the petitioner's father. Thereafter the
School/Institution was taken up in grant-in-aid in
01.04.1996. Even after the appointment of the
petitioner in the year 2008, no such provision or rule
existed for appointment of dependent of deceased
in an unaided school/college covered under the U.P.
Intermediate
Education
Act,
1921
which
subsequently taken up in grant. However, till date
no such provision has come up in this regard.The
appointment of the petitioner is not only in violation
of Regulation 105 under Chapter III of the Act,
1921 as it is without the recommendation of the
Committee
required
for
appointment
on
compassionate grounds but has been filed belatedly
after an expiry of 22 and a half years of the death of
the petitioner's father.

(B) Appointment - in violation of Rules
and Article 14 and 16 of the Indian
Constitution are void

Writ Petition Rejected. .(E-10)

List of cases cited:

1. Rani Srivastava Vs. St. of U.P. 1989 SCC
OnLine All 535 : (1990) 1 LLN 633 : (1990) 16
ALR 357 : (1990) 1 AWC 342

2. Abdul Qadir Vs. St. of U.P. Special Appeal No.
264 of 2017 (followed)

3. Umesh Kumar Nagpal Vs. St. of Haryana
(1994) 4 SCC 138(followed)

4. Commissioner of Public Instructions Vs. K.R.
Vishwanath (2005) 7 SCC 206(followed)

5. St. of J & K Vs. Sajad Ahmad Mir (2006) 5
SCC 766 : 2006 (6) AWC 6209 (SC) (followed)

6. V. Shivamurthy VS. St. of A.P. (2008) 13 SCC
730(followed)

7. UOI Vs. Shashank Goswami (2012) 11 SCC
307: 2012 (5) AWC 4734 (SC) (followed)

8. Chief Commissioner, Central Excise &
Customs, Lucknow Vs. Prabhat Singh (2013) (5)
AWC 5062 (SC) (followed)

9. MGB Gramin Bank Vs. Chakrawarti Singh
(2014)
13
SCC
583:
AIR
2013
SC
3365(followed)